author: HOWARD, Chief Judge.

text:
    IN RE: OAK KNOLL ASSOCIATES, L.P., Debtor Robert Harris, Appellant, v. Rosa Scarcelli and Oak Knoll Associates, L.P., Appellees.
    No. 15-2189
    United States Court of Appeals, First Circuit.
    August 19, 2016

      James F. Molleur, with whom Molleur Law Office was on brief, for appellant.

      Daniel L. Cummings, with whom Norman, Hanson & DeTroy, LLC was on brief, for appellee Rosa Seareelli.
    Before HOWARD, Chief Judge, TORRUELLA and BARRON, Circuit Judges.
   HOWARD, Chief Judge.

Appellant Robert Harris seeks to recover a real estate broker’s commission that he claims is owed to him by Appellees Rosa Seareelli and Oak Knoll Associates, L.P. (collectively, “Oak Knoll”). Concluding on these facts that Oak Knoll is not contractually obligated to pay Harris a commission and that Harris has failed to identify a basis upon which he would be entitled to equitable relief, we affirm the grant of summary judgment in favor of Oak Knoll.

I. Background

Oak Knoll Associates, L.P., is a limited partnership whose general partners at all relevant times consisted of Pamela Gleich-man and Rosa Seareelli. This case began when the partnership sought to sell some apartment buildings that it owned in Nor-walk, Connecticut. To that end, Oak Knoll enlisted the services of Robert Harris, a real estate broker.

The parties accordingly entered into an agreement dated May 16, 2011 (“the listing agreement”). The listing agreement was to remain in effect for six months and outlined two scenarios under which Oak Knoll would be obligated to pay Harris a commission for his services. First, Harris could earn a commission if the property were to be sold during the six-month term of the listing agreement. Second, Harris could earn a commission if an offer to purchase or lease the property were to be accepted during the six-month term or within six months of the termination of the listing agreement (and if the accepted offer in fact resulted in a sale). The listing agreement also provided that if negotiations continued after the six-month term, the listing agreement would be automatically renewed until the conclusion of those negotiations. A rider to the listing agreement, in turn, provided that Harris’s commission for selling the property would be 4.8 percent.

Harris subsequently located a potential buyer, Navarino Capital Management, LLC (“Navarino”). On October 11, 2011, Navarino and Oak Knoll executed a purchase and sale agreement (“2011 P&S”), whereby Navarino agreed to purchase the property from Oak Knoll for $6,300,000. The deal gave Navarino 45 days to inspect the property and allowed Navarino to terminate the deal for a number of reasons not relevant for present purposes.

In November 2011, Navarino requested and received the first in a series of extensions to the inspection period. Navarino had discovered that the property was subject to a number of restrictive covenants that Oak Knoll had agreed to at the behest of the Connecticut Housing Finance Authority when Oak Knoll first purchased the property in 1988. On February 24, 2012, Navarino wrote to Oak Knoll, offering to purchase the property at a reduced price in light of those covenants.

Oak Knoll did not accept this revised offer. Instead, intra-partnership disputes spilled into federal court: on February 28, 2012, Seareelli sued Gleichman in United States District Court for the District of Maine. Seareelli obtained a default judgment against Gleichman and the district court in turn issued a permanent injunction in Scarcelli’s favor. See Scarcelli v. Gleichman, No. 2:12-CV-72-GZS, 2012 WL 1965681 (D. Me. May 31, 2012). Among other things, the injunction forbade Gleichman from entering into a contract to sell the property without Scarcel-li’s prior written consent. See id. at *4.

Harris, in turn, was kept apprised of these developments. On June 25, 2012, Scarcelli’s attorney emailed Harris to inform him that Scarcelli would seek contempt sanctions against Gleichman or any third party who — knowing of the district court’s injunction — acted in violation of that injunction. The record is silent as to what transpired over the following months, save for the fact that on November 13, 2012, Harris sent an invoice to Gleichman demanding payment for his services, and some months after that recorded a lien against the property for a broker’s commission.

The story picks up again on March 18, 2013, when the partnership filed for Chapter 11 bankruptcy in United States Bankruptcy Court for the District of Maine. Within days, Navarino demanded the return of its escrow deposit from Oak Knoll. On April 1, 2013, the partnership filed an application to retain Harris as a real estate broker, and on June 18, 2013, Harris filed a proof of claim for his brokerage services.

Although the retention application had not yet been approved, on August 21, 2013, the partnership’s counsel sent Harris an email telling Harris to “get us a contract for the $6,275,000.” That same day, Harris informed Navarino that Oak Knoll was amenable to selling the property for that amount.

Then, on August 28, 2013, Scarcelli filed an objection to the application to retain Harris. The bankruptcy court held a hearing on the application on September 4, 2013. At the conclusion thereof, the court granted the application, provided that Oak Knoll file a revised proposed order reflecting certain changes. However, such a proposed order was never filed and the bankruptcy court thus never approved the retention application. In October 2013, the partnership’s counsel withdrew the still-pending retention application with the court’s approval. That same month, Na-varino and Oak Knoll Associates executed a new purchase and sale agreement. This second agreement eventually resulted in the successful sale of Oak Knoll’s apartment buildings.

But although Navarino got the property and Oak Knoll got its money, Harris received nothing for his efforts. Oak Knoll never paid him. Unsurprisingly, Harris pursued claims against both the partnership and Scarcelli in federal bankruptcy court, seeking the commission that he believed he was owed. Eventually, Oak Knoll moved for summary judgment, arguing that there was no material dispute of fact and that Harris was — as a matter of law— not owed a commission. Following oral argument, the bankruptcy court granted the motion and denied Harris’s claims.

The bankruptcy court’s decision, in turn, was appealed to United States District Court for the District of Maine, which affirmed the grant of summary of judgment. This appeal timely followed.

II. Standard of Review

“[T]he legal standards traditionally applicable to motions for summary judgment apply [ ] without change in bankruptcy proceedings.” Daniels v. Agin, 736 F.3d 70, 78 (1st Cir. 2013). Thus, summary judgment is proper “if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.” Soto-Rios v. Banco Popular de P.R., 662 F.3d 112, 115 (1st Cir. 2011). The evidence, of course, must be viewed in the light most favorable to the nonmoving party (in this case Harris) and all reasonable inferences must be taken in that party’s favor. See In re Varrasso, 37 F.3d 760, 763 (1st Cir. 1994).

We review, in turn, a bankruptcy court’s grant of summary judgment de novo. See Soto-Rios, 662 F.3d at 115. And although the bankruptcy court’s decision was first reviewed by the district court, we review the bankruptcy court’s decision as if on a clean slate. See id.

III. Discussion

In seeking to recover his unpaid commission, Harris invokes two provisions of the Bankruptcy Code. First, he cites 11 U.S.C. § 501, arguing that he is owed a commission under the terms of his contract with Oak Knoll. Second, Harris argues that he is entitled to it as a form of equitable relief under 11 U.S.C. § 105(a). We consider each theory of recovery in turn, explaining why each one fails as a matter of law in light of the undisputed facts of this case.

A. Proof of Claim

Harris filed a proof of claim for his unpaid commission pursuant to 11 U.S.C. § 501. The Bankruptcy Code, in turn, provides that when, as here, a party objects to such a claim, the bankruptcy court is to hold a hearing, and must thereafter allow the claim unless (in addition to other exceptions not presently relevant) the claim “is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured....” Id. § 502(b)(1). The ultimate validity of such a claim is determined with reference to state law. See Raleigh v. Ill. Dep’t of Revenue, 530 U.S. 15, 20, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000) (“The ‘basic federal rule’ in bankruptcy is that state law governs the substance of claims.... ”). Here, the parties agree that we must look to Connecticut law to determine whether Harris is entitled to his commission.

In Connecticut, a broker’s right “to recover a commission depends upon the terms of [his] employment contract with the seller.” Revere Real Estate, Inc. v. Cerato, 186 Conn. 74, 438 A.2d 1202, 1204 (1982). Thus, while a broker can earn a commission merely by procuring a ready, willing, and able buyer, see Menard v. Coronet Motel, Inc., 152 Conn. 710, 207 A.2d 378, 379 (1965), the parties can “make the broker’s right to a commission dependent on specific conditions, such as the consummation of the transaction and full performance of the sales contract.” Revere Real Estate, 438 A.2d at 1205.

With this in mind, we turn to the listing agreement, which provides, in relevant part, as follows:

In order protect AGENT should the property known as Oak Knoll Apartments ... (the “PROPERTY”) is sold within six (6) months from the date hereof, to sell the property for $7,000,000.00 or any such price as the OWNER may subsequently agree upon, agree to pay AGENT the commission set forth below. All parties to this agreement also agree that all communications and agreements, whether written oral, will be transmitted through AGENT. OWNER agrees that if the property is sold during the term of this Agreement to a Purchaser, procured by Agent during the term of this Agreement as outlined above, OWNER will pay AGENT a commission per Schedule A attached. Should negotiations continue after the six (6) month period the OWNER agree to automatically extend this agreement and its terms until such as the negotiations are completed.
The commission shall be due and payable by certified check in full upon the closing of title (or lease execution). If, during the term hereof, or within six (6) months from the termination of this Agreement, should there be an acceptance of an offer to purchase/lease from the PURCHASER, OWNER agrees to pay the AGENT a commission as per this AGREEMENT.
This Agreement shall become effective-immediately and shall remain in effect six (6) months from the date hereof.

Harris zeroes in on two provisions of the listing agreement. First, he points out that it obligates Oak Knoll to pay him “should there be acceptance of an offer,” and asserts that .he was owed a commission when an offer to purchase the apartments was accepted back in October 2011. Second, he asserts that the listing agreement’s automatic extension provision (i.e., in the event of continued negotiations) kept the listing agreement alive such that he earned a commission based on the eventual sale of the property to Navarino. We examine his arguments seriatim, explaining why neither is persuasive.

1. Acceptance of an Offer

As stated, the listing agreement obligates Oak Knoll to pay Harris a commission “should there be acceptance of an offer” during the term of the listing agreement or within six months of its termination. The parties don’t appear to dispute that there was acceptance of an offer to purchase the property in October 2011, within the effective term of the listing agreement. Harris accordingly argues that he was owed a commission as of that date, because (in his telling) the listing agreement requires Oak Knoll to pay him upon the mere acceptance of an offer, regardless of whether this results in a sale. Oak Knoll counters that the listing agreement requires that a sale actually occur in order for Harris to earn his commission. Thus, succinctly put, our task is to interpret the contract (using Connecticut law) to determine whether Oak Knoll’s obligation to pay Harris is predicated on the sale of the property. See In re Advanced Cellular Sys’s., Inc., 483 F.3d 7, 13-14 (1st Cir. 2007).

Although the listing agreement is hardly an exemplar of draftsmanship, we nonetheless think it unambiguous. See Salce v. Wolczek, 314 Conn. 675, 104 A.3d 694, 698 (2014) (“If the contract is unambiguous, its interpretation and application is a question of law for the court, permitting the court to resolve a breach of contract claim on summary judgment if there is no genuine dispute of material fact.”); see also Ramirez v. Health Net of the Ne., Inc., 285 Conn. 1,938 A.2d 576, 587 (2008) (“A contract is ambiguous if the intent of the parties is not clear and certain from the language of the contract itself.”). That is, the language of the contract leaves no doubt that the parties intended that a sale take place in order for Harris to earn his commission.

We acknowledge, of course, that in Connecticut, a court has “no right to add a new term to a contract.” Williams v. Lilley, 67 Conn. 50, 34 A. 765, 768 (1895). We have not done so here. While the acceptance-of-an-offer provision does not explicitly state that an accepted offer must result in a sale, the text of the listing agreement nevertheless indicates that this is precisely what must happen if Harris is to earn his commission. For starters, the aceeptance-of-an-offer provision is qualified by important language: that Oak Knoll “agrees to pay the AGENT a commission as per this AGREEMENT.” The last four words dictate that we read this provision consistent with the contract as a whole. And indeed, the sale requirement is unambiguously reflected in the contract. Cf. Ramirez, 938 A.2d at 587 (explaining that courts should not “import terms into [an] agreement ... that are not reflected in the contract” (emphasis added)).

For example, the listing agreement is titled a “Non-Exclusive Agency Sale Agreement.” Cf. Bialowans v. Minor, 209 Conn. 212, 550 A.2d 637, 639-40 (1988) (holding, in the context of interpreting contract language, that a section heading delimited the scope of language appearing under said heading). Similarly, the first sentence of the quoted portion of the listing agreement provides:

In order protect AGENT should the property known as Oak Knoll Apartments ... (the “PROPERTY”) is sold within six (6) months from the date hereof, to sell the property for $7,000,000.00 or any such price as the OWNER may subsequently agree upon, agree to pay AGENT the commission set forth below.

The drafting errors do not obscure the critical point: this sentence announces the general purpose of the listing agreement (viz., protecting the agent in the event that the property “is sold”) and concomitantly sets forth Oak Knoll’s duty to pay Harris a commission. A commonsense reading would suggest that Oak Knoll’s obligation to pay Harris is connected to the overall purpose of the listing agreement. Cf. Dist. of Columbia v. Heller, 554 U.S. 570, 577, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) (“Logic demands that there be a link between the stated purpose and the command.”). And by thus linking the protection of Harris’s interests, the sale of the property, and Oak Knoll’s obligation to pay Harris a commission, the listing agreement indicates that a sale must take place in order for Harris to earn his commission.

Other features of the listing agreement support this conclusion. The second-quoted paragraph of the listing agreement conditions payment of Harris’s commission on the property being “sold” during the term of the listing agreement. The third-quoted paragraph of the listing agreement provides that the commission “shall be due and payable ... upon closing of title.” Similarly, Schedule A states (under the heading of “Sale Commissions”) that “[t]he commission for selling the property shall be [ ] 4.8%.” All told, these repeated references to the sale of the property confirm that the parties intended to make Harris’s commission contingent on the sale of the property.

Finally (and critically), reading the listing agreement as not requiring a sale (as Harris would have us do) would render the first and second-quoted paragraphs of the listing agreement superfluous, thereby contravening well-settled Connecticut law. See Ramirez, 938 A.2d at 586 (“The law of contract interpretation militates against interpreting a contract in a way that renders a provision superfluous.” (internal citations omitted)). That is, Harris maintains that the listing agreement obligates Oak Knoll to pay him if an offer is accepted, regardless of whether a sale ultimately occurs. The listing agreement, however, is crystal-clear that Oak Knoll must pay Harris a commission if the property “is sold.” It is axiomatic that a sale is preceded by acceptance of an offer; as Harris concedes, the former necessarily entails the latter. Cf. Norfolk & W. Ry. Co. v. Sims, 191 U.S. 441, 447, 24 S.Ct. 151, 48 L.Ed. 254 (1903). Consequently, if acceptance of an offer were all that were needed for Harris to earn his commission, there would have been no need to specify (as the listing agreement repeatedly does) that he could do so upon the successful closing of a sale. Thus, we do not believe that the listing agreement is susceptible to two reasonable interpretations and that Oak Knoll merely offers a better reading than Harris. Cf. Cruz v. Visual Perceptions, LLC, 311 Conn. 93, 84 A.3d 828, 835 (2014) (“If the language of the contract is susceptible to more than one reasonable interpretation, the contract is ambiguous.”). Rather, we believe that Harris’s interpretation of the listing agreement is untenable, failing to “give operative effect to every provision in order to reach a reasonable overall result.” R.T. Vanderbilt Co., Inc. v. Cont’l Cas. Co., 273 Conn. 448,870 A.2d 1048, 1059 (2005).

The lily having been sufficiently gilded, the important point is this: the listing agreement unambiguously requires that a sale take place in order for Harris to earn his commission. The bankruptcy court thus correctly determined that Harris was not entitled to his commission based on the acceptance of an offer in 2011.

2. Continued Negotiations

Oak Knoll and Harris also agreed that the listing agreement would be automatically renewed in the event of continued negotiations. Harris maintains that such negotiations took place and thereby kept the listing agreement alive, such that he earned a commission based on the ultimate sale of the property. We disagree.

We begin by considering the language of the contract. The listing agreement states, in relevant part: “Should negotiations continue after the six (6) month period the OWNER agree to automatically extend this agreement and its terms until such as the negotiations are completed.” Harris takes this to mean that the listing agreement would not expire so long as negotiations took place at least once every six months. Harris claims, in turn, that he would be entitled to a commission if an offer were to be accepted within twelve months of the last instance of negotiations.

Even assuming for the sake of argument that this is a reasonable interpretation of the contract, see Cruz, 84 A.3d at 835, Oak Knoll is nonetheless entitled to summary judgment as there is no evidence that an offer was accepted within twelve months of the last instance of negotiations. Despite taking all reasonable inferences in Harris’s favor, the record contains no evidence of any negotiations occurring between June 2012 and March 2013. In fact, it is wholly silent on that point. Thus, under Harris’s proffered interpretation of the listing agreement, the negotiations concluded at some point in June 2012 (i.e., as no negotiations took place within six months of that date), and the listing agreement expired in December 2012. There is, in turn, no evidence that an offer was accepted within twelve months of June 2012! Thus, even under Harris’s proposed interpretation of the contract, he cannot show that continued negotiations kept the listing agreement alive such that he earned a commission.

In attempting to show otherwise, Harris points to an exchange of emails in late March 2013. He also highlights an April 2, 2013 affidavit from Gleichman, in which she states that Harris “recently” emailed her to say that “we have a deal for $6.0 period.” And Harris further .points out that he contacted Navarino in August 2013. But again (and by Harris’s own logic), the negotiations rang down the curtain and joined the choir invisible in June 2012, taking the listing agreement with them six months later. And while the negotiations were eventually rekindled at some point in 2013, Harris makes no argument that the already-expired listing agreement could be similarly resuscitated. The evidence cited by Harris is of no help to him.

Similarly, the evidence cited by Harris in no way suggests that the parties were continuously negotiating within the relevant timeframe: it does nothing to address the substantial gap in the record. Accordingly, Harris hasn’t pointed to “hard evidence of a material factual dispute,” and thus fails to stave off summary judgment. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990); see also id. (“Evidence which is ‘merely colorable or is not significantly probative’ will not preclude summary judgment.” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986))).

B. Equitable Relief

This leaves us with Harris’s claim for equitable relief. Congress has given bankruptcy courts the authority to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions” of the Bankruptcy Code. 11 U.S.C. § 105(a). We have cautioned, however, that this does not give bankruptcy courts “a roving writ, much less a free hand” to provide equitable relief. In re Jamo, 283 F.3d 392, 403 (1st Cir. 2002). Rather, this statute “may be invoked only if, and to the extent that, the equitable remedy dispensed by the court is necessary to preserve an identifiable right conferred elsewhere in the Bankruptcy Code.” Id. As the foregoing demonstrates, Harris was not owed a commission based on the terms of his contract with Oak Knoll; if he has an identifiable right, it must accordingly have its genesis elsewhere.

To that end, Harris points to a Connecticut statute which entitles a real estate broker to recover a commission “if it would be inequitable to deny such recovery.” Conn. Gen. Stat. § 20-325a(d). However, we need not address the merits of this argument as it is doubly waived. First, having failed to present this theory below, Harris may not do so for the first time on appeal. His argument is kneecapped: un-preserved claims don’t warrant our review. See In re Woodman, 379 F.3d 1, 2 (1st Cir. 2004) (refusing to review a party’s argument in light of its “failure to advance [it] before the bankruptcy court in the first instance”). Second, the argument is insufficiently fleshed-out to merit our consideration. That is, the statute cited by Harris allows for equitable relief only when a broker has “substantially complied” with the statute’s formalities. See Conn. Gen. Stat. § 20-325a(d); see also Location Realty, Inc. v. Colaccino, 287 Conn. 706, 949 A.2d 1189, 1203 (2008) (substantial compliance with § 20-325a is the “sole avenue to recovery that the [Connecticut] legislature chose to provide in circumstances wherein the strict construction of § 20-325a would lead to unfair results or unjust enrichment”). Harris, however, makes no effort to argue that he so complied. As such, this argument is waived. See Alicea v. Machete Music, 744 F.3d 773, 780 (1st Cir. 2014). Since Harris otherwise fails to identify a right which would entitle him to equitable relief, we reject this claim as well.

IY. Conclusion

Some may find this result unfair, particularly insofar as the partnership filed an application to retain Harris’s services and asked Harris to communicate with Navari-no (knowing that the retention application had not yet been approved), only to withdraw the pending application after Harris did so. And some may be especially troubled by Oak Knoll’s conduct given the bankruptcy court’s conclusion that the partnership was in a position to make “a 100% payment to all creditors, with money left over to pay out to [the partnership’s] insiders.” We are not, however, asked to decide whether Oak Knoll is deserving of opprobrium, but whether Oak Knoll was entitled to summary judgment. And for the reasons stated, we hold that it was.

AFFIRMED.

      . We reproduce the actual text of the listing agreement below, where we also discuss the parties' dueling interpretations thereof. For present purposes, we provide only a general summary of the listing agreement.

      . Oak Knoll and Scarcelli each eventually filed objections to the proof of claim.

      . There may be some tension within our cases as to whether we defer to a bankruptcy court's findings of fact when reviewing its grant of summary judgment. Compare In re Moultonborough Hotel Group, LLC, 726 F.3d 1, 4 (1st Cir. 2013) (reviewing questions of law de novo and findings of fact for clear error) with Stoehr v. Mohamed, 244 F.3d 206, 207-08 (1st Cir. 2001) (per curiam) (applying de novo review to questions of law and to findings of fact). It is, however, presently unnecessary to reconcile these cases, as Harris’s claims fail under either standard of review.

      . Harris also sought payment pursuant to 11 U.S.C. § 503. However, he abandoned this theory of recovery on appeal and we therefore do not consider it.

      . With the exception of the property's address, we have otherwise reproduced the relevant portion of the listing agreement verbatim, with its warts and all.

      . Indeed, other courts — when interpreting contracts under Connecticut law — have found that typographical errors and the like do not necessarily render those contracts ambiguous. See, e.g., United Aluminum Corp. v. Boc Grp., Inc., No. 08-CV-977 (JCH), 2009 WL 2589486, at *6-7, *7 n.5 (D. Conn. Aug. 21, 2009) (finding contract unambiguous despite the presence of "typographical error[s]” or mistakes produced by "inattentive drafting”). And so too here. The many such errors in the listing agreement may produce frustration on the part of the reader, but they do not produce ambiguity so as to stave off summary judgment.

      . As the listing agreement expressly referenced Schedule A, and the parties were undoubtedly aware of that document's terms, we may properly consider it as having been incorporated into the listing agreement. See, e.g., Allstate Life Ins. Co. v. BFA Ltd. P'ship, 287 Conn. 307, 948 A.2d 318, 324 (2008).

      . Harris tries to flip this point on its head, arguing that the foregoing interpretation of the listing agreement renders the acceptance-of-an-offer provision superfluous. His argument is without merit. The acceptance-of-an-offer provision as we have construed it expands Harris's contractual rights in two respects:
      First, it requires Oak Knoll to pay a commission if an offer were to be accepted within the term of the listing agreement and resulted in a sale, but the sale only closed after the listing agreement’s expiration, and no negotiations took place so as to keep the listing agreement alive until the closing. In such a case, Harris would not be entitled to a commission but for the acceptance-of-an-offer provision.
      Second, this provision enables Harris to claim a commission if an offer were to be accepted (again, resulting in a sale) within six months of the listing agreement's expiration and in the absence of continued negotiations. And once more, in such a scenario, Harris's only route to a commission would be through the acceptance-of-an-offer provision.
      Thus, our interpretation of the listing agreement does not render the acceptance-of-an-offer provision superfluous.

      .Accordingly, it does not matter whether Na-varino was a ready, willing, and able buyer, as Oak Knoll was not obligated to pay Harris unless a sale actually happened. Harris similarly argues that the bankruptcy court erred in finding that Oak Knoll was not responsible for the failure of the 2011 P&S. However, our conclusion that the listing agreement requires a sale may make it unnecessary to reach this point. Cf. Revere Real Estate, 438 A.2d at 1205 (“A seller cannot defeat a broker’s right to its commission by his unilateral nonperformance of a sales contract unless the listing contract reserves the right to condition payment upon consummation of the sales contract.'' (emphasis added)). Regardless, we need not address this argument because it is waived: Harris fails to bring to our attention any authority indicating that Oak Knoll's supposed breach of the 2011 P&S has any bearing on our analysis. See United States v. Munyenyezi, 781 F.3d 532, 542 n.11 (1st Cir. 2015). In fact, he offers no explanation whatsoever as to why this point should even affect the bottom-line conclusion. A claim of error without explanation as to the error’s import generally amounts to little more than sound and fury. Which is to say, it signifies nothing.

      . In other words, negotiations would be deemed to “continue” unless there were a six-month gap in those negotiations.

      . That is, seizing on the words "and its terms,” Harris points out that one of the "terms” of the listing agreement is that it is to remain in effect for six months. And moreover, the acceptance-of-an-offer provision entitles Harris to a commission if an offer were to be accepted within six months of the listing agreement’s expiration (although, as we have established, the offer would have to result in a sale).

      . Harris also relies on the bankruptcy court’s statement that "viewing the facts most favorably for Harris, [the negotiations] stopped by March 2013.” But as stated, there is no record evidence of negotiations taking place between June 2012 and March 2013. And neither Harris nor the bankruptcy court points to anything that would suggest otherwise.

      . In his reply brief, Harris fleetingly mentions his broker’s lien and 11 U.S.C. § 506 in conjunction with his equitable relief claim. But we need not consider the merits of this undeveloped argument for another reason altogether. "Contentions not advanced in an appellant’s opening brief are deemed waived.” DeCaro v. Hasbro, Inc., 580 F.3d 55, 64 (1st Cir. 2009). And so it is here.


source: Caselaw Access Project

author: TORRUELLA, Circuit Judge. THOMPSON, Circuit Judge,

license: Public Domain

text:
    Elizabeth TYREE, Plaintiff, Appellant, v. Anthony FOXX, Secretary, U.S. Department of Transportation, Defendant, Appellee.
    No. 14-2092
    United States Court of Appeals, First Circuit.
    August 22, 2016

      James A.W. Shaw, with whom Segal Roitman, LLP, Boston, MA, was on brief, for appellant.
    Christine J. Wichers, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
    Before TORRUELLA, THOMPSON, and KAYATTA, Circuit Judges.
   TORRUELLA, Circuit Judge.

Elizabeth Tyree was a paid graduate student intern at the John A. Volpe National Transportation System Center (“Volpe Center”). During her internship, Tyree began conducting research for her master’s thesis. After her internship ended, she sought access to the Volpe Center’s proprietary data through a Cooperative Research and Development Agreement (“CRADA”) — an agreement between a federal laboratory and a non-federal entity to share resources and conduct research as defined in 15 U.S.C. § 3710a(d)(l) — to continue her thesis, but the CRADA was never executed. Tyree brought this employment discrimination suit against the Secretary of Transportation alleging that the Volpe Center did not execute the CRADA because of her sex, race, or national origin. The district court granted the Secretary’s motion for summary judgment finding that Tyree failed to show the challenged acts were motived by discriminatory animus. We affirm.

I.

The facts underlying this case are largely undisputed. “To the extent that the parties disagree about what occurred, we adhere to the plaintiffs version in keeping with our role in reviewing a grant of summary judgment.” Ahmed v. Johnson, 752 F.3d 490, 492 (1st Cir. 2014).

During the relevant time period, Tyree, a black Hispanic woman, was’ a student at Worcester Polytechnic Institute (“WPI”), pursuing her master’s degree in physics. In February 2009, Tyree began a two-year paid internship with the Volpe Center. Before accepting her offer and again- after starting, Tyree told the Volpe Center she hoped to conduct research for her master’s thesis. That spring, after viewing a list of research topics generated by the Volpe Center, Tyree decided to write her thesis on the differences between aircraft wake behavior over land and water. While working on her research, Tyree worked closely with Dr. Michael Geyer and Dr. Frank Wang at the Volpe Center as well as her thesis advisor at WPI. Wang was the team lead for the aircraft wake turbulence program and one of the people involved in Tyree’s interview process. He worked closely with her for two years. Tyree points to no evidence that he ever manifested, or even hinted at, any bias against her.

In January 2011, two weeks before her internship ended, the Volpe Center told Tyree that they would not extend her internship to full-time employment. Tyree asked Geyer if she would lose her thesis research. Geyer told Tyree that she could potentially continue her research (and have access to the Volpe Center’s nonpublic wake data) through a CRADA between WPI and the Volpe Center.

The day before her internship ended, Tyree met with Geyer, Wang, and Felicia McBride, a Volpe Center attorney, to discuss the possibility of executing a CRADA. McBride, an African-American woman, explained to Tyree the CRADA process, including that Tyree needed to provide a statement of work (“SOW”) describing her research before McBride could start writing a draft CRADA. McBride also explained that a CRADA is a' mutually beneficial arrangement between a federal laboratory and a nonfed-eral entity that must be approved by different departments within the agency, and would ultimately need approval from the Director of the Volpe Center and the administrator of the Research Innovation Technology Administration (“RITA”) of the U.S. Department of Transportation. To do all of this, Tyree needed to have someone at Volpe work with her. There is no evidence that Wang had any duty to help her at all. Nevertheless, he agreed to do- so. After the meeting, Geyer instructed Tyree to write a first draft of the SOW and email it to Wang. Six days later, on February 16, Tyree emailed her draft SOW to Geyer and Wang.

The SOW, however, was never completed. In March, Wang emailed Tyree to let her know that she had received approval for one of the steps in setting up the CRADA but that he wanted to speak with her about “analysis ideas” he wanted to propose. At the beginning of April, Tyree went to the Volpe Center and Wang elaborated that he wanted Tyree to create a synthetic dataset to test a statistical method that would be subsequently used to analyze the wake data. In an email sent on April 28, Wang further explained that he believed the development of this “statistical tool” could be written into the SOW and he was concerned that the current SOW did not “have enough technology flowing back from WPI to [the] Volpe [Center].” Tyree, however, viewed Wang’s suggestion as beyond the scope of her original thesis and a topic that would have merited a separate thesis in its own right.

Little work was done on the SOW between May and July of 2011. Starting in July, Tyree sent the Volpe Center several emails asking about the status of the SOW. Wang responded by telling Tyree that she should incorporate his suggestions about the statistical tool into the draft SOW in order to make the CRADA more beneficial to the Volpe Center. McBride echoed this concern and stated that the SOW needed “to be ‘sellable’ in that it will align with a [Department of Transportation] goal.” Tyree, however, wanted Wang to type his changes into the draft SOW himself and found it “suspicious” that, if he viewed the statistical tool as important, he had not proposed them when she started her research two years earlier. On July 17, Wang sent Tyree an edited SOW with his changes (including the statistical tool and synthetic dataset) incorporated.

Four days after receiving the edited SOW, Tyree spoke with her thesis advisor. Tyree’s thesis advisor told her that, in his experience, SOWs (not necessarily for CRADAs) between two institutions took a few days to complete and up to a month if there were complications. That conversation cemented Tyree’s belief that the Volpe Center had no intention of completing the SOW or executing the CRADA.

On August 10, 2011, Tyree sought equal employment opportunity (“EEO”) counseling, alleging that the Volpe Center’s delays in executing the CRADA were motivated by gender discrimination. Tyree requested $300,000 from the Volpe Center and someone other than Wang as her point of contact for the SOW and CRADA. The EEO counselor was unable to resolve Tyree’s complaint and Tyree subsequently filed a complaint with the Department of Transportation alleging sex, race, and national origin discrimination. Upon receiving a right to sue letter, Tyree initiated this suit in the United States District Court for the District of Massachusetts.

In her first complaint, Tyree alleged that by failing to execute the CRADA, the Secretary discriminated against her on the basis of her sex, race, or national origin in violation of Title VII, 42 U.S.C. § 2000e-16(a). Tyree subsequently amended her complaint to include a claim that the Volpe Center’s advice on her thesis following her internship constituted a post-employment training program at the Volpe Center from which she was wrongfully terminated due to her sex, race, or national origin when the CRADA negotiations fell through. Following discovery, the district court granted summary judgment on the CRADA and training program claims. This timely appeal followed.

II.

“We review a district court’s grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party.” Román v. Potter, 604 F.3d 34, 38 (1st Cir. 2010). “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.” Hicks v. Johnson, 755 F.3d 738, 743 (1st Cir. 2014).

When a Title VII discrimination claim rests on circumstantial evidence, we apply the three-step burden-shifting framework outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Ahmed, 752 F.3d at 495. Under step one of that framework, the plaintiff must establish a prima facie case, of discrimination. Id. at 495-96. Once the plaintiff establishes a prima facie case, “an inference of discrimination arises, and the burden of production shifts to the defendant to produce evidence that the challenged employment action was taken for a legitimate, non-discriminatory reason.” Hicks, 755 F.3d at 744. “If the employer supplies such evidence, the plaintiff is left with the burden to prove ’by a preponderance of the evidence that the employer’s proffered reason is pretextual and that the actual reason for the adverse employment action is discriminatory.’” Id. (quoting Johnson v. Univ. of P.R., 714 F.3d 48, 53 (1st Cir. 2013)).

A. Prima facie case

At step one, the district court assumed that Tyree met her burden of proving a prima facie case of discrimination in connection with the Volpe Center’s failure to execute the CRADA. We do the same.

B. Non-discriminatory reason

Proceeding to step two, the district court concluded that the Secretary had articulated a legitimate non-discriminatory reason for failing to execute the CRADA— namely, that Volpe Center personnel needed to make Tyree’s proposed SOW more “sellable” to the higher-level officials (in particular, the Volpe Center director and RITA administrator) who needed to approve it. Specifically, the district court cited an email from Wang to Tyree stating that the “true spirit” of the CRADA was “sharing resources and analysis efforts” and it was important for him to be able to “ ‘sell [the SOW]’ in terms of ‘what does Volpe really get out of the CRADA?’ ” We note McBride echoed this concern and we agree with the district court that this was a legitimate nondiscriminatbry reason for why the Volpe Center never executed the CRADA.

Tyree argues, for the first time on appeal, that the Secretary never identified a legitimate non-discriminatory reason in his motion for summary judgment and the district court improperly articulated a reason on his behalf. Rather than grappling with what constitutes “extraordinary” circumstances allowing us to relax our “raise or waive” rule, see, e.g., Lang v. Wal-Mart Stores E., L.P., 813 F.3d 447, 455 (1st Cir. 2016); Nat’l Ass’n of Soc. Workers v. Harwood, 69 F.3d 622, 628-29 (1st Cir. 1995), we reject Tyree’s argument outright. The “sellable” rationale cited by the district court is articulated in both the Secretary’s motion for summary judgment and brief on appeal. We acknowledge that the Secretary’s primary argument is that the CRA-DA fell through because Tyree ended the negotiations by filing her EEO complaint, but the Secretary also makes clear that Wang resisted Tyree’s proposed SOW and intended to make it more “sellable to the Volpe Center” through his proposed changes. Our analysis thus turns to whether the Volpe Center’s claim that Tyree’s SOW needed to be more sellable was pretext for discrimination.

C. Discriminatory intent

“At the summary judgment stage, the plaintiff ‘must produce evidence to create a genuine issue of fact with respect to two points: whether the employer’s articulated reason for its adverse action was a pretext and whether the real reason was ... discrimination.’ ” Quinones v. Buick, 436 F.3d 284, 289-90 (1st Cir. 2006) (quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 62 (1st Cir. 1999)). At this stage, “it is insufficient for a plaintiff merely to undermine the veracity of the employer’s proffered justification.” Dichner v. Liberty Travel, 141 F.3d 24, 30 (1st Cir. 1998). “[Ijnstead, she must muster proof that enables a factfinder rationally to conclude that the stated reason behind the adverse employment decision is not only a sham, but a sham intended to cover up the proscribed type of discrimination.” Id. Nonetheless, this court does not always require the plaintiff to adduce direct evidence of an employer’s discriminatory animus. “When the prima facie case is very strong and disbelief of the proffered reason provides cause to believe that the employer was motivated by a discriminatory purpose, proof of pretext ‘may be sufficient.” Lattimore v. Polaroid Corp., 99 F.3d 456, 466 (1st Cir. 1996).

It is this latter scenario into which Tyree contends her case falls. Tyree’s discriminatory intent argument rests on the Volpe Center’s proffered reason being pre-textual. In particular, she argues that because the Volpe Center originally approved of her thesis topic and Wang had not brought up his concerns about its statistical rigor earlier, her original SOW must have contained sufficient benefits to the Volpe Center to be worthy of a CRA-DA.

As a threshold matter, we do not view the Volpe Center’s actions as inconsistent. Tyree ultimately did not receive a CRADA because she and Wang reached an impasse over what would be an acceptable SOW. But even if we assume Wang (or other Volpe Center personnel) was stonewalling, Tyree’s prima facie case is not so strong that she could prevail on pretext alone. At best, Tyree has described a scenario in which she and her employer disagreed about the scope of her research. Her description of the nature of this disagreement would not allow a reasonable fact-finder to conclude it stemmed from discriminatory animus. All Tyree cites to us is her feeling that Wang and Geyer were motivated by discriminatory animus. As the district court observed, subjective belief of discrimination is not sufficient to withstand summary judgment. See Román, 604 F.3d at 40. Without further evidence, “[s]ubmitting the issue of discriminatory intent to a jury on this record would amount to nothing more than an invitation to speculate.” Lattimore, 99 F.3d at 467-68. We therefore conclude that summary judgment was proper.

III.

Our colleague’s dissent argues that Tyree’s Title VII claim was unable to withstand summary judgment because her discovery was unduly cut short. Specifically, the dissent focuses on Tyree’s Interrogatory No. 3, which requested that the Volpe Center provide a list of all of its agreements that also involved producing a SOW and, for each agreement, the amount of time the SOW took to complete. In response, the Volpe Center provided Tyree with information regarding CRADA-relat-ed SOWs only, viewing other SOWs as irrelevant.

Tyree filed a motion to compel, which the district court denied on the grounds that Tyree’s requests were overbroad and lacked relevancy to her claims. Tyree served a second set of interrogatories on the Volpe Center which reiterated her request for information about the timelines for other SOWs. Volpe Center objected to these interrogatories and Tyree subsequently filed a second motion to compel which argued that the Volpe Center’s objections were untimely and that non-CRA-DA SOWs were relevant to her claims. The district court denied Tyree’s motion.

We review a district court’s discovery orders for abuse of discretion. Cascade Yarns, Inc. v. Knitting Fever, Inc., 755 F.3d 55, 59 (1st Cir. 2014). “Under that standard, we may reverse a district court only upon a clear showing of manifest injustice, that is, where the lower court’s discovery order was plainly wrong and resulted in substantial prejudice to the aggrieved party.” Id. (internal quotation marks omitted) (quoting In re Subpoena to Witzel, 531 F.3d 113, 117 (1st Cir. 2008)).

We cannot say that Tyree met this standard. The theory of relevance advanced in our colleague’s dissent is that if other SOWs were prepared more quickly, a factfinder could infer that the longer time here evidenced discrimination. This theory of relevance seems both a stretch, and likely to involve, if pursued, sideshow examinations of differences between the different SOWs, who did them, complexities, etc. In any event, the Volpe Center agreed to produce the requested SOWs that would on their face be most relevant: those produced in pursuit of a CRADA. Tyree offers no argument or evidence that examinations of those most facially comparable SOWs provided any support for her claim. Discovery involves drawing lines, especially when targeted at logical inferences several times removed from the dis-positive issue at hand. In drawing the line where it did, the district court certainly did not abuse its discretion.

As for the district court’s summary decision not to deem the Volpe Center’s discovery objections waived in the face of competing claims about when service occurred, such housekeeping attendance to managerial time limits are routinely made day-in and day-out in our trial courts, and we can find no precedent for reversing such a decision in this context as somehow being an abuse of discretion, especially where the parties’ dispute about the timing of discovery service implicated no prejudice to Tyree even if objections were delayed.

Finally, although Tyree’s pro se brief baldly asserts error in the discovery ruling, it offers no argument at all for why the line drawn between CRADA SOWs and non-CRADA SOWs was unreasonable. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[Tissues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”). We therefore make no claim that appointed counsel dropped a presented argument. Rather, we observe only that appointed counsel (likely cognizant of the trial court’s wide discretion) developed no argument even when aware that Tyree was also not doing so. We do make allowances for pro se parties, in this instance going so far as to secure very capable representation. No rule or sense requires that we go further and sign on ourselves as her counsel.

IV.

For the foregoing reasons, we affirm the district court’s grant of summary judgment.

Affirmed.

THOMPSON, Circuit Judge,

dissenting.

While it is true that the record, as is, fails to demonstrate discriminatory animus, Tyree cannot be expected to prove that which she was not properly afforded an opportunity to ascertain during discovery. The majority dismisses Tyree’s claim that she was wrongly denied a fair opportunity to discover crucial evidence (namely, information regarding how quickly the Volpe Center responded to other SOWs). Because I agree with Tyree that the district court erred in denying her pro se discovery requests, and therefore incorrectly denied her the opportunity to discover the very evidence she needed to survive the Volpe Center’s motion for summary judgment, I respectfully dissent.

I. A Recap

During discovery, Tyree filed two sets of interrogatories, both of which requested information regarding other SOWs approved by the Volpe Center. Tyree specifically sought information regarding the customer type or collaborators involved in the creation of each SOW and the amount of time it took to complete the SOWs and enter into the resulting agreements. In response to Tyree’s discovery requests, the Volpe Center provided information regarding CRADA-related SOWs only, which it argued were the only type of SOWs relevant to Tyree’s case.

Thwarted in her attempts to uncover this and other information, Tyree filed a motion to compel the First Set of Interrogatories, requesting, among other things, that the district court require the Volpe Center to provide the requested information regarding all SOWs. The district court denied this first motion, finding the interrogatories sought irrelevant.

Undeterred, Tyree filed a second motion to compel, seeking solely information regarding other SOWs approved by the Volpe Center. In this second motion, she argued that the Volpe Center’s usual treatment of SOWs, whether CRADA-related or otherwise, was directly relevant to her claim that the Volpe Center had improperly delayed her SOW for discriminatory reasons. She also argued that the Volpe Center had waived its objections to her' Second Set of Interrogatories because its responses had been untimely. The district court denied Tyree’s second motion to compel with a one-line docket entry sans explanation. Tyree appealed both denials, along with the court’s later summary judgment ruling.

II. Merits

As stated by the majority, we review discovery orders for abuse of discretion and may reverse upon a showing that the lower court’s discovery order was plainly wrong and resulted in substantial prejudice to the aggrieved party. See In re Subpoena to Witzel, 531 F.3d 113, 117 (1st Cir. 2008) (quoting Saldaña-Sánchez v. López-Gerena, 256 F.3d 1, 8 (1st Cir. 2001)). Contrary to my colleagues, I think Tyree has met that standard here.

Although a district court typically has broad discretion in resolving discovery objections, “[sjummary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery.” Dean v. Barber, 951 F.2d 1210, 1213 (11th Cir. 1992) (quoting Snook v. Trust Co. of Ga., 859 F.2d 865, 870 (11th Cir. 1988)). Tyree, who was pro se at the time she sought the discovery at issue, did not have an adequate opportunity for discovery in this case.

In her First and Second Interrogatory Requests, Tyree sought a list of all SOWs accepted and approved for any agreements entered into by the Volpe Center. Tyree specifically sought information regarding the “duration of time it took each Statement of Work to be completed,” including “the date the Statement of Work was initiated” and “the customer type or vendor type or collaborators” involved in the creation of the SOWs.

Despite the district court’s ruling to the contrary, these requests were clearly relevant to Tyree’s claim that the Volpe Center delayed the process of creating her SOW in particular, and could have supported her claim that the Volpe Center discriminated against her in ultimately fa.il-ing to enter the proposed CRADA. In other words, if Tyree could have shown that in other similar agreements, the Volpe Center took significantly less time to produce SOWs and then swiftly entered into the resulting agreements, this could have served as circumstantial evidence that the delays in Tyree’s case were unusual, and thus perhaps due to discriminatory animus. How the Volpe Center handled other SOWs therefore could have answered whether Tyree was treated disparately and, by extension, may have created a genuine issue of fact with respect to whether the Volpe Center’s articulated reason for failing to enter into the CRADA with Tyree was a pretext for discrimination.

But because the district court denied Tyree’s motions to compel, we have no idea what other SOWs were entered into by the Volpe Center, what their usual procedure was in creating the SOWs, the time that it took to create those SOWs and eventually enter into the resulting agreements, or with whom those SOWs were created — all information that very well could have demonstrated disparate treatment potentially driven by discriminatory animus in Tyree’s case.

The majority finds the link between non-CRADA and CRADA related SOWs to be so attenuated as to render non-CRADA SOWs irrelevant to Tyree’s claims, maintaining that even if pursued such discovery would result in “sideshow examinations of differences between the different SOWs, who did them, complexities, etc.” However, relevancy is not contingent on the avoidance of complexity or the parsing out of similarities and/or differences. To the contrary, “[i]n discovery, the parties are given broad range to explore ‘any matter, not privileged, which is relevant to the subject matter involved in the pending action’ so that théy may narrow and clarify the issues and obtain evidence or information leading to the discovery of evidence for future use in the trial.” See Anderson v. Cryovac, Inc., 805 F.2d 1, 12 (1st Cir. 1986) (quoting Fed. R. Civ. P. 26(b)(1)). Discovery demands the very examination derided by the majority.

The information Tyree requested was thus clearly relevant, and the district judge’s ruling as to both motions to compel was plainly wrong. This also resulted in substantial prejudice, as Tyree was foreclosed from discovering the very information essential to withstand the Volpe Center’s motion for summary judgment.

Moreover, the district'judge’s denial of Tyree’s second motion to compel, without so much as a cursory explanation of her rationale was, in itself, an abuse of discretion. See Howland v. Kilquist, 833 F.2d 639, 646 (7th Cir. 1987) (quoting Darden v. Illinois Bell Tel. Co., 797 F.2d 497, 502 (7th Cir. 1986)) (“[A] decision made in the absence of a basis is an abuse of discretion”). The majority’s contention that the district court did not abuse its discretion in rejecting Tyree’s argument that the Volpe Center waived its discovery objections ignores the issue at hand. The issue is not the district court’s rejection of Tyree’s waiver argument — the issue is that the district court proffers no explanation of its rationale or the basis of its finding. That, I believe, was an abuse of discretion.

The majority lastly notes that Tyree’s pro se briefs “baldly assert[ ] error in the discovery ruling” without offering any arguments for why non-CRADA related SOWs were necessary. My colleagues seek to dismiss Tyree’s discovery claims because of their inartful development in her pro se briefs. But I disagree that we can so hastily dispose of her pro se arguments. While the majority is correct that “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation are [typically] deemed waived,” United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990), that simply is not the case here, where a pro se plaintiff clearly asserted her complaints to the best of her abilities and, as made apparent by the quality of her pro se briefs, did her best to develop arguments in support of her discovery claims.

Generously construing her arguments, as we are required to do for pro se litigants, see Wedeen v. Green River Power Sports, 14 Fed.Appx. 6, 6-7 (1st Cir. 2001) (noting that “our judicial system zealously guards the attempts of pro se litigants on their own behalf’) (citing Ahmed v. Rosenblatt, 118 F.3d 886, 889 (1st Cir. 1997)), I think it is clear that Tyree sufficiently raised her discovery claims and accompanied her claims with some effort at developed argumentation. Her briefing cannot be held to the same standards of trained counsel. See United States v. Dunbar, 553 F.3d 48, 63 n.4 (1st Cir. 2009) (holding that, although an argument was not stated “artfully,” it was not waived where the brief identified the relevant facts and law).

Because I think the judge abused her discretion in denying Tyree access to relevant information during discovery, I respectfully dissent from the majority opinion. Plaintiffs “rarely possess ‘smoking gun’ evidence to prove their employers’ discriminatory motivations,” Vélez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 446 (1st Cir. 2009) (quoting Arroyo-Audifred v. Verizon Wireless, Inc., 527 F.3d 215, 218-19 (1st Cir. 2008)), and the reality remains that outright admissions of impermissible discriminatory animus are infrequent and hard to come by. See Hunt v. Cromartie, 526 U.S. 541, 553, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). Against this backdrop, the importance of adequate discovery is all the more vital, particularly for pro se plaintiffs. Thus, I think the proper course here would be to reverse both the judge’s discovery rulings and her grant of summary judgment in favor of the Volpe Center, so that Tyree might properly conduct discovery.

      . The Volpe Center is part of the Research and Innovative Technology Administration within the United States Department of Transportation.

      . Section 3710a(d) defines a CRADA as any agreement between one or more Federal laboratories and one or more non-Federal parties under which the Government, through its laboratories, provides personnel, services, facilities, equipment, intellectual property, or other resources with or without reimbursement (but not funds to non-Federal parties) and the non-Federal parties provide funds, personnel, services, facilities, equipment, intellectual property, or other resources toward the conduct of specified research or development efforts which are consistent with the missions of the laboratory [subject to certain exceptions].

      . Tyree also alleged wrongful termination and retaliation, which the district court dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Because these claims involved separate legal issues, we reject Tyree’s argument that she appealed them by virtue of their being intertwined with her CRADA claim. The district court dismissed Tyree's wrongful termination claim for failure to exhaust administrative remedies and her retaliation claim, which was based on Geyer not writing her a letter of recommendation after seeking EEO counseling, for lack of causation.

      . The district court found that the claims were susceptible to the same analysis. Additionally, Tyree does not separately brief these claims. We agree with the district court and our analysis applies to both claims.

      . In doing so, we decline to address the Secretary’s two alternative bases for affirmance: that the CRADA and training program were educational benefits beyond Title VII's protection and that Tyree's theory of relief was too speculative to constitute an adverse employment'action.

      . Because we can affirm using the rationale understood by the district court, we decline to analyze the merits of the Secretary’s preferred rationale for why the CRADA was never executed. In other words, we do not decide whether Tyree needed to continue negotiating the CRADA while she sought EEO counseling.

      . The district court noted four anecdotes Tyree provided during her deposition as evidence of discriminatory animus. These anecdotes, consisting of male non-black or -Hispanic colleagues receiving more favorable performance reviews and a sexist remark made by a Volpe Center employee who had no role in the SOW or CRADA, were rejected by the district court. We do not consider this evidence given that Tyree did not mention it on appeal in any of her briefs or at oral argument.

      . Tyree’s First Set of Interrogatories specifically sought:
      ... a list, describing] with great detail and specificity all of the agreements the Volpe Center has accepted and approved from January 1st, 2007 to July 1st, 2013, that either contained a statement of work or required a reference to a statement of work or required a reference to a statement of work (sow) in the agreement. For each
      agreement include the following in the description:
      a) the agreement type,
      b) the customer type or vendor type,
      c) the RVT number(s) associated with the agreement,
      d) the frequency of contact between the Volpe Center’s Point of Contact (POC) or a representative and the customer/vendor (POC) or any of their representatives,

        e) the duration of time it took each agreement to be turnaround/approved form initial contact concerning the agreement to the date it was finalized and signed,
      f) the date of initial contact concerning the agreement,
      g) the date the agreement was finalized and signed.

      . Tyree’s First and Second Interrogatory Requests contain requests that are substantively similar, with her First Interrogatory seeking information including all of the '‘agreements” entered into by the Volpe Center which contained SOWs, and her Second Interrogatory seeking information regarding all "SOWs within agreements” entered into by the Volpe Center.


author: TORRUELLA, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. James M. CAMERON, Defendant, Appellant.
    No. 15-1037
    United States Court of Appeals, First Circuit.
    August 22, 2016

      Peter Charles Horstmann, for appellant.
    Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief for appellee.
    Before TORRUELLA, LYNCH, and THOMPSON, Circuit Judges.
   TORRUELLA, Circuit Judge.

Following a bench trial in the U.S. District Court for the District of Maine, Defendant-Appellant James M. Cameron (“Cameron”) was convicted on thirteen counts of child pornography. Cameron appealed for the first time, and this Court vacated Cameron’s conviction on six of those counts, upheld his conviction on the remaining seven counts, and remanded the case to the district court. United States v. Cameron, 699 F.3d 621, 653 (1st Cir. 2012).

The day after we issued our decision, Cameron fled the state of Maine in violation of a court order. He was subsequently apprehended and pled guilty to one count of criminal contempt. The Government declined to seek a new trial on the six counts we vacated and moved for sentencing on the seven remaining child-pornography counts and the criminal-contempt count.

After a hearing, the district court sentenced Cameron to 165 months’ imprisonment for the child-pornography counts and twenty-four months for the contempt charge. Cameron now appeals from his sentence for the child-pornography counts. Cameron argues that the sentence was proeedurally unreasonable because the district court did not adequately consider Cameron’s disproportionate-sentence argument and treated certain factors in Cameron’s history and characteristics inappropriately. Cameron also argues that the 165-month sentence creates an unwarranted sentence disparity with similar cases and was therefore substantively unreasonable.

We affirm the district court’s sentence.

I. BACKGROUND

A.Cameron’s Conviction and Appeal

On February 11, 2009, a federal grand jury indicted Cameron, then a prosecutor for the state of Maine, on sixteen counts of child pornography-related crimes. After a bench trial, the district court found Cameron guilty on thirteen of the sixteen counts. The district court then sentenced Cameron to 192 months’ imprisonment. Cameron appealed to this Court, and on November 14, 2012, this Court held that the district court erred when it admitted certain evidence in violation of Cameron’s rights under the Confrontation Clause. Cameron, 699 F.3d at 649-51. We therefore vacated six counts of Cameron’s conviction and remanded the case to the district court “for re-sentencing, or a new trial if the government wishes to so proceed.” Id. at 626.

B. Cameron Flees Maine

The day after this Court issued its opinion upholding portions of Cameron’s conviction, Cameron fled the state of Maine in violation of his release conditions. Cameron avoided detection for more than two weeks, and during that time, he attempted to cash two forged checks for ,$42,000 and $32,000. The district court found that Cameron “fled the jurisdiction with the specific intent to avoid the resentencing hearing that the First Circuit ordered.”

Cameron was eventually arrested in New Mexico, and on January 2, 2013, the Government charged Cameron with criminal contempt in violation of 18 U.S.C. § 401(3). Cameron pled guilty to the criminal contempt charge on February 19, 2013.

C. The District Court Re-Sentences Cameron

1. The District Court’s Sentencing Guidelines Calculation

The Government declined to re-try Cameron on the six counts that this Court vacated and moved for resentencing on the remaining seven'counts and sentencing on the count for criminal contempt. Cameron’s probation officer prepared a Presen-tence Investigation Report, and the parties submitted briefing. On October 17, 2014, before holding a sentencing hearing, the district court issued a detailed order in which it calculated Cameron’s offense level under the U.S. Sentencing Guidelines (“USSG” or the “Guidelines”).

In its sentencing order, the district court decided four contested issues. First, it determined that it would not count the images of child pornography underlying the six counts vacated by this Court. Excluding those images, the district court counted only 179 pornographic images of minors, and so it applied a three-level enhancement under USSG § 2G2.2(b)(7)(B), rather than the four-level enhancement sought by the Government.

Second, the district court determined that some of the 179 images contained sadistic or masochistic depictions and applied a four-level enhancement under USSG § 2G2.2(b)(4).

Third, the district court added a five-level enhancement to Cameron’s offense level pursuant to USSG § 2G2.2(b)(3)(B) because it determined that Cameron distributed images for a thing of value.

Fourth, the district court applied a two-level enhancement for obstruction of justice pursuant to USSG § 3C1.1, but it recognized Cameron’s “right to argue that the application of the obstruction of justice enhancement in the Guideline calculation and of a consecutive penalty in the statute for the same conduct results in a sentence that is too harsh” under 18 U.S.C. § 3553(a).

Based on these rulings and other uncontested factors, the district court ruled that Cameron had a total offense level of forty. As the district court explained at the subsequent sentencing hearing, Cameron had a base offense level of twenty-two. To that, the district court added a fourteen-level enhancement from the contested issues discussed above, a two-level enhancement for images of a prepubescent minor, and a two-level enhancement for storing images on a computer, bringing Cameron’s total offense level to forty. Cameron had a criminal history category of I, which led to a Guideline sentencing range of 292 to 365 months of imprisonment.

The district court reserved judgment on “the total sentence” for Cameron’s sentencing hearing.

2. The District Court Sentences Cameron to 165 Months of Imprisonment Based on its 18 U.S.C. § 3553(a) Analysis

The district court held a sentencing hearing on December 17, 2014. At the hearing, Cameron argued that his employment as Maine’s chief drug-enforcement prosecutor at the time of his offenses could not “be an aggravating factor.” The district court “generally” agreed with Cameron that it could not increase Cameron’s sentence because of his employment at the time, but it ruled that it would consider his position “as a factor in assessing his history and characteristics” under 18 U.S.C. § 3553(a).

The district court also addressed Cameron’s contention that “a growing national consensus” supported a sentence “near the statutory minimum of five years” for child pornography. It recognized that 18 U.S.C. § 3553(a)(6) required it “to avoid unwarranted sentencing disparities among similarly situated defendants,” but the district court also described the difficulty in doing so “because the circumstances are so highly individualized.” To “illustrate how difficult” it could be to compare cases, the district court orally discussed three “cases that [it was] familiar with” from Cameron’s briefing and distinguished those cases from Cameron’s.

The district court also reviewed Cameron’s history and characteristics, including his attempt to escape resentencing, which did “not speak well of the defendant’s character.” Ultimately, the district court imposed a 165-month sentence on the child-pornography counts. To get to this number, it looked at Cameron’s total offense level of forty and ignored the two-level increase for obstruction of justice,because it was imposing a separate twenty-four month sentence for obstruction of justice. This produced a total offense level of thirty-eight “for purposes of the child pornography offenses,” with a Guideline range of 235 to 293 months’ imprisonment. The district court then subtracted seventy months from the 235-month Guideline minimum, as it had done the first time it sentenced Cameron, to reach 165 months.

Cameron timely appealed from the sentencing order.

II. ANALYSIS

Cameron argues that his sentence was procedurally and substantively unreasonable because the district court did not adequately analyze and distinguish the numerous cases .he cited as comparators and considers factually relevant, and its 165-month sentence created a “glaring disparity between Cameron’s sentence and others.” Cameron also argues that the district court did not credit Cameron’s acceptance of responsibility at his second sentencing hearing, penalized him for going to trial, and inappropriately considered Cameron’s position as a prosecutor at the time of his crimes. We first examine Cameron’s claims of procedural error and then turn to his claims of substantive error.

A. The District Court Did Not Commit Procedural Error

When reviewing sentencing determinations, this Court “first review[s] the procedural component of the sentence for abuse of discretion.” United States v. Innarelli, 524 F.3d 286, 292 (1st Cir. 2008). “[P]rocedural errors amounting to an abuse of discretion might include ’failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.’” Id. (quoting United States v. Politano, 522 F.3d 69, 72 (1st Cir. 2008)).

1. The District Court Properly Used the Sentencing Guidelines as a Starting Point for Cameron’s Sentence

Cameron argues that the district court committed procedural error by using the Guidelines as a starting point for Cameron’s sentence. Cameron cites Kimbrough v. United States, 552 U.S. 85, 88, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), for the proposition “that having the guidelines as the ’starting point’ [for a sentence] would not adequately ensure ... uniformity.” He then argues that “the national average [of sentences for similar charges] is the starting point for most [child-pornography] sentencing reductions.”

Cameron misreads Kimbrough and our precedents. Kimbrough itself states that “district courts must treat the Guidelines as the starting point and the initial benchmark” for their sentencing decisions, although they can vary from those guidelines based on their “greater familiarity with the individual case and the individual defendant.” Id. at 108-09, 128 S.Ct. 558 (ellipsis omitted). Our case law likewise makes plain that district courts “must start out by calculating the proper Guidelines range — a step so critical that a calculation error will usually require resentenc-ing.” United States v. Rodriguez, 680 F.3d 39, 41 (1st Cir. 2010).

Here, the district court correctly treated the Sentencing Guidelines as its starting point in calculating Cameron’s sentence. See, e.g., id. Cameron does not contest the district court’s calculation, which was favorable to Cameron because it omitted the images underlying the six counts we vacated in Cameron’s first appeal (and which the Government sought to have included in the calculation as “related conduct”). The district court was not required to use the national sentencing average as its starting point.

2. The District Court Properly Applied 18 U.S.C. § 3553(a)

Cameron also argues that the district court committed procedural error because it “ignored 49 pages of disparate cases that were brought to its attention” and “failed to consider aggregate sentencing data.” In addition, Cameron contends that the district court did not credit him for accepting responsibility, penalized Cameron for going to trial, and improperly considered Cameron’s former position as a prosecutor.

The record shows that the district court did not ignore Cameron’s citations or sentencing data. At the December 17, 2014 sentencing hearing, the district court acknowledged “all of the effort that [Cameron] made in pointing the [sentencing] cases out,” and it specifically discussed some of those cases to “illustrate how difficult” comparing cases can be. The district court also stated that it “reviewed carefully [Cameron’s] extensive and helpful memorandum.” Cameron would have us assume that the district court never considered his authorities and statistics, simply because it did not discuss them as deeply as he would prefer. We need not do that. See United States v. Clogston, 662 F.3d 588, 592 (1st Cir. 2011) (“A reviewing court should be reluctant to read too much into a district court’s failure to respond explicitly to particular sentencing, arguments. Instead, the reviewing court must assay the record as a whole to gauge the sentencing judge’s thought process.”).

Cameron’s other assertions are likewise misplaced. The district court recognized that Cameron had eventually accepted responsibility for his actions, but it also weighed Cameron’s flight prior to resen-tencing and questioned whether Cameron’s, new-found acceptance was a “form of conviction conversion.” Similarly, the district court examined Cameron’s prior employment as a prosecutor only “as a factor in assessing his history and characteristics,” whether helpful or hurtful to Cameron. Finally, the district court examined Cameron’s conduct throughout his trial and appeals. Cameron was not penalized for going to trial, he merely did not benefit from the Guideline reductions that might have applied for cooperating and pleading guilty.

The district court specifically stated that it “consider[ed] each of the factors set forth in 18 U.S.C. Section 3553(a),” directly addressed Cameron’s disparity argument, and discussed Cameron’s crime, history, and characteristics. The district court’s thoroughness forecloses Cameron’s claims of procedural unreasonableness. See Innarelli, 524 F.3d at 292.

B. The District Court Did Not Commit Substantive Error

Because the district court did not commit procedural error, we now must consider “the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” United States v. Vázquez-Martínez, 812 F.3d 18, 22 (1st Cir. 2016) (quoting Gall v. U.S., 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). This Court recognizes the “substantial discretion vested in a sentencing court” as well as the judge’s prerogative to “custom-tailor an appropriate sentence” based on the district court’s familiarity with the case and its application of the sentencing factors in 18 U.S.C. § 3553(a). United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). “[W]e afford the district judge wide discretion, as after the [district court] has calculated the Guidelines range, sentencing becomes a judgment call,” and we “defer to the sentence as reasonable so long as it is supported by a plausible sentencing rationale and reaches a defensible result.” United States v. Breton, 740 F.3d 1, 19 (1st Cir. 2014) (alterations omitted). The question is “whether the sentence, in light of the totality of the circumstances, resides within the expansive universe of reasonable sentences.” United States v. King, 741 F.3d 305, 308 (1st Cir. 2014). “It is a rare below-the-range sentence that will prove vulnerable to a defendant’s claim of substantive unreasonableness.” Id. at 310 (citing United States v. Floyd, 740 F.3d 22, 39-40 (1st Cir. 2014)).

Cameron asserts that “there is nothing plausible or defensible about the result in this case,” but he presents nothing that suggests the district court abused its substantial discretion to “custom-tailor” a sentence. Flores-Machicote, 706 F.3d at 20. Cameron espouses the same sentencing disparity arguments he made to support his claim of procedural error, and those arguments fail for much the same reasons. The district court explained its rationale for the 165-month sentence, which was well below the Guidelines range, and adopted its well-reasoned sentencing memorandum from its original sentence in 2011.

The court’s rationale regarding the sentence generally, and Cameron’s disparity argument specifically, was certainly “plausible,” and the result “defensible,” which is all that our review requires. Breton, 740 F.3d at 19. Cameron’s sentence, by virtue of the court’s attention to all of the 18 U.S.C. § 3553(a) factors and Cameron’s disparity argument, as well as the relative leniency of the sentence in light of the Guideline minimum, is well within the “universe of reasonable sentences.” King, 741 F.3d at 308. As such, this is plainly not the “rare below-the-range sentence” that would succumb to a defendant’s claim of substantive unreasonableness. Id. at 310.

III. CONCLUSION

For the foregoing reasons, the district court’s sentence is affirmed.

Affirmed.

      . Cameron was indicted on ten counts of knowingly transporting child pornography in violation of 18 U.S.C. §§ 2252A(a)(l) and 2256(8)(A); four counts of knowingly receiving child pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and 2256(8)(Á); and two counts of knowingly possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A).

      . The district court also incorporated its reasoning from its first sentencing order.

      . Cameron also asserts, in a single sentence, that his 165-month sentence “served to violate his rights” under the Fifth and Eighth Amendments of the United States Constitution. Cameron did nothing to develop those arguments in his briefs or at oral argument, and so he has waived them. See United States v. Berk, 652 F.3d 132, 137 n.5 (1st Cir. 2011).

      . Citing United States v. Stone, 575 F.3d 83, 97 (1st Cir. 2009), in which we criticized — but upheld — a sentence imposed by this same district judge, Cameron declares that this district judge “continuéis] to impose harsh sentences for first time offenders in CP cases.” In light of Cameron's remark, we note that the district court stated at Cameron's 2011 sentencing hearing that it "take[s] that directive from the appellate court with seriousness,” and discussed Stone at that hearing and in its 2011 sentencing order, including this Court’s criticism of the Stone sentence.