                 Not for Publication in West's Federal Reporter

           United States Court of Appeals
                        For the First Circuit


No. 14-1855
                              RAFAEL ARROYO,

                         Plaintiff, Appellant,

                                      v.

                           CAROLYN W. COLVIN,

          Commissioner of Social Security Administration,

                          Defendant, Appellee.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF PUERTO RICO

          [Hon. Francisco A. Besosa, U.S. District Judge]




                               Before
                  Torruella, Hawkins,* and Barron,
                          Circuit Judges.




     Juan M. Frontera-Suau, with whom Kenneth Colón and Frontera
Suau Law Offices, PSC, were on brief for appellant.
     Fidel A. Sevillano Del Río, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, and Tiffany V. Monrose, Assistant United
States Attorney, were on brief, for appellee.

*   Of the Ninth Circuit, sitting by designation.
March 4, 2016
     HAWKINS, Circuit Judge.                Plaintiff Rafael Arroyo ("Arroyo")

 appeals the district court's grant of summary judgment to the

 United     States    Social      Security        Administration      ("Defendant").

 Arroyo alleges Defendant failed to promote him in retaliation for

 activities he undertook as a union representative on behalf of

 others and for his own EEOC complaints.                   We affirm.

                      STATEMENT OF PROCEDURAL HISTORY
                           AND UNCONTESTED FACTS


     Plaintiff       has    been       employed     with    the    Social      Security

Administration       ("agency")        in    various   capacities       since       1991,

working as a Teleservice Representative in the San Juan Teleservice

Center ("TSC") from 1991 through 2003, and being promoted to grade

GS–8 level in April 1999.             Since May 2003 he has been employed as

a Claims Representative, grade GS–11, in the Hato Tejas Branch

Office.     Between 1993 and 2012, plaintiff represented other agency

employees in Equal Employment Opportunity ("EEO") grievances and

other labor matters.             Arroyo v. Colvin, No. 12-1846, 2014 WL

2615750, at *1 (D.P.R. June 12, 2014).

     Between     1997      and    2011,      plaintiff      applied     for    numerous

promotions, but was not awarded any of the positions.                    After filing

several claims with the Equal Employment Opportunity Commission

("EEOC"),    Arroyo     filed     a    federal     complaint      against     Defendant

alleging     retaliation         and     gender      discrimination,          and    also

referencing age discrimination.


                                            -3-
     Defendant moved for summary judgment, which the district

court granted, concluding that even if Arroyo had established a

prima facie case of retaliation, he had not presented evidence

that could carry his burden of proving that the legitimate,

nondiscriminatory reasons proffered for promoting other candidates

were merely pretext for retaliation.     Id. at *1-3.   Arroyo timely

appealed; only his retaliation claims are at issue on appeal.

                        STANDARD OF REVIEW

     We review a grant of summary judgment de novo.      Alvarado v.

Donahoe, 687 F.3d 453, 458 (1st Cir. 2012).     Summary judgment is

appropriate if the pleadings and evidence show that there is no

genuine issue of material fact and the moving party is entitled to

judgment as a matter of law.   Borges ex rel. S.M.B.W. v. Serrano-

Isern, 605 F.3d 1, 4 (1st Cir. 2010).

                            DISCUSSION

     To prove a claim of retaliation, Arroyo must establish that

(1) he engaged in a protected activity; (2) experienced an "adverse

employment action"; and (3) there was a "causal connection between

the protected conduct and the adverse employment action."    Calero-

Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25 (1st Cir. 2004).

If Arroyo establishes a prima facie case, then the Defendant must

articulate a legitimate, nondiscriminatory reason for its actions,

Soto-Feliciano v. Villa Cofresí Hotels, Inc., 779 F.3d 19, 30 (1st

Cir. 2015), and the burden returns to the plaintiff to demonstrate


                                -4-
that the agency's reasons were pretextual.                 Id. at 31.        There is

no dispute that Arroyo engaged in a protected activity and that

failure to promote can be an adverse employment action, thus his

appeal      centers       around   whether      the     agency’s     reasons      were

pretextual.

A.    Case # 99-02231

      This EEOC complaint involved a failure to promote under two

different vacancy announcements in March and April 1997, one

involving     a    single    position    which    was    withdrawn     and    another

involving     eleven      positions     in   which    Arroyo   was    one    of   many

candidates on the best-qualified list but ultimately not selected

for   any     of    the     positions.         Even   assuming       that    Arroyo's

representation of employees in EEOC grievances is sufficient to

create a prima facie case of retaliation,2 Arroyo did not create a


1    The parties and the district court refer to Arroyo's claims
based on the EEOC case numbers, and we do the same.
2    Arroyo claims that he has established a prima facie case of
causal connection because of the temporal proximity of his
activities as a union representative and his failure to receive
the promotions. However, Arroyo’s affidavit is somewhat vague and
broken into three separate periods of time: "Since around 1993
approximately until 1995 plaintiff represented union employees in
EEO grievances and other labor related matters against the agency
and its officials," "Since 1995 until 2009 plaintiff represented
several employees in EEO processes within the agency," and finally,
referring to a list of all cases he had been involved in from 2009
until July 2012. The district court concluded that these dates
were too vague and imprecise to create a strong inference of
causality all the way from 1993 to 2012. The court noted that
there was no evidence that his representation was continuous, as
Arroyo could have represented one employee in 1995 and another in
1999 or not until 2009. Arroyo, 2014 WL 2615750, at *5-6. We


                                         -5-
material issue as to whether the Defendant's legitimate, non-

discriminatory   reasons    for   declining     to   promote   him    were

pretextual.

     With respect to the single vacancy for a claims representative

in the St. Croix office, the vacancy was cancelled because one of

the current claims representatives had planned to transfer to

Florida but changed her mind.     Three of the eleven other vacancies

were hired by Ms. Hernández, who indicated she had personal

experience working with each of the three persons she hired,

including one who was a former secretary, and she had no personal

experience working with Mr. Arroyo.            Hernández indicated she

considered Arroyo for the position, but there was "nothing in his

application that stood out when compared to those selected."

     Three other claims representative positions were filled by

Ms. Montalvo, who due to staffing limitations was unable to select

any applicant "not employed in the Mayagüez district" and made her

decision   entirely   on   seniority    when   selecting   among     those

applicants.   Montalvo stated she did not consider Arroyo or any

other applicant outside the Mayagüez district.




need not resolve this issue because, as discussed below, even
assuming Arroyo established a prima facie case, the court correctly
granted summary judgment to the Defendant on alternate grounds.




                                  -6-
         Mr. Siaca selected two applicants to fill positions in the

Arecibo office, choosing one who was the service representative

with the most seniority in the Arecibo office and another, who was

a current claims representative, and thus better qualified than

other         candidates.             Siaca        indicated       he    considered       all     the

applicants on the Best Qualified List, including Arroyo, but

"nothing in his record made him stand out."

         Mr.    Negrón          hired   the        final    three       claims    representative

positions.           He hired one individual for the Caguas office who was

already        performing          well       in     that    office       based     on    his     own

observations and those of a supervisor, another individual who had

fifteen to twenty years of experience and was highly recommended

by   a    supervisor,            and    another       for    the     Cayey       office    who    had

previously been a well-performing claims representative in that

office but had resigned for medical reasons and had to come back

to   work       as     a    service       representative            instead.        Negron       also

indicated he considered Arroyo for the positions but nothing in

his application "stood out."

         In     each        instance,         Defendant         offered          legitimate       and

nondiscriminatory reasons for promoting other individuals.                                       See

Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243, 250 (1st Cir.

1997)     ("[W]e           do   not     assume       the    role    of     a    super     personnel

department,           assessing         the    merits—or        even      the     rationality—of

employers'           nondiscriminatory               business       decisions.")          (internal


                                                    -7-
citations and quotations omitted).             Arroyo introduced no evidence

or facts which would enable a jury to find that these reasons were

a    sham    to    cover   up   retaliation    against    him.       Meléndez   v.

Autogermana, Inc., 622 F.3d 46, 52 (1st Cir. 2010).

B.     Case # 00-0489

       In March 2000, Arroyo applied for a promotion to one of five

claims representative positions.               He was included on the Well

Qualified List but not selected.           His complaint alleged he was not

selected because of his gender and in reprisal for his prior EEO

activity.         He appeals only the retaliation claim.

       Mr.    Caraballo     hired   an   individual      to   fill   the   claims

representative position in the small St. Croix office.                 Caraballo

indicates he selected this individual because she worked in the

office already, had received numerous performance awards for her

service, and was also familiar with and involved in the Virgin

Islands community.          Mr. Negrón hired the remaining four claims

representative positions, indicating he selected persons based on

personal observations of their work, supervisors' reports, and

longevity of service (over nineteen years each), whereas Arroyo

had only nine years of experience at the time.

       Although Arroyo complains that the reasons given suggest the

agency is promoting friends instead of using merit-based criteria,

there is nothing to suggest that the proffered reasons are really

pretext for retaliation against Arroyo.            See Vélez v. Thermo King


                                         -8-
de Puerto Rico, Inc., 585 F.3d 441, 452 (1st Cir. 2009) (plaintiff

must    do   more    than   "impugn   the   veracity   of   the     employer's

justification; he must elucidate specific facts which would enable

a jury to find that the reason given is not only a sham, but a

sham intended to cover up the employer's real [and unlawful] motive

of     discrimination")     (citation   and   quotation     marks    omitted)

(alteration in original).

C.     Case No. 09-0500

       In January 2009, Arroyo applied for a promotion to San Juan

TSC Supervisor (GS-12).          Arroyo had worked as a teleservice

representative (GS-8) in the San Juan TSC 1999-2003 and as a claims

representative (GS-11) in the Hato Tejas office 2003-2009.                The

hiring decisionmaker, Ms. Carrasquillo, selected a person with a

total of seventeen years of experience in San Juan TSC, including

four positions of increasing responsibility (GS-8 to GS-12).              Ms.

Carrasquillo stated she was looking for a candidate who had

significant experience working at TSC.         Arroyo only had four years

of experience at TSC, and that was several years prior and at a

lower level.        Again, Arroyo has not offered any evidence beyond

temporal proximity that would create an issue of fact as to whether

Defendant's explanation of its hiring decision was pretextual.

Pointe v. Steelcase Inc., 741 F.3d 310, 323 (1st Cir. 2014).               On

these facts, he has failed to bear his burden of demonstrating

that the reasons proffered for selecting the other candidate were


                                      -9-
"not the true reason for the employment decision."                      Texas Dep't

of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).

D. Case # 11-0675

     Arroyo's       final   case   involves      his    failure    to    receive   a

promotion to Deputy TSC Manager in February 2011. The hiring

decisionmaker, Ms. Hachicho, stated that she was looking for

someone with supervisory experience for the position because in

the absence of the manager, the deputy manager would run the entire

office. Hachicho was also looking for someone with claims process

experience, because the deputy manager would supervise the claims

representatives.       According to Hachicho, the individual she hired

was by far the strongest candidate because she possessed both

supervisory experience and claims taking experience.                     Arroyo had

the claims experience, but did not have any formal supervisory

experience.     Hachicho stated that if an applicant did not have

both,   she   put    them   to   the   side    and     focused    instead   on   the

applicants who met both criteria.             Again, the agency has proffered

a legitimate reason for promoting someone instead of Arroyo and

there is no evidence suggesting this was merely pretext for

retaliation.

     For the foregoing reasons, we agree with the district court

that "viewing the summary judgment record as a whole, no rational

jury could find that plaintiff was denied the promotions in

question because of his protected activity" in light of the


                                       -10-
sufficient   nondiscriminatory   reasons   given   by   the   Defendant.

Arroyo, 2014 WL 2615750, at *17.

     AFFIRMED.




                                 -11-
