United States Court of Appeals,
First Circuit.
Sylvia I. CALERO-CEREZO, Plaintiff, Appellant,
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants, Appellees.
No. 02-2643.
Heard June 3, 2003.
Decided Jan. 14, 2004.
Before SELYA, Circuit Judge, LIPEZ, Circuit Judge, and PONSOR [FN*], District
Judge.
FN* Of the District
of Massachusetts, sitting by designation.
PONSOR, District Court Judge.
This cases raises, among other issues, the
knotty question of how far the Rehabilitation Act of 1973 ("Rehabilitation
Act"), 29
U.S.C. § 701
et seq., requires an employer to go to accommodate an employee whose
disability-- clinically diagnosed major depression--has affected, in some
respects, her ability to function in the workplace. The trial judge, grappling with claims under
several statutes, granted summary judgment for defendants on all the plaintiff's
causes of action. Because we find that
the record, viewed in the light most favorable to the appellant, might support
a claim under the Rehabilitation Act, and (equally importantly) that appellees'
counsel has entirely failed to address either the facts or the law buttressing
this claim, we are constrained to reverse and remand for further proceedings.
I. Procedural Background
A brief review of the procedural history of
this case will serve to put the issues in context.
[1][2] After pursuing administrative remedies starting in 1998,
plaintiff-appellant, Sylvia I. Calero-Cerezo ("Calero"), an attorney
employed by the Immigration and Naturalization Service ("INS")
proceeding pro se, filed her complaint in the United States District
Court on October 4, 1999. The defendants were the United States Department of
Justice ("DOJ"), the INS, then- Attorney General Janet Reno, and
then-Commissioner of the INS Doris Meissner. Amended complaints followed in May
2000 and May 2002. Perhaps because
plaintiff was representing herself, the precise causes of action were rather
hard to discern from the pleadings.
Plaintiff now asserts that, while she may have included additional
theories in her administrative proceedings, her complaint and amended
complaints as submitted to the district court were intended to encompass only
two claims: (1) a claim for failure to
accommodate her disability under the Americans with Disabilities Act
("ADA"), 42
U.S.C. § 12101 et seq., [FN1] and the
Rehabilitation *12 Act, and (2) a claim for retaliation under Title VII,
42
U.S.C. § 2000e et seq.
FN1. This opinion
will concentrate almost entirely on the Rehabilitation Act, since the ADA is
not available to federal employees. Rivera
v. Heyman,
157 F.3d 101, 103 (2d Cir.1998). The same standards, however, apply to claims
under the ADA and under the Rehabilitation Act. Oliveras-Sifre
v. Puerto Rico Dep't of Health,
214 F.3d 23, 25 n. 2 (1st Cir.2000). The elimination of the ADA claim does not,
therefore, affect the legal analysis or the scope of remedy available to the
plaintiff.
Eventually the parties filed cross-motions for
summary judgment, and on September 18, 2002,
the district court issued its opinion granting the defendants' motion and
denying the plaintiff's. In his
memorandum, the district court judge conscientiously addressed all causes of
action that might reasonably have been inferred from the plaintiff's less than
artfully drafted pleadings, including claims for discrimination based on
gender, national origin and age, which the plaintiff has not pursued, as well
as the claims for failure to accommodate and for retaliation, which the
plaintiff has continued to press on this appeal. Specifically, with regard to plaintiff's
claim for failure to accommodate her disability, the district court suggested,
first, that "depression per se " is not a recognized
disability, then went on to conclude that, in any event, the record
conclusively indicated that plaintiff could not perform the legitimate
requirements of her position, and moreover that plaintiff's requested
accommodation was not feasible.
On November 15, 2002, Calero filed her Notice
of Appeal, challenging only the district court's rulings regarding her claims
for failure to accommodate and for retaliation.
Despite clear notification of the scope of this appeal, and further
confirmation in the appellant's brief, appellees' counsel has inexplicably
treated this appeal as though it involved merely a garden variety claim of
discrimination under Title VII. No significant discussion whatever addresses
Calero's claim--the heart of her case--that the defendants failed to make any
reasonable effort to accommodate her disability. This neglect has played a substantial part in
the court's decision to remand.
II. Factual Background
[3] We recount the facts in the light most favorable to
Calero, the party opposing summary judgment.
Motorsport
Eng'g, Inc. v. Maserati SPA,
316 F.3d 26, 28 (1st Cir.2002).
Calero began practicing law in 1977 in Puerto
Rico's Department of Justice. Later, she
worked for private firms and agencies in Puerto Rico, and, from 1993 to 1995,
in East Hartford, Connecticut with the Federal Deposit Insurance
Corporation. In 1995, Calero was hired
as an assistant district counsel in the New York District Office of the INS'
Office of the General Counsel ("OGC"). Her performance was rated
"excellent" in her 1996-97 appraisal, and in May 1997 Calero
successfully petitioned for a transfer to the San Juan District Office of the
OGC, where she began working part-time as an assistant district counsel. Nothing in the record suggests that Calero,
up to this point in her twenty-year career as an attorney, had ever encountered
significant difficulties in performing her job at or above the level of her
employers' expectations.
During the summer of 1997, Calero began to
suffer from tension headaches and lethargy, the first sign of the onset of a
disability that was soon to erode her capacity to function without
accommodation. On January 16, 1998, Dr.
Roberto Rodriguez ("Dr.Rodriguez") diagnosed Calero with a recurrence
of depression and prescribed the
antidepressant Paxil. Calero had
suffered previously from depression, in 1990 when her mother and father died
and again in 1992 upon the death of her brother. The record does not suggest, however, that at
these earlier times her depression interfered with her capacity to work.
*13 In February 1998, Calero began
working full-time at the San Juan District Office. One month later, and two months following her
diagnosis of depression, Calero's emotional fragility catapulted her into the
first of a series of acrimonious episodes with her supervisor Vivian
Reyes-Lopez ("Reyes"). Before
summarizing the evidence related to these incidents, two observations about the
state of the record are appropriate.
First, in recounting her conflicts with Reyes,
plaintiff's pro se papers sometimes appear to suggest that Calero's
problems at work derived not from a failure to accommodate her disability, but
simply from Reyes' general unfairness to her.
To the extent Calero might succeed in placing blame for her problems at
work on Reyes personally, she may vindicate her own virtue but doom her
case. The Rehabilitation Act is not, of
course, designed to provide a worker a remedy against an arbitrary supervisor, per
se. It is designed to insure that a
capable, disabled worker, covered by the statute, is not deprived of the
opportunity to work and earn a living due to the refusal of the employer to
make a reasonable accommodation. Viewed
in the light most favorable to the plaintiff,
therefore, the summary below will concentrate on facts that a reasonable
factfinder might find supportive of this statutory claim, and not on Calero's
occasional self-justifying suggestions that it was Reyes, not she, who was
responsible for their ongoing problems.
Second, we are aware in recounting this
background that a reasonable factfinder might conclude that Calero's friction
with her supervisor (and, as will be seen, others including family and friends)
might be explained on the ground that she was simply a very difficult,
not a disabled, person. In the context
of summary judgment, however, we must respect the role of the factfinder to
choose between alternative, reasonably supported inferences. Since the factual
mosaic, seen from plaintiff's perspective, might reasonably support a claim of
disability, we summarize the facts in a manner consistent with that viewpoint.
The first episode of what was to be a lengthy
series of problems between Calero and Reyes arose over what should have been a
trivial matter. On March 9, 1998, Reyes
denied Calero's request to make up a lost work hour during lunchtime. In response, Calero complained in a loud
voice that Reyes was the worst supervisor she ever had and that Reyes treated
her like a child. The outburst was
vociferous enough to be overheard by other INS staff in the office.
The following day, March 10, 1998, Reyes asked
Calero to come to her office to discuss the
previous day's contretemps. At the
meeting, Reyes told Calero that raising her voice in the office was not
necessary. Calero responded with a
further verbal attack, criticizing Reyes' supervisory skills, telling Reyes
that she had a bad attitude, and suggesting that Reyes had lost an appointment
as an immigration judge because of her poor professional ability.
A week later, on March 17, 1999, Calero
consulted Dr. Filia S. Garcia, who referred Calero to a psychologist for
evaluation of her "masked depression."
On March 18, 1998, Calero received a formal
reprimand (a so-called memorandum of "admonishment") from Reyes for
her behavior on March 9th and 10th.
The day following her receipt of this
reprimand, Calero sent an e-mail message to Jack Penca ("Penca"), the
Regional District Counsel and Reyes' immediate supervisor, who worked out of
the Vermont office of the INS, regarding the recent *14 friction with Reyes. Calero complained to Penca that Reyes was
harassing her and that this daily harassment was affecting her emotionally.
Calero informed Penca that she was taking the antidepressant Paxil "to be
able to continue working." This was
the first time Calero informed a supervisor that she was suffering from
depression and was on medication for her condition.
In mid-April 1998, Calero was seen by
psychiatrist Dr. Margarita Alonso Cedo
("Dr. Alonso"). On
April 13th, Calero's condition was serious enough that Dr. Alonso recommended
to Calero that she take a medical leave from work for the next three
weeks. On April 17, 1998, Dr. Alonso
diagnosed Calero with "major depression"
and, like Dr. Rodriguez in January 1998, prescribed the antidepressant Paxil.
Significantly, Dr. Alonso also wrote a note to
Calero's employer giving notice of Calero's condition and confirming her
recommendation that Calero take a three-week break from work. After receiving two doctors' notes from Dr.
Alonso explaining Calero's diagnosis, medication and plan for treatment, Reyes
approved Calero's sick leave, which lasted from April 14 to May 1, 1998.
On April 21, 1998, Calero contacted the Office
of Equal Employment Opportunity, Immigration and Naturalization Service, U.S.
Department of Justice ("EEO") in Washington, D.C. to inquire about
filing a complaint for discrimination and harassment. On April 22, 1998, Calero contacted Dr. Ruth
Prevor ("Dr. Prevor"), a psychologist with the INS Employee
Assistance Office. Thereafter, Calero met with Dr. Prevor on several occasions
to receive assistance regarding her mental disability.
Also on April 22nd, while Calero was on
medical leave, Reyes left Calero two memoranda instructing Calero to complete
certain tasks in preparation for her upcoming annual vacation. Reyes asked Calero to review her cases
scheduled for hearings in the immigration court during her vacation and also to
prepare a particular case to be discussed with Reyes before the vacation's
starting date, which was May 22, 1998.
On May 7, 1998, after Calero returned from her
medical leave but before she left for her
annual vacation, Calero and Reyes met to discuss Calero's cases. Reyes had
previously requested that Calero copy her on certain e-mail messages, and
Calero again entered into a nasty argument with Reyes, this time about Reyes'
concern that Calero was failing to follow Reyes' instructions. Calero told Reyes during this conversation
that Reyes was reprimanding her as a mother might scold a child and treating
her unfairly. At the end of the meeting,
Calero asked, with heavy sarcasm, "Is that all Vivian? Can I leave now?" Later, when Reyes
approached Calero's desk and asked her why she had again failed to copy her on
an e-mail as requested, Calero became furious and told Reyes to stop scolding
her, that she was not a child and Reyes was not her mother. Bizarrely, Calero began calling Reyes
"mother" and "mommy," refused to provide Reyes an
explanation of why she did not copy Reyes on e-mail messages as Reyes had instructed,
and repeated, "Don't punish me, stop punishing me." Again, this
strange and confrontational behavior was observed by other INS employees.
Not surprisingly, Reyes reported Calero's
conduct to Penca. Her memo summarized
the May 7th incident and recommended that disciplinary action be taken against
Calero. Reyes indicated that Calero was
a "disruptive element" and recommended that Calero either be
dismissed or transferred out of the San Juan District office.
*15 On May 11, 1998, Calero mailed
Penca a copy of her EEO complaint, and informed
him that she had been getting counseling from the EEO office of the INS and
that she was submitting the complaint to her EEO counselor. Penca subsequently forwarded a copy of the
complaint to Reyes.
On May 22, 1998, Calero went on her scheduled
two-week annual leave, returning to work on June 2, 1998. Before she left Calero failed to prepare her
cases properly, as Reyes had instructed.
On May 26, 1998, Reyes sent a memorandum to
Penca detailing Calero's failure to review her files, as requested. Reyes noted that, in order to prepare the
cases with hearings scheduled during the two weeks Calero was out, she and
another OGC attorney had been required to work ten hours of overtime.
On June 22, 1998, Penca sent Calero a Notice
of Proposed Ten Day Suspension ("Notice"). The two grounds for this suspension
were: (1) Calero's disrespectful
behavior toward Reyes on May 7, 1998, and (2) Calero's disregard of Reyes'
instruction to prepare her cases before going on leave. Calero submitted a 35-page reply in
opposition to this Notice.
On July 23, 1998, Calero received her
performance appraisal for July 1, 1997, through June 30, 1998. Calero received a "minimally
satisfactory" rating in the category of "Advocates for/Represents the
Agency" but was given ratings of "fully successful" in
categories of "Provides Legal Advice" and "Conducts Legal
Research and Writing." Her formal
rating, overall, was "fully successful."
Despite these rather positive ratings, Calero
received several negative comments in her
review. For example, the review noted
that Calero failed to prepare several of her cases for hearings, that she
failed to inform her supervisor of the status of her cases and that she
required substantial supervision.
Despite her titularly satisfactory ratings, Calero viewed this as the
first negative review that she had received during her employment with the INS.
On June 24, 1998, Dr. Alonso again recommended
that Calero take a few days off from work to rest, and Calero did so.
Despite the rest, it was clear by the middle
of the summer that Calero's depression was infecting her relations with persons
other than her supervisor. In a memo dated August 12, 1998, Reyes noted Calero's
excessive and unwarranted criticism of other attorneys, evident in the e-mails
she was sending to lawyers outside the office.
On August 17, 1998, at Dr. Alonso's
recommendation, Calero was "partially" hospitalized for ten days due
to her depression. [FN2] In addition, side
effects from the antidepressant medication were troubling Calero to the extent
that Dr. Alonso changed her prescription.
FN2. The record does
not indicate what is meant by "partial" hospitalization.
Following her partial hospitalization, on
September 1, 1998, Calero sent an e- mail entitled "transfer on
detail" to Paul Virtue, General Counsel, INS ("Virtue"), with a
copy to David Dixon, Deputy General Counsel, INS ("Dixon"). Calero
informed Virtue and Dixon that she had been suffering from major depression
since April 13, 1998, and that she was being discriminated against and harassed
by her supervisors, Reyes and Penca. She
noted, among other things, INS' duty to consider a reasonable accommodation that
would allow her to perform her job. As
her own suggestion for an accommodation, she requested a temporary assignment
(a so called "detail") out of her current work site, to the *16
INS office at the San Juan International Airport.
The September 1, 1998, e-mail was the first of
what would be many explicit requests for some sort of an accommodation, or at
least a dialogue concerning accommodation, to permit plaintiff to continue
working while she received treatment for her major depression. The specific accommodation proposed by
Calero--temporary assignment to the San Juan airport--may perhaps have
presented certain practical problems for the INS. The record is not clear on
this point, and, again, the appellees' failure to offer any discussion on the issue
has handcuffed the court. It is clear,
however, that Calero's employer made no effort to offer any realistic
alternative accommodation, or even to discuss the difficulties that plaintiff's
major depression was creating for her at work.
On
September 4, 1998, Calero once again sent an e-mail notification to Virtue,
with a copy to Dixon, to the effect that the lack of any response by the INS to
her complaints was causing a deterioration of her physical and emotional
health, and that she was requesting an alternative assignment as a reasonable
accommodation for her disability of depression.
On September 8, 1998, a simmering problem
related to Calero's apparent tape recording in the office boiled over. In June of 1998, some co-workers of Calero's
had told Reyes that they thought that Calero was taping their
conversations. In response, Reyes sent
out an e-mail reminding all staff that surreptitious tape recording of conversations
was impermissible, against INS policy, and could result in discipline. On September 8th, a staff member told Reyes
that she observed Calero using a tape recorder while talking with Reyes. Reyes
approached Calero, obtained the recorder after some argument and found that,
indeed, the tape contained a recording of her conversation. When Reyes told Calero she was going to take
the tape, Calero screamed at her and tried to block the doorway. After she managed to make her exit, Reyes
turned the tape over to the local FBI office.
Some months later, in a letter to Penca, dated
January 20, 1999, Calero claimed that someone in the office had been attempting
to tape her conversations without her knowledge in order to "frame"
her. She asserted that she taped Reyes
inadvertently, unaware that the tape recorder was turned on.
On
September 14, 1998, after the screaming incident over the tape recorder, Dr.
Alonso recommended that Calero take a medical leave from work for two weeks.
On October 7, 1998, Dixon suspended Calero for
five days for disrespectful behavior toward her supervisor and for failure to
follow orders. Dixon based his decision
on Penca's Notice of Proposed Action issued on June 22, 1998, Calero's
response, and Reyes' memorandum of admonishment of March 18, 1998.
Later in October, Calero e-mailed Virtue a
third time and again requested a temporary assignment to the INS Airport office
in San Juan. Once more, she received no response.
On October 30, 1998, when a new attorney was
being hired in the office, Reyes contacted Calero and gave her the choice of
either accepting replacement furniture for her office and keeping her office,
or keeping her newer furniture and turning her office over to the new attorney. Calero chose to keep her newer furniture and
was moved to a less desirable work area, described by Calero as a
"grot."
On November 2, 1998, Dr. Alonso observed, in a
handwritten note on a prescription pad, that Calero should be transferred to a
different workplace in Puerto *17 Rico so that "she could benefit
from continued treatment, decreased stressful situations and family
support." It is not clear whether
this notation reached the defendants.
The
following day, Calero faxed Virtue her fourth request for an
accommodation. She detailed the medical
treatment she was receiving, described the discrimination and harassment she
perceived herself as suffering and emphasized her concern that her depression
was affecting her job performance. Significantly, Calero disclosed to Virtue
that her problems went beyond her relationship with Reyes:
Due to the depression, I have detached myself from my
family and friends, who have been very worry [sic] about me and had been
reaching me and giving me support. My
social life had been extremely limited.
In this November 3, 1998, letter, Calero
again asked for a transfer to the San Juan International Airport office. Again, the INS made no response.
On November 9, 1998, Dr. Alonso made another
recommendation that Calero absent herself from work in order to rest for the
remainder of the week. Three days later,
Calero made yet another request to be transferred to the San Juan International
Airport office in a letter to Virtue. At
the end of that month, Dr. Alonso recommended Calero rest from work for ten
days starting November 27, 1998.
On December 9, 1998, Reyes issued a Notice of
a Proposal of Suspension of Calero for fourteen days for (1) failure to follow
orders by surreptitiously tape-recording conversations in the office on
September 8, 1998; (2) failure to follow
orders by refusing to update Reyes on a particular case; and (3) failure
to be forthright with a supervisor by taping conversations in the office and
then denying doing so.
On December 15, 1998, Michael Coaster, a
Division Chief with the INS' Office of the General Counsel
("Coaster"), denied Calero's requests for an accommodation. His letter stated:
You wrote that you are depressed because "of the
discrimination and harassment based on sex and national origin that (you) have
endured within the INS San Juan District Office." This is not a disability as defined by the
Rehabilitation Act of 1973 and the Age Discrimination in Employment Act. As
such, the agency is not under an obligation to provide you with an
accommodation.
This letter made no mention of the medical
evidence submitted by Calero confirming her major depression. The Coaster letter did indicate that the INS
had at some unspecified time offered to consider reassigning Calero to an
existing vacant position outside Puerto Rico, but that Calero had rejected this
offer because she did not want to leave Puerto Rico. Except for this reference
in the Coaster letter, no documentation exists in the record memorializing this
supposed offer to transfer Calero. No
details specify the location or nature of the new position, the timing of the
supposed transfer, or the identity and authority of the person making the
offer.
On February 4, 1999, Calero filed her second
EEO complaint alleging discrimination based
on gender, national origin, age, mental and physical disability, and
retaliation.
On February 16, 1999, Penca found the second
ground of Reyes' Proposed Suspension of December to be supported by a
preponderance of the evidence. Penca determined that disciplinary action for
Calero's failure to follow orders in reporting to Reyes the status of a case
was warranted and imposed a ten day suspension without pay on February 16,
1999. In response, Calero filed several
complaints with law *18 enforcement agencies calling for an
investigation of the supposed illegal tape-recording of her conversations
by coworkers.
On April 6, 1999, Reyes reminded Calero that
she was late for an appearance before an immigration judge. In response Calero falsely denied that she
was late. It later emerged that the
judge had been kept waiting because of Calero's tardiness.
In early May 1999, Calero was involved in yet
another unseemly office incident. Calero
told a student-employee, Lenga Siberon ("Siberon"), to be on guard
for "illegal things" that Reyes might ask her to do. Siberon replied that she was not doing
anything illegal. In a written statement
provided to Reyes, Siberon reported that she felt "intimidated and
somewhat threatened" by Calero.
On June 4, 1999, a second disturbing incident
involving Calero and a different student-employee occurred. The student, Carmen Ortiz
("Ortiz"), did not interrupt a
meeting to give Calero two telephone messages from Calero's son. Calero
exploded at Ortiz for not giving her the messages immediately, screaming at the
young woman and berating her.
On June 11, 1999, Calero's counsel, Miriam
Ramos Grateroles, faxed a letter to Doris Meissner, the Commissioner of the
INS. Calero's counsel requested that Calero be given a reasonable accommodation
in accordance with the Rehabilitation Act and that she be transferred to the
Airport office. She also wrote that the
conduct and behavior of Reyes was the principal factor underlying Calero's
major depression and that some separation from Reyes and the environment at the
San Juan office would allow Calero to continue to work despite her
disability. Calero's counsel also
included a note from Dr. Alonso, which reported that Calero was having
difficulty interacting with family and friends due to her depression. The doctor recommended that any transfer of
Calero be within Puerto Rico, so that Calero could receive needed family and
community support to the extent possible during her illness.
At work, plaintiff's behavioral manifestations
of her severe depression continued.
During the spring and summer of 1999, Reyes reported to Penca that
Calero was at various times "agitated," "out of control,"
"impossible to work with," "bizarre," and "a constant
source of aggravation." On July 9,
1999, during a discussion of a scheduling conflict, Calero repeatedly stated in
a loud voice, in the presence of two other employees, that Reyes was harassing her on a daily basis, and that her absences
were due to Reyes' constant humiliation.
The final blow-up between Calero and Reyes
occurred four days later. Again, the
trigger for the eruption should have been a routine matter. Reyes instructed Calero to leave for court so
that she would be on time. In a raised
voice, Calero called Reyes a liar and stated that Penca and Reyes had made
false accusations against her and fabricated evidence against her. Once again, other employees were in the area
and overheard the contentious exchange between the two.
The following day, July 14, 1999, Reyes placed
Calero on paid administrative leave, where she remained until her termination
the following May.
On January 3, 2000, Bo Cooper, General Counsel
of the INS, issued a Notice of Proposed Removal to Calero. The Notice was based on four specific
grounds: (1) making statements to a
co-worker that advocated the mistrust of a mutual supervisor and resulted in
anxiety in the workplace; (2) disruptive
behavior; (3) conduct unbecoming a
Service attorney; and (4) disrespectful
behavior towards a supervisor.
*19 On May 4, 2000, Marc Salans
("Salans"), Assistant Director of the Office of Attorney Personnel
Management of the Department of Justice, found Calero's removal warranted and
made her termination effective as of May 19, 2000.
[4] We review a district court's ruling on cross-motions for
summary judgment de novo. See Bienkowski
v. Northeastern Univ.,
285 F.3d 138, 140 (1st Cir.2002); Wightman
v. Springfield Terminal Ry. Co.,
100 F.3d 228, 230 (1st Cir.1996).
[5] Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to a material
fact and that the moving party is entitled to a judgment as a matter of
law." Fed.R.Civ.P.
56(c). A
"genuine" issue is one that could be resolved in favor of either
party, and a "material fact" is one that has the potential of
affecting the outcome of the case. See
Anderson
v. Liberty Lobby, Inc.,
477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
[6][7] Once the moving party has asserted that no genuine issue
of material fact exists, the burden is on the opposing party to point to
specific facts demonstrating that there is, indeed, a trialworthy issue. Nat'l
Amusements, Inc. v. Town of Dedham,
43 F.3d 731, 735 (1st Cir.1995). Not every genuine factual conflict, of
course, necessitates a trial. "It
is only when a disputed fact has the potential to change the outcome of the
suit under the governing law if found favorably to the nonmovant that the
materiality hurdle is cleared." Parrilla-Burgos
v. Hernandez-Rivera,
108 F.3d 445, 448 (1st Cir.1997) (citation omitted).
[8] On the other hand, to survive summary judgment a plaintiff
is not required to rely only on uncontradicted evidence. Medina-Munoz
v. R.J. Reynolds Tobacco Co.,
896 F.2d 5, 9 n. 3 (1st Cir.1990). In this case, as noted, the record as a whole
presents many inconsistencies, displaying perspectives that favor in some
lights the defendants and in others the plaintiff. So long as the plaintiff's evidence is both
cognizable and sufficiently strong to support a verdict in her favor, the
factfinder must be allowed to determine which version of the facts is most
compelling.
IV. Discussion
Two issues are in play in this appeal: first, whether on the record a reasonable
factfinder might conclude that the defendants violated the Rehabilitation Act
by failing to offer Calero a reasonable accommodation for her disability; second, whether a factfinder might reasonably
find that the defendants violated Title VII by retaliating against Calero for
asserting her rights. We begin with the
claim under the Rehabilitation Act.
A. Discrimination Based on Disability
[9] The ADA and Rehabilitation Act prohibit discrimination
against an otherwise qualified individual based on his or her disability. The Rehabilitation Act, the precursor to the
ADA, applies to federal agencies, contractors and recipients of federal
financial assistance, while the ADA applies
to private employers with over 15 employees and state and local
governments. Although, as noted supra
n. 1, the ADA does not apply here, the case law construing the ADA generally
pertains equally to claims under the Rehabilitation Act.
[10] The federal statutes barring discrimination based on
disability do more *20 than merely prohibit disparate treatment; they also impose an affirmative duty on
employers to offer a "reasonable accommodation" to a disabled
employee. 42
U.S.C. § 12112(b)(5)(A). García-Ayala
v. Lederle Parenterals, Inc.,
212 F.3d 638, 646 n. 9 (1st Cir.2000).
[11] To assert a claim for failure to accommodate under the
Rehabilitation Act, Calero would have to establish the following: (1) that she suffered from a
"disability" within the meaning of the statute; (2) that she was a qualified individual in
that she was able to perform the essential functions of her job, either with or
without a reasonable accommodation; and
(3) that, despite her employer's knowledge of her disability, the employer did
not offer a reasonable accommodation for the disability. See Carroll
v. Xerox Corp.,
294 F.3d 231, 237 (1st Cir.2002); Higgins
v. New Balance Athletic Shoe, Inc.,
194 F.3d 252, 264 (1st Cir.1999). We will address each of these three elements
separately. [FN3]
FN3. Two other
elements, sometimes noted, require no discussion. It is
undisputed that the defendants are covered by the Rehabilitation Act, and that
plaintiff suffered in the terms and conditions of her employment.
1. Disability
The ADA defines "disability" as
either (a) a physical or mental impairment which substantially limits one or
more of an individual's major life activities;
(b) a record of such impairment;
or (c) being regarded as having such an impairment. 42
U.S.C. § 12102(2); see also 29
C.F.R. § 1630.2(g). Here, plaintiff
contends, under subsection (a), that she actually suffered a mental impairment
that limited one or more of her major life activities.
[12][13][14] It is well established that the determination of whether a
plaintiff has a disability must be made on a case-by-case basis. See Toyota
Motor Mfg., Ky., Inc. v. Williams,
534 U.S. 184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002); Sutton
v. United Air Lines, Inc.,
527 U.S. 471, 483, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). The analysis
leading to this determination requires the court to consider the record in the
light of three questions. First, did the
plaintiff suffer a physical or mental impairment? Second, did the "life
activity" limited by the impairment qualify as "major"? Finally,
did the impairment, in fact, substantially limit the plaintiff's
identified major life activity? See Bragdon
v. Abbott,
524 U.S. 624, 630- 31,
118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). The burden is on the plaintiff to establish
these three elements. See Bailey
v. Georgia-Pacific Corp.,
306 F.3d 1162, 1167 (1st Cir.2002); Carroll,
294 F.3d at 238.
We now take up these three inquiries.
a. Did the Plaintiff Suffer a Mental
Impairment?
The answer to the first question, on the facts
of this case, is obviously in the affirmative.
This circuit has recognized depression as a mental impairment that may
constitute, at least in some circumstances, a disability under federal
law. See Criado
v. IBM Corp.,
145 F.3d 437, 442 (1st Cir.1998). A number of other circuits have also
recognized depression as a qualifying mental impairment. See, e.g., Ogborn
v. United Food & Commercial Workers Union, Local No. 881,
305 F.3d 763, 767 (7th Cir.2002) ( "Major
depression can constitute a disability under the ADA."); Snead
v. Metro. Prop. & Cas. Ins. Co.,
237 F.3d 1080, 1088 n. 8 (9th Cir.2001) ("In
Oregon, stress and depression can be considered mental impairments. The same is true under the ADA."); Pritchard
v. Southern Co. Servs.,
92 F.3d 1130, 1132 (11th Cir.1996), amended in
part on reh'g, *21102
F.3d 1118,
cert. denied, 520
U.S. 1274, 117 S.Ct. 2453, 138 L.Ed.2d 211 (1997)
("Depression has been held to constitute a mental impairment."); Doe
v. Region 13 Mental Health-Mental Retardation Comm'n.,
704 F.2d 1402, 1408 (5th Cir.1983) (same).
[15] Moreover, the record in this case provides more than
sufficient evidence to permit a factfinder
to conclude that the plaintiff, in fact, was suffering from major depression
during the relevant period. The record confirms Calero's prior history of
depression, her diagnosis of depression by at least two physicians, her antidepressant
medication, her numerous required medical leaves from work, and her partial
hospitalization. In sum, as a matter of
law and of fact, the record clearly favors the plaintiff on the first of the
three pertinent questions. A factfinder
could easily determine that she suffered a qualified mental impairment. To determine whether the record would support
a finding that plaintiff suffered a disability, we now turn to the next
question.
b. Did the Plaintiff's Mental Impairment
Limit a "Major" Life Activity?
[16][17] Calero has highlighted numerous life activities that she
says were limited by her depression: sleeping,
eating, learning, concentrating, thinking, working and interacting with
others. A "major life
activity" is an activity of central importance to people's daily
lives. Toyota
Motor,
534 U.S. at 197, 122 S.Ct. 681. Many of the activities cited by the plaintiff
have been recognized, by this court or others, as "major," including
sleeping and eating, Criado,
145 F.3d at 442-43; Lawson
v. CSX Transp., Inc.,
245 F.3d 916, 923 (7th Cir.2001), learning, Bercovitch
v. Baldwin Sch., Inc.,
133 F.3d 141, 155 (1st Cir.1998), and thinking
and concentrating, Whitney
v. Greenberg, Rosenblatt, Kull & Bitsoli, P.C.,
258 F.3d 30, 33 n. 4 (1st Cir.2001). The Supreme Court has assumed, without
deciding, that working itself may be
considered a major life activity for purposes of the ADA. Sutton,
527 U.S. at 492, 119 S.Ct. 2139. Likewise, this court has on occasion assumed arguendo
that working might be deemed a major life activity under the Rehabilitation
Act. See, e.g., Bailey,
306 F.3d at 1168 n. 5; Carroll,
294 F.3d at 239;
Gelabert-Ladenheim
v. American Airlines, Inc.,
252 F.3d 54, 58 (1st Cir.2001).
In granting summary judgment for the
defendant, the district court did not take issue with plaintiff's claim that
her disability interfered with one or more of these recognized major life
activities. Moreover, as noted, the
appellees' brief has offered us not a word of discussion on the issue. In view of the documented severity of
plaintiff's disability, we assume that the defendants concede, at least for
purposes of summary judgment, that it interfered with one or more of the major
life activities specified by Calero.
c. Was the Major Life Activity
"Substantially" Limited?
[18][19] It is a simple matter to find sufficient evidence in the
record that Calero's mental impairment did "substantially" limit a
major life activity. Although the
federal statutes do not explicitly define the phrase "substantially limits,"
in Sutton the Supreme Court instructed that the phrase
"suggests 'considerable' or 'specified to a large degree.' " Sutton,
527 U.S. at 491, 119 S.Ct. 2139. Even so, "while substantial limitations
should be considerable, they also should not be equated with 'utter inabilities.' " Taylor
v. Phoenixville Sch. Dist.,
184 F.3d 296, 307 (3d Cir.1999). The Supreme Court has stated that
"[w]hen significant limitations result from an impairment, the disability
definition is met *22 even if the difficulties are not
unsurmountable." Bragdon,
524 U.S. at 641, 118 S.Ct. 2196. An impairment can substantially limit a major
life activity, even though the plaintiff is still able to engage in the
activity to some extent. See Gillen
v. Fallon Ambulance Serv., Inc.,
283 F.3d 11, 22 (1st Cir.2002).
As before, neither the district court nor the
appellees here have contested Calero's assertion that her major depression substantially
limited one or more of her recognized major life activities. Given this, we must conclude by default that
the evidence was sufficient to satisfy the first element of Calero's
Rehabilitation Act claim; she did suffer
a "disability." The next
question is whether she was a "qualified individual." Was she able to perform the essential
functions of her job, with or without an accommodation?
2. Qualified Individual
[20] To be a "qualified individual" under the
Rehabilitation Act, a plaintiff must show first that she possesses the
requisite skill, experience, education and other job-related requirements for
the position and, second, that she is able to perform the essential functions
of the position with or without a reasonable accommodation. García-Ayala,
212 F.3d at 646.
[21] An "essential function" is a fundamental job
duty associated with a particular
position; this function can extend
beyond " 'an employee's technical skills and experience, even including
such individual or idiosyncratic characteristics as scheduling flexibility.'
" Ward,
209 F.3d at 34 (quoting Laurin
v. Providence Hosp.,
150 F.3d 52, 59 n. 6 (1st Cir.1998)).
[22] In this case, the evidence shows that Calero was an
experienced trial attorney. She
practiced law for over twenty years and had two successful years of prior
experience in this same position in the INS' New York Office. She received above average to excellent
performance reviews through June 30, 1998. Based on this, a factfinder might
easily find that she possessed the requisite skill and experience for the
position of Assistant District Counsel.
A much closer question is whether a reasonable
factfinder could conclude that Calero, while suffering the powerful effects of
her disability, still possessed the ability to function competently and
productively in the workplace, either without any modification of her work
situation or with a reasonable accommodation.
After all, an employee who is unable to control her bizarre and
disruptive behavior may be unfit for employment, no matter how advanced her
objective skills or how extensive her experience. Although appellees' brief ignores the issue
entirely, the district court anchored its summary judgment ruling, in part, on
its conclusion that the record indisputably confirmed plaintiff's inability to
perform her job at an acceptable level.
A plaintiff offering a claim under the
Rehabilitation Act confronts a potential "Catch-22" when arguing that
she is a qualified individual under the Act. She must show both that her
impairment substantially limits a major life activity and that she is
"otherwise qualified" for her job, meaning she is able to perform the
essential functions her position requires, or would be if reasonably
accommodated. In shorthand, the law
requires the individual to be both substantially limited and reasonably
functional. Several authors have
discussed this quandary. E.g.,
Jonathan Brown, Defining Disability in 2001:
A Lower Court Odyssey, 23 WHITTIER L.REV. 335, 381-85 (2001); Chai R. Feldblum, *23Definition
of Disability under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It?; 21 BERKELEY J. EMP. & LAB. L. 91, 160-61
(2000);
Randal I. Goldstein, Note, Mental Illness in the Workplace
after Sutton v. United Airlines,
86 CORNELL L.REV. 927, 944 (2001).
This court need not explore the nuances of
this interesting conundrum, since the record in this case is adequate to
generate an issue for consideration by a factfinder regarding plaintiff's
capacity to perform her job, even while suffering her major depression, at
least with an appropriate accommodation. The defendants' own evaluation, issued
less than a year before plaintiff ceased working for the INS and several months
after Calero's attack of depression, gave
Calero a job rating, not merely of average, but of "fully
successful." In other words,
despite some flaws and problems, the INS pronounced itself fully satisfied with
Calero's level of performance even while she suffered from her major depression. Contrary facts produced at a trial may very
well put in play the question of Calero's capacity to perform, but this
documentation alone entitles the plaintiff to consideration by a factfinder of
the second element of her claim.
To satisfy the third and final element of her
Rehabilitation Act claim, plaintiff must prove that her employer, having
knowledge of her disability, failed to offer her a reasonable accommodation.
3. Reasonable Accommodation
[23] If an employer, aware of an employee's disability, refuses
to provide a requested reasonable accommodation, the employer violates the
Rehabilitation Act, unless it can show that the proposed accommodation would
pose an undue hardship for its business.
See Higgins,
194 F.3d at 264.
[24] Reasonable accommodations may include "job
restructuring, part- time or modified work schedules, reassignment to a vacant
position ... and other similar accommodations for individuals with
disabilities." 42
U.S.C. § 12111(9)(B). A careful, individualized
review of an accommodation request in light of the specific facts of the case
is needed to determine whether the request was reasonable. García-Ayala,
212 F.3d at 647.
[25][26] To show that a
proposed accommodation was reasonable, a plaintiff must prove "not only
that the proposed accommodation would enable her to perform the essential
functions of her job, but also that, at least on the face of things, it is
feasible for the employer under the circumstances." Reed
v. LePage Bakeries, Inc.,
244 F.3d 254, 259 (1st Cir.2001). The request for accommodation must be "
'sufficiently direct and specific,' giving notice that she needs a 'special
accommodation.' " Id.
at 261 (quoting Wynne
v. Tufts Univ.,
976 F.2d 791, 795 (1st Cir.1992)).
[27] If the plaintiff offers proof that a sufficiently specific
request was made, the defendant may attempt to prove that, in fact, the
proposed accommodation was not feasible and would constitute an
"undue" hardship. Id. An adequately supported denial of an accommodation request
requires the employer "to produce at least some modicum of evidence
showing that the [requested accommodation] would be a hardship, financial or
otherwise." Ward,
209 F.3d at 37.
In some cases, a request for a reasonable
accommodation may trigger a responsibility on the part of the employer to enter
into an interactive process with the employee to determine an appropriate
accommodation. Reed,
244 F.3d at 262 n. 11. The ADA's regulations state that "it may
be necessary for the covered entity to initiate an informal, interactive
process with the qualified individual."
*2429
C.F.R. §
1630.2(o)(3). The scope of the
employer's obligation in this process is not
crystal clear, but "[t]he employer has at least some responsibility in
determining the necessary accommodation," since "the regulations
envision an interactive process that requires participation by both
parties." 29
C.F.R. § 1630.2(o)(3).
[28] As this court has noted, this interactive process
"requires a great deal of communication between the employee and
employer." García-Ayala,
212 F.3d at 648 n. 12, citing Criado,
145 F.3d at 444.
An employer's refusal to participate in the process may itself constitute
evidence of a violation of the statute. See
Jacques
v. Clean-Up Group, Inc.,
96 F.3d 506, 515 (1st Cir.1996) ("There may
well be situations in which the employer's failure to engage in an informal
interactive process would constitute a failure to provide a reasonable
accommodation that amounts to a violation of the ADA.").
Other circuits have also found that both the
employee and a responsible representative of the employer have a duty to participate
in this process. See, e.g., Mengine
v. Runyon,
114 F.3d 415, 420 (3d Cir.1997) ("We agree
that both parties have a duty to assist in the search for an appropriate
reasonable accommodation and to act in good faith."); Beck
v. Univ. of Wis. Bd. of Regents,
75 F.3d 1130, 1135 (7th Cir.1996) ("A party
that obstructs or delays the interactive process is not acting in good
faith. A party that fails to
communicate, by way of initiation or response, may also be acting in bad faith.
In essence, courts should attempt to isolate the cause of the breakdown
and then assign responsibility."); Taylor
v. Principal Fin. Group, Inc.,
93 F.3d 155, 165 (5th Cir.1996) ("[O]nce an
accommodation is properly requested, the responsibility for fashioning a
reasonable accommodation is shared between the employee and employer. Thus, it is the employee's initial request
for accommodation which triggers the employer's obligation to participate in
the interactive process of determining one.").
[29] Viewing the facts of this case in the light of these
principles, and faced yet again with an utter lack of argument on this point by
appellees' counsel, the court must conclude that the evidence regarding
reasonable accommodation, while conflicting, is sufficient to generate an issue
for a factfinder when viewed in the light most favorable to the plaintiff.
First, Calero requested an accommodation on at least six occasions,
specifically identifying a transfer as an acceptable form of accommodation. Second,
Calero's supervisor, Reyes--usually her adversary--seconded Calero's request by
suggesting the transfer herself. Third,
on the record as it stands, a factfinder could find that Calero's suggestion of
a transfer to a work site at the San Juan airport was "at least on the
face of things" feasible. Fourth, a
factfinder could also find that the defendants failed to offer a sufficient
"modicum of evidence" showing that the accommodation proposed by
plaintiff would constitute a hardship. [FN4] Fifth, even if the proposed accommodation might in some way have been less
than ideal from defendants' viewpoint--for reasons not articulated anywhere in
the record--a factfinder could well find that the defendants failed to engage
in any good faith interactive process to explore whether some variant of the
plaintiff's proposal might have been *25 workable. Indeed, a factfinder might well conclude that,
in the face of plaintiff's increasingly desperate requests for an
accommodation, the defendants simply stonewalled--going so far as to deny, in
the face of substantial medical evidence, that plaintiff suffered a disability
at all. Finally, to the extent that the
record hints that the defendants, at some unspecified point and in some
unspecified way, offered a transfer out of Puerto Rico as an accommodation (and
the record supplies only a wisp of indirect evidence on this point), a
factfinder could well conclude that the offer was either grossly inappropriate,
given plaintiff's medical condition, or lacking in good faith.
FN4. At oral
argument, appellees' counsel dismissed the notion of a transfer to the INS
office at the San Juan airport, characterizing it as, essentially, unworkable
and unprecedented. The record of the
case, however, offers no concrete evidence of any justification offered by the
defendants to support their rejection of the requested accommodation.
In
sum, the record offers sufficient evidence from which a factfinder could
conclude that the defendants, being aware of plaintiff's disability and of her
request for accommodation, failed to make a reasonable response. Given that the record contains evidence that,
if believed by a factfinder, might have proved (1) that Calero did suffer from
a disability within the meaning of the statute, (2) that she was a qualified
individual who was able to perform the functions of her job, and (3) that her
employer failed to reasonably accommodate her disability, plaintiff was
entitled to present her Rehabilitation Act claim to a factfinder.
B. Title VII Retaliation Claim
[30] To prove a claim of retaliation, a plaintiff must
establish that (1) she engaged in protected conduct; (2) she experienced an adverse employment
action; and (3) there was a causal
connection between the protected conduct and the adverse employment
action. See Gu
v. Boston Police Dep't.,
312 F.3d 6, 14 (1st Cir.2002).
The district court held that Calero did prove
the first two elements of her retaliation claim. She did engage in protected activity by
filing her two complaints with the INS' EEO office, and she was subjected to
adverse employment actions. However, the
court held that the evidence was insufficient, even viewed in the light most
favorable to the plaintiff, to prove a causal connection between the protected
activity and the adverse employment actions.
Calero relies primarily on the timing of the
employment actions as her primary evidence of causal connection. The Supreme Court has stated that "[t]he
cases that accept mere temporal proximity between an employer's knowledge of
protected activity and an adverse employment action as sufficient evidence of
causality to establish a prima facie case uniformly hold that the temporal
proximity must be 'very close.' " Clark
County Sch. Dist. v. Breeden,
532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (citation omitted). Three and four month periods have been
held insufficient to establish a causal connection based on temporal
proximity. See Richmond
v. ONEOK, Inc.,
120 F.3d 205, 209 (10th Cir.1997); Hughes
v. Derwinski,
967 F.2d 1168, 1174-75 (7th Cir.1992). We have held that "a showing of
discharge soon after the employee engages in an activity specifically protected
by ... Title VII ... is indirect proof of a causal connection between the
firing and the activity because it is strongly suggestive of
retaliation." Oliver
v. Digital Equip. Corp.,
846 F.2d 103, 110 (1st Cir.1988).
[31] The facts demonstrate sufficient temporal proximity
between the protected conduct and the employment action in this case to make
out a prima facie case. On March 18,
1998, Calero received the memorandum of admonishment, the first adverse
employment action. On April 21, 1998,
Calero first contacted the EEO Office.
On May 11, 1998, Calero filed her first EEO complaint. Calero sent
Penca a copy of this complaint, and Penca in turn, *26 forwarded the
complaint to Reyes. We have noted that
the prima facie burden in this context is not an onerous one. Fennell
v. First Step Designs, Ltd.,
83 F.3d 526, 535-36 (1st Cir.1996). As plaintiff received her first proposed
suspension on June 22, 1998, roughly a month after she made defendants aware
that she filed her EEO complaint, we find plaintiff has met her burden of
making out a prima facie case of retaliation.
[32] Once the plaintiff has made a prima facie showing of
retaliation, the McDonnell Douglas burden-shifting approach is employed,
and defendant must articulate a legitimate, non-retaliatory reason for its
employment decision. If the defendant meets this burden, the plaintiff must now
show that the proffered legitimate reason is in fact a pretext and that the job
action was the result of the defendant's retaliatory animus. See St.
Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 510-11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). We have noted the
manner in which courts should consider the McDonnell Douglas analysis in
the context of summary judgment:
"[O]n summary judgment, the need to order the presentation of proof
is largely obviated, and a court may often dispense with strict attention to
the burden-shifting framework, focusing instead on whether the evidence as a whole
is sufficient to make out a question for a factfinder as to pretext and
discriminatory animus." Fennell,
83 F.3d at 535.
[33] Defendants have,
in fact, identified numerous clear, specific reasons for the adverse employment
actions taken against Calero having nothing to do with any impulse to retaliate
against her for protected conduct. The
troubling history of plaintiff's insubordinate and disruptive behavior and the
occasions when she failed to perform her duties in a satisfactory manner all
provided legitimate justification for disciplinary action entirely untainted by
retaliatory animus. That plaintiff may
point to this same evidence in support of her Rehabilitation Act claim does not
diminish the significance of these shortcomings as legitimate bases for
discipline. The analytical matrix is
different for the two statutes, and evidence that may assist a plaintiff's case
from one vantage may damage it from another.
Since Calero has failed to point to specific facts that would
demonstrate any sham or pretext intended to cover up defendants' retaliatory
motive, we will affirm the dismissal of her retaliation claim under Title VII.
V. Conclusion
The precedential value of this decision may be
limited, to some extent, by its unusual circumstances: the confused state of the record, plaintiff's
pro se status, and the failure of appellees' counsel to address in any
way the central issues raised by the appeal.
In any event, we are unable to say with confidence that no
reasonable factfinder, taking the facts from this record as plaintiff might
present them, could return a favorable verdict on the Rehabilitation Act claim. For this reason, we must conclude that the
district court's allowance of defendants' motion for summary judgment on this
count was in error. We therefore REVERSE
AND VACATE the district court's judgment regarding the Rehabilitation Act and
REMAND for further proceedings consistent with this opinion. In all other respects, the judgment of the
district court is AFFIRMED.
Costs are assessed against the appellees.
355 F.3d 6,
84 Empl. Prac. Dec. P 41,596, 15 A.D. Cases 129, 27 NDLR P 140
END OF
DOCUMENT