FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Pedro A. Delgado-Hernández, U.S.
Maria Dapena Rodriguez for appellant.
Lourdes C. Hernández-Venegas, with whom Elizabeth
Pérez-Lleras and Schuster Aguiló LLC were on
brief, for appellees.
Thompson, Dyk, [*] and Kayatta, Circuit Judges.
THOMPSON, Circuit Judge.
plaintiff, Taymari Delgado Ecvhevarría (Delgado),
appeals from the entry of summary judgment in favor of her
former employer, AstraZeneca Pharmaceutical LP
(AstraZeneca). 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.
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).
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).
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.
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. 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.
subsequently awarded Delgado STD benefits (retroactive to
December 12, 2011) until January 22, 2012. 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.
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.
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
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.
did not return to work on May 17. Instead, Sánchez
faxed additional documentation to AstraZeneca on
Delgado's behalf that day. 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." 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
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
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
The district court entered summary judgment in
AstraZeneca's favor. Delgado timely appealed.
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)).
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.
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.
ADA Disability-Discrimination Claim
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.
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. 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.
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." 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.
argues that her May 17 request for an additional twelve
months of leave was a reasonable accommodation. The district
court thought otherwise, concluding that, in essence, Delgado
was seeking indefinite leave - an accommodation that is not
reasonable under the ADA. 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
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.
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.
Effectiveness of Accommodation
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." Upon closer inspection,
however, this claim is dubious.
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 ...