          United States Court of Appeals
                     For the First Circuit
No. 17-1431

                     MARISOL MICHEO-ACEVEDO,

                      Plaintiff, Appellant

                               v.

                STERICYCLE OF PUERTO RICO, INC.,

                      Defendant, Appellee,

          ANGEL RIVERA-MORALES; OSVALDO SANTANA-RIVERA,

                           Defendants.


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

        [Hon. Jay A. García-Gregory, U.S. District Judge]


                             Before

                  Torruella, Lynch, and Barron,
                         Circuit Judges.


     Juan Rafael González-Muñoz, with whom Carlos M. Vergne-
Vargas, Juan C. Nieves-González, and González-Muñoz Law Offices,
PSC were on brief, for appellant.
     Tacy F. Flint, with whom Luis D. Ortiz Abreu, Javier G.
Vázquez Segarra, Goldman Antonetti & Córdova, LLC, Brian J. Gold,
Natalie C. Chan, and Sidley Austin LLP were on brief, for
appellant.

                          July 27, 2018
            BARRON,     Circuit    Judge.          Marisol     Micheo-Acevedo

("Micheo")    appeals     an   order    granting     summary    judgment    to

Stericycle of Puerto Rico ("Stericycle") and other defendants on

her claims under Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e et seq. ("Title VII"), and dismissing without

prejudice her related pendent Puerto Rico law claims.             We affirm.

                                       I.

            Stericycle's services include managing medical waste for

hospitals. In April 2012, Stericycle hired Micheo as a field sales

representative.       A little less than a year later, in March 2013,

Stericycle launched a program called "BioSystem," to which Micheo

was then assigned in March 2013.            Under that program, through

contracts    with   hospitals,    Stericycle   installed       containers   to

dispose of sharp, biomedical objects like syringes.

            Stericycle terminated Micheo's employment in January

2014.   Micheo brought suit against the company and two of its

managers in the District Court for the District of Puerto Rico on

February 3, 2015.         She alleged violations of Title VII, the

Americans with Disabilities Act, 48 U.S.C. §§ 12101, et seq., the

Family and Medical Leave Act, 29 U.S.C. §§ 2601-54, and six Puerto

Rico laws, P.R. Laws Ann., tit. 29, §§ 146 et seq., 185(a) et seq.,

194 et seq., 1321 et seq.; P.R. Laws Ann. tit. 1, §§ 501 et seq.,

511 et seq.




                                   - 2 -
           On July 11, 2016, the defendants filed a motion for

summary judgment as to all of Micheo's claims.                Micheo then filed

a motion to strike the defendants' summary judgment motion pursuant

to Rule 56 of the Local Rules for the District Court of Puerto

Rico ("Local Rule 56"), which requires that such motions provide

citations to supporting record evidence. The District Court denied

Micheo's motion.

           Several months later, on November 14, 2016, Micheo filed

an opposition to the defendants' motion for summary judgment.

Micheo argued that summary judgment was not warranted on her Title

VII   claims   and   her   related    Puerto     Rico   law   claims,    but   she

abandoned her other federal and Puerto Rico law claims.

           On March 31, 2017, the District Court issued an order

that granted the defendants' motion for summary judgment as to

Micheo's Title VII claims, dismissed with prejudice the federal

and Puerto Rico law claims that Micheo had abandoned, and dismissed

without   prejudice    Micheo's      remaining    pendent     Puerto    Rico   law

claims.   This appeal then followed.

                                      II.

           We start with Micheo's Title VII claim for gender-based

disparate treatment. Because Micheo put forward no direct evidence

of discrimination, the District Court applied the familiar burden-

shifting framework set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973), in considering the defendants' motion to


                                     - 3 -
grant summary judgment as to this claim.          Under that framework, to

survive summary judgment, Micheo must show that there is a genuine

issue of disputed material fact with respect to, among other

things, whether her employer subjected her to an adverse employment

action.      See Lockridge v. The Univ. Of Maine Sys., 597 F.3d 464,

470, 472 (1st Cir. 2010).

              We review the District Court's grant of summary judgment

de novo.      Colón v. Tracey, 717 F.3d 43, 49 (1st Cir. 2013).             In

performing that review, we must draw "all reasonable inferences

. . . in favor of the non-moving party," but we are "not obliged

to accept as true or to deem as a disputed material fact, each and

every       unsupported,     subjective,    conclusory,        or   imaginative

statement made to the Court by a party."                Torrech-Hernández v.

Gen. Elec. Co., 519 F.3d 41, 47 (1st Cir. 2008) (emphasis omitted).

              Micheo argued that the defendants subjected her to an

adverse employment action by passing her over for a promotion from

her position as a field sales representative in Stericycle's

BioSystem Program to the position of "Project Manager" or "Program

Manager" of the Integrated Waste Stream Solutions ("IWSS"),1 an

initiative within the BioSystem Program.               She contends that the

defendants      gave   the   position   instead   to   Jorge    Rodríguez-Toro


        1
       The parties and the District Court refer to this position
variously as "Program Manager" and "Project Manager."        For
simplicity, we refer to this position as "IWSS Program Manager"
throughout.


                                    - 4 -
("Rodríguez"),     who    was   at    that    time    also     a    field   sales

representative in the BioSystem Program.

          The denial of a promotion to a position can constitute

an adverse employment action.         See Cartagena v. Sec'y of Navy, 618

F.2d 130, 134 (1st Cir. 1980).         The District Court, however, found

that, because there was no basis for finding that the position of

IWSS Program Manager existed, Micheo could not show that there was

a genuine issue of material fact as to whether she had been denied

a promotion to it.       And we agree.

          In     challenging    the    District      Court's       conclusion   on

appeal, Micheo does not argue that the fact that Rodríguez held

himself out as holding the title of IWSS Program Manager -- as the

record shows that he did -- suffices to create a genuine issue of

material fact as to whether the position at issue existed, such

that the defendants' refusal to promote her to it constituted an

adverse employment action.       Indeed, the record shows that Micheo

also held herself out as holding a supervisory title -- namely, as

"Sharps Management System Supervisor" -- and she does not contend

that the title that Rodríguez held himself out as holding was in

and of itself more prestigious than the one she held herself out

as holding.    Micheo also fails to identify any evidence that would

contradict the sworn affidavit of Stericycle's Human Resources

manager that, based on her own knowledge and review of Stericycle's

payroll records, Stericycle at no point established such a position


                                      - 5 -
on its payroll. Micheo instead makes just two arguments to support

her contention that the IWSS Program Manager position existed,

which she agrees is the necessary predicate for her contention

that she was treated adversely by not being promoted to it.

           First, Micheo argues that a jury reasonably could find

on this record that Stericycle gave Rodríguez a higher salary in

return for performing the duties of IWSS Program Manager and thus

that the position existed even if it was not formally designated

as one on the company's payroll.             Second, Micheo argues that a

jury could reasonably infer that the position of IWSS Program

Manager existed from the evidence in the record that she says would

permit a jury to find that, during the time period in which she

was working in the BioSystem Program and Rodríguez was holding

himself out as having that title, he was acting as her supervisor.

           We start with what the record shows with respect to the

pay that Rodríguez received while he was at the company.             Prior to

the creation of the BioSystem Program, Stericycle hired Rodríguez

and Micheo as field sales representatives and paid each of them

the same salary, $27,000.      Then, sometime in 2013, Rodríguez was

promoted   to   a   new   position    within    the   company   --   namely,

transportation supervisor -- for which he received a higher salary.

           There is no dispute, however, that Rodríguez received

his promotion to this position -- and the salary increase that

came with it -- before either Micheo or Rodríguez began working in


                                     - 6 -
the BioSystem Program as field sales representatives.                  Thus, the

fact that he received a higher salary for his promotion to the

position of transportation supervisor obviously provides no basis

for finding that the position of IWSS Program Manager in the

BioSystem Program existed.

           The     record      does   show    that    Rodríguez      was    later

transferred from his position as transportation supervisor to the

BioSystem Program.        And the record further shows that, following

that transfer, Rodríguez held himself out as being the IWSS Program

Manager even though he was formally designated as a field sales

representative, like Micheo was.          But, while Micheo contends that

Rodríguez continued to receive his higher salary after he had been

transferred into the BioSystem Program, and during the time he was

holding himself out as the IWSS Program Manager, the record does

not provide a basis for so concluding.

           Micheo    bases      her    contrary      assertion      entirely    on

Rodríguez's own deposition testimony, but we do not see how it

says what she contends that it does. In that deposition, he agreed

that, following his transfer to the BioSystem Program from his

prior   position    as    Transportation      Supervisor,     his    salary    was

"reduced   back    down   to   the    $27,000.00     in   Sales."     And   while

Rodríguez did then offer the caveat in his testimony that "what I

don't know is if, if it went back to my base salary when, when I

began with," he was clear that "there was an adjustment" downwards


                                      - 7 -
in his salary in consequence of his having been transferred from

the position for which he had received the salary increase to his

new position in sales in the BioSystem Program.           In fact, when he

was asked later on in the deposition whether he was paid more to

be the IWSS Program Manager, he testified that he was not.

           That leaves only Micheo's contention that the position

of IWSS Program Manager existed because the record would permit a

jury to find that Rodríguez supervised her while she worked in the

BioSystem Program.      In making that assertion, Micheo relies on

copies of emails from Rodríguez to her that requested that she

provide him with information about her performance of her duties.

           The District Court concluded, however, that the emails

showed only that "at times [Rodríguez] was told to 'verify with

[Micheo] how it went in [a specific hospital]' . . . because Ms.

Micheo was not performing her duties as directed and Mr. Rodríguez

was told to follow up on her work[.]"            And, the District Court

then   determined,     while   such   requests     were   "sufficient      to

inconvenience . . . Micheo," they were "insufficient to show that

Mr. Rodríguez was Ms. Micheo's supervisor."

           We agree with the District Court.          The emails at most

show that Rodríguez made requests to Micheo that "inconvenienced"

her.    But, as the District Court explained, evidence of such

inconvenience fails to provide a reasonable basis from which a

jury   could   find   that   Rodríguez   had   been   given   the   kind   of


                                  - 8 -
supervisory    power     over    Micheo   that   would     provide   sufficient

support for her contention that she had been subjected to an

adverse employment action. Cf. Burlington Indus., Inc. v. Ellerth,

524 U.S. 742, 761 (1998) ("A tangible employment action constitutes

a   significant   change    in    employment     status,    . . .    such   as   a

significant change in responsibilities . . . or a decision causing

a significant change in benefits.").2

             We thus agree with the District Court that the defendants

are entitled to summary judgment on her Title VII claim for gender-

based disparate treatment.         And so we turn to her challenge to the

District Court's grant of summary judgment to the defendants on

her other Title VII claim, in which she alleges that the defendants

retaliated     against    her    for   complaining    of    the     gender-based

discrimination that she claims to have endured.

                                       III.

             Like her evidence of gender-based disparate treatment,

Micheo's evidence of retaliation is circumstantial.                   Thus, the


      2On appeal, Micheo also makes reference to evidence that
shows that one of Rodríguez's supervisors asked him to prepare a
report about Micheo's performance of those duties. But, Micheo
did not reference this report in the proceedings below. And, in
any event, the evidence concerning the report shows only that
Rodríguez had been tasked on one occasion with reporting to his
supervisors about Micheo's performance. We thus do not see how
that evidence provides a basis from which a jury could find that
Rodríguez had supervisory authority over Micheo, such that he
occupied a position in the company with significantly greater
responsibilities relative to hers.    And that is so even if we
consider the report in conjunction with the emails.


                                       - 9 -
District   Court   applied   the     McDonnell   Douglas   framework   in

evaluating the defendants' motion for summary judgment as to this

claim as well.     Our review is, once again, de novo.       Colón, 717

F.3d at 49.

           The District Court concluded that the record provided

adequate support for a jury to find that Micheo had established

the following elements of her prima facie case of retaliation:

           (1) Micheo had engaged in protected conduct
           through her counsel's October 22, 2013 letter
           to Stericycle stating her intent to sue for
           gender discrimination and her filing of
           charges with the Equal Employment Opportunity
           Commission ("EEOC") and the Puerto Rico Anti-
           Discrimination Unit ("ADU") on November 8,
           2013; and

           (2) Stericycle thereafter subjected to Micheo
           to adverse employment actions by suspending
           her on December 23, 2013; placing her on a
           Performance Improvement Plan ("PIP") on
           January   3,   2014;  and   terminating   her
           employment on January 20, 2014.3

     3 Micheo also argues that she experienced two other adverse
employment actions: her "exclusion" from a golf tournament and her
supervisor's email to her admonishing her for "insubordination."
But, Micheo was not, on her own account, excluded from the golf
tournament; she was merely left off of one email planning that
tournament.    And while she argues that participation in the
tournament was important for her professional development, she
offers no argument that being left off of that one email amounted
to an adverse employment action.    In addition, she provides no
explanation as to how her supervisor's email "materially change[d]
the conditions" of her employment and thus no reason to think that
this email alone qualified as an "adverse employment action." See
Gu v. Bos. Police Dep't, 312 F.3d 6, 14 (1st Cir. 2002); see also
Bhatti v. Tr. of Bos. Univ., 659 F.3d 64, 73 (1st Cir. 2011)
("[N]one of the reprimands here can be said to be material because
none carried with it any tangible consequences.").        We thus
conclude that Micheo has not demonstrated a genuine issue of


                                   - 10 -
          But,   the   District   Court    then    concluded   that   Micheo

failed to show that there was a genuine issue of disputed material

fact as to whether the defendants' asserted non-retaliatory reason

for taking those adverse employment actions -- namely, her own

misconduct at work -- was pretextual.             And, on that basis, the

District Court granted summary judgment to the defendants.

          To challenge the District Court's ruling about pretext,

Micheo relies primarily on the fact that the undisputed record

shows that she was subject to adverse employment actions within

three months of her protected conduct.             But, this proximity in

timing does not alone suffice to create a genuine issue of material

fact as to pretext, given that her own unprotected conduct readily

explains the timing of each of the adverse employment actions that

the District Court identified. See Planadeball v. Wyndham Vacation

Resorts, Inc., 793 F.3d 169, 179 (1st Cir. 2015).          In particular,

the record shows that Micheo was placed on the PIP soon after she

was repeatedly absent from work and meetings at hospitals in which

she was supposed to represent Stericycle; that Micheo was suspended

soon after she initially refused to sign the PIP; and that her

employment was terminated right after violating the terms of the

PIP after she eventually signed it.



material fact as to whether either of these events qualified as an
adverse employment action.


                                  - 11 -
          Micheo does assert in her brief to us that the incidents

that the PIP itself identified as the basis for her placement on

it were false.     She fails, however, to identify anything in the

record to support that assertion.

          In nonetheless contending that a jury could find that

Stericycle's     stated    reasons      for    taking     these     actions     were

pretextual, Micheo argues that the record permits a jury reasonably

to find that the defendants deviated from the company's standard

disciplinary     process     in   disciplining       her    for     her    alleged

misconduct.     But, while evidence of such deviation may provide a

basis for finding pretext, see Brennan v. GTE Gov't Sys. Corp.,

150 F.3d 21, 29 (1st Cir. 1998), the record does not support

Micheo's grounds for arguing that a jury could reasonably find

that there was such deviation here.

          Specifically, although Micheo argues that the company

deviated from its disciplinary policy by placing her on the PIP

precipitously,    the     District    Court    correctly    pointed       out   that

Stericycle's "Corrective Action Plan" states that it "reserves the

right to 'skip steps'" in implementing its progressive discipline

policy.   In light of that fact, we do not see how Micheo has

adequately     explained    how      the   company      acted     irregularly     in

implementing its disciplinary policy by placing her on the PIP

when it did.




                                      - 12 -
             Micheo   next    argues     that        the    termination     of     her

employment while she was on the PIP violated company policy and

thus constitutes evidence of pretext.                But, the PIP specifically

contemplated that "failure to [comply with the PIP] will force

[Stericycle] to take disciplinary action up to and including

termination."      So, the fact that the record shows that Stericycle

terminated her employment before the expiration of the PIP on the

basis   of   her   conduct    while    the     PIP    was    in   place    does    not

demonstrate that Stericycle deviated from the policies set out in

the PIP.

             Finally, Micheo contends that Stericycle deviated from

its disciplinary policy because the company did not have the

supervisor of the BioSystem Program meet with Micheo to discuss

the   PIP;   did    not    "provide    the     'resources'        for"    the    PIP's

"successful completion"; did not seek Micheo's own version in

relation to the employer's charges of misconduct; and terminated

her even though she had not engaged in "gross misconduct[.]"                      But,

Micheo points to no evidence to indicate that in taking or failing

to take any of these actions Stericycle deviated from standard

company practice.         In particular, we note that Micheo does not

point to anything in the PIP that would indicate that an employee

on the PIP could only be terminated for "gross misconduct," rather

than for any violation of the PIP.             Indeed, the PIP specifically

states that "[Micheo] must complete all items in this Action Plan,


                                      - 13 -
improve and maintain an acceptable work performance according to

the company's expectations by January 31, 2014.                Failure to do so

will force us to take disciplinary action up to and including

termination."

            Micheo does also contend that the record shows that

Stericycle provided "shifting explanations about the reason for

her suspension" and that, on this basis, a jury could reasonably

conclude that Stericycle's legitimate nondiscriminatory reason for

taking the actions that it did was pretextual.             See Gómez–González

v. Rural Opportunities, Inc., 626 F.3d 654, 662–63 (1st Cir. 2010)

("Pretext   can    be    shown   by   such   weaknesses,       implausibilities,

inconsistencies,         incoherencies,        or   contradictions       in    the

employer's proffered legitimate reasons for its action.")                     But,

the statements that Micheo points to as evidence of Stericycle's

inconsistent explanations for suspending her do not materially

conflict with one another.

            We    thus   conclude     that   the    District    Court   correctly

determined that the defendants were entitled to summary judgment

as to Micheo's Title VII retaliation claim.4               And so we turn to

Micheo's sole remaining challenge to the District Court's grant of


     4Given our holding as to pretext, we need not address Micheo's
contention that the District Court erred in determining that the
only instances of "protected conduct" were the letter Micheo's
counsel sent on October 22, 2013 to Stericycle stating her intent
to sue and her November 8, 2013 complaint with the EEOC and ADU
alleging sex discrimination.


                                      - 14 -
summary judgment to the defendants on her Title VII claims --

namely, that the District Court abused its discretion in denying

her motion to strike Stericycle's motion for summary judgment

pursuant to Local Rule 56.

                                      IV.

             Our review of the District Court's denial of her motion

to strike the defendants' motion for summary judgment pursuant to

Local Rule 56 is for abuse of discretion.              See Turner v. Hubbard

Sys., Inc., 855 F.3d 10, 12 (1st Cir. 2017).                We find none.

             Local Rule 56 states that:

             Facts contained in a supporting or opposing
             statement of material facts, if supported by
             record citations as required by this rule,
             shall be deemed admitted unless properly
             controverted. An assertion of fact set forth
             in a statement of material facts shall be
             followed by a citation to the specific page or
             paragraph of identified record material
             supporting the assertion.      The court may
             disregard any statement of fact not supported
             by a specific citation to record material
             properly considered on summary judgment. The
             court shall have no independent duty to search
             or consider any part of the record not
             specifically referenced in the parties'
             separate statement of facts.

D.P.R. L. Civ. R. 56(e).

             Micheo    argued   in   her    motion     to    strike   that     the

defendants' motion for summary judgment failed to comply with this

rule   because   the    defendants    had     not    properly    labeled     their

supporting     documentation.        To    support    this     contention,    she



                                     - 15 -
identified as an example of the defendants' failure to comply with

the rule that they had referred in their summary judgment motion

to "Exh. 53" in referring to Micheo's filings before the ADU, even

though the docket entry in her case before the District Court that

is numbered 81-53 "concern[ed] a completely different event: her

hospitalization at Hospital Panamericano on January 18, 2014."

            On appeal, Micheo repeats her argument below that the

numbers assigned to the exhibits attached to the defendants'

summary judgment motion did not align with the numbers for the

docket entries in her case before the District Court.        But, as the

District Court pointed out, the defendants' "citations clearly

refer to the exhibit number used to label each exhibit."           We thus

do not see how the District Court abused its discretion in denying

Micheo's motion to strike the defendants' motion for summary

judgment.

                                    V.

            For the forgoing reasons, we affirm the District Court's

order granting summary judgment to the defendants on Micheo's Title

VII   claims   and   dismissing   without   prejudice   Micheo's   related

Puerto Rico law claims.




                                  - 16 -
