United States Court of Appeals
For the First Circuit
No. 24-1482
CASANDRA ANN HERNÁNDEZ,
Plaintiff, Appellant,
v.
TODD BLANCHE, ACTING ATTORNEY GENERAL,*
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Aframe, Hamilton**, and Thompson,
Circuit Judges.
Bámily López-Ortiz, with whom Lizabel M. Negron-Vargas was on
brief, for appellant.
Gabriella S. Paglieri, Assistant United States Attorney, with
whom W. Stephen Muldrow, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, were on brief,
for appellee.
July 7, 2026
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Acting Attorney General Todd Blanche has been substituted for
former Attorney General Merrick B. Garland.
** Of the Seventh Circuit, sitting by designation.
THOMPSON, Circuit Judge. Many state and federal labor
laws are enacted to protect employees, ensure fair treatment of
employees, and afford processes by which employees can challenge
adverse employment decisions. One such law is Title VII of the
Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq.,
which can be deployed against certain instances of workplace
discrimination and retaliation. Another is the Civil Service
Reform Act of 1978 ("CSRA"), 5 U.S.C. § 1101 et seq., which
provides an added layer of protection for federal government
employees. Before us again,1 Casandra Ann Hernández alleges
discrimination in the form of retaliation and unreasonable
termination while invoking these federal laws, and appeals the
United States District Court for the District of Puerto Rico's
decision to grant summary judgment for her former employer, the
Drug Enforcement Agency ("DEA") of the United States Department of
Justice ("DOJ") (collectively "the government"). After meticulous
perscrutation of the record and briefs, we affirm.
I. Background
"Because our review follows the entry of summary
judgment, 'we take the facts and the reasonable inferences
therefrom in the light most' favorable to the non-moving part[y]."
1 Though we do cover some relevant snippets from her first
appearance before the First Circuit, see Hernández v. Wilkinson,
986 F.3d 98 (1st Cir. 2021), for a more detailed overview.
- 2 -President & Fellows of Harvard Coll. v. Zurich Am. Ins. Co., 77
F.4th 33, 35 (1st Cir. 2023) (quoting Rivera-Aponte v. Gomez Bus
Line, Inc., 62 F.4th 1, 3 (1st Cir. 2023)). And because this is
appeal number two for Hernández implicating, in part, the same or
similar facts as appeal number one, "the facts that we recount are
either undisputed or based upon supportable findings made in [the]
earlier cases." Emigrant Residential LLC v. Pinti, 37 F.4th 717,
720 (1st Cir. 2022); see also Hernández, 986 F.3d at 100; Hernández
v. Barr, No. CV 17-2280-BJM, 2019 WL 1459916, at *3 (D.P.R. Mar.
29, 2019). We therefore "sketch the relevant facts and the tangled
litigation history with as much brevity as the issues on appeal
permit." Emigrant Residential LLC, 37 F.4th at 720.
A. The Facts
For over 20 years, Hernández worked in various
secretarial and administrative roles in the Ponce, Puerto Rico
office of the DEA. She provided administrative support to many of
the office's leadership, eventually working her way up the ranks
to become the Secretary to the Assistant Special Agent in Charge
of the office. In that role, Hernández supported her direct
supervisor, Assistant Special Agent in Charge Dave E. Joseph and
distributed cash funds to DEA agents for their day-to-day
operations. While Joseph was her direct supervisor, Hernández's
secondary supervisor was the Special Agent in Charge, a position
held by Matthew Donahue until December 2017.
- 3 -All was well for Hernández in the DEA Ponce office until
September 2016. Hernández, 986 F.3d at 101. After fracturing a
bone in her foot, Hernández requested several accommodations from
Joseph. Id. Some requests, like a new parking spot and schedule,
were approved. Id. Other requests, including her request for
advanced sick leave, were denied. Id. Similarly, Donahue turned
down some of Hernández's requests, including a transfer back to
her old duty office -- a demotion that Hernández was willing to
accept to avoid the mounting conflicts she was having with Joseph.
Id. Because of the denials, Hernández filed a complaint against
Joseph and Donahue in November 2016 with the DEA's Equal Employment
Opportunity Office ("EEO") alleging discrimination based on her
disability from the bone fracture and her nationality as a Puerto
Rican. Id.
In June 2017, Hernández was notified that several DEA
agents (excluding Joseph and Donahue) had filed an EEO complaint
against her, and shortly thereafter, she filed a complaint with
the DOJ's Office of the Inspector General ("OIG"), claiming that
Joseph was seemingly retaliating against her by proxy through those
other DEA agents for filing an EEO complaint. Tensions continued
to rise in the Ponce DEA office, and a few months later, Hernández
and DEA Special Agent Phillip Jones got into a verbal altercation
regarding an audit of the funds that Hernández was distributing.
Id. Hernández later reported the incident to the EEO as sexual
- 4 -harassment and filed a police report with the Puerto Rico Police
Department against Jones for verbal assault and disturbance of the
peace (the "criminal complaint"). Both Hernández and Jones were
reprimanded, and Hernández was temporarily assigned to the DEA
office in San Juan. Id.
In mid-October 2017, Hernández experienced another
employment episode. Id. Donahue revoked a permit she had been
granted to perform outside employment, purportedly because he
worried that it interfered with her availability to work and
perform her duties. Id. Despite this revocation, Hernández
continued to partake in outside work activities -- selling baked
goods to a local business. Consequently, she was suspended for
eight days and warned that "any further infraction will result in
more severe disciplinary action." A month later, Hernández took
additional medical leave. In response, Donahue and an Assistant
Special Agent in Charge familiar with the ongoing issues between
Hernández and her supervisors asked her to communicate with Joseph
either by phone or in person regarding the status of her medical
leave, seeing as she had stopped coming into work and had failed
to directly notify Joseph of her absence despite being asked to do
so on numerous occasions.
When Hernández returned to work in January 2018, she was
assigned to the DEA office in San Juan. By this time, Donahue and
Joseph were no longer in Hernández's orbit. Donahue had left
- 5 -Puerto Rico altogether and Joseph was no longer her supervisor.
Hernández, 2019 WL 1459916, at *8.
B. Procedural History
Chapter 1: Hernández I
Prior to her return to work, Hernández sued her employer
in federal district court on November 6, 2017, (the "2017 lawsuit")
alleging that she was discriminated against based on her sex,
national origin, and disability, and that her supervisors
retaliated against her for complaining to the EEO. Id. After the
court found that there was insufficient evidence to support her
claims and granted summary judgment in the government's favor,
Hernández timely appealed the sex discrimination and retaliation
claims to this court. Hernández, 986 F.3d at 102.
We ultimately affirmed the district court's decision,
concluding that Hernández did not provide enough evidence to
sustain either cause of action. Id. at 102-03. In our de novo
review of her claims we reasoned, in sum, as follows.
For the sex discrimination claim, Hernández alleged that
Joseph "used the video camera in her office to watch her" and that
he "leered at her." Id. at 102. But we determined that she didn't
put forward evidence to support the frequency and intensity needed
to turn mere staring at an employee into the basis of a hostile
work environment claim. Id. To the extent that this claim
included Jones (the DEA agent mentioned previously in the audit
- 6 -dispute) we found that his conduct did not constitute sexual
harassment because of Hernández's admission that the verbal
altercation between them was an isolated incident. Id.
As for the retaliation claim, Hernández argued on appeal
that her temporary assignment to the San Juan office was done in
retaliation for the EEO complaint she had filed in November 2016.
Id. at 103. This retaliation, she contended, violated Title VII.
Id. We found that the record didn't contain "evidence to show
that her EEO complaint was a but-for cause of that temporary
detail." Id. So, again, we affirmed the district court's
decision, ending that case. Id.
Chapter 2: Lingering Disputes
But as that litigation was ongoing, and after Hernández
had noticed her appeal to this court, issues at the DEA Ponce
office continued to boil over. Eventually, the DOJ's Office of
Professional Responsibility ("OPR") initiated an investigation
into Hernández. The result -- she was terminated from federal
service on two grounds: (1) insubordination because she allegedly
refused to communicate with Joseph either in person or by phone as
instructed by Donahue, and (2) lack of candor because she didn't
candidly answer OPR's questions during the investigation.
- 7 -Hernández appealed her termination to the Merit Systems
Protection Board ("MSPB"), as is her right under the CSRA.2 She
maintained that her termination was retaliatory for her filing a
criminal complaint against Agent Jones, her EEO activity, and the
2017 lawsuit against her employer -- all of which she asserted
were protected activities under Title VII.
But the MSPB affirmed Hernández's removal from federal
service. Although it found that Hernández, to her credit, did not
exhibit a lack of candor with OPR when she recounted the events
leading up to her termination, it nonetheless concluded that
(1) the government's insubordination charge against Hernández had
been proven and (2) Hernández's termination was not unreasonable.
Chapter 3: The Discovery Skirmish
So Hernández sought judicial review of the MSPB decision
and thus filed another suit in the district court that culminated
in today's appeal. Before the district court, she claimed that
the government violated Title VII and the Civil Rights Act of 1991.
She also alleged that her termination for insubordination wasn't
supported by a preponderance of the evidence and was unreasonable.
Her complaint built upon the same facts and issues alleged in her
2 We'll have more on this later, but the need-to-know for now
is that the MSPB is an "independent adjudicator" created by
Congress "to review certain serious personnel actions against
federal employees," including decisions to terminate them.
Kloeckner v. Solis, 568 U.S. 41, 44 (2012); Perry v. Merit Sys.
Prot. Bd., 582 U.S. 420, 422 (2017).
- 8 -2017 lawsuit with the added avowals that the OPR investigation was
part of Joseph and Donahue's "retaliation plan" that sowed the
seeds for her consequent termination from federal service. But
for the criminal complaint she filed against Jones, her EEO
complaints, and the 2017 lawsuit, Hernández contended, she
wouldn't have been terminated on account of "discriminatory
retaliatory animus" in violation of Title VII.
Hernández eventually filed a motion to compel discovery
specifically requesting:
(1) Copies of Notification of Personnel Action
forms (known among federal government
employees as the SF-50) for all new hires,
transfers, retirements, resignations, and
personnel in Hernández's division from August
2015 to August 2020;
(2) Copies of all EEO complaints filed against
Joseph and Donahue;
(3) Copies of any complaints filed against Joseph
and Donahue with the OIG from January 2016 to
August 2020;
(4) All emails that Joseph and the OIG had sent to
Donahue about Hernández from January 2016
through December 2017; and
(5) The official phone number used by Donahue.
- 9 -The government partially complied with Hernández's
request but requested an extension of time to provide more.
Specifically, the government produced Donahue's official phone
number but argued that emails requested between January 2016
through December 2017 pertained to facts that were already
adjudicated in the 2017 lawsuit. It also interposed legal
objections to some of the requests such as privilege,
confidentiality, overbreadth, and relevancy. Likewise, it
objected to producing notifications and complaints of other
employees (items one through three) as those were protected by the
Privacy Act, 5 U.S.C. § 552a. Presumably to rectify the
situation, the government informed the district court that it
propositioned Hernández to meet and confer regarding the
information it declined to produce, but Hernández never responded.
Given the government's response, the court deemed
Hernández's motion to compel unopposed, granted it, and denied the
extension request.
The government then filed a motion to strike Hernández's
requests for discovery because she failed to comply with Local
Rule 26(b).3 In turn, Hernández sought the remaining information
3 In the District of Puerto Rico, Local Rule 26(b) generally
states that a judicial officer is prohibited from considering a
discovery motion that doesn't include a certification that the
moving party made a reasonable and good faith effort to meet and
confer with opposing counsel regarding their request for
discovery. See L.Cv.R. 26.
- 10 -through a motion for sanctions and discovery order ("motion for
sanctions"), contending the government's objection was unwarranted
and, with the deadline for filing dispositive motions just two
days away, declaring the information she sought was crucial to her
ability to oppose any such motion. But a few days later, rather
than respond to Hernández's sanctions motion, the government moved
for summary judgment. In support, it argued that the criminal
complaint was not protected activity, Hernández's EEO complaints
were dismissed and too remote from her time of removal to be the
basis for her allegations of retaliation, and that her removal was
solely based on charges of insubordination and lack of candor for
consistently disregarding DEA policy and her supervisors'
instructions.
In a last-ditch effort to ascertain items one through
three from the list above, Hernández filed a motion under Federal
Rule of Civil Procedure 56(d) (the "Rule 56(d) motion").4
See Fed. R. Civ. P. 56(d). Through this motion, she requested
that the district court defer its decision on the government's
summary judgment motion until she could obtain this additional
information. As per her Rule 56(d) motion and in a statement filed
by Hernández's counsel under penalty of perjury, she sought this
information because it provided a record "of the individuals she
4 A comprehensive overview of a Rule 56(d) motion is soon to
come.
- 11 -accuses of discrimination and retaliation [and] to search for
evidence that they have a record of similarly offensive or improper
conduct and are more likely to engage in the same behavior towards
her." Such information, she urged, would prove or disprove the
allegations contained in her complaint and was essential to
opposing any summary judgment motion. In any event, she added,
the district court had at that point already granted her motion to
compel discovery. The government's filing of its motion for
summary judgment without providing her with the information she
had requested in her motion to compel was yet another example of
its efforts to blatantly disregard her need for information that
could potentially help prove her allegations. Hernández's counsel
added that the requested information would help clarify the
government's misinterpretation of the factual record as presented
in its summary judgment motion.
The government objected. In its response to Hernández's
motion, the government resisted Hernández's notion that the
requested information was necessary to salvage her claims and
oppose its summary judgment motion. Moreover, it argued that
Hernández was engaging "in a fishing expedition" while
disregarding the particular requirements of Rule 56(d) to
articulate with specificity the reasons for her discovery requests
and what facts she was in pursuit of.
- 12 -Apparently, the district court, unconvinced of
Hernández's need for additional discovery, reversed course on its
order to compel, revisited the government's previously-filed
objection, and denied her sanctions motion. It reasoned that
Hernández repeatedly failed to comply with the meet and confer
requirements under Local Rule 26(b) and Federal Rule of Civil
Procedure 37(a).5 This alone, the district court held, was
sufficient for it to act on its discretion and deny the motion for
sanctions. It added that the case was limited to Hernández's
challenges against her removal from federal service and had nothing
to do with the previously litigated and dismissed (with prejudice)
claims of discrimination and hostile work environment under Title
VII. Accordingly, the district court held that Hernández's
discovery requests must be limited to her claims of retaliation in
the form of wrongful termination. In consequence of that ruling,
it denied the Rule 56(d) motion as moot and thus, had no reason to
address the adequacy of a Rule 56(d) showing.
And with all of that procedural ping-ponging in the
backdrop, the district court ordered Hernández to respond to the
Under Federal Rule of Civil Procedure 37(a)(1), a motion to
5
compel discovery must include a "certification that the movant has
in good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to
obtain it without court action." See Fed. R. Civ. P. 37. It is
complementary to Local Rule 26(b) in the District Court of Puerto
Rico, which encompasses the same requirements. See L.Cv.R. 26.
- 13 -government's summary judgment motion, which she did. What she
filed, though, was a memorandum objecting to the court's order
denying her Rule 56(d) request. While declining to seek
reconsideration, Hernández instead asked the court to consider her
arguments when evaluating the government's summary judgment
motion.
In due course, the district court granted the
government's summary judgment motion. More specifically, it held
that Hernández failed to establish a prima facie case of
retaliation, and even if she had done so, it concluded the
government terminated her for nondiscriminatory reasons which she
failed to prove were pretextual and retaliatory. The court
likewise found that although Hernández's EEO activity and 2017
lawsuit were indeed protected conduct under Title VII, those
instances occurred too remotely from her termination to support a
finding that the government retaliated against her based on that
conduct. In its final point, the district court dismissed
Hernández's case under the CSRA and determined that the MSPB's
affirmance of Hernández's termination was justified given the
evidence of her insubordination and of her inability to produce
evidence that the stated reason for her termination was pretextual.
And to close the curtains on the matter, the district court
dismissed Hernández's case with prejudice. Hernández timely
appealed.
- 14 -II. Discussion
Before us, Hernández now argues that the district court
erred because it (1) denied her Rule 56(d) motion and (2) granted
summary judgment for the government on the basis that (a) she
didn't establish a prima facie case of retaliation under Title VII
and (b) the MSPB's decision was proper. We take each in turn, and
as we do so, we provide the necessary legal background that guides
our decision to affirm the district court in full.
A. The Rule 56(d) Motion
Up first is Hernández's lamentation that the district
court abused its discretion when it denied the Rule 56(d) motion
as moot.
"We review the disposition of a Rule 56(d) motion for
abuse of discretion."6 Emigrant Residential LLC, 37 F.4th at 724.
But before we unearth the contents of Hernández's Rule 56(d) motion
and endeavor to determine whether the district court abused its
discretion in denying it, we must first review the requirements of
this "procedural 'escape hatch.'" Mattoon v. City of Pittsfield,
6 Prior to 2010, Rule 56(d) was known as Rule 56(f). We
therefore "treat cases decided under former Rule 56(f) as
authoritative when deciding post-2010 cases arising under Rule
56(d)." Emigrant Residential LLC, 37 F.4th at 724; see
also Fed. R. Civ. P. 56 advisory committee's note to 2010
amendment.
- 15 -980 F.2d 1, 7 (1st Cir. 1992) (quoting Paterson-Leitch Co. v. Mass.
Mun. Wholesale Elec. Co., 840 F.2d 985, 988 (1st Cir. 1988)).
"Rule 56(d) allows, in certain circumstances, for
supplemental discovery after a motion for summary judgment has
been filed." Hicks v. Johnson, 755 F.3d 738, 743 (1st Cir. 2014).
It provides:
[i]f a nonmovant shows by affidavit or
declaration that, for specified reasons, it
cannot present facts essential to justify its
opposition, the court may: (1) defer
considering the motion [for summary judgment]
or deny it; (2) allow time to obtain
affidavits or declarations or to take
discovery; or (3) issue any other appropriate
order.
Fed. R. Civ. P. 56(d). The rule serves as "a safety valve for
claimants genuinely in need of further time to marshal 'facts,
essential to justify [their] opposition . . . to a summary
judgment motion.'" Reid v. New Hampshire, 56 F.3d 332, 341 (1st
Cir. 1995) (alteration in original) (quoting Mattoon, 980 F.2d at
7). And in doing so "[i]t protects a litigant who justifiably
needs additional time to respond in an effective manner" to a
motion for summary judgment. In re PHC, Inc. S'holder Litig., 762
F.3d 138, 143 (1st Cir. 2014) (quoting Rivera–Almodóvar v.
Instituto Socioeconómico Comunitario, Inc., 730 F.3d 23, 28 (1st
Cir. 2013)).
"In the mine-run of cases, the crucial inquiry under
Rule 56(d) is whether the movant has had a full and fair
- 16 -opportunity to conduct discovery needed to mount an effective
opposition to a summary judgment motion." Emigrant Residential
LLC, 37 F.4th at 724. Notwithstanding "the salutary purposes
underlying Rule 56[(d)]" and our directive to the district courts
to "invoke the rule generously," In re PHC, Inc. S'holder Litig.,
762 F.3d at 143, it doesn't afford the movant carte blanche in
discovery disputes nor is its relief granted as a matter of course.
See Hicks, 755 F.3d at 743. A party seeking additional discovery
through a Rule 56(d) motion must provide the court with
a timely statement -- if not by affidavit,
then in some other authoritative
manner -- that (i) explains his or her current
inability to adduce the facts essential to
filing an opposition, (ii) provides a
plausible basis for believing that the
sought-after facts can be assembled within a
reasonable time, and (iii) indicates how those
facts would influence the outcome of the
pending summary judgment motion.
Vélez v. Awning Windows, Inc., 375 F.3d 35, 40 (1st Cir. 2004).
If the party can't adduce the facts essential to oppose a motion
for summary judgment because of purported incomplete discovery, as
is the scenario here, "the party's explanation . . . should:
(i) 'show good cause for the failure to have discovered the facts
sooner'; (ii) 'set forth a plausible basis for believing that
specific facts . . . probably exist'; and (iii) 'indicate how the
emergent facts . . . will influence the outcome of the pending
summary judgment motion.'" In re PHC, Inc. S'holder Litig., 762
- 17 -F.3d at 143 (quoting Resolution Tr. Corp. v. N. Bridge Assocs.,
Inc., 22 F.3d 1198, 1203 (1st Cir. 1994)).
We have categorized these requirements as a five-factor
analysis considering "authoritativeness, timeliness, good cause,
utility, and materiality." Id. at 144. And in our review of a
Rule 56(d) matter, we have recognized the district courts are
afforded considerable discretion "with respect to the interplay of
these five elements," understanding that one or more of these
requirements can be flexible, depending on the circumstances of a
given case, and may be relaxed or excused to meet the exigencies
of that case. Emigrant Residential LLC, 37 F.4th at 725.
With those instructive principles in mind, we peruse
Hernández's Rule 56(d) motion and her counsel's statement under
penalty of perjury to assess whether she fulfilled the
aforementioned necessary requirements and, in turn, whether the
district court abused its discretion in denying her Rule 56(d)
motion as moot.
As a reminder, here are the things that Hernández's Rule
56(d) motion sought:
(1) Copies of Notification of Personnel Action
forms (the SF-50) for all new hires,
transfers, retirements, resignations, and
personnel in Hernández's division from August
2015 to August 2020;
- 18 -(2) Copies of all EEO complaints filed against
Joseph and Donahue; and
(3) Copies of any complaints filed against Joseph
and Donahue with the OIG from January 2016 to
August 2020.
On appeal, Hernández chronicles her many attempts to
obtain this information and insists that she satisfied the
requirements needed for her Rule 56(d) motion to succeed.
Hernández further avers that the requested information was
(1) necessary to mount an effective opposition to the government's
summary judgment motion, (2) relevant to determining whether the
government was "discriminatory and/or retaliatory" by removing her
from her position, and (3) demonstrative of the government's
knowledge that her supervisors "were acting in a retaliatory manner
that created a hostile work environment because they had a prior
record of such conduct."
The government paints a different picture. It contends
that, far from meeting the obligations required of a movant,
Hernández failed to make any of the requisite showings emblematic
of a successful Rule 56(d) motion. In support thereof, the
government offers three reasons: (1) Hernández didn't show good
cause for not having discovered the facts she sought sooner and
had a full and fair opportunity to attain those facts in the 2017
lawsuit because the information she seeks pertains to events that
- 19 -occurred before or during the litigation; (2) the motion lacked a
plausible showing that the requested information existed; and
(3) the information within the requested discovery was irrelevant
to Hernández's retaliation claim and, therefore, her reasons for
requesting additional discovery were insufficient to show how the
discovery would influence the outcome of the summary judgment
motion.
Before we explain why the district court didn't abuse
its discretion in denying Hernández's Rule 56(d) motion, we'll
briefly recap the district court's reasoning for denying it.
Recall that the district court denied Hernández's Rule 56(d)
motion7 because (1) she repeatedly failed to abide by Local Rule
26(b), and (2) the case before it was whether the government
retaliated against Hernández in the form of wrongful termination.
It added that the government demonstrated good faith efforts to
comply with its discovery obligations, and it was Hernández who
failed to reply to the government's objections to their ongoing
discovery disputes.
Let's focus first on the court's first justification.
Indeed, the motion to compel discovery, the motion for sanctions,
and the Rule 56(d) motion all lacked a certification that Hernández
7 We have come a long way through this case, so we note again
that the district court denied Hernández's Rule 56(d) motion as
moot by way of denying her motion for sanctions against the
government.
- 20 -conferred in good faith with the government in an effort to obtain
the information at issue without court intervention. See
L.Cv.R.26(b); see also Fed. R. Civ. P. 37(a)(1). Hernández
provides us with no explanation for why she neglected to do so.
Instead, she tells us of the many efforts she made to reach out to
government counsel to confer about the requested materials but to
no avail. Though (to quote Hernández's brief citing Carmona v.
Toledo, 215 F.3d 124, 135 (1st Cir. 2000)) "[a] party seeking
discovery expeditiously is not obligated to 'take heroic measures
to enforce his rights against a recalcitrant' opponent[,]" our
case law is clear that the district court has "broad latitude to
enforce [its own] local rules." Reyes-Pérez v. State Ins. Fund
Corp., 755 F.3d 49, 53 n.8 (1st Cir. 2014). Moreover, it's not
necessarily an abuse of discretion for the district court to deny
a discovery motion without a showing of due diligence that the
parties attempted to meet and confer in good faith on any
outstanding discovery. See Rios v. Centerra Grp. LLC, 106 F.4th
101, 122 (1st Cir. 2024) (finding that the district court didn't
abuse its discretion when it denied a Rule 56(d) motion that lacked
a showing of good cause or due diligence in pursuing the desired
information). But even if we were to conclude it was an abuse of
discretion to so harshly penalize Hernández for her certification
failures, we find the district court's further explanations for
jettisoning her Rule 56(d) motion adequately supported its
- 21 -exercise of discretion. (Though, to be clear, if the district
court initially allowed a movant to bypass a local rule, then later
changed its position for reasons grounded solely on that same rule,
it should provide a thorough explanation for its switcharoo. See
In re Stericycle Sec. Litig., 35 F.4th 555, 567 (7th Cir. 2022)
(explaining that a district court's discovery decision may be an
abuse of discretion where it "clearly appears to be arbitrary"
(quoting Kuttner v. Zaruba, 819 F.3d 970, 974 (7th Cir. 2016))).)
To kick-start our review of the district court's
remaining reasons, we need to conjure up the five requirements of
a proffer that accompanies a Rule 56(d) motion:
(1) authoritativeness; (2) timeliness; (3) good cause;
(4) utility; and (5) materiality. In re PHC, Inc. S'holder Litig.,
762 F.3d at 144 (quoting Resolution Tr. Corp., 22 F.3d at 1203);
see also Emigrant Residential LLC, 37 F.4th at 725.
Hernández undoubtedly satisfied the first
(authoritativeness) and the second (timeliness) requirements
because a statement under penalty of perjury accompanied the Rule
56(d) motion that was filed shortly after the government moved for
summary judgment. See Paterson-Leitch Co., 840 F.2d at 988
(stating that the authoritativeness requirement may be satisfied
by a statement under penalty of perjury or by written
representations of counsel); see also Resolution Tr. Corp., 22
F.3d at 1204 (finding that authoritative statements by an attorney
- 22 -satisfy the authoritativeness requirement and that a party will
satisfy the timeliness requirement so long as it invokes Rule 56(d)
within a reasonable time following receipt of a motion for summary
judgment). But from there, Hernández goes up a creek without a
paddle.
We focus our review on the third requirement of "good
cause" because the absence of that -- which is apparent here -- is
"reason enough to deny Rule 56(d) discovery." Emigrant Residential
LLC, 37 F.4th at 725-26. To demonstrate "good cause" Hernández
had to show that she wasn't afforded "a full and fair opportunity
to obtain relevant facts" earlier in her case and throughout the
history of the litigation. Id. at 726; see also In re PHC, Inc.
S'holder Litig., 762 F.3d at 143 (quoting Resolution Tr. Corp., 22
F.3d at 1203).
The record indicates, and Hernández professes that, she
had been asking for the aforementioned information as early as
February 2022. And in response, the government offered to meet
and confer about her request for this information as early as March
2022. But instead of taking the government up on its offer or
seeking discovery of that information through other means,
Hernández continued to sporadically request the information via
email ahead of the discovery deadline. It wasn't until June
2023 -- almost five months after the discovery deadline came and
went and two weeks before the dispositive motions were due -- that
- 23 -Hernández filed a motion to compel the information. So for 15
months (from March 2022 to June 2023, to be exact), Hernández was
on notice that the government objected to the production of the
information and that it was willing to meet and confer. Despite
having "a full and fair opportunity" during that time frame to
utilize the discovery devices at her disposal in a timely fashion,
her discovery pleas lingered in a digital void. Emigrant
Residential LLC, 37 F.4th at 726. That she waited for as long as
she did -- without an explanation as to why below or on
appeal -- to materialize her pleas in the form of a motion to
compel followed by a Rule 56(d) motion is in stark contrast to
movants who "demonstrate an authentic need for" additional time
not previously afforded to them in getting information they need
to effectively respond to a summary judgment motion. Resolution
Tr. Corp., 22 F.3d at 1203; see also In re PHC, Inc. S'holder
Litig., 762 F.3d at 143.
Based on the record before us, Hernández failed to
demonstrate good cause in support of her Rule 56(d) motion. We
thus find that the district court did not abuse its discretion in
denying the motion. See Emigrant Residential LLC, 37 F.4th at 726
("When a party has had a full and fair opportunity to obtain
relevant facts earlier in a case and has forgone that opportunity,
there will seldom be good cause to grant the party's request for
additional discovery through the medium of Rule 56(d).").
- 24 -B. The MSPB Decision and Retaliation
We turn next to Hernández's claim that the district court
erred in granting the government's summary judgment motion.
Typically, as we've previously mentioned, we review a district
court's grant of summary judgment de novo, giving the case a fresh
look to assess whether the summary judgment movant (here, the
government) is entitled to judgment as a matter of law based on
the undisputed facts. MacRae v. Mattos, 106 F.4th 122, 132 (1st
Cir. 2024), cert. denied, 145 S. Ct. 2617 (2025). We view the
undisputed facts in the light most favorable to the summary
judgment nonmovant (here, Hernández) and draw all reasonable
inferences in her favor. Id. But this is an atypical case, and
our de novo review comes with a twist. Here's why.
We start off with a refresher. Recall that Hernández
invoked her rights under the CSRA to appeal her termination of
employment to the MSPB. She alleged that (1) she was terminated
in retaliation for taking part in protected conduct under Title
VII, (2) her termination for insubordination was not supported by
a preponderance of the evidence, and (3) her termination was an
exceedingly unreasonable penalty. But, au contraire, the MSPB
found that (1) the DEA did not retaliate against her, (2) her
actions did indeed amount to insubordination, and (3) her
termination was appropriate. Unsatisfied, Hernández took her case
to the district court. The district court agreed with the MSPB,
- 25 -granted summary judgment for the government, and dismissed
Hernández's case with prejudice. Before we explain why we agree
with the MSPB and the district court, we must provide some
necessary context about how MSPB decisions can wind up in the
federal courts -- a framework of some complexity.
The CSRA permits federal employees to appeal
particularly serious personnel actions taken against them,
including a removal from employment, to the MSPB, an entity created
under the CSRA to review certain serious personnel actions.
Kloeckner v. Solis, 568 U.S. 41, 44 (2012); see also Perry v. Merit
Sys. Prot. Bd., 582 U.S. 420, 422 (2017). "An appeal to the MSPB,
however, may also complain of adverse action taken, in whole or in
part, because of discrimination prohibited by another federal
statute, for example, Title VII of the Civil Rights Act of 1964."
Perry, 582 U.S. at 424. By the same token, an appeal to the MSPB
may complain of an adverse action allegedly taken in retaliation
for a protected activity. See Crowe v. Wormuth, 74 F.4th 1011,
1033-35 (9th Cir. 2023). And when that happens, the resulting
case becomes a "mixed case," because it complains of both a serious
personnel action and a prohibited action under Title VII. Perry,
582 U.S. at 424; see also Crowe, 74 F.4th at 1034-35. To pursue
a mixed case, employees can take several different procedural
routes provided by the CSRA. Id. For simplicity's sake, we'll
only detail the route that Hernández took.
- 26 -An employee may bring claims directly to the MSPB, and
if unsatisfied by the MSPB's decision, they can seek judicial
review in federal district court -- as Hernández did. Id. at 426;
see also Kloeckner, 568 U.S. at 56. Once in federal district
court, the mixed case's claims "are subject to distinct standards
of review." Sher v. U.S. Dep't of Veterans Affs., 488 F.3d 489,
499 (1st Cir. 2007). Discrimination and retaliation claims are
reviewed by the district court de novo, whereas nondiscrimination
and nonretaliation claims are reviewed under the ordinary standard
of review for administrative decisions, meaning they will only be
set aside "if the MSPB decision was '(1) arbitrary, capricious, an
abuse of discretion or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by substantial
evidence.'" Id. (citing 5 U.S.C. § 7703(c)); see also Hernández
v. Garland, No. CV 21-1091 (JAG), 2024 WL 1420741, at *3 (D.P.R.
Mar. 31, 2024) (quoting Robinson v. Duncan, 775 F. Supp. 2d 143,
157 (D.D.C. 2011) (cleaned up)).
And in the event the district court grants summary
judgment in a mixed case and the matter comes to us on appeal, we
review the administrative record for the nondiscrimination and
nonretaliation claims directly, "applying the same standard of
review to that record that the district court applied," id., and
- 27 -we review the district court's grant of summary judgment de novo,
Crowe, 74 F.4th at 1035.
The resulting case here is thus a mixed case because
Hernández challenges her termination for insubordination (the
serious personnel action) and alleges that it was done out of
retaliation. With the schematics behind us, we turn to Hernández's
arguments on appeal. We will first address her challenge to the
MSPB's decision to uphold her termination, before moving on to her
claim of retaliation under Title VII.
i. The MSPB's Decision to Uphold Hernández's Termination for
Insubordination
Hernández contends that the MSPB's decision to uphold
her insubordination charge wasn't supported by a preponderance of
the evidence and, therefore, her termination was unreasonable.
The government disagrees and claims that there is ample evidence
to support the MSPB's conclusions, especially since the MSPB relied
on Hernández's own testimony in addition to other record evidence.
"In determining whether the outcome in an adjudication
before an administrative agency such as the MSPB is arbitrary and
capricious we do not substitute our judgment for that of the agency
but rather only seek to ensure that the decision was reasonable
and rational." Kelliher v. Veneman, 313 F.3d 1270, 1276 (11th
Cir. 2002); see also Atieh v. Riordan, 797 F.3d 135, 138 (1st Cir.
2015). And, again, "we review the administrative record directly,
- 28 -applying the same standard of review to that record that the
district court applied." Sher, 488 F.3d at 499-500.
Here, the district court reviewed Hernández's challenge
to the MSPB's decision under the substantial evidence standard,
and so do we. Sher, 488 F.3d at 500. "Substantial evidence means
'more than a mere scintilla. It means such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.'" Visiting Nurse Ass'n Gregoria Auffant, Inc. v.
Thompson, 447 F.3d 68, 72 (1st Cir. 2006) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). Under this standard, we will
not "contravene the agency's factfinding unless a reasonable
adjudicator would be compelled to reach a contrary conclusion."
Atieh, 797 F.3d at 138 (quoting Agyei v. Holder, 729 F.3d 6, 13
(1st Cir. 2013)). And from our review of the record, we find that
the MSPB's findings were supported by and grounded in substantial
evidence.
The government provided the MSPB with two specific
occurrences supporting Hernández's insubordination charge: (1) she
failed to communicate with Joseph by phone or in person as she was
repeatedly requested to do so, particularly in an email from
Donahue on October 11, 2017; and (2) she failed to communicate
with Joseph when she had a coworker communicate with Joseph on her
behalf. At the MSPB hearing, Hernández argued that she never
received the October 11, 2017, email and that she had a coworker
- 29 -communicate with Joseph because he had created a hostile work
environment.
In reaching its determination to sustain the
insubordination charge, the MSPB relied heavily on the record,
Hernández's written response to her removal, and Hernández's
testimony at the MSPB hearing. It found that Hernández "willfully
and intentionally refused to obey an authorized order of a
superior" because she received written directives on how to
communicate with Joseph as her immediate supervisor, she ignored
those directives when she either failed to communicate with Joseph
or communicated with him through other people, and she couldn't
satisfactorily perform her duties while giving Joseph what the
MSPB described as "the silent treatment." The MSPB also found
that her testimony at the hearing was inconsistent and
contradictory. For example, the MSPB noted that Hernández
testified that she received Donahue's instructions to communicate
directly with Joseph, but then later testified that she never
received Donahue's email with those orders contrary to one of her
earlier admissions. And although Hernández testified that she had
a coworker communicate with Joseph on her behalf because of the
ongoing hostile work environment, when asked to describe acts taken
by her supervisors to create a hostile work environment, she failed
to do so.
- 30 -The record supports the MSPB's conclusion that Hernández
received directives to communicate with her supervisors through
particular mediums, she failed to do so, and, as a result, was
terminated. Hernández's rebuttal that the orders from her
superiors were "unreasonable, arbitrary, and applied selectively
and unfairly to her" do not compel us to a contrary conclusion.
See id. (explaining that the substantial evidence standard
requires deference to an agency's factfinding "unless a reasonable
adjudicator would be compelled to reach a contrary conclusion"
(quoting Agyei, 729 F.3d at 13)). First, we decline Hernández's
invitation to second-guess the MSPB's credibility determination
regarding her inconsistent representations on whether she received
Donahue's email. Credibility determinations are not the forte of
appellate tribunals, and regardless, our review of the record
reveals the same inconsistencies that troubled the MSPB with
nothing to warrant a different perspective now. Second,
Hernández's references to her certified timesheets do not carry
the evidentiary weight she proclaims. These timesheets are
themselves difficult to interpret, but even accepting Hernández's
interpretation that they show that Joseph authorized her "Leave
Without Pay," they remain contrary to Joseph's report -- which the
MSPB found "not in dispute" -- wherein he stated Hernández failed
to follow his orders to communicate directly with him. And lastly,
Hernández's claim that her refusal to communicate with Joseph
- 31 -directly (despite being ordered to do so) was "to protect herself
from the further intensification of the discriminatory and
retaliatory hostilities in her work environment" is without record
support. Just as the MSPB found, the "vaguely-asserted hostile
environment" Hernández alleges remains only that, allegation sans
record evidence.
Thus, we conclude the MSPB's decision is supported by
substantial evidence, and we reject Hernández's claim.
ii. Retaliation under Title VII
Before we get into the specifics of Hernández's
retaliation claim, we offer another primer on the burden-shifting
framework governing Title VII claims that will aid our forthcoming
resolution.
Title VII prohibits an employer from retaliating against
an employee who files a Title VII discrimination charge.
Serrano-Colon v. U.S. Dep't of Homeland Sec., 121 F.4th 259, 272
(1st Cir. 2024); see also 42 U.S.C. § 2000e-3(a). To establish a
prima facie claim of retaliation, a plaintiff must prove that
(1) they engaged in conduct protected by Title VII; (2) they were
subjected to an adverse action that would dissuade a reasonable
employee from engaging in protected conduct; and (3) there is a
causal connection between the protected conduct and the adverse
employment action. Id. at 272-73.
- 32 -From there, the burden shifts to the employer to
"articulate a legitimate, non-retaliatory reason for its
employment decision[s]." Id. at 273 (quoting Calero-Cerezo v.
U.S. Dep't of Just., 355 F.3d 6, 26 (1st Cir. 2004)); see also
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). And if the
employer is successful in doing so (a low hurdle, as Hernández
recognizes), the burden shifts back to the plaintiff once more to
point to specific facts and offer evidence that the reasons were
"a sham or pretext intended to cover up . . . retaliatory motive."
Calero-Cerezo, 355 F.3d at 26; see also Sher, 488 F.3d at 507.
Because the government has articulated legitimate,
nonretaliatory reasons for its employment decision, even if
Hernández made out a prima facie case, she would still need to
provide evidence that each of the government's proffered reasons
for her termination were pretextual. See Sher, 488 F.3d at 507-08.
As we will explain, she has not met the latter burden. Thus,
assuming (generously) that Hernández has made a prima facie
showing, we affirm the district court's entry of summary judgment
because she has not put up evidence to show the government's
reasoning for her termination was a sham. We'll explain.
The government asserts -- and the record shows -- that
Hernández was terminated on charges of insubordination and lack of
candor. To support her argument that the government's reasoning
for her termination was pretextual, Hernández first points out
- 33 -that the MSPB decided not to sustain the lack of candor charge
against her. According to Hernández, this means the lack of candor
charge cannot serve as a legitimate and nonretaliatory reason for
her termination. And building off that premise, she contends that
the insubordination charge alone cannot justify her termination
because (again, according to her) there was no insubordination in
the first place. Hernández also adds that her inability to access
crucial discovery stunted her ability to show pretext, and because
that "key discovery" would have bolstered her evidentiary showing,
Hernández asks us to infer that the unproduced discovery would
have been unfavorable to the government.
While "there is no 'mechanical formula' for finding
pretext," Che v. MBTA, 342 F.3d 31, 39 (1st Cir. 2003) (quoting
Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218
F.3d 1, 6 (1st Cir. 2000)), Hernández "must have adduced sufficient
evidence to create a genuine issue as to whether retaliation was
the real motive underlying h[er] dismissal," Serrano-Colon, 121
F.4th at 273 (quoting Harrington v. Aggregate Indus.-Ne. Reg.,
Inc., 668 F.3d 25, 31 (1st Cir. 2012)). Her attempt to do so
merely rehashes her qualms against the MSPB's finding of
insubordination, and for many of the same reasons, Hernández's
argument that her termination was pretextual due to a lack of
insubordination does not pass muster.
- 34 -The record shows that the government terminated
Hernández for disregarding instructions to communicate directly
with her supervisor, and Hernández fails to offer competent record
evidence that the instructions she received were illegal,
unreasonable, arbitrary, or applied selectively to her as she
claims. Hernández testified to receiving Donahue's instructions
to communicate directly with Joseph regarding her absences and
medical leave as early as October 2017. She also testified that
she ignored these instructions to avoid problems with Joseph. And
while that may be her prerogative, the DEA's internal policies,
which were cited in Hernández's removal letter, clearly state that
DEA employees must "follow the lawful orders, directions, and
policies of supervisors, managers, on-scene commanders, and/or
more senior officials." See Kinzer v. Whole Foods Mkt., Inc., 99
F.4th 105, 116 (1st Cir. 2024) ("Title VII does not render
employers powerless to enforce nondiscriminatory workplace rules,
as '[a]n employer remains entitled to loyalty and cooperativeness
from employees.'" (quoting Hochstadt v. Worcester Found. for
Experimental Biology, 545 F.2d 222, 230 (1st Cir. 1976))); see
also Mariani-Colon v. Dep't of Homeland Sec. ex rel. Chertoff, 511
F.3d 216, 224 (1st Cir. 2007) (finding that the government had a
legitimate, nonretaliatory reason to terminate an employee who
failed to show up to work despite having exhausted his leave and
to meet the terms of his conditional appointment as a federal
- 35 -employee); see also Orta-Castro v. Merck, Sharp & Dohme Química
P.R., Inc., 447 F.3d 105, 111 (1st Cir. 2006)(finding that an
employee's failure to show up to work after a set date constituted
a valid reason for her termination). Likewise, the timesheets we
discussed earlier do not prove that Hernández followed orders,
particularly in light of Joseph's report and Hernández's own
testimony to the contrary. And (again) Hernández has not pointed
to record evidence of a hostile work environment as she alleges,
leaving us with no basis to conclude the instructions to
communicate with her supervisor were unlawful.8 Therefore,
Hernández has failed to establish, by way of record evidence, that
the government's decision to terminate her employment for
insubordination was pretextual.
Additionally, Hernández doesn't offer any evidence (or
argue the existence thereof, as the government points out) to
suggest that the lack of candor charge was not a legitimate,
nonretaliatory reason that the government relied on when it
terminated her. Despite the MSPB's determination not to sustain
Hernández's lack of candor charge, the government could have
nonetheless relied on that charge to justify her termination. See
Sher, 488 F.3d at 508 (finding that, regardless of the MSPB's
8Given our earlier holding regarding discovery, this absence
of record evidence does not lead us to any different conclusions
as Hernández requests.
- 36 -decision on the matter, a charge upon which termination was based
"may still serve as a legitimate, nondiscriminatory justification
for the adverse employment action" so long as the employee doesn't
offer evidence that suggests otherwise). In other words, that the
MSPB did not rely on lack of candor as a reason to affirm
Hernández's discharge does not necessarily mean that the DEA
terminated her employment based on a retaliatory motive prohibited
by Title VII. That leaves another legitimate, nonretaliatory
reason offered for her termination for which Hernández has made an
inadequate showing of pretext. See id.
In sum, the district court did not err in granting
summary judgment for Hernández's Title VII claim of retaliation,
and we reject her claims here as well.
III. Conclusion
For the foregoing reasons, we affirm the district
court's decision.
- 37 -