             United States Court of Appeals
                        For the First Circuit


No.05-2721

                            GLADEN VELEZ,

                        Plaintiff, Appellant,

                                  v.

                         JANSSEN ORTHO, LLC,

                         Defendant, Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF PUERTO RICO

      [Hon. Raymond L. Acosta,    Senior U.S. District Judge]


                                Before

               Selya, Lipez, and Howard, Circuit Judges.



     Carlos M. Vergne for appellant.
     Carl Schuster, with whom Mariela Rexach and Schuster & Aguiló
LLP were on brief, for appellee.



                           November 3, 2006
            LIPEZ,    Circuit     Judge.          In    this     unusual   employment

discrimination case, we must decide what prima facie showing is

necessary to establish an adverse employment action, within the

meaning of Title VII, when a plaintiff alleges a retaliatory

failure-to-hire.          Claims of retaliation in the failure-to-hire

context are sufficiently rare that this question is one of first

impression for this court.           When a plaintiff makes such a claim, we

conclude that the establishment of an "adverse employment action"

requires a showing that (1) she applied for a particular position

(2) which was vacant and (3) for which she was qualified.                             In

addition, of course, she must show that she was not hired for that

position.

            Appellant Gladden Velez claims that her former employer,

appellee Janssen Ortho, refused to consider her for re-employment

in retaliation for a previous lawsuit she filed against the company

in   the   Puerto    Rico    Court    of    First       Instance    alleging   sexual

harassment    by    her     supervisor.          She    brought     this   employment

discrimination lawsuit, in the federal district court of Puerto

Rico, under Title VII and Puerto Rico commonwealth statutes.                         The

district court granted summary judgment for Janssen on all claims,

finding    that    Velez    failed    to    make    a    prima     facie   showing    of

retaliation.      We affirm the district court's judgment, although on

narrower grounds.




                                           -2-
                                         I.

A. Factual Background

            We recount the facts of this case with the summary

judgment standard in mind, drawing all reasonable inferences and

viewing the record in favor of Velez, the non-moving party.                  See,

e.g., Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006).

            Velez was first hired to work for Janssen in August 1989,

and she remained at Janssen's Gurabo chemical plant until December

1998.     While working at the Gurabo plant, Velez claimed that she

was sexually harassed by her supervisor; she also alleged that her

boss    retaliated      against    her     for       reports   of   manufacturing

irregularities she submitted to the Food and Drug Administration.

In response to the alleged harassment and retaliation, Velez filed

a commonwealth law claim in the Court of First Instance of Puerto

Rico (the "Caguas court") on June 23, 1997.                 After the Caguas case

was filed, Velez remained a Janssen employee and continued to

perform her duties satisfactorily for over a year.

            In November 1998, Velez applied for a promotion to the

position of Senior Packaging Engineer. Janssen denied her request

because    she   was    not   qualified        for    the   position.     Shortly

thereafter, in December 1998, Janssen closed the Gurabo chemical

plant and Velez lost her job; Velez received a standard severance

package totaling $12,704.86.          Two weeks later, Velez amended her

original    Caguas     case   to   include     an     additional    allegation   of


                                         -3-
retaliation, based on Janssen's failure to transfer her to a new

position after the closing of the Gurabo plant.

            In February 1999, Velez sent a letter and resume to

Janssen requesting that she be considered for a Manufacturing

Supervisor position.   Janssen did not respond.        In May 1999, Velez

sent another letter and resume applying for the Senior Packaging

Engineer job, for which she had been rejected prior to the closing

of the Gurabo plant.       Again, Janssen sent no reply to Velez.1

            About two years later, on August 8, 2001, Velez again

contacted Janssen seeking employment.           She sent a general cover

letter and resume to Janssen's human resources department via

certified mail, requesting consideration for employment.                  Her

letter expressed interest in "any position available."                Velez

mentioned    a   variety     of   general     job   categories    (such   as

manufacturing    supervisor,      warehouse   supervisor,   and   utilities

supervisor) and asked to be considered for any position for which

the human resources department considered her qualified.           One week

later, on August 15, Velez sent an identical letter and resume to

the human resources department, this time via facsimile.

            In response to Velez's August 2001 letters and resumes,

Janssen's director of human resources, Carlos Otero, sent a letter

stating that she would not be considered for an interview or


1
  Velez filed a Second Amended Complaint in the Caguas court in
December 2001, alleging that Janssen was continuing to retaliate
against her by failing to respond to her 1999 job applications.

                                     -4-
"rehiring."     Otero's letter mentioned Velez's prior lay-off and

severance,    as    well   as   the    company's   "business    needs"    as   an

explanation.       Otero subsequently testified that he consulted with

one of Janssen's lawyers prior to finalizing and sending the

rejection    letter.       He   also    testified,   as   did   other    Janssen

employees, that the human resources department typically sent no

response to rejected applicants.

            Three days after Otero sent Velez the rejection letter,

Janssen published an advertisement in the local newspaper for two

Manufacturing Process Facilitator ("MPF") positions.2                    Janssen

interviewed at least one candidate for one of the MPF jobs sometime

in September.      Janssen did not hire anyone for either position at

that time.    One of the positions remained vacant until July 2002,

almost a year after Velez applied.3




2
  Velez has claimed that her letters and resumes were sent in
response to newspaper ads.    In her brief to this court and her
opposition to Janssen's Motion for Summary Judgment, she alleges
that Janssen advertised two MPF jobs on July 20, 2001. Velez does
not support this claim with exhibits or deposition testimony.
Elsewhere, she concedes that the newspaper advertisements for the
two MPF positions appeared on August 19, 2001. It appears that the
July 20, 2001 date is a typographical error or mistake, as the
record contains no evidence that Janssen advertised these positions
prior to her August 8 and August 15 letters. For purposes of this
appeal, therefore, we assume that Janssen advertised two MPF
positions on August 19 and not before.
3
  The record is unclear as to when the first MPF position was
filled. It appears that someone was hired for that job within the
year following the advertisement, but it is not clear precisely
when that occurred.

                                        -5-
B. Procedural Background

            Velez filed her complaint in this case on January 27,

2003, alleging federal claims under the Americans with Disabilities

Act, 42 U.S.C. §§ 12101-12213, and Title VII, 42 U.S.C. § 2000e-3.

She also asserted claims under Puerto Rico's Act No. 44, P.R. Laws

Ann. tit. 1, § 501 (disability discrimination); Act No. 100, P.R.

Laws Ann. tit. 29, § 146 (gender-based employment discrimination);

Act No. 115, P.R. Laws Ann. tit. 29, § 194a (retaliatory employment

discrimination) ("Law 115"); Articles 1802 and 1803 of the Puerto

Rico Civil Code, P.R. Laws Ann. tit. 31, §§ 5141-42 (general tort

statute);    and   the   privacy   protections   in   the   Puerto   Rican

constitution.

            Janssen subsequently moved for summary judgment, arguing

that Velez: (1) failed to meet her prima facie burden of showing

retaliation because her prior lawsuit was not protected activity

under Title VII, and (2) failed to show a causal connection between

her conduct and an "adverse employment action" by Janssen.

            In granting judgment for Janssen, the district court used

the McDonnell Douglas burden-shifting framework for employment

discrimination claims.     See McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973).    That is, the district court found that Velez bore

the initial burden of making a prima facie showing of three

elements: (1) she engaged in protected activity; (2) she suffered

an adverse employment action; and (3) a causal connection existed


                                    -6-
between her protected activity and the adverse employment action.

See Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25 (1st

Cir. 2004). The court also discussed the more precise standard for

causation in failure-to-hire cases, as articulated in Ruggles v.

Cal. Polytechnic State Univ., 797 F.2d 782, 786 (9th Cir. 1986). In

Ruggles, the Ninth Circuit held that a plaintiff claiming that a

failure-to-hire amounted to discriminatory retaliation must "show

that the position for which she applied was eliminated or not

available to her because of her protected activities." Id.

             The   district   court    first   concluded       that   Velez's

activities were not protected under Title VII.                 It found that

Velez's "filing and successive amended filings of discrimination

lawsuits against Janssen [were] unreasonable," and therefore held

that Velez had not engaged in protected activity. See Hochstadt v.

Worcester Found. for Experimental Biology, 545 F.2d 222, 230-31

(1st Cir. 1976) (applying a balancing test to determine whether

specific actions are protected "opposition activity" and holding

that an employee's actions may not be protected under Title VII

where they are hostile and disruptive).

             The district court alternatively held that Velez failed

to satisfy the causation element of her prima facie case.             It found

that   her    allegations     could    not   support      an   inference   of

discriminatory     retaliation   because     she   sent    her   letters   of

"application" without specifying a particular job opening and at a


                                      -7-
time when there were no positions open to external candidates. The

court therefore concluded that there was no failure-to-hire that

could have been caused by Velez's prior opposition conduct.

            The court also rejected Velez's claim under the Americans

with Disabilities Act and the supplemental commonwealth law claims.

On appeal, she challenges only the dismissal of her employment

discrimination claims under Title VII and Puerto Rico law.

                                 II.

            Our review of the district court's summary judgment is de

novo.    Ingram v. Brink's, Inc., 414 F.3d 222, 228 (1st Cir. 2005);

Hillstrom v. Best W. TLC Hotel, 354 F.3d 27, 30 (1st Cir. 2003).

We must examine the evidence in the light most favorable to the

non-moving party, and give that party "the benefit of any and all

reasonable inferences."    Cox v. Hainey, 391 F.3d 25, 29 (1st Cir.

2004).    Summary judgment is an appropriate resolution of claims

where "there is no genuine issue as to any material fact," and the

moving party is entitled to judgment as a matter of law.     Fed. R.

Civ. P. 56(c); see also Calero-Cerezo, 355 F.3d at 19.

            Our evaluation of Velez's claims begins with § 704(a) of

Title VII, which prohibits an employer from "discriminat[ing]

against any of [its] employees or applicants for employment . . .

because he has opposed any practice made an unlawful employment

practice by this subchapter, or because he has . . . participated

in any manner in an investigation, proceeding, or hearing under


                                 -8-
this subchapter."     42 U.S.C. § 2000e-3(a).          As already noted,

claims of retaliatory discrimination under this provision must

begin with a prima facie showing of three elements: (1) protected

opposition activity, (2) an adverse employment action, and (3) a

causal connection between the protected conduct and the adverse

action. Calero-Cerezo, 355 F.3d at 25. The district court focused

on the deficiencies in Velez's prima facie showing of protected

opposition activities and the causal relationship between those

activities and Janssen's failure to hire her.           We focus on the

second prong of the retaliatory discrimination test, the existence

of an adverse employment action.

           The district court did not explicitly address this prong.

Although   the    court   noted   Velez's    failure    to    submit    her

"application" in a form that complied with Janssen's typical hiring

procedures, and concluded that her letters "cannot reasonably be

deemed applications to be considered for [the MPF] position," it

treated these deficiencies as matters of causation.           The parties

also discussed the specifics of Velez's August 2001 inquiries about

jobs at Janssen as a causation issue.       We think that this focus on

causation was at best awkward on the facts of this case.

           In the retaliatory failure-to-hire context, the specifics

of the job application or applications that underlie a claim of

failure-to-hire   usually   relate   most   naturally    to   the   adverse

employment action prong of such a claim.       Put most simply, in the


                                  -9-
absence of a job application, there cannot be a failure-to-hire.

We are not suggesting that there was a complete absence of a job

application in this case.   But Velez only sent two general letters

in August 2001 expressing interest in any available job.4    Guided

by some precedents from the other circuits, we conclude that such

general letters ordinarily cannot be the predicate for the adverse

employment action prong in a retaliatory failure-to-hire case.

Instead, a plaintiff alleging such a claim must show that (1) she

applied for a particular position (2) which was vacant and (3) for

which she was qualified.    In addition, she must show that she was

not hired for that position.

          In Morgan v. Fed. Home Loan Mort. Corp., 328 F.3d 647,651

(D.C. Cir. 2003), the court held that the plaintiff claiming a

retaliatory failure-to-hire must show "that he applied for an

available job; and . . . that he was qualified for that position."

The court later reiterated this formulation of the required prima

facie showing in Carter v. George Washington Univ., 387 F.3d 872,

878 (D.C. Cir. 2004).   In Cichon v. Exelon Generation Co., 401 F.3d

803, 812 (7th Cir. 2005), the court applied the generally-accepted

standard for retaliatory failure-to-hire claims, but also specified

that plaintiffs making such claims must show that they applied for,



4
  In 1999, Velez sent two letters to Janssen requesting employment
in specific positions. Janssen's rejection of those applications
is not at issue in this case.


                                -10-
and had the technical qualifications for, the position sought. Id.5

In Ruggles, the Ninth Circuit implicitly adopted the same view,

holding that a plaintiff claiming retaliatory failure-to-hire must

"show that the position for which she applied was eliminated or not

available to her because of her protected activities." 797 F.2d at

786 (emphasis added).

          Precedent in the analogous context of failure-to-promote

claims also reflects the requirement that plaintiffs asserting

discriminatory retaliation must show that they applied for a

specific vacant position for which they were qualified, and that

they did not get the job.   See Brown v. Coach Stores, Inc., 163

F.3d 706, 711-12 (2d Cir. 1998) (holding that a plaintiff claiming

a failure-to-promote must show that she "applied for a specific

position or positions . . . rather than merely asserting that on



5
  In nearly all of the failure-to-hire cases we have examined,
causation was the dispositive issue because the court found that
the plaintiffs had applied for and been rejected for a specific
job.    Thus the critical issue was the motivation for that
rejection. See, e.g., Arraleh v. County of Ramsey, 461 F.3d 967,
977-78 (8th Cir. 2006); Price v. Thompson, 380 F.3d 209, 212-13
(4th Cir. 2004); Walker v. Glickman, 241 F.3d 884, 889-90 (7th Cir.
2001); Kelley v. Goodyear Tire & Rubber Co., 220 F.3d 1174, 1179
(10th Cir. 2000); Bullington v. United Air Lines, Inc., 186 F.3d
1301, 1321 (10th Cir. 1999); Sarno v. Douglas Elliman-Gibbons &
Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999); Williams v. Nashville
Network, 132 F.3d 1123, 1131-33 (6th Cir. 1998); Fleming v. Boeing
Co., 120 F.3d 242, 248 (11th Cir. 1997). Likewise, Carter, 387
F.3d at 878-82, Cichon, 401 F.3d at 812-15, and Ruggles, 797 F.2d
at 786-88, were also decided on the causation question, as there
was no dispute about the plaintiffs having applied for the sought
position. Morgan is the only notable exception to this pattern.
328 F.3d at 651-54.

                               -11-
several    occasions    she   or   he    generally    requested     promotion");

Petrosino v. Bell Atlantic, 385 F.3d 210, 226-27 (2d Cir. 2004)

(same); Ricci v. Applebee's Ne., Inc., 297 F. Supp.2d 311, 320-22

(D. Me. 2003) (applying the Brown standard and holding that a

general expression of interest in, without formal application for,

a position is insufficient to support a legal claim of adverse

employment action).      Indeed, the Brown case provides the closest

factual    similarity    we   have   found     to   this   case.     There,   the

plaintiff repeatedly requested a promotion, without success, but

her claim for failure-to-promote was dismissed by the district

court because of her inability to identify any specific positions

for which she had applied.         163 F.3d at 708-09.       The Second Circuit

affirmed   the   district     court's     decision    on    the   ground   that    a

failure-to-promote claim necessitates a prima facie showing "that

[the plaintiff] applied for a specific position or positions." Id.

at 710.     In its decision, the court explicitly articulated the

concern that, absent this showing, employees could establish a

claim without identifying a particular application that gave rise

to the alleged adverse employment action.             Id.

            This specificity requirement is sensible and fair.                    An

open-ended request for employment should not put a burden on an

employer to review an applicant's generally stated credentials any

time a position becomes available, at the risk of a Title VII

claim.     If we were to find such a general request the legal


                                        -12-
equivalent of an application, we would require employers to answer

for their failure to hire individuals who did nothing more than

express a desire to be employed.        Cf. Brown, 163 F.3d at 710

(stating that general expressions of interest cannot be sufficient

to state a Title VII claim because such a result would "unfairly

burden" employers by requiring them "to keep track of all employees

who have generally expressed an interest in promotion and consider

each of them for any opening for which they are qualified but did

not   specifically   apply").   A   failure-to-hire   claim   obviously

depends on the availability of a job opening.    It is not unfair or

unduly burdensome to expect a plaintiff to submit an application

for that vacancy as a prerequisite for stating a failure-to-hire

claim.   In short, we do not believe an employer is obliged to

defend its decision not to hire an individual for a position for

which she has not specifically applied.6

           The parties in this case dispute whether there was a

vacant position at the relevant time.    Janssen argues that the MPF

position was not available to external candidates at the time it

received Velez's August 2001 letters.    Velez places heavy emphasis

on Janssen's advertisement for the two MPF openings only three days



6
   Like the Second Circuit, we recognize the potential for
exceptions to this general rule.     See Brown, 163 F.3d at 710
("[T]he general rule . . . is subject to modification where the
facts of a particular case make an allegation of a specific
application a quixotic requirement.").


                                -13-
after her rejection letter stated that she would not be considered

due to "business needs." Although Janssen has offered explanations

for this seeming-contradiction, Velez has raised a sufficient

factual dispute to foreclose summary judgment on the issue of a job

vacancy when Velez submitted her August letters.

          Velez has, nonetheless, failed to make a prima facie

showing of an adverse employment action.   She stated only that she

was "interested in being considered for any position available such

as manufacturing supervisor, warehouse supervisor, maintenance

supervisor, utilities supervisor, quality engineer, preventive

maintenance supervisor or any other position."       Such a letter

merely expresses interest in a wide range of positions.    It is not

the application for a discrete, identifiable position required

under § 704(a) of Title VII.     On that basis alone, the district

court properly entered summary judgment for Janssen on Velez's

Title VII claim.

                                 III.

          Velez argues that the district court erroneously granted

summary judgment for Janssen under Law 115 of the Puerto Rico code.

Title VII and Law 115 are largely symmetrical in scope.   See, e.g.,

Salva v. Eagle Global Logistics, __ F. Supp.2d __, 2006 WL 2685109,

at *4 (D.P.R. Sept. 18, 2006).   Velez argues, however, that even if

her Title VII claim were appropriately rejected, her Law 115 claim

should survive because the defendant-employer's burden is greater


                                 -14-
under that law.    We do not have to address that contention here.

We have affirmed summary judgment on her Title VII claim based on

the   deficiency   in   her   prima   facie   showing    for    the   adverse

employment action element of a retaliation claim.                 Thus, the

defendant's burden of proof is irrelevant.              Neither party has

suggested that the prima facie showing for a Law 115 claim is

distinct from that required for a Title VII claim.             Because Velez

has not shown that she suffered an adverse employment action under

the latter, she has likewise not made such a showing under the

former.

           We note an arguable alternative ground for decision

without deciding its merits.      The language of Law 115 raises the

possibility (although not mentioned by either party or the district

court) that Velez's claim is not cognizable under Law 115.                The

provision under which Velez makes her claim states: "No employer

may . . . discriminate against an employee regarding the terms,

conditions, compensation, location, benefits or privileges of the

employment should the employee offer or attempt to offer, verbally

or in writing, any testimony, expression or information before a .

. . judicial forum in Puerto Rico . . . ."       P.R. Laws Ann. tit. 29,

§ 194a(a).     In order to prevail on a claim under Law 115, a

plaintiff-employee must show that she engaged in protected activity

and that she was thereafter "discriminated against regarding her

employment."   Salva,__ F. Supp.2d __, 2006 WL 2685109, at *4.


                                  -15-
            Title VII, however, explicitly protects both "employees

[and]   applicants      for   employment"      against    retaliatory

discrimination.    42 U.S.C. § 2000e-3(a).      Title VII's explicit

embrace of applicants appears, therefore, to be broader than Law

115's coverage of employees only.      Nonetheless, we do not explore

this potential difference between the two statutes because Velez's

claim must be dismissed in any event.     As discussed above, Law 115

requires the same prima facie showing of an "adverse employment

action" as Title VII.    Thus, Velez's claim fails, as a matter of

law, because she has not applied for a specific and available

position.

                                 IV.

            We hold that a plaintiff asserting a Title VII claim of

retaliatory discrimination based on a failure-to-hire must, in

order to establish an adverse employment action, make a prima facie

showing that (1) she applied for a particular position (2) which

was vacant and (3) for which she was qualified.     In addition, she

must show that she was not hired for that position.          For the

reasons discussed above, Velez has not made such a showing here.

Thus, we affirm summary judgment for appellee Janssen on Velez's

Title VII and Law 115 claims.

            Affirmed.




                                -16-
