Planadeball v. Wyndham Vacation Resorts, Inc.

Filing

OPINION issued by Rogeriee Thompson, Appellate Judge; David J. Barron, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [13-2366]

Case: 13-2366

Document: 00116864059

Page: 1

Date Filed: 07/17/2015

Entry ID: 5923508

United States Court of Appeals
For the First Circuit
No. 13-2366
CARMEN PLANADEBALL,
Plaintiff, Appellant,
v.
WYNDHAM VACATION RESORTS, INC.,
Defendant, Appellee,
SHAWYN MALEY,
Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]

Before
Thompson, Barron, and Lipez,
Circuit Judges.

Juan R. Dávila Díaz, with whom Mendoza Law Offices and
Enrique J. Mendoza-Mendez were on brief, for appellant.
Shiara L. Diloné Fernández, with whom Schuster Aguiló LLC and
Carl Schuster were on brief, for appellee.

July 17, 2015

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LIPEZ, Circuit Judge.
district

court's

grant

of

Date Filed: 07/17/2015

Entry ID: 5923508

Carmen Planadeball appeals the

summary

judgment

on

her

claim

of

retaliation against Wyndham Vacation Resorts, Inc. ("Wyndham")
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq.
for

Planadeball contends that Wyndham retaliated against her

making

informal

and

formal

complaints

against

her

then-

supervisor Shawyn Maley after he subjected her to a hostile work
environment on the basis of her race and national origin. Adopting
the magistrate judge's recommendation, the district court granted
Wyndham's motion for summary judgment.

Because we agree that

Planadeball has not presented sufficient evidence to establish a
retaliation claim under Title VII, we affirm.
I.
We recount the facts in the light most favorable to
Planadeball, who was the non-moving party at summary judgment. See
Santana-Concepción v. Centro Médico del Turabo, Inc., 768 F.3d 5,
7 (1st Cir. 2014).
Planadeball was born in Puerto Rico and identifies as
Hispanic.

She was hired by Wyndham in June 2009 as a sales

representative at the Bonnet Creek Resort in Orlando, Florida.
Planadeball

and

the

other

sales

representatives

vacation packages and vacation ownership products.

sold

family

In January

2010, she was transferred to the regional office at the Wyndham Río
Mar Beach Resort in Río Grande, Puerto Rico.

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At the time, she was

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supervised by sales manager Ángelo Sánchez.

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In December 2010,

Wyndham hired Shawyn Maley as a sales manager in the Río Grande
office.

Subsequently, Planadeball was supervised by both Sánchez

and Maley.

On February 15, 2011, Sánchez began a period of leave

under the Family and Medical Leave Act, making Maley the sole
supervisor

for

Planadeball

and

the

other

Río

Grande

sales

representatives.
During his time as the sales manager of the Río Grande
office, Maley made many derogatory comments about Puerto Ricans and
African-Americans in front of Planadeball and her co-workers.

For

example, he said that the sales representatives should not waste
their time with Puerto Rican customers because they "don't have any
money."

He also called Puerto Ricans "stupid" and said that they

"don't have education."

He referred to Puerto Rico as "a trash

can" and said "that everything is dirty."

Additionally, he

referred to African-Americans as "niggers" and instructed the sales
representatives to avoid dealing with them because "they were more
than likely to have bad credit."
Maley also made many sexist comments, directed primarily
at Planadeball's co-workers Michelle Pérez and London Miles.

For

example, he said, "the perfect woman is [Miles's] tits . . . and
[Pérez's] ass."
office

to

He would also repeatedly call Miles into his

discuss

his

sexual

relationships

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with

women,

make

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derogatory comments about other women's bodies, and stare at her
breasts.
Sometime in February or early March 2011, Planadeball
went to Maley's office on two to three occasions to complain to him
about the way he was treating her, Pérez, and Miles.
Maley

to

stop

making

derogatory

comments

and

"that

She told
it

was

inappropriate to speak to my friends the way he was talking to
them."

On one occasion, Maley responded by calling Planadeball a

liar and throwing her out of his office.

Around the same time --

she did not recall exactly when -- Planadeball also complained
about

Maley's

conduct

to

Richard

Wieczerzak,

Wyndham’s

Vice

President of Sales and Marketing for South Florida and Puerto Rico.
She told Wieczerzak that "[t]hings have been -- that are happening,
are inappropriate, things that Shawyn Maley is saying have been
very inappropriate." However, Planadeball did not file a complaint
about Maley to the Human Resources Department because she feared
that she would lose her job.
From March 15 to April 1, 2011, Planadeball took a
medical leave of absence so she could recover from gallbladder
surgery.

Days after Planadeball had returned, she met with Maley

to discuss her work performance.

During the meeting, Maley told

her "that [she] wasn't selling, that [her] numbers were very low."
In her deposition, Planadeball admitted that her sales numbers
"were not very good" at the time.

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After the meeting, Maley

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approached Planadeball's desk and "started yelling at [her] in
front of [her] friends."

Maley told her, "You step up or you step

out and -- and that's the way it is."

Maley was so close to

Planadeball that she was afraid that he was going to hit her.
Shortly after this incident, Planadeball gave a ride to
work to David Saliceti, another sales representative.

During the

ride, Saliceti told her, "Be careful, because [Maley] has been
saying that the next one who's going to be fired is you."

While

they were talking in the car, Saliceti received a text message from
Maley.

The text message stated, "You better tell Carmen that

either she steps up or steps out." Saliceti showed Planadeball the
message soon after receiving it.
Planadeball and the other sales representatives received
commissions on the sales they made for Wyndham.
2011,

a

few

days

after

returning

from

Sometime in April

her

medical

leave,

Planadeball noticed that her commission check was subject to a
chargeback of $4,000.

She inquired about the chargeback to Maley,

who "couldn't give [her] any details or any information."

She was

later informed by an administrator that a $40,000 sale that she had
previously closed had been cancelled by corporate headquarters.
Someone in corporate subsequently entered into a sale with the same
client and received the commission on the sale.

In addition to

impacting negatively Planadeball's sales numbers, the chargeback

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resulted in "a lot of pain and suffering with regards to [her]
finances."
On April 29, 2011, Pérez complained to Wieczerzak about
Maley's conduct.

Wieczerzak relayed Pérez's complaint to Lisette

Lama, Wyndham's Human Resources Director.

On May 2, 2011, Pérez

and Miles met with Lama and Assistant Human Resources Director
Kerania Olmo.
into Maley.

Lama and Olmo subsequently began an investigation

Pursuant to company policy, Maley was suspended from

employment pending the outcome of the investigation.

As part of

the investigation, Lama and Olmo interviewed Planadeball, among
other employees in the Río Grande office.

Planadeball told them

that Maley had been sexually harassing Miles and Pérez, that he had
asked an employee to purchase Viagra and drugs for him, and that he
had

made

"several

comments

that

were

very

inappropriate."

Planadeball also mentioned that Maley had criticized her work
performance, had screamed at her at work, and had sent Saliceti the
text message suggesting Planadeball would be fired if she did not
improve. However, Planadeball did not specifically mention Maley's
discriminatory remarks about Puerto Ricans and African-Americans.
She said she did not "go into details" with Lama and Olmo because
she feared losing her job.
After completing its investigation, Wyndham concluded
that it could not substantiate the allegations against Maley. Lama
did not find the testimony of Planadeball and her co-workers to be

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Maley was not disciplined and, after a three-day

suspension, returned to his position as sales manager of the Río
Grande office.

Lama advised him of the need to maintain a proper

work environment, and of various company policies and procedures,
including the company's policy of "zero tolerance on retaliation."
On

May

26,

2011,

Planadeball

filed

a

charge

of

discrimination against Wyndham and Maley with the Puerto Rico
Department of Labor's Anti-Discrimination Unit.

She alleged that

she was discriminated against on the basis of race and national
origin.

Pérez, Miles, and Saliceti also filed discrimination

charges with the Anti-Discrimination Unit.
On July 15, 2011, Maley was transferred from the Río
Grande office into a sales manager position at the Wyndham Royal
Vista Resort in Pompano Beach, Florida.

Angela Estes became the

new sales manager of the Río Grande office.

Maley had no more

contact with Planadeball after he was transferred, and Estes became
her new supervisor.
On June 19, 2012, Planadeball filed her complaint against
Wyndham and Maley1 in the district court, alleging that she was
subject to a hostile work environment on the basis of race and
national origin and that she was retaliated against for complaining

1

On November 7, 2012, Planadeball voluntarily dismissed all
of her claims against Maley.
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about Maley's conduct, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Puerto Rico law.
After filing the complaint, Planadeball was not "treated
the same way at work" or "given the same opportunities at work."
Estes began treating Planadeball differently from the other sales
representatives.

For example, Estes would ignore Planadeball and

would refuse to respond to her when she had work-related questions.
Estes spoke to Planadeball "[i]n a very arrogant way" and yelled at
her at least three times.

Estes told Planadeball that "[i]f you

don't like my policies, if you don't like how things are done, you
should leave."
Furthermore, before Planadeball had filed the complaint,
she was provided the opportunity to work directly with existing
timeshare owners.

Working with existing owners was a special perk

for front line sales representatives, like Planadeball, who had
shown a lot of promise.

However, in June and July 2012, Estes

stopped allowing Planadeball to work directly with existing owners
as her clients.
On April 16, 2013, Wyndham moved for summary judgment on
all of Planadeball's claims.

On July 16, 2013, the magistrate

judge issued a recommendation to grant the motion, and the district
court affirmed the recommendation summarily. This appeal followed.

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II.
Our

review

judgment is de novo.
(1st Cir. 2013).

of

a

district

court's

grant

of

summary

Johnson v. Univ. of P.R., 714 F.3d 48, 52

In conducting our "fresh look" at the record, we

view the evidence in the light most favorable to the non-moving
party and draw all reasonable inferences in her favor.
Univ. of P.R., 707 F.3d 7, 16 (1st Cir. 2013).

Gerald v.

Summary judgment is

appropriate only if there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of
law.

Fed. R. Civ. P. 56(a); Gerald, 707 F.3d at 16.

However,

"conclusory allegations, empty rhetoric, unsupported speculation,
or evidence which, in the aggregate, is less than significantly
probative will not suffice to ward off a properly supported summary
judgment motion."

Nieves-Romero v. United States, 715 F.3d 375,

378 (1st Cir. 2013) (internal quotation marks omitted).
On appeal, Planadeball only challenges the district
court's grant of summary judgment on her federal retaliation
claim.2

Title

VII

makes

it

unlawful

for

"an

employer

to

discriminate against any of his employees . . . because [the
employee] has opposed any practice made an unlawful employment

2

While Planadeball also states that she is appealing her
retaliation claim under Puerto Rico Law 115, P.R. Laws Ann. tit.
29, § 194a, she provides no argument as to why the Law 115 claim
was improperly dismissed. Therefore, she has waived that claim.
See Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st
Cir. 2011) ("[W]e deem waived claims not made or claims adverted to
in a cursory fashion, unaccompanied by developed argument.").
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practice

by

Page: 10

VII],

assisted,

testified,

[Title

or

or

Date Filed: 07/17/2015

because

he

participated

has

in

any

made

Entry ID: 5923508

a

manner

charge,
in

investigation, proceeding, or hearing under [Title VII]."
U.S.C.

§

2000e-3(a).

As

the

Supreme

Court

explained,

an
42
this

"antiretaliation provision protects an individual not from all
retaliation, but from retaliation that produces an injury or harm."
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).
Title

VII

retaliation

claims

proceed

under

the

burden-shifting framework outlined in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 801-03 (1973).

The plaintiff, first, must

establish a prima facie case of retaliation by providing evidence
that "[o]ne, she undertook protected conduct[;] . . . [t]wo, her
employer took a material adverse action against her[;] . . . [a]nd
. . . three, a causal nexus exists between elements one and two."
Medina-Rivera v. MVM, Inc., 713 F.3d 132, 139 (1st Cir. 2013)
(citations omitted).
Once the plaintiff makes out this prima facie case, the
burden shifts to the defendant to articulate a legitimate, nonretaliatory

explanation

for

its

actions.

See

Collazo

v.

Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir. 2010).
If the defendant carries this burden of production, the burden
shifts

back

to

the

plaintiff

to

show

that

the

explanation is a pretext for unlawful retaliation.

defendant's
See id.

To

defeat summary judgment, the plaintiff need not prove retaliation

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by a preponderance of the evidence.

Date Filed: 07/17/2015

See id. at 50.

Entry ID: 5923508

"All a

plaintiff has to do is raise a genuine issue of fact as to whether
[retaliation]

motivated

the

adverse

employment

action."

Id.

(quoting Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433
(1st Cir. 2000)) (alteration in original).
A. Protected Conduct
Protected conduct "refers to action taken to protest or
oppose statutorily prohibited discrimination."

Fantini v. Salem

State Coll., 557 F.3d 22, 32 (1st Cir. 2009) (internal quotation
marks omitted).
charges

of

Protected conduct includes "the filing of formal

discrimination"

as

well

as

"informal

protests

of

discriminatory employment practices, including making complaints to
management, writing critical letters to customers, protesting
against discrimination by industry or by society in general, and
expressing support of co-workers who have filed formal charges."
Id. (quoting Sumner v. U.S. Postal Serv., 899 F.2d 203, 209 (2nd
Cir. 1990)).
Planadeball contends that her protected conduct includes
her complaints to Maley and Wieczerzak in February and March 2011,
her complaints to Lama and Olmo in May 2011, filing a charge of
discrimination against Wyndham and Maley with the Puerto Rico
Department of Labor's Anti-Discrimination Unit on May 26, 2011, and
filing her federal complaint in the district court on June 19,
2012.

Wyndham concedes that the complaints to Lama and Olmo, the
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filing of the Anti-Discrimination Unit charge, and the filing of
the complaint constitute protected conduct.

However, it disagrees

that Planadeball's complaints to Maley and Wieczerzak are protected
conduct.

With regard to Maley, Wyndham contends "that complaining

to the alleged harasser" cannot be considered protected activity.
With

regard

to

Wieczerzak,

Wyndham

argues

that

Planadeball's

complaints were not "specific enough to notify management of the
particular type of discrimination at issue in order to constitute
protected activity."
We do not need to resolve this dispute because, as
explained below, even if the complaints to Maley and Wieczerzak can
be considered protected conduct, Planadeball's retaliation claim
still fails.

Therefore, we will assume, without deciding, that

Planadeball's complaints to Maley and Wieczerzak are protected
conduct.
B. Material Adverse Actions
Planadeball argues that Wyndham took a number of material
adverse actions against her in retaliation for her protected
activities. Material adverse actions are actions that are "harmful
to the point that they could well dissuade a reasonable worker from
making or supporting a charge of discrimination."
548 U.S. at 57.

Burlington N.,

However, "'petty slights or minor annoyances that

often take place at work and that all employees experience'" are
not material adverse actions and "consequently, fall outside the

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scope of the anti-discrimination laws."

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Billings v. Town of

Grafton, 515 F.3d 39, 54 (1st Cir. 2008) (quoting Burlington N.,
548 U.S. at 68); see also Burlington N., 548 U.S. at 68 ("Title VII
. . . does not set forth 'a general civility code for the American
workplace.'" (quoting Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 80 (1998))).
Planadeball argues that the following three actions by
Wyndham employees constitute material adverse actions: (1) the
$4,000 chargeback on her commission check in April 2011; (2)
Estes's behavior toward her, including denying her the opportunity
to work with existing timeshare owners in June and July 2012; and
(3) Maley's threats to fire her in April 2011.3

We address each in

turn.
1. The $4,000 chargeback
Wyndham

concedes

that

the

$4,000

constitute an adverse employment action."

"may

Yet, it argues that

there is no "causal nexus" to protected conduct.
713 F.3d at 139.

chargeback

Medina-Rivera,

Planadeball counters that causation can be

inferred from the temporal proximity between the chargeback and
protected conduct.

3

"[R]etaliatory actions that are not materially adverse when
considered individually may collectively amount to a retaliatory
hostile work environment." Billings, 515 F.3d at 54 n.13 (citing
Noviello v. City of Boston, 398 F.3d 76, 88-90 (1st Cir. 2005)).
However, Planadeball has not presented any argument about the
collective effect of these three alleged acts of retaliation.
Therefore, we consider them independently.
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Planadeball

made

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Date Filed: 07/17/2015

informal

complaints

to

Entry ID: 5923508

Maley

and

Wieczerzak regarding Maley's behavior in February and March 2011.
She then went on medical leave from March 15 to April 1.

In early

April 2011, a few days after she returned to work, she noticed that
her

commission

check

was

subjected

to

a

$4,000

chargeback.

Planadeball argues that the close temporal proximity between her
February and March 2011 complaints and the chargeback establish the
causal nexus between protected conduct and this adverse action
taken against her.
Planadeball is correct that "[t]emporal proximity can
create an inference of causation in the proper case."

Pomales v.

Celulares Telefónica, Inc., 447 F.3d 79, 85 (1st Cir. 2006).

In

order to draw such an inference, however, "there must be proof that
the decisionmaker knew of the plaintiff's protected conduct when he
or she decided to take the adverse employment action."

Id.; see

also Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 72 (1st Cir. 2011)
("Where the evidence shows only that the decisionmaker knew of the
complainant's protected conduct at the time the adverse employment
action was taken, causation may be inferred from a very close
temporal

relationship

between

the

protected

activity

and

the

adverse action.").
Planadeball has failed to make a prima facie showing of
causation.
the

There is no evidence in the record to demonstrate that

Wyndham

employees

who

initiated

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the

chargeback

had

any

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knowledge of Planadeball's complaints to Maley and Wieczerzak.4
Planadeball was informed that the chargeback was processed because
corporate had cancelled her $40,000 sale and someone in corporate
subsequently entered into a sale with the same client and received
the commission on the sale.
in

corporate

knew

about

Yet, there is no evidence that anyone
Planadeball's

informal

complaints

in

February and March 2011. Furthermore, while Planadeball complained
directly to Maley about the chargeback, Maley told her that he did
not know why the chargeback was processed.
2. Estes's conduct
Wyndham also does not contest that Estes's conduct toward
Planadeball in June and July 2012, including taking away her
opportunity to work with existing timeshare owners, may constitute
a material adverse action. However, it similarly argues that there
is no evidence of a causal link between Estes's behavior and
protected

conduct.5

Planadeball

contends

that

the

temporal

4

Although Planadeball has presented evidence of other
instances of protected conduct, her complaints to Maley and
Wieczerzak are the only conduct that occurred before the chargeback
was issued, and, therefore, are the only conduct that Planadeball
contends establishes a causal nexus with this material adverse
action.
5

Wyndham also contends that we should not consider Estes's
conduct while evaluating Planadeball's retaliation claim because
Planadeball failed to amend her complaint to incorporate Estes's
actions that took place after Planadeball had filed her complaint.
Wyndham relies on Quevedo-Gaitan v. Sears Roebuck de P.R., Inc., a
district court case in which the court disregarded evidence of age
discrimination that occurred after the plaintiff had filed her
complaint because she had failed to amend it. See 536 F. Supp. 2d
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proximity between Estes's conduct and the filing of her complaint
on June 19, 2012, establishes the requisite nexus.
Planadeball's

claim

chargeback claim fails.

fails

for

the

same

reason

the

There is no evidence that Estes was aware

that Planadeball had filed a complaint.

Estes stated that she had

"no

allegations

knowledge

Planadeball
Moreover,

as

ha[d]

to

the

brought

Planadeball

claims

and

against

admitted

[Wyndham]

that

she

in

does

that
any

not

Carmen
forum."

know

what

information, if any, Estes had with respect to her litigation.

On

this record, there is simply no evidence from which a reasonable
jury

could

infer

protected activity.

that

Estes

had

knowledge

of

Planadeball's

Therefore, Planadeball cannot establish the

third element of a prima facie case of retaliation, a causal nexus
between filing her complaint and Estes's actions.

See Alvarado v.

Donahoe, 687 F.3d 453, 459 (1st Cir. 2012) ("[I]f a supervisor or
other employee is unaware of the fact that a plaintiff engaged in

158, 170 (D.P.R. 2008).
Planadeball counters that she was not
required to amend her complaint at the summary judgment stage
because she was not asserting a new claim or adding a new
defendant, but merely was providing additional facts to support her
retaliation claim, which was already plausibly alleged in the
complaint. See Rodríguez-Vives v. P.R. Firefighters Corps of P.R.,
743 F.3d 278, 283 (1st Cir. 2014) (A "complaint need not allege
every fact necessary to win at trial, but need only include
sufficient facts to make it plausible on its face."); see also id.
at 286 (noting that a complaint is not "required to provide the
exact details of each incident, such as the dates or the precise
context of the abusive comments, to make [a retaliation] claim
plausible").
We do not need to resolve this dispute.
Even
assuming that we can consider Estes's conduct, Planadeball's claim
still fails.
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protected conduct, any actions attributable to him could not
plausibly have been induced by retaliatory motives.").
3. Maley's Threats
Finally, Wyndham contends, and the district court found,
that Maley's threats toward Planadeball after she returned from
medical leave in April 2011 were not a material adverse action.
Maley criticized Planadeball about her work performance, screamed
at her in front of her colleagues, and made multiple threats to
fire her.
Planadeball

argues

that

Maley's

conduct

should

be

considered a material adverse action, because, as the Supreme Court
stated in Burlington Northern, material adverse actions are "not
limited

to

discriminatory

actions

that

affect

the

terms

and

conditions of employment," nor are they restricted to "ultimate
employment decisio[ns] . . . such as hiring, granting leave,
discharging, promoting, and compensating."
(internal quotation marks omitted).

548 U.S. at 60, 64

Rather, they include all

actions that "could well dissuade a reasonable worker from making
or supporting a charge of discrimination."

Id. at 57.

This

standard is phrased "in general terms because the significance of
any given act of retaliation will often depend upon the particular
circumstances.

Context matters."

Id. at 69.

We agree with Planadeball that a juror could reasonably
conclude that Maley's multiple threats to fire her constitute a

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Construing all facts in Planadeball's

favor, Maley told her to "step up or [] step out," told her coworker Saliceti that she was the "next one who's going to be
fired," and sent a text message to Saliceti stating, "[y]ou better
tell [Planadeball] that either she steps up or steps out."

In our

view, a reasonable juror could thus infer that these multiple,
consecutive threats, stated to an employee directly and to her
co-worker who passed the message to that employee, could dissuade
a reasonable employee from making or supporting a charge of
discrimination.

See Billings, 515 F.3d at 54-55 ("An employee who

knows that, by [making a charge of discrimination], she risks . .
. a threat of further, more serious discipline" for deficiencies at
work "might well choose not to proceed with [such a charge] in the
first

place."

(internal

quotation

marks

omitted));

Rivera

v.

Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 26 (2d Cir.
2012)

(holding

that

a

reasonable

juror

could

conclude

that

threatening an employee "with the loss of his job" constitutes a
material adverse action).
We also find that Planadeball has established a causal
link between Maley's threats and protected conduct.

The threats

occurred in April 2011, at most two months after Planadeball
complained to Maley and Wieczerzak about Maley's discriminatory
comments.

This two-month gap between protected activity and a

material adverse action is sufficiently short to establish a prima

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Case: 13-2366

Document: 00116864059

facie case of retaliation.

Page: 19

Date Filed: 07/17/2015

Entry ID: 5923508

See, e.g., Mariani-Colón v. Dep't of

Homeland Sec., 511 F.3d 216, 224 (1st Cir. 2007) ("We conclude that
the

'temporal

proximity'

between

appellant's

allegations

of

discrimination in June 2002 and his termination in August 2002 is
sufficient to meet the relatively light burden of establishing a
prima facie case of retaliation."); Sánchez-Rodríguez v. AT&T
Mobility P.R., Inc., 673 F.3d 1, 15 (1st Cir. 2012) (holding that
the plaintiff established a prima facie case of retaliation where
approximately three months had transpired between the protected
conduct and the material adverse action).
Because Planadeball has made a prima facie case of
retaliation based on Maley's threats, the burden shifts to Wyndham
to show that it had a non-retaliatory reason for the threats.
Mariani-Colón, 511 F.3d at 221, 223.
satisfied this burden.
made

in

response

to

See

We find that Wyndham has

Maley's threats to fire Planadeball were
her

bad

sales

performance.

In

fact,

Planadeball acknowledges that Maley threatened to fire her in the
context of discussing her work performance, and admits that, when
the threats were made, her sales numbers "were not very good."
The burden thus shifts back to Planadeball to show that
Wyndham's reason was merely pretextual. See id. To defeat summary
judgment in a retaliation case, "'a plaintiff must point to some
evidence

of

retaliation

by

a

pertinent

decisionmaker.'"

Sánchez-Rodríguez, 673 F.3d at 15 (quoting Randlett v. Shalala, 118

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Case: 13-2366

Document: 00116864059

Page: 20

F.3d 857, 862 (1st Cir. 1997)).

Date Filed: 07/17/2015

Entry ID: 5923508

Here, Planadeball points only to

the temporal proximity between her complaints and Maley's threats.
However, this two-month period is not sufficient, by itself, to
raise an inference of pretext. The timing of Maley's threats makes
sense because they occurred soon after Planadeball returned to work
from surgery, and at a time when her sales numbers were low.

See

Mariani-Colón, 511 F.3d at 224 (holding that the temporal proximity
between

a

plaintiff's

complaints

of

discrimination

and

his

discharge failed to raise an inference of pretext where the timing
made sense, as plaintiff was fired a few weeks after he voluntarily
took unpaid leave); Sánchez-Rodríguez, 673 F.3d at 15.

Because

Planadeball has not pointed to any other evidence to establish
pretext, her retaliation claim fails.
III.
Planadeball has not presented sufficient evidence to
establish a retaliation claim under Title VII.

Hence, we affirm

the district court's order granting Wyndham's motion for summary
judgment.
So ordered.

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