Maldonado-Ortiz et al v. Lexus de San Juan, No. 3:2009cv01771 - Document 69 (D.P.R. 2011)

Court Description: OPINION AND ORDER. GRANTED 34 MOTION for Summary Judgment filed by Lexus de San Juan. Signed by Judge Salvador E Casellas on 4/4/2011.(LB)

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Maldonado-Ortiz et al v. Lexus de San Juan Doc. 69 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 1 2 3 4 MARTA MALDONADO-ORTIZ Plaintiff v. Civil No. 09-1771 (SEC) 5 LEXUS DE SAN JUAN 6 Defendant 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 OPINION AND ORDER Pending before the Court is Defendant HVPH Motor Corporation d/b/a Lexus de San Juan s ( Defendant or Lexus ) Motion for Summary Judgment (Dockets ## 34, 26 & 37), and Plaintiff Marta Maldonado-Ortiz s ( Plaintiff ) opposition thereto (Dockets ## 55 & 56 ). After carefully considering the filings, the evidence on the record, and the applicable law, Defendant s motion is GRANTED. Procedural Background On August 7, 2008, Plaintiff filed the present suit against Defendant under the Americans with Disabilities Act ( ADA ), 42 U.S.C. § 12101 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., the Family Medical Leave Act ( FMLA ), 29 U.S.C. § 2601 et seq., and several state laws. According to the complaint, Plaintiff was discriminated against due to her medical conditions and was subjected to sexual harassment. Plaintiff further avers that Defendant interfered with her rights under the FMLA. On September 30, 2010, Defendant moved for summary judgment arguing that Plaintiff failed to establish a prima facie case under the ADA because she did not suffer an adverse employment action, she is not disabled within its meaning and she cannot perform the essential functions of her position with or without reasonable accommodation. Docket # 36. Moreover, 25 26 Dockets.Justia.com 1 CIVIL NO. 09-1771 (SEC) Page 2 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 they aver that her claims under Title VII, the FMLA, and for failure to provide reasonable accommodation also fail. Plaintiff timely opposed. Standard of Review The Court may grant a motion for summary judgment 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 any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); RamÃrez RodrÃguez v. Boehringer Ingelheim, 425 F.3d 67, 77 (1 st Cir. 2005). In reaching such a determination, the Court may not weigh the evidence. Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir. 1994). At this stage, the court examines the record in the light most favorable to the nonmovant, and indulges all reasonable inferences in that party s favor. Maldonado-Denis v. Castillo-RodrÃguez, 23 F.3d 576, 581 (1 st Cir. 1994). Once the movant has averred that there is an absence of evidence to support the nonmoving party s case, the burden shifts to the nonmovant to establish the existence of at least one fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (citations omitted). A factual issue is genuine if it may reasonably be resolved in favor of either party and, therefore, requires the finder of fact to make a choice between the parties differing versions of the truth at trial. DePoutout v. Raffaelly, 424 F.3d 112, 116 (1 st Cir. 2005)(citing Garside, 895 F.2d at 48 (1st Cir. 1990)); see also SEC v. Ficken, 546 F.3d 45, 51 (1st Cir. 2008). In order to defeat summary judgment, the opposing party may not rest on conclusory allegations, improbable inferences, and unsupported speculation. See Hadfield v. McDonough, 407 F.3d 11, 15 (1st Cir. 2005) (citing Medina-MuÃ±oz v. R.J. Reynolds Tobacco Co., 896 F.2d 1 CIVIL NO. 09-1771 (SEC) Page 3 2 3 4 5 6 7 8 9 5, 8 (1st Cir. 1990). Nor will effusive rhetoric and optimistic surmise suffice to establish a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d 957, 960 (1 st Cir. 1997). Once the party moving for summary judgment has established an absence of material facts in dispute, and that he or she is entitled to judgment as a matter of law, the party opposing summary judgment must present definite, competent evidence to rebut the motion. MÃ©ndez-Laboy v. Abbot Lab., 424 F.3d 35, 37 (1st Cir. 2005) (citing Maldonado-Denis v. Castillo RodrÃguez, 23 F.3d 576, 581 (1st Cir. 1994). The non-movant must produce specific facts, in suitable evidentiary form sufficient 10 11 12 13 14 15 16 17 18 to limn a trial-worthy issue. . . . Failure to do so allows the summary judgment engine to operate at full throttle. Id.; see also Kelly v. United States, 924 F.2d 355, 358 (1 st Cir. 1991) (warning that the decision to sit idly by and allow the summary judgment proponent to configure the record is likely to prove fraught with consequence. ); Medina-MuÃ±oz, 896 F.2d at 8 (citing Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1 st Cir. 1989)) (holding that [t]he evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve. ). Applicable Law and Analysis 19 The uncontested facts are as follows. HVPH is a corporation which operates under the 20 21 22 23 24 business name of Lexus de San Juan and manages a car dealership that sells Lexus cars and provides general car maintenance and repair services.1 Lexus SUF ( SUF ), Docket # 56, ¶ 1. For Lexus, client satisfaction is paramount, therefore the most important person in the dealership is the client. Id. at 2. Pursuant to their website, Lexus commitment to perfection 25 1 26 Rico. The Lexus dealership is located in Ave. John F. Kennedy, Km. 3.9, Puerto Nuevo, Puerto 1 CIVIL NO. 09-1771 (SEC) Page 4 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 is exceeded only by our commitment to offer you the highest levels of guest services in the luxury automotive industry. Id. Their service department supports the dealership s business by providing the best possible service to Lexus clients, and its commitment to maintaining the highest level of service has earned it the recognition of providing the best service in the automotive industry in Puerto Rico. Id.2 Plaintiff s employment at Lexus Plaintiff applied for a position at Lexus on May 23, 2000, and was hired on June 1, 2000, as an Assistant Manager in the Service Department.3 Id. at 3. The Assistant Manager in the Service Department is a very important position for Lexus because he or she is the first in line to attend clients that request car service. Id. at 4. As an Assistant Manager, Plaintiff was directly responsible of making sure that the car service operation fully complied with the clients 2 Plaintiff argues that this statement is self serving and should not be considered by this Court. This Circuit, however, has held that a party s own affidavit, containing relevant information of which he has first-hand knowledge, may be self-serving, but it is nonetheless competent to support or defeat summary judgment. Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 53 (1st Cir. 2000) (citing Cadle Co. v. Hayes, 116 F.3d 957, 961 n.5 (1st Cir. 1997). Said statements are not based on speculation and assumptions, and instead are set forth in the company s website and it is reasonable that Victor CarriÃ³n, as Service and Parts Director, and Myrna LÃ³pez, as Human Resources Manager, are competent to testify to such matter and have first hand knowledge regarding said information. See Acosta v. Harbor Holdings & Operations, Inc., 674 F. Supp. 2d 351, 357 (D.P.R. 2009); Hoffman v. Applicators Sales and Serv., Inc., 439 F.3d 9, 16 (1st Cir. 2006). Insofar as Plaintiff did not properly oppose the same, they will be deemed admitted when ruling on the present motion. 3 At Lexus, the personnel who provide service in this department are divided into teams. SUF at 7. Each team is composed of an Assistant Manager, a Team Leader, and a team of four (4) mechanics. Id. The Assistant Manager directly attends the clients, identifies the type of service the client needs and prepares the job. Id. The Team Leader is the person who distributes the jobs between the team of mechanics and makes sure the jobs get done. Id. The Assistant Manager and the Team Leader communicate directly with each other, and they are both equally responsible for the jobs. Id. The Team Leader and the Assistant Manager are positions of equal ranks and/or hierarchy. Id. Communication between the Team Leader and the Assistant Manager is of paramount importance, given that if they are not coordinated, the jobs will not get done in the correct order, and in accordance with the best interests of the clients. Id. 1 CIVIL NO. 09-1771 (SEC) Page 5 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 expectations regarding the maintenance and repairs of their vehicles. Id. She was also responsible for complying with her sales objectives, as well as the administrative responsibilities of her work team. Id. Her duties and responsibilities included: (1) receiving the clients when they arrived at the service area of the dealership, asking questions and listening to their comments and/or concerns in order to identify the reasons for the visit; (2) providing service options, make recommendations, and provide an orientation to the client regarding the needed service; (3) preparing a service order (also known as jobs ), and reviewing it with the client to make sure that it is correct before submitting the order to the Team Leader to start the repairs; (4) calling the clients once she received the repair estimates from the Team Leader to explain the estimates and get their approval before commencing the job ; (5) providing constant follow up as to the status of the jobs and maintaining the clients informed; (6) answering client calls immediately and courteously, making an effort to completely fulfill the clients expectations; (7) recommending disciplinary actions against any individual in her work team, when necessary; and (8) being punctual and carrying out the work day to the fullest. Id. at 5. Pursuant to the employment contract, as Assistant Manager, Plaintiff was paid an hourly wage and additional compensation for overtime work, or production, whichever was greater. Id. at 6. That is, Plaintiff would earn a minimum hourly wage, which could increase, depending on the money earned on servicing clients. Id. The dealership opens its doors to its clients at 7:30. a.m. in order to allow the clients to bring the cars in for service before they have to report to their respective employments. Id. at 8. Similarly, the dealership remains open until about 6:00 p.m. so that the clients may pick up their vehicles after they finish with their respective professional responsibilities. Id. Usually clients start lining up for service about half hour before the time the dealership opens. Id. The 1 CIVIL NO. 09-1771 (SEC) Page 6 2 dealership tends to its clients in a first come first serve basis. Id. Thus when the gates open they 3 allow the first set of cars, which are lined up in the street, to drive into a meeting area that fits 4 approximately eight (8) cars at the same time. Id. The hours with the most volume of work at 5 the dealership range from 7:30 a.m. to 9:30 a.m., when the clients leave their cars for servicing, 6 and from 5:00 p.m. to 6:00 p.m. when they pick up their cars. Id. 7 The Assistant Managers have to be working in the dealership from 7:30 a.m. until at least 8 6:00 p.m. Id. at 6 & 9. Since the Assistant Managers are responsible for the jobs of their 9 clients, it is particularly important that they be present during the hours with the most volume 10 of work, which range between 7:30 a.m. and 8:30 a.m., and 5:00 p.m. to 6:00 p.m.4 Id. That is, 11 they have to personally be there when the clients take the car for servicing, usually in the 12 mornings, and when they pick up their vehicle in the afternoon, at whatever time the job gets 13 completed, make sure that the jobs have been completed and the client is satisfied with the 14 service the dealership provided. Id. at 9. If the job cannot be completed in the agreed upon 15 time, they have to make sure that the client understands the reasons, and if necessary provide 16 the clients with service vehicles while their car is being serviced. Id. Plaintiff admits that she 17 worked more than ten (10) hours a day, and on some occasions she worked for twelve (12) 18 hours. Id. at 6. 19 20 21 4 22 23 24 25 26 Although Plaintiff posits that the employment contract does not provide that she had to work 10 hours a day or state the importance of being present during the high volume hours, she failed to properly contest the statements provided by CarriÃ³n and LÃ³pez. Under federal law, an unsworn statement signed under penalty of perjury may be used, in lieu of a sworn statement or affidavit, to support or oppose a motion for summary judgment. Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int'l, Inc., 982 F.2d 686, 689-90 (1st Cir. 1993) (citing 28 U.S.C. § 1746). This Court notes, however, that Defendant s assertion that being able to work for approximately ten (10) hours a day is an essential element of the position of Assistant Manager is a conclusion of law that is better left for us to decide if warranted`. As such, it will be disregarded when ruling on the present motion. 1 CIVIL NO. 09-1771 (SEC) Page 7 2 Plaintiff s daily activities and her medical conditions 3 Plaintiff drove a Montero Sport Utility Vehicle ( SUV ) since 1994, which she used 4 among other vehicles, while she worked at Lexus. Id. at 10. According to Plaintiff s deposition 5 testimony, she would drive her SUV from her home in the Municipality of Las Piedras to take 6 her kids to school in Hato Rey, and then to get to work at the dealership. Id. at 11. When she left 7 work at around 6:00 p.m. or 7:00 p.m., she would drive the SUV to pick up her three kids, one 8 of them in her mother s house, the other at the school or a friend s house, and the other in the 9 Music Conservatorium, and go back home to Las Piedras. Id. In August or September 2005, 10 Plaintiff enrolled in Phoenix University, located in San Patricio, where she took classes after 11 work from 6:00 p.m. until 10:00 p.m. Id. After her classes ended, she would pick up her kids 12 at her mother s house located in Floral Park, in San Juan, and then they drove back to their 13 home in Las Piedras. Id. 14 In mid-2004, Plaintiff was diagnosed with breast cancer. Id. at 13. She was told that she 15 had a tumor that would require surgery. Id. However, before the surgery, Plaintiff began 16 chemotherapy in order to reduce the size of the tumor. Id. She took eight sessions of 17 chemotherapy before the surgery was performed in December 2004. Id. at 13 & 14. Plaintiff 18 kept working while she was receiving the chemotherapy. Id. She would take chemotherapy on 19 Friday and would return to work on Monday. Id. at 13. She admitted, however, that she had to 20 miss work on several occasions and Lexus always gave her permission and there were never any 21 problems regarding her absences. Id. at 13 & 17. After her surgery, she took several 22 medications. Id. at 14. By July 2010, Plaintiff was no longer undergoing cancer treatment and 23 is currently required to visit her doctor once every six (6) months for routine checkups. Id. 24 Plaintiff claims that she became a partially disabled individual after she was diagnosed 25 with cancer on 2004. Id. at 15. Specifically, Plaintiff claims that she was disabled because she 26 1 CIVIL NO. 09-1771 (SEC) Page 8 2 could not move her right arm in the same way as before, and her right chest area hurt while she 3 was undergoing treatment. Id. She admits, however, that the surgery and treatment improved 4 her condition, and that she has been able to move her right arms since 2005 until present. Id. She 5 also admits that she continued to work for approximately nine (9) to ten (10) hours a day while 6 she was undergoing cancer treatment. Id. Plaintiff further admitted that she was able to sit in 7 her office to do paper work; talk to clients in the phone; walk and meet with clients frequently 8 throughout the dealership; and walk to different areas of the dealership to get things done. Id. 9 In addition, she continued driving her kids from Las Piedras to their school in Hato Rey during 10 her treatment. Id. 11 While Plaintiff was being treated for her medical condition, Lexus provided economic 12 assistance for her son s education5 and allowed employees to collect funds during work hours 13 to help pay for her medical expenses. Id. at 17. Lexus also made the necessary arrangements to 14 have other Assistant Managers handle her clients, while at the same time allowing her to take 15 the Production earnings, even though she was not present. Id. 16 Plaintiff s asthma condition, which was initially diagnosed in 2002, worsened when she 17 underwent cancer treatment, and as a result, she began to suffer asthma episodes approximately 18 every three to six months. Id. at 18. Currently, Plaintiff hardly suffers from asthma episodes, 19 which occur approximately once or twice a year and they are not as strong. Id. Despite the 20 asthma episodes she suffered every three to six months from 2005 to 2008, Plaintiff was able 21 to work her required schedule. Id. 22 23 24 25 26 5 On July 28, 2004, Plaintiff wrote a letter to Judith Parra ( Parra ), Lexus General Manager, informing her that her son NeftalÃ Boyer, was accepted in the Caribbean Preparatory School, and requesting a financial donation from Lexus for his education expenses. Id at 12. Plaintiff also included several documents from Caribbean Preparatory School, which reflected some of the education expenses. Id. In response to said request, on that same date, Lexus donated $650.00 to Plaintiff s son for his education expenses. Id. 1 CIVIL NO. 09-1771 (SEC) Page 9 2 In May 2006, Plaintiff suffered a fall in a restaurant called Yaya s CafÃ©, and as a result 3 of the same, she underwent surgery on her knee on May 18, 2006. Id. at 20. After the surgery, 4 the doctor ordered at least two (2) weeks rest before going back to work. Id. However, Plaintiff 5 did not follow her doctor s instructions and went back to work three (3) days after the surgery, 6 with a bag of ice and crutches, and worked her entire shift. Id. Plaintiff admits that she 7 voluntarily returned to work and Lexus did not pressure her to return to work. Id. After the 8 surgery, she took therapies that lasted about two (2) to three (3) weeks, and she never had any 9 more problems with her knee. Id. At present, her knee is fine. Id. 10 In 2007, Plaintiff was diagnosed with neuropathy. Id. at 28. Said condition inhibits 11 sensitivity in different areas of the body, and as explained by her doctor, is common in people 12 who have thyroid problems and in cancer patients. Id. She does not, however, know how she 13 got this condition. Id. According to Plaintiff, it limited her ability to work because without 14 medication her lumbar area swelled and she could not move as well. Id. With medication, 15 however, her condition improved and she was able to walk. Id. In fact she continued to work 16 after she was diagnosed with neuropathy. Id. 17 Reasonable accommodation requests 18 On or about July 2005, after her cancer diagnosis, Plaintiff requested that Lexus create 19 an additional handicapped space inside the dealership so that she could park there without 20 occupying the handicapped parking spaces reserved for the clients. Id. at 16. Plaintiff admits 21 that after she requested the same, she was allowed to park inside the dealership when a parking 22 spot was available. Id. Since the parking space inside the dealership is very limited, employees 23 are not allowed to park inside the dealership, thus allowing Plaintiff to park inside the 24 dealership was a special privilege and/or benefit. Id. Plaintiff admits that in some occasions 25 when her parking was blocked, other employees helped to get her car by moving the cars that 26 1 CIVIL NO. 09-1771 (SEC) Page 10 2 were blocking hers. Id. at 47. 3 In 2007, Plaintiff made a second request for reasonable accommodation on this front. See 4 Docket # 56, p. 5, ¶ 16. On February 14, 2008, Lexus provided Plaintiff with her own parking 5 space, located in the same area as the administrative personnel. SUF at 46. Plaintiff claims that 6 it was maybe more than sixty (60) to seventy (70) feet away from the dealership. Id. She does, 7 however, admit that there were only about eight (8) other parking spaces that were closer to the 8 dealership than hers, including the parking for the president of the company. Id. 9 On October 1, 2007, Plaintiff wrote a letter6 to Carlos BeltrÃ¡n ( BeltrÃ¡n ), Parra and the 10 Human Resources Manager, Myrna LÃ³pez (LÃ³pez ), indicating that due to medical reasons she 11 needed a reasonable accommodation. Id. at 30. Namely she requested to work no more than 12 eight (8) hours a day, and an ergonomic chair. Id. She included a medical certificate form Dr. 13 Carlos Sanchez, Plaintiff s internist, stating that she could not work for more than eight (8) 14 hours a day. Id. In order to engage in an interactive process to determine what type of 15 accommodation, if any, could be provided to Plaintiff, on October 8, 2007, LÃ³pez answered in 16 writing to Plaintiff s reasonable accommodation request. Id. at 31. Therein, LÃ³pez certified 17 receiving Plaintiff s request on October 1, 2007. Id. She further informed that in order to 18 correctly evaluate Plaintiff s request it was necessary for Plaintiff s doctor to indicate in writing 19 which specific duties and responsibilities were affected by her condition. Id. Additionally, her 20 doctor had to clarify exactly how working less hours a day, and the ergonomic chair would 21 benefit her, since the position she occupied required her to work 9.5 to 10 hours a day. Id. To 22 facilitate said task, LÃ³pez attached a list of Plaintiff s duties and responsibilities to the letter. 23 Id. LÃ³pez also provided Plaintiff with the necessary Forms to request a license under the FMLA. 24 25 26 6 The letter is dated October 10, 2007, but was received by Defendant on October 1, 2007. 1 CIVIL NO. 09-1771 (SEC) Page 11 2 Id. at 32. 3 On October 17, 2007, Plaintiff submitted a medical certificate from Dr. SÃ¡nchez, 4 indicating that she was not disabled, but that he recommended that she be granted certain job 5 accommodations, namely: (1) 8 (eight) hrs. shift/daily ; and (2) an ergonomic chair. Id. at 6 33. According to Plaintiff, Dr. SÃ¡nchez told her to request reasonable accommodation because 7 a cancer patient should not work for more than eight (8) hours a day. Id. She admits, however, 8 that Dr. SÃ¡nchez was not the doctor who treated her cancer or her back condition. Id. Plaintiff 9 also admits that even though she had different doctors who treated her cancer and her back 10 condition, she only discussed her intention to request reasonable accommodation with Dr. 11 Sanchez. Id. 12 On October 25, 2007, LÃ³pez called Dr. SÃ¡nchez and his secretary told her that he was 13 traveling outside Puerto Rico, and that he would be back on or about November 5, 2007. Id. at 14 35. On November 5, 2010, LÃ³pez called Dr. SÃ¡nchez once again, so that he could clarify and/or 15 explain Plaintiff s request for reasonable accommodation (ergonomic chair), and particularly 16 his conclusion that Plaintiff was not disabled. Id. Dr. Sanchez, however could not explain 17 exactly why she needed said specific type of reasonable accommodation because he was not the 18 doctor who had treated those specific conditions. Id. On November 5, 2007, LÃ³pez told Plaintiff 19 that her doctor had not provided the necessary information for Lexus to process her reasonable 20 accommodation request. Id. at 36. Moreover, she explained to Plaintiff that since Dr. Sanchez 21 could not explain why she needed said accommodation, it was very important that her other 22 doctors clarify why she could only work for eight (8) hours a day, given that working more than 23 eight (8) hours a day was a requirement for every Assistant Manager. Id. at 36. In response, 24 Plaintiff told LÃ³pez that she had already provided all the necessary documentation for a 25 reasonable accommodation request, and that she was not going to fill out the FMLA Forms 26 1 CIVIL NO. 09-1771 (SEC) Page 12 2 because she did not want to take a FMLA leave. Id. at 37.7 On September 10, 2008, Plaintiff 3 affirmed her position regarding this matter in writing. Id. 4 Shortly thereafter, on October 31, 2007, Plaintiff inquired about the ergonomic chair to 5 BeltrÃ¡n. Id. at 38. She also informed him that LÃ³pez had given her some documents for her 6 doctor to fill out, but that he had not done it because the documents were related to FMLA. Id. 7 Despite the fact that Plaintiff had not provided the documentation requested by Defendant, a 8 Lexus employee took Plaintiff to a store to choose an ergonomic chair. Id. at 40. While Lexus 9 evaluated the alternatives, Plaintiff purchased an ergonomic chair and brought it to the 10 dealership. Id. Lexus allowed Plaintiff to use her ergonomic chair, and offered to reimburse 11 Plaintiff for the cost of the chair if she provided the information Lexus asked for explaining the 12 basis for her reasonable accommodation request. Id. 13 On August 21, 2008, Victor CarriÃ³n ( CarriÃ³n ), Service and Parts Director, admonished 14 Plaintiff in writing, based on her absence for more than twenty-one (21) occasions during the 15 current year, including six (6) in the month of July. Id. at 50. Therein, she was reminded that 16 she occupied a key position and that her whole work team depended on her for their daily 17 production and income. Id. She was also told that her habitual absences were adversely affecting 18 the operations of the dealership, the service given to their clients, and the production of her 19 work team. Id. 20 On August 23, 2008, Plaintiff wrote a letter to Parra, LÃ³pez and CarriÃ³n, stating that she 21 disagreed with the written admonishment she received on August 21, 2008. Id. at 51. Although 22 she admitted that she was frequently absent, she stated that all of her absences were the result 23 24 25 26 7 Plaintiff claims that when she took the FMLA forms to Dr. Sanchez he did not fill them out because he concluded that it was not necessary to fill FMLA forms when someone seeks reasonable accommodation. Id. at 39. 1 CIVIL NO. 09-1771 (SEC) Page 13 2 of medical treatments and that she had medical excuses for all of them. Id. She also explained 3 that she had several medical conditions and named five (5) doctors which were treating her 4 regarding said conditions. Id. 5 On August 27, 2008, LÃ³pez responded to Plaintiff s August 23, 2008 letter. Id. at 52. 6 Specifically, LÃ³pez reminded Plaintiff that on November 5, 2007, they met and LÃ³pez requested 7 additional information regarding her request for reasonable accommodation, and she had yet to 8 receive anything from Plaintiff on this matter. Id. LÃ³pez further reminded Plaintiff that her 9 treating physicians had to indicate and/or explain why she needed an ergonomic chair and 10 shorter work day. Id. Moreover, LÃ³pez explained to Plaintiff that even though she had brought 11 her own ergonomic chair, they could use that information to evaluate the possibility of 12 reimbursing her for the cost of the chair. Id. at 53. She also reminded Plaintiff that she had not 13 filled out the FMLA Forms, so that she could be provided with FMLA leave. Id. at 52. LÃ³pez 14 explained that Lexus wanted Plaintiff to explore the possibility of requesting a FMLA leave so 15 that she could be absent from work for an extended or intermittent period of time while she 16 treated her condition, at the same enabling Lexus to properly operate the dealership. Id. 17 On September 10, 2008, Plaintiff responded to LÃ³pez s August 27, 2008, request, stating 18 that she was told by the Labor Department and by her doctor, that it was not necessary to fill-out 19 the forms related to a FMLA leave. Id. at 53. She further indicated that the documents she 20 provided in October 2007, to wit, the medical certificate and the list of duties and 21 responsibilities with her doctors comments, was all that was necessary for a reasonable 22 accommodation request. Id. 23 On August 22, 2008, Plaintiff sought treatment at the State Insurance Fund. Id. at 55. 24 Plaintiff never went back to work again. Id. On June 26, 2009, however, the State Insurance 25 Fund dismissed her case for lack of jurisdiction. Id. Despite the dismissal of said claim, Plaintiff 26 1 CIVIL NO. 09-1771 (SEC) Page 14 2 never reported back to work. Id. Consequently, on August 20, 2009, after Plaintiff was absent 3 form work for approximately one year, and considering that she never indicated that she had the 4 intention of returning to work within the period established by law, Lexus declared her position 5 vacant, and notified her about her COBRA benefits. Id.8 6 Unbeknownst to Lexus, on or around February 2009, while still employed by Lexus and 7 on leave under the State Insurance Fund, Plaintiff requested disability benefits from the Social 8 Security Administration. Id. at 57. According to Plaintiff, she requested said relief because she 9 believed that it would be very difficult to keep her job and/or find a job with a different 10 employer because she could not guarantee that she would be able to comply with their assistance 11 policies, given that she did not know if she would get sick, and/or go to the doctor. Id. 12 Plaintiff summarized her daily routine after she stopped working on August 28, 2008, 13 in the following way: I wake up in the morning, I do an exercise routine in the morning, I take 14 care of my pets, my daughter, I fix breakfast for her. During the day, depending on the agenda 15 for the day, I go out with the girl and do the errands regarding school. In addition to that, I 16 always have commitments with the church. In addition to that, I offer my help, on a voluntary 17 basis, to a place that purports community assistance and so depending on their needs, if they 18 need me to do some computer work for them or what not, I m available for them. Id. at 58. 19 Furthermore, she takes her other two (2) kids to school from Las Piedras to Hato Rey, and 20 wherever else they need to go, she takes her kids horseback riding and to the beach during the 21 weekends and she takes care of her mother and takes her to buy groceries. Id. Plaintiff prepares 22 three (3) meals every day for her and for her kids, depending on who is at her house, as well as 23 snacks throughout the day. Id. Plaintiff also likes to go to the movies, to church and to go out 24 25 8 26 Plaintiff does not claim any remedies such as back pay, reinstatement, front pay, nor economic loss, related to Lexus decision to declare her position vacant. Id. at 56. 1 CIVIL NO. 09-1771 (SEC) Page 15 2 with her girlfriends. Id. When asked under oath about what life activities were affected by her 3 conditions, Plaintiff indicated that she could not go to the malls to walk a prolonged amount of 4 time, and when she took her kids to their sport events she would get tired very quickly and 5 lacked the energy to stay and watch them. Id. at 59. 6 Work incidents 7 On June 12, 2006, BeltrÃ¡n notified Plaintiff and Rafael Santiago ( Santiago ), Plaintiff s 8 Team Leader, that Lexus was audited by Toyota de Puerto Rico and United Auto Group, and 9 their results indicated that their work team was averaging 3.1 faults per job, while the 10 acceptable performance average was 1 fault per job. Id. at 19. Thus, they were admonished 11 that the team needed attention, and that they needed to reduce the faults per job immediately. 12 Id. They were also warned that a failure to improve the Team s performance would result in 13 more severe disciplinary actions. Id.. 14 On January 2, 2007, Plaintiff had an incident with Alex Palermo, the porter at that time, 15 i.e., the person who receives the vehicles and assigns the jobs to the Assistant Managers like 16 Plaintiff. Id. at 29. According to Plaintiff, on that day Palermo assigned her too many jobs, and 17 she asked that the jobs be reassigned to other people because she was loaded with appointments. 18 Id. She claims that after she complained, Palermo did not speak to her for a few days. Id. 19 Plaintiff also complained to her supervisor that Palermo was not speaking to her, and after she 20 complained he was moved to another position. Id. 21 On January 3, 2007, Plaintiff was covering for another Assistant Manager who went on 22 vacations and consequently, she was in charge of both her team and his team. Id. Therefore, she 23 knew that her work load was going to at least double. Id. The next day she was still covering 24 for the Assistant Manager, but the work load was less. Id. Notwithstanding, she alleges that she 25 complained to her supervisor that the day before she covered too many jobs. Id. Plaintiff 26 1 CIVIL NO. 09-1771 (SEC) Page 16 2 admits that after she complained she never had to take so many appointments in one day ever 3 again. Id. 4 On October 24, 2007, BeltrÃ¡n sent an e-mail to LÃ³pez, Parra and CarriÃ³n, indicating that 5 Plaintiff had told him the day before that she would have to leave work early again to take her 6 son to be given a CT SCAN for his left hip, and at that time, he told Plaintiff that she should 7 take the whole day off instead so that she could take care of all of her son s medical needs. Id. 8 at 41. He explained that, on October 20, 2007, Plaintiff s son had an accident and he had to be 9 taken to the hospital, and as a result, she had to leave early to take care of her son. Id. The 10 following Monday, she got to work late because she had to take her son to the doctor, and she 11 also left early that afternoon to take her son for a CT scan. Id. On Tuesday, she left work early 12 again to take her son to another doctor. Id. On Tuesday afternoon she called BeltrÃ¡n to let him 13 know that she would have to leave work early again on Wednesday to take her son to another 14 CT Scan. Id. In light of the foregoing, BeltrÃ¡n asked her to take a day off in order to do all the 15 necessary tests and avoid missing work again. Id. 16 On November 20, 2007, Santiago, Plaintiff s Team Leader, requested a meeting with 17 Parra, BeltrÃ¡n and CarriÃ³n, to address various problems that their work team was experiencing 18 with Plaintiff. Id. at 42. According to an email sent by Parra to LÃ³pez, BeltrÃ¡n and CarriÃ³n, 19 Plaintiff s team complained that her habitual absenteeism and tardiness was adversely affecting 20 their production, their work environment and their service to their clients. Id.9 They also 21 22 9 23 24 25 26 When an Assistant Manager is absent, another Assistant Manager has to take over his or her workload and manage his or her work team. Id at 44. The Assistant Manager who substitutes him or her will have to deal with double the work load. Id. Also, since the Assistant Manager did not originally coordinate the job with the client, they will not know exactly what was discussed and/or agreed. Id. This has the adverse effect of delaying jobs, which results in the dealership not being able to service the client s vehicles in a timely fashion. Id. Consequently, the client is left without a vehicle longer, and thus, increases the chances that the client will not be satisfied with the service. Id. This also adversely 1 CIVIL NO. 09-1771 (SEC) Page 17 2 complained that Plaintiff had a poor attitude, problems communicating, was giving too much 3 priority to her university studies, was forgetful, was taking care of personal matters during work 4 hours and was not committed to attaining the minimum daily production requirement. Id. 5 On January 23, 2008, Plaintiff was admonished in writing for not complying with her 6 work schedule. Id. at 45. She was told that her actions were affecting her work team as well as 7 the service they provided to their clients. Id. Therein, she was reminded that she had to come 8 in to work every day from 7:30, until 6:00 p.m., with a one-hour lunch break starting at 12:00 9 p.m. Id. Plaintiff admits that her doctor visits were causing her to miss work and/or get to work 10 late or leave work early. Id. at 43. Plaintiff indicated that when she worked Saturdays, she had 11 Mondays and Fridays off, however, most of her doctors did not work on Monday and Friday. 12 Thus albeit Plaintiff claims she made good faith attempts to schedule her visits in her free time, 13 she could not always make doctor appointments on her free days. Id. Plaintiff admits that she 14 did not attempt to change her doctor or find a doctor who worked on Mondays and Fridays in 15 order to avoid frequently missing work. Id. 16 On July 18, 2008, BeltrÃ¡n met with Plaintiff to admonish her about a situation with a 17 client who had left the car the day before and when he went to pick it up, it was not ready and 18 apparently the service job was not even done. Id. at 48. Plaintiff was angered at the situation and 19 blamed her peers, specifically she explained that the vehicle was not assigned to a mechanic by 20 the employee assigned to such task. Id. She also stated that she told the client that the estimate 21 would take additional time. Docket # 56, p. 16, ¶ 48. On July 23, 2008, Parra admonished 22 Plaintiff in writing about the situation that took place on July 18, 2008, and about the way she 23 responded when her supervisor discussed the issue with her. SUF at 49. 24 25 26 affects the work teams because it decreases their production based compensation. Id. 1 CIVIL NO. 09-1771 (SEC) Page 18 2 Hostile work environment claims 3 On Friday, January 26, 2007, while Plaintiff was having lunch with BeltrÃ¡n, her 4 immediate supervisor, she told him that her Team Leader, Santiago, was harassing her, and that 5 it was affecting their entire work team. Id. at 21. On that same day, BeltrÃ¡n notified the General 6 Manager, Parra, and she in turn immediately informed the Human Resources Manager, LÃ³pez 7 so that the appropriate measures were taken to correct the situation. Id. The following Monday, 8 January 29, 2007, LÃ³pez met with Plaintiff to discuss the nature of her allegations of 9 harassment. Id. Plaintiff told her that on or about the end of November 2006, Santiago told 10 Plaintiff that he was falling in love with her. Id. According to Plaintiff, Santiago said that he 11 wanted to marry her, and asked her if she still liked him. Id. At that time, Plaintiff explained that 12 she had no interest in him, and that his unwanted behavior was creating hostility between them. 13 Id. Plaintiff admits that she waited three months after said incident to tell her supervisors. Id. 14 After her meeting with Plaintiff, LÃ³pez met with BeltrÃ¡n, Parra and CarriÃ³n, to discuss 15 and analyze the situation and determine a course of action. Id.. at 23. They concluded that there 16 was no sexual harassment, since Plaintiff stated that Santiago s unwanted behavior was limited 17 to comments that were merely declarations of affection that were not sexual in nature. Id.10 18 Notwithstanding, LÃ³pez met with Santiago on March 8, 2007, to discuss the situation and to 19 assess how it was affecting the team. Id. Santiago admitted that on one occasion he told Plaintiff 20 that he was falling in love with her, but states that after she rejected him, he never made any 21 other approaches of that nature to Plaintiff. Id. He recognized that he should not have told her 22 anything, but that due to the strong friendship that they had developed over the years, he fell in 23 24 25 26 10 These assertions are limited to what was expressed in the internal memorandum written by LÃ³pez insofar as whether said comments were indeed sexual in nature, and constitute sexual harassment is an issue for this Court to decide. 1 CIVIL NO. 09-1771 (SEC) Page 19 2 love with her and felt compelled to tell her. Id. He denied harassing Plaintiff in any way. Id. He 3 also confirmed that the team was having some problems but that they met and were able to fix 4 them. Id. Although it was concluded that no sexual harassment occurred, LÃ³pez gave Santiago 5 an orientation regarding harassment in the work place, and reminded him that such behavior was 6 not permitted, and informed him that if they ever concluded that he was sexually harassing an 7 employee it would cost him his job. Id. at 24. Santiago assured LÃ³pez that he would never 8 engage in such behavior again. Id.11 9 After meeting with Plaintiff and Santiago, and determining that no sexual harassment 10 was taking place, LÃ³pez decided that no other corrective action was necessary. Id. at 26. 11 Plaintiff admitted that once she complained about Santiago s conduct, and LÃ³pez admonished 12 him, his advances stopped. Id. Nevertheless, according to Plaintiff, Santiago s hostility towards 13 her continued. Docket # 56, p. 8-9, ¶ 26. Specifically, Plaintiff claims that after Santiago was 14 admonished for his advances, they began to have professional problems because they were 15 having trouble communicating. SUF at 27. She further claims that it was hard to reach work 16 related agreements. Id. According to Plaintiff, she complained about said professional problems 17 with BeltrÃ¡n, and Santiago was re-located to another department and never worked with 18 Plaintiff again. Id. 19 ADA claims 20 Congress enacted the ADA to provide a clear and comprehensive national mandate for 21 22 11 23 24 25 26 During said meeting, Santiago also told LÃ³pez that he was having professional problems with Plaintiff because she occasionally met with a friend from her University in her office at the dealership to do homework, and that it was affecting the flow of work because she was not attending his work related requests promptly while she did her homework for the University. SUF at 25. Plaintiff admitted that when she was working for Lexus she was taking marketing classes at night after work in the University of Phoenix from 6:00 p.m. to 10:00 p.m., and that one of her university peers, Jessica Galarza frequently went to her office to take documents related to her school assignments. Id. 1 CIVIL NO. 09-1771 (SEC) Page 20 2 the elimination of discrimination against individuals with disabilities. 42 U.S.C. § 12101(b)(1). 3 The purpose of the ADA is to protect qualified persons with a disability from discrimination in 4 employment. 42 U.S.C. § 12112(a). The ADA prohibits discrimination against an otherwise 5 qualified individual based on his or her disability in all employment practices, including, but not 6 limited to job application procedures, hiring, firing, advancement and compensation. Id. 7 To establish a claim under the ADA in the absence of direct evidence of discrimination, 8 a party must rely on circumstantial evidence and establish a prima facie case through the 9 burden-shifting framework first established in McDonnell Douglas Corp. V. Green, 411 U.S. 10 792 (1973). See Castro-Medina v. Procter & Gamble Commercial Co., 565 F. Supp. 2d 343, 357 11 (D.P.R. 2008); Salgado-Candelario v. Ericsson Caribbean, Inc., 614 F. Supp 2d 151, 167 12 (D.P.R. 2008). Under the McDonnell framework, a plaintiff first must establish a prima 13 facie case of disability discrimination under the ADA by proving by preponderance of the 14 evidence that she was: 1) disabled within the meaning of the Act; 2) able to perform, with or 15 without reasonable accommodation, the essential functions of her job; and 3) discharged or 16 adversely affected, in whole or in part, because of her disability. Castro-Medina, 565 F. Supp. 17 2d at 357. 18 If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to 19 articulate a legitimate non-discriminatory reason for its employment decision and to produce 20 credible evidence to show that the reason advanced was the real reason. Id. (citing Freadman 21 v. Metropolitan Property and Cas. Ins. Co., 484 F.3d 91, 99 (1 st Cir. 2007)). If the defendant 22 offers a legitimate, non-discriminatory reason, the initial inference of discrimination evaporates, 23 and the burden then shifts back to the plaintiff to proffer evidence to establish that the 24 defendant s non-discriminatory justification is mere pretext, cloaking discriminatory animus. 25 Freadman, 484 F.3d at 99. The plaintiff must then muster proof that enables a fact finder to 26 1 CIVIL NO. 09-1771 (SEC) Page 21 2 rationally conclude that the stated reason behind the adverse employment decision is not only 3 a sham, but a sham intended to cover up the proscribed type of discrimination. Laurin v. 4 Providence Hosp.,150 F.3d 52, 58 (1 st Cir. 1998). Notwithstanding, the ultimate burden of 5 proving unlawful discrimination rests at all times with Plaintiff. Castro-Medina, 565 F. Supp. 6 2d at 357 (citing Tobin v. Liberty Mut. Ins. Co., 433 F. 3d 100, 105 (1 st Cir. 2005)). 7 Disabled under the ADA 8 The threshold question in any ADA action is whether the plaintiff can make a showing 9 of disability. Torres-Alman v. Verizon Wireless P.R., Inc., 522 F. Supp. 2d 367, 382 (D.P.R. 10 2007). In order to determine whether a person is disabled under the ADA, the Court must 11 conduct a tripartite analysis. Id. (citing Bragdon v. Abbott, 524 U.S. 624, 631 (1998); see also 12 Carroll v. Xerox Corp., 294 F.3d 231, 238 (1st Cir. 2002). The plaintiff must first prove that he 13 suffers from a physical or mental impairment.12 Id. (citing Carroll, 294 F.3d at 238). Second, 14 the Court must evaluate whether the life activities affected by the impairment constitute major 15 life activities.13 Id. Lastly, the impairment must substantially limit said major life activities.14 16 17 18 19 20 21 22 23 24 25 26 12 Under ADA regulations, a physical or mental health impairment is defined as: [a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 29 C.F.R. § 1630.2(h)(1). 13 According to ADA regulations, major life activity are functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. § 1630.2(i). 14 A physical or medical impairment substantially limits a major life activity if the person is [u]nable to perform a major life activity that the average person in the general population can perform or [s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(1). 1 CIVIL NO. 09-1771 (SEC) Page 22 2 Id. Additionally, the plaintiff must possess a record of such impairment and be regarded as 3 having such an impairment. Id. (citing 42 U.S.C. § 12102(2); 29 C.F.R. § 4 1630.2(e)(2)(g)(1)(2)(3)). In evaluating whether an individual is substantially limited in a major 5 life activity by reason of an impairment, the following factors should be considered: (i) the 6 nature and severity of the impairment; (ii) the duration or expected duration of the impairment; 7 and (iii) the permanent or long term impact, or the expected permanent or long term impact of 8 or resulting from the impairment. Id., § 1630.2(j)(1). 9 Furthermore, the Supreme Court has emphasized that [a] person whose physical or 10 mental impairment is corrected by medication or other measures does not have an impairment 11 that presently substantially limits a major life activity. To be sure, a person whose physical or 12 mental impairment is corrected by mitigating measures still has an impairment, but if the 13 impairment is corrected, it does not substantially limi[t] a major life activity. Sutton v. United 14 Airlines, 527 U.S. 471, 482-83 (1999). Additionally, in order for an impairment to be 15 substantially limiting within the meaning of the ADA, said impairment must be permanent 16 or long term. Torres-Alman, 522 F. Supp. 2d at 384; see also Toyota Mfg., Kentucky, Inc. v. 17 Williams, 534 U.S. 184, 198 (2002) (superseded on other grounds) (finding that to be 18 substantially limited in performing manual tasks, an individual must have an impairment that 19 prevents or severely restricts the individual from doing activities that are of central importance 20 to most people s daily lives. The impairment s impact must also be permanent or long term. ); 21 Guzman-Rosario v. United Parcel Service, Inc., 397 F.3d 6, 10 (1st Cir. 2005) (in order to be 22 substantially limiting within meaning of ADA s definition of disability, impairment must be 23 permanent or long term; this may encompass conditions that are potentially long-term, in that 24 their duration is indefinite and unknowable, but not those that are brief or foreseeably 25 temporary). 26 1 CIVIL NO. 09-1771 (SEC) Page 23 2 Plaintiff alleges, in essence, that she is disabled under the ADA due to the following 3 medical conditions: breast cancer, asthma, a knee condition and neuropathy. The evidence 4 submitted by Plaintiff in support of her claim that she was partially disabled for purposes of the 5 ADA is that she was diagnosed with breast cancer in 2004; she had to undergo surgery to 6 remove the tumor; she had to receive eight sessions of chemotherapy; and as a result of said 7 condition she was temporarily unable to move her right arm as she did before. She further 8 claims that her asthma condition worsened as a result of the cancer diagnosis and she suffered 9 asthma episodes every three to six months from 2005 until 2008. Moreover, she avers that she 10 underwent knee surgery in 2006 as a result of a fall. Lastly, Plaintiff contends that she was 11 diagnosed with neuropathy in 2007, which caused swelling in her lumbar area and limited her 12 ability to move effectively. As in Torres-Alman, however, said evidence is insufficient to allow 13 such conclusion. 14 We first note that Plaintiff cannot merely rely on her diagnosis alone to prove disability 15 under the ADA. On this point, the Supreme Court has held that: [i]t is insufficient for 16 individuals attempting to prove disability status under this test to merely submit evidence of a 17 medical diagnosis of an impairment. Toyota, 534 U.S. at 184.15 The ADA requires those 18 claiming the Act s protection ¦ to prove a disability by offering evidence that the extent of 19 the limitation [caused by their impairment] in terms of their own experience ¦ is substantial. 20 Id. at 198; see also Calef v. Gillet Co., 322 F.3d 75, 83 (1st Cir. 2003); Carroll, 294 F.3d at 238; 21 Torres-Alman, 522 F. Supp. 2d at 384; Alamo-Rodriguez v. Pfizer Pharms., Inc., 286 F. Supp. 22 2d 144, 156 (D.P.R. 2003). 23 24 25 26 15 The ADA Amendments Act of 2008, which went into effect on January 1, 2009, have since expanded the definition of disability set forth in Toyota. Notwithstanding, Toyota remains the controlling law here since the facts in this case occurred prior to 2009, and the amendments are not retroactive. Colon-Fontanez v. Municipality of San Juan, 671 F. Supp. 2d 300, n. 36 (D.P.R. 2009). 1 CIVIL NO. 09-1771 (SEC) Page 24 2 On this point, this district has held that [b]reast cancer per se is not sufficient to render 3 a person diagnosed with, or suffering from, said condition automatically disabled for purposes 4 of the ADA. Torres-Alman, 522 F. Supp. 2d at 382-383. Although it may be an impairment 5 within the meaning of the ADA, in order for such condition to constitute a disability, the same 6 must substantially limit the performance of one or more of plaintiff s major life activities. Id. 7 (citing Pimentel v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177 (D.N.H. 2002) (dismissing 8 claims of disability where plaintiff took eight month medical leave for breast cancer surgery and 9 treatment because plaintiff s conditions did not qualify as a disability under the ADA); Ellison 10 v. Software Spectrum, Inc., 85 F.3d 187, 189 (5th Cir. 1996) (affirming dismissal of claims of 11 disability where plaintiff suffered from breast cancer, which required radiation treatment, 12 necessitating a modified work schedule for one month and a half, and caused significant side 13 effects for an additional four months; plaintiff s conditions did not substantially limit her work 14 activity and thus did not qualify as a disability under the ADA); Schwertfager v. City of 15 Boynton Beach, 42 F.Supp.2d 1347 (S.D.Fla. 1999) (plaintiff s breast cancer did not 16 substantially limit her in major life activities, even though her surgery caused her to be 17 temporarily unable to care for, dress, and cook for herself); Madjlessi v. Macy s W., Inc., 993 18 F.Supp. 736 (N.D.Cal. 1997) (employee s breast cancer did not substantially limit her ability 19 to work)). 20 Similarly, courts have held that impairments such as neuropathy, a knee injury and 21 asthma do not always render an individual disabled under the ADA, insofar as they must also 22 substantially limit a person s major life activities as well as be permanent or long term. Carreras 23 v. Sajo, 596 F.3d 25, 34 (1st Cir. 2010) (citing Scheerer v. Potter, 443 F.3d 916, 920 (7 th Cir. 24 2006)); Lebron-Torres v. Whitehall Labs., 251 F.3d 236, 241 (1 st Cir. 2001) (citing Webb v. 25 Clyde L. Choate Mental Health & Dev. Ctr., 230 F.3d 991, 997 (7 th Cir. 2000)); Benoit v. Tech. 26 1 CIVIL NO. 09-1771 (SEC) Page 25 2 Mfg. Corp., 331 F.3d 166, 176 (1 st Cir. 2003). 3 4 In this case, it is uncontested that Plaintiff s breast cancer was treatable and her breast 5 was saved; the surgery in December 2004 was successful in removing all of the cancerous tissue 6 from her breast; Plaintiff worked while undergoing chemotherapy; and the only physical 7 limitation resulting from her breast cancer was Plaintiff s temporary inability to move her right 8 arm after the surgery and while undergoing chemotherapy. This, however, does not render her 9 disabled for purposes of the ADA. Despite the fact that her chest area hurt while she was 10 undergoing treatment, she took medications that have enabled her to move her right arm since 11 2005, she has suffered no pain in this area since then and is no longer under treatment for 12 cancer. Additionally, although Plaintiff claims that she was disabled, she admits that she 13 continued with her daily routine and activities during her treatment and thereafter, to wit, 14 Plaintiff could walk, communicate, run errands, cook, take care of herself, her children and her 15 mother, drive, engage in social activities, go to church, among others. She also kept on working 16 nine to ten hours a day and performing her duties while undergoing treatment. Specifically, she 17 was able to sit in her office to do paperwork, talk to clients on the phone, walk and meet with 18 clients and walk to different areas of the dealership. Albeit she was absent on several occasions 19 in order to receive treatment, Lexus always gave her permission. 20 Also, Plaintiff stated that despite her occasional asthma episodes, she was able to 21 continue working as required. Similarly, Plaintiff admits that she was able to walk upon taking 22 medication for the swelling in her lumbar area and continued to work after her neuropathy was 23 diagnosed. Lastly, Plaintiff took therapies for approximately two to three weeks after her knee 24 surgery and never experienced any more problems with her knee. Thus with the appropriate 25 treatment and medication, Plaintiff s conditions improved and most were completely alleviated. 26 1 CIVIL NO. 09-1771 (SEC) Page 26 2 These facts operate against a conclusion that Plaintiff is or was disabled for purposes of the 3 ADA. In light of the above, it is evident that none of Plaintiff s impairments permanently and 4 substantially impaired any major life activities. 5 Based on the foregoing, we find that Plaintiff s conditions did not render her disabled 6 within the meaning of the ADA. Insofar as she fails to meet the first prong of the prima facie 7 disability discrimination case, we need not delve into the other elements. As such, Lexus 8 motion for summary judgment as to Plaintiff s disability discrimination claims under ADA is 9 GRANTED. 10 Reasonable Accomodation 11 The First Circuit has noted that [t]he federal statutes barring discrimination based on 12 disability do more than merely prohibit disparate treatment; they also impose an affirmative duty 13 on employers to offer a reasonable accommodation to a disabled employee. Calero-Cerezo 14 v. United States DOJ, 355 F.3d 6, 19-20 (1st Cir. 2004). Therefore, discrimination is also 15 defined to include not making reasonable accommodations to the known physical or mental 16 limitations of an otherwise qualified individual with a disability . . . , unless [the] covered entity 17 can demonstrate that the accommodation would impose an undue hardship on the operation of 18 the business of such covered entity. 42 U.S.C. § 12112(b)(5)(A); see Reed v. Lepage Bakeries, 19 Inc., 244 F.3d 254, 257 (1 st Cir. 2001). 20 Unlike other discriminations, the plaintiff is not required to prove-through direct 21 evidence or the McDonnell Douglas burden shifting scheme-that the employer s omission was 22 motivated by discriminatory animus directed at the disability. Corujo-Marti v. Triple-S, Inc., 23 519 F. Supp. 2d 201, 215 (D.P.R. 2007). To survive a motion for summary judgment on a 24 reasonable accommodation claim under the ADA, a plaintiff must show: (1) that she is disabled 25 within the meaning of the ADA; (2) that she was able to perform the essential functions of her 26 1 CIVIL NO. 09-1771 (SEC) Page 27 2 job, either with or without a reasonable accommodation; and (3) that, despite her employer s 3 knowledge of her disability, the employer did not offer a reasonable accommodation for the 4 disability. Torres-Alman v. Verizon Wireless, 522 F. Supp. 2d 367, 385 (D.P.R. 2007); 5 Calero-Cerezo, 355 F.3d at 20; Tobin, 433 F. 3d at 107. 6 Insofar as we previously held that Plaintiff failed to show that she is disabled within the 7 meaning of the ADA, her reasonable accommodation claims must likewise fail. Consequently, 8 the motion for summary judgment regarding Plaintiff s ADA claims for failure to provide 9 reasonable accommodation is also GRANTED. 10 Sexual Harassment under Title VII 11 Title VII of the Civil Rights Act, makes it an unlawful employment practice to 12 discriminate against any individual with respect to his compensation, terms, conditions, or 13 privileges of employment, because of such individual s... sex. See 42 U.S.C. § 2000e-2(a)(1); 14 see also Harris v. Forklift, 510 U.S. 17, 20 (1993). The United States Supreme Court has 15 interpreted the phrase terms, conditions or privileges of employment broadly, and has stated that 16 it encompasses Congress intent to strike at the entire spectrum of disparate treatment of men 17 and women in employment, which includes requiring people to work in a discriminatorily 18 hostile or abusive environment. Harris, 510 U.S. at 20. That is, Title VII is violated whenever 19 the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is 20 sufficiently severe or pervasive to alter the conditions of the victim s employment. Id. 21 (Citations omitted). 22 In order to succeed in a hostile work environment claim, plaintiff must show that: (1) she 23 is a member of a protected class (in this case, her gender); (2) that she was subjected to 24 unwelcome sexual harassment; (3) that the harassment was based upon sex; (4) that the 25 harassment was sufficiently severe or pervasive so as to alter the conditions of her employment; 26 1 CIVIL NO. 09-1771 (SEC) Page 28 2 (5) that sexually objectionable conduct was both objectively and subjectively offensive, such 3 that a reasonable person would find it hostile or abusive; and (6) some basis of employer 4 liability. Rosario v. Dep t of the Army, 573 F. Supp. 2d 524, 529 (D.P.R. 2008) (citing Pomales 5 v. Celulares Telefonica, 447 F.3d 79, 83 (1st Cir. 2006)); see also Valentin-Almeyda v. 6 Municipality of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006). 7 There is no single test by which we evaluate a claim of sexual harassment to determine 8 whether the plaintiff has presented sufficient evidence to survive summary judgment. Vera v. 9 McHugh, 622 F.3d 17, 26 (1st Cir. 2010). Although there is no mathematically precise test, in 10 order to determine whether an environment is hostile or abusive, the Court must look at all the 11 circumstances, which may include: (1) the frequency of the discriminatory conduct, (2) its 12 severity, (3) whether it is physically threatening or humiliating, (4) whether it was just a mere 13 utterance, and (5) whether it unreasonably interferes with an employee s work performance. 14 Harris, 510 U.S. at 23; see also Pomales, 447 F.3d at 83; Valentin-Almeyda, 447 F.3d 85 at 94; 15 Marrero v. Goya of Puerto Rico, 304 F. 3d 7, 18-19 (1st Cir. 2002); Lee-Crespo v. Schering16 Plough del Caribe, Inc., 354 F. 3d 34, 46 (1 st Cir. 2003). 17 Although a single act of harassment may, if egregious enough, suffice to evince a 18 hostile work environment, the First Circuit has noted that [m]ost hostile work environments 19 are bred from an ongoing series of harassing incidents. Noviello v. City of Boston, 398 F.3d 20 76, 84 (1st Cir. 2005). Accordingly, the mere utterance of an epithet which engenders offensive 21 feelings in an employee does not sufficiently affect the conditions of employment to implicate 22 Title VII. Harris, 510 U.S. at 20. The conduct must be sufficiently severe or pervasive for a 23 reasonable person to find that the work environment was hostile or abusive. Id. Title VII also 24 requires that the employee subjectively perceive the work environment as abusive. Id. Despite 25 Title VII s protection against discrimination based on sex, the Supreme Court has clearly stated 26 1 CIVIL NO. 09-1771 (SEC) Page 29 2 that the prohibition of harassment on the basis of sex requires neither asexuality nor androgyny 3 in the workplace; it forbids only behavior so objectively offensive as to alter the conditions of 4 the victim s employment. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 5 (1998). That is, [c]onduct that is not severe or pervasive enough to create an objectively hostile 6 or abusive work environment- an environment that a reasonable person would find hostile or 7 abusive- is beyond Title VII s purview. Id. 8 Therefore, on a motion for summary judgment in a sexual harassment case such as this, 9 we must distinguish facts that merely add up to the ordinary tribulations of the workplace, such 10 as sporadic use of abusive language, gender-related jokes, and occasional teasing, which can 11 never support a Title VII claim, from those suggesting sexual remarks, innuendoes, ridicule, 12 and intimidation which may be sufficient to support a jury verdict for a hostile work 13 environment. Vera v. McHugh, 622 F.3d 17, 27 (1st Cir. 2010) (citing Faragher v. City of 14 Boca Raton, 524 U.S. 775, 787 (1998) and O Rourke v. City of Providence, 235 F.3d 713, 729 15 (1st Cir. 2001)). 16 Moreover, it should be noted that when the harassment is caused by a co-employee, the 17 employer is liable if it knew, or should have known, of the charged sexual harassment, and 18 failed to implement prompt and appropriate corrective action. See White v. New Hampshire 19 Dep t of Corrections, 221 F.3d 254 (1st Cir. 2000). Furthermore, when an employer fails to take 20 a remedial measure to stop the offensive conduct, he has effectively ratified the harassment 21 when he knew of the discrimination but took no action against the offending party. Dixon v. 22 International Brotherhood of Police Officers, 504 F.3d 73 (1 st Cir. 2007) (quoting Woods v. 23 Graphic Commc ns, 925 F.2d 1195, 1202 (9 th Cir. 1991)). 24 Plaintiff s hostile work environment claim hinges on the fact that on or around the end 25 of November 2006, Santiago, Plaintiff s Team Leader, told her that he was falling in love with 26 1 CIVIL NO. 09-1771 (SEC) Page 30 2 her, that he wanted to marry her, and he asked her if she still liked him. At that time, Plaintiff 3 explained that she had no interest in him, and that his unwanted behavior was creating hostility 4 between them. Santiago admitted that on that sole occasion he told Plaintiff that he was falling 5 in love with her, but states that after she rejected him, he never made any other approaches of 6 that nature to Plaintiff. Thus the conduct Plaintiff complained of lacks the necessary frequency 7 and severity, was not physically threatening or humiliating and failed to unreasonably interfere 8 with her work performance. Even more, Plaintiff admitted that she waited three months after 9 Santiago s comments to tell her supervisor. 10 Additionally, considering that Santiago is Plaintiff s co-employee,16 Lexus is only liable 11 if it knew, or should have known, of the charged sexual harassment, and failed to implement 12 prompt and appropriate corrective action. Pursuant to the record, Plaintiff complained to her 13 supervisors on January 26, 2007, and LÃ³pez met with Plaintiff the next day in order to further 14 discuss her claims. Thereafter, LÃ³pez, BeltrÃ¡n, Parra and CarriÃ³n met to discuss Plaintiff s 15 claims, and albeit concluding that no sexual harassment took place,17 Santiago was duly 16 admonished and warned to abstain from any kind of comments of this nature towards Plaintiff. 17 As a matter of fact, Plaintiff admits that after she complained about his conduct, and LÃ³pez 18 admonished him, Santiago s advances stopped. Moreover, after Plaintiff claimed that Santiago 19 continued to display hostility towards her, he was relocated to another department and never 20 worked with Plaintiff again. Thus based on the uncontested facts, we find that Lexus acted 21 22 16 23 Pursuant to the uncontested facts, the Team Leader and the Assistant Manager are positions of equal rank and/or hierarchy. 24 17 25 26 We note that sex-based harassment that is not overtly sexual is nonetheless actionable under Title VII. O Rourke v. City of Providence, 235 F.3d 713, 729 (1st Cir. 2001). Notwithstanding, Lexus opinion as to whether Santiago s conduct constituted sexual harassment is irrelevant. This Court need only determine whether they acted promptly to stop the behavior after Plaintiff complained. 1 CIVIL NO. 09-1771 (SEC) Page 31 2 promptly in light of Plaintiff s complaints, and that a result of said intervention as well as 3 Plaintiff s rebuttal, Santiago s alleged harassing behavior stopped. 4 Accordingly, Plaintiff fails to set forth a hostile work environment claim, and Lexus 5 request for summary judgment on this issue is also GRANTED. 6 FMLA claims 7 The FMLA contains two distinct types of provisions: those establishing substantive 8 rights and those providing protection for the exercise of those rights. Colburn v. Parker 9 Hannifin/Nichols Portland Div., 429 F.3d 325, 330 (1st Cir. 2005). Specifically, the FMLA 10 guarantees eligible employees up to twelve work-weeks leave per year when a serious personal 11 or family medical condition makes the employee unable to perform the functions of his or her 12 position. See 29 U.S.C. § 2612(a)(1). Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788 (1 st Cir. 13 2011); Roman v. Potter, 604 F.3d 34, 43 (1st Cir. 2010).18 On the other hand, said statute 14 provides a right of action for employees to recover based on an employer s interference with 15 rights guaranteed by the act or for retaliation by employers against employees who exercise their 16 FMLA rights. Roman v. Potter, 604 F.3d at 43 (citing 29 U.S.C. §§ 2615(a), 2617(a); 29 C.F.R. 17 § 825.220(c)). 18 The employee bears the burden of proving that he was entitled to FMLA leave and that 19 the employer violated the statute by denying him such leave. De Hoyos v. Bristol Labs. Corp., 20 218 F. Supp. 2d 222, 224 (D.P.R. 2002). In order to state a valid claim under the FMLA, 21 Plaintiff must plead facts showing that: (1) she qualifies as an eligible employee under the 22 23 24 25 26 18 The leave may be taken intermittently . . . when medically necessary, Tayag, 632 F.3d 788 (citing 29 U.S.C. § 2612(b)(1)), and if the leave is foreseeable based on planned medical treatment, the employee must make a reasonable effort to schedule the treatment so that it does not unduly disrupt the employer and must provide the employer with thirty days' notice unless impracticable, id. (citing 29 U.S.C. § 2612(e)(2)). 1 CIVIL NO. 09-1771 (SEC) Page 32 2 FMLA, as defined in 29 U.S.C. § 2611(2); (2) Lexus is an employer under the FMLA, as 3 defined in 29 U.S.C. § 2611(4); (3) Plaintiff was entitled to leave under the FMLA, as defined 4 in 29 U.S.C. § 2612(a)(1); and (4) she gave adequate notice to Lexus of her intention to take 5 such leave. Id. 6 Plaintiff s argument that Lexus interfered with her rights under the FMLA because had 7 they provided her reasonable accommodation, she would have been able to receive the medical 8 treatment necessary and would not have been forced to incur in absences, is unpersuasive. In 9 the present case, Plaintiff failed to properly plead an FMLA claim insofar as she never requested 10 FMLA leave, despite Lexus repeated attempts for her to explore taking FMLA leave in order 11 to adequately treat her ailments. As a matter of fact, the record clearly shows that Lexus 12 informed Plaintiff on several occasions about her right to FMLA leave and never interfered with 13 her right to claim such benefits. Moreover, Lexus did not condition Plaintiff s reasonable 14 accommodation request to her filling out the FMLA forms but instead repeatedly requested that 15 Plaintiff s physicians provide the medical information needed to properly evaluate her request 16 for accommodation. 17 Considering the foregoing, and as Lexus correctly points out, Plaintiff s claims for 18 interference of her FMLA rights are frivolous, and as such are DISMISSED with prejudice. 19 Supplemental state law claims 20 Having dismissed Plaintiff s federal law claims against Lexus, Plaintiff s state law 21 claims against said Lexus are also dismissed. See Newman v. Burgin, 930 F.2d 955, 963 (1 st Cir. 22 1991) (holding that [t]he power of a federal court to hear and to determine sate-law claims in 23 non-diversity cases depends upon the presence of at least one substantial federal claim in the 24 lawsuit. ). 25 26 1 CIVIL NO. 09-1771 (SEC) Page 33 2 Conclusion 3 Based on the foregoing, Defendant s motion for summary judgment is GRANTED. 4 Plaintiff s federal claims are DISMISSED with prejudice, and her state law claims are 5 DISMISSED without prejudice. 6 In San Juan, Puerto Rico, this 4th day of April, 2011. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 S/ Salvador E. Casellas SALVADOR E. CASELLAS U.S. Senior District Judge

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