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Ecvhevarria v. Astrazeneca Pharmaceutical LP

United States Court of Appeals, First Circuit

May 2, 2017



          Vilma Maria Dapena Rodriguez for appellant.

          Lourdes C. Hernández-Venegas, with whom Elizabeth Pérez-Lleras and Schuster Aguiló LLC were on brief, for appellees.

          Before Thompson, Dyk, [*] and Kayatta, Circuit Judges.

          THOMPSON, Circuit Judge.

         The plaintiff, Taymari Delgado Ecvhevarría (Delgado), appeals from the entry of summary judgment in favor of her former employer, AstraZeneca Pharmaceutical LP (AstraZeneca).[1] Although Delgado labors mightily to demonstrate the existence of a litany of genuine disputes of material fact, her inability to do so with respect to each of the essential elements of her claims compels us to affirm.


         Consistent with Delgado's effort to show the existence of a host of factual disputes in this case, each party's brief provides an in-depth discussion of the facts. We prefer to take a different tack: briefly sketching here the general background and setting forth in detail only those facts that are relevant to our disposition of this appeal, augmenting this background as necessary in the pages that follow. As in all other summary-judgment cases, we view the facts (and all reasonable inferences that can be drawn from them) in the light most favorable to Delgado, the nonmovant. See Garmon v. Nat'l R.R. Passenger Corp., 844 F.3d 307, 312 (1st Cir. 2016).

         In 2001, AstraZeneca hired Delgado to work as a Pharmaceutical Sales Specialist (PSS). She was promoted to a Hospital Specialist in 2009. With the new position came a new supervisor, Maribel Martínez (Martínez).

         In November 2010, Delgado sought treatment for depression and anxiety with Dr. Jorge A. Sánchez Cruz (Sánchez), a psychiatrist. Nearly one year later, Delgado learned that she had a pituitary microadenoma (a small brain tumor, in layman's terms). Delgado informed Martínez of the tumor and the two biopsy procedures that flowed from this diagnosis, but did not disclose her depression or anxiety.

         On December 12, 2011, Sánchez diagnosed Delgado with severe depression and extreme anxiety, and he recommended that she refrain from working. Later that day, Delgado emailed an AstraZeneca occupational health nurse in order to get the ball rolling on her application for benefits under the company's short-term disability (STD) policy.[2] Initially, AstraZeneca denied Delgado's request for STD benefits because CHS determined that she had not submitted the necessary documentation. In response, Sánchez provided additional paperwork on Delgado's behalf in which he estimated that she needed to be out on leave for about five months until May 2012.

         AstraZeneca subsequently awarded Delgado STD benefits (retroactive to December 12, 2011) until January 22, 2012.[3] The record does not reflect the reason that AstraZeneca did not grant Delgado STD benefits until May, as Sánchez requested. AstraZeneca periodically extended her benefits on several occasions. Delgado received treatment in a hospital on an outpatient basis sometime in late January or early February, and her benefits were extended until February 12. Delgado's benefits were then extended again until March 4, and once more until March 11.

         In two treatment records that Sánchez submitted to AstraZeneca on Delgado's behalf - one dated February 22 and the other dated March 8 - Sánchez described Delgado as "[m]ildly [i]ll." On March 11, AstraZeneca terminated Delgado's STD benefits because she failed to submit what it viewed as adequate documentation of her disability. Five days later, Michael Cohran (Cohran), the then Senior Employment Practices Partner in the Human Resources department at AstraZeneca, sent a letter to Delgado instructing her to return to work by March 22 and informing her that, if she failed to do so, AstraZeneca would presume that she resigned from her employment with the company. In response, Sánchez requested that AstraZeneca continue Delgado's medical leave until March 30.

         When Delgado did not return to work on March 22, Cohran called her, put pressure on her to resign, offered her a severance package, and suggested that, once she took care of her health, she reapply for her position with AstraZeneca in six months if her position was still open. The conversation was an upsetting one for Delgado; she became "pretty hysterical, " began to cry, was unable to finish the call, and suffered a "relapse" of her condition as a result. One week after Cohran's phone call with Delgado, Sánchez submitted additional documentation in support of his request that AstraZeneca continue Delgado's medical leave; Sánchez characterized Delgado as "[s]everely [i]ll" in this paperwork. AstraZeneca then extended Delgado's STD benefits until April 29.

         By letter dated May 7, AstraZeneca informed Delgado that her STD benefits terminated on April 30. Cohran sent another letter to Delgado on May 14 informing her that, if she did not return to work on May 17, AstraZeneca would presume that she resigned from the company.

         Delgado did not return to work on May 17. Instead, Sánchez faxed additional documentation to AstraZeneca on Delgado's behalf that day.[4] In one section of AstraZeneca's leave form, Sánchez related that Delgado's medical condition commenced in 2009 and would probably last "more than a year." In another section of the same form, Sánchez requested additional leave for Delgado and indicated that she was "unable to work at this time"; additionally, in response to a question on the form calling for an "estimate [of] the beginning and ending dates for the period of incapacity, " Sánchez entered: "12 months."[5] An AstraZeneca occupational health nurse told Cohran via email on May 17 that she reviewed this form the same day that it was faxed to the company, determined it did not support reinstating Delgado's STD benefits, and left Delgado a voicemail later that day. AstraZeneca did not follow up with Delgado's psychiatrist that day or at any point thereafter.

         Rather, on May 18, Cohran sent Delgado yet another letter. This letter reiterated that Delgado had been required to return to work the day before or else "be presumed to have resigned [her] employment with AstraZeneca" and confirmed that she had neither reported to work as instructed nor contacted her supervisor. The letter indicated that Delgado's "termination effective date [was] July 19." The letter also noted another update; that, "due to a recent reorganization in field sales, we are making a non-negotiable offer of severance to you." Finally, on July 17, with no other communications passing between AstraZeneca and Delgado in the interim, Cohran sent Delgado one more letter that informed her: "As outlined in my letter dated May 18, 2012, due to a recent reorganization in field sales your position was eliminated . . . ." The July 17 letter also reminded Delgado of the effective date of her termination two days later and the severance-package offer.

         Delgado did not accept AstraZeneca's offer. Instead, in February 2013, she initiated this action against her former employer, alleging a host of claims under federal and Puerto Rico law. In particular, Delgado alleged that AstraZeneca violated the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, by discriminating against her on account of her disability, failing to reasonably accommodate that disability, failing to engage in an interactive process to discuss reasonable accommodations, and retaliating against her for engaging in protected activity under the ADA. Delgado also alleged that AstraZeneca violated several provisions of Puerto Rico law, including Law 44, Article 1802, and Law 80.[6] The district court entered summary judgment in AstraZeneca's favor. Delgado timely appealed.


         We review the entry of summary judgment de novo. Ortiz-Martínez v. Fresenius Health Partners, PR, LLC, No. 16-1453, 2017 WL 1291193, at *4 (1st Cir. Apr. 7, 2017); Garmon, 844 F.3d at 312. Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63, 68 (1st Cir. 2015). We are free to affirm the entry of summary judgment "on any basis apparent in the record." Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 86 (1st Cir. 2012) (quoting Chiang v. Verizon New Eng. Inc., 595 F.3d 26, 34 (1st Cir. 2010)).


         On appeal, Delgado argues that the district court erred in entering summary judgment for AstraZeneca on both her ADA claims and Puerto Rico law claims. We address her ADA claims first and then turn to her remaining claims.

         A. ADA Claims

         Delgado's complaint asserted that AstraZeneca violated the ADA in several respects. Those claims can be classified into one of two general categories: disability discrimination and retaliation. We address each category in turn.

         1. ADA Disability-Discrimination Claim

         To withstand summary judgment on an ADA disability-discrimination claim, Delgado needs to show the existence of a genuine dispute of material fact as to all three elements of her prima facie case: (1) that she is disabled under the ADA; (2) that she "is qualified to perform the essential functions of [her] job with or without reasonable accommodation"; and (3) that she "was discharged or otherwise adversely affected in whole or in part because of [her] disability." Jones, 696 F.3d at 87. In this case, the district court assumed, without deciding, that Delgado was disabled under the ADA on account of her depression and anxiety, and we do the same. Delgado and AstraZeneca spar over the remaining elements.

         We narrow our focus to the qualified-individual element, which imposes a burden on Delgado to show: (1) "that she possesses the requisite skill, experience, education and other job-related requirements for the position"; and (2) "that she is able to perform the essential functions of the position with or without reasonable accommodation." Mulloy v. Acushnet Co., 460 F.3d 141, 147 (1st Cir. 2006). AstraZeneca does not dispute that Delgado satisfies this first requirement - her qualification for the position - and Delgado does not contend that she was able to perform the essential functions of her position without a reasonable accommodation.[7] Thus, the scope of our inquiry shrinks further still; we need only address whether Delgado has shown a genuine dispute of material fact that she was able to perform the essential functions of her position with a reasonable accommodation. See id.

         The ADA compels an employer "to make 'reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on [its] operation of the business.'" Ortiz-Martínez, 2017 WL 1291193, at *4 (quoting 42 U.S.C. § 12112(b)(5)(A)); see also U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 393 (2002) (explaining that the ADA "prohibits an employer from discriminating against an 'individual with a disability' who, with 'reasonable accommodation, ' can perform the essential functions of the job" (quoting § 12112(a), (b))). The plaintiff bears the burden of showing the existence of a reasonable accommodation. See Reed v. LePage Bakeries, Inc., 244 F.3d 254, 258 (1st Cir. 2001). To satisfy that burden, "a plaintiff needs to show not only that [(1)] the proposed accommodation would enable her to perform the essential functions of her job, but also that, [(2)] at least on the face of things, it is feasible for the employer under the circumstances."[8] Id. at 259; see also Jones, 696 F.3d at 90; Freadman, 484 F.3d at 103; Mulloy, 460 F.3d at 148. We have referred to the second aspect of this burden as an obligation to show that the requested accommodation is "facially reasonable." Reed, 244 F.3d at 260.

         Delgado argues that her May 17 request for an additional twelve months of leave was a reasonable accommodation.[9] The district court thought otherwise, concluding that, in essence, Delgado was seeking indefinite leave - an accommodation that is not reasonable under the ADA.[10] See Fiumara v. President & Fellows of Harvard Coll., 327 F.App'x 212, 213 (1st Cir. 2009); Watkins v. J & S Oil Co., 164 F.3d 55, 62 (1st Cir. 1998); see also Robert v. Bd. of Cty. Comm'rs of Brown Cty., 691 F.3d 1211, 1218-19 (10th Cir. 2012). Having set the stage, we now provide our take.

         First things first: All agree that a leave of absence or a leave extension can constitute a reasonable accommodation under the ADA "in some circumstances." García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000); see also Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir. 1998). And, to be sure, "[w]hether [a] leave request is reasonable turns on the facts of the case." García-Ayala, 212 F.3d at 647 (alterations in original) (quoting Criado, 145 F.3d at 443). But the fact-intensive nature of the reasonable-accommodation inquiry does not insulate disability-discrimination cases from summary judgment. To the contrary, a plaintiff must show, even at the summary-judgment stage, that the requested accommodation is facially reasonable. See Reed, 244 F.3d at 259-60. And, where a plaintiff fails to show facial reasonableness, summary judgment for the defendant is appropriate. See, e.g., Jones, 696 F.3d at 91. So it is here.

         The combined effect of two aspects of this case convince us that Delgado has failed to show that her request for twelve more months of leave was a reasonable accommodation. First, it seems doubtful that Delgado shouldered her burden of showing that the requested accommodation would have enabled her to perform the essential functions of her position. Second, Delgado has not shown that additional leave for this duration is a facially reasonable accommodation, either in the circumstances of her particular case, Reed, 244 F.3d at 259, or "in the run of cases, " id. at 259 n.5. On appeal, Delgado disputes both of these conclusions, but to no avail.

         a. Effectiveness of Accommodation

         Delgado seems to assert that Sánchez informed AstraZeneca that the requested additional twelve months "would have improved [Delgado's] condition and [that] she would have been able to return to work."[11] Upon closer inspection, however, this claim is dubious.

         For starters, Delgado relies, at least in part, on Sánchez's deposition testimony to support her assertion. This is problematic. Even if Sánchez opined during his deposition in 2014 that Delgado would have been able to return to work after twelve more months of leave, "[t]he facts relevant to a determination of whether a medical leave is a reasonable accommodation are the facts available to the decision-maker at the time of the employment decision." Amadio v. Ford Motor Co., 238 F.3d 919, 928 (7th Cir. 2001); cf. Jones, 696 F.3d at 90-91 (explaining that "'[o]ne element in the reasonableness equation is the likelihood of success'" and concluding that employee failed to show that requested accommodation - an extension of time to take a test - was reasonable because he "did not show any reason for the employer to conclude he would pass the exam if given yet another opportunity to take it" (quoting Evans v. Fed. Express Corp., 133 F.3d 137, 140 (1st Cir. 1998))); Henry v. United Bank, 686 F.3d 50, 60 (1st Cir. 2012) (affirming entry of summary judgment on failure-to-accommodate claim brought under analogous state law because, "as of the date of her termination, the plaintiff . . . had given the bank neither a relative time frame for her anticipated recovery nor any indication of when or whether she would ever be able to return to her credit analyst position in the future"). With one possible exception discussed below, Delgado has pointed us to no evidence ...

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