United States Court of Appeals
For the First Circuit
No. 08-2068
ERICK CARRERAS,
Plaintiff, Appellant,
v.
SAJO, GARCÍA & PARTNERS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Lynch, Chief Judge, and
Gajarsa* and Lipez, Circuit Judges.
Victor P. Miranda-Corrada for appellant.
María Teresa Juan Urrutia for appellee.
February 23, 2010
*
Of the Federal Circuit, sitting by designation.
LIPEZ, Circuit Judge. In this workplace discrimination
and retaliation suit, the district court ruled that plaintiff,
Erick Carreras, failed to comply with Puerto Rico's anti-ferret
rule, D.P.R.R. 56(c). On this basis, it deemed as admitted
portions of defendant Sajo, García & Partners' ("SGP") statement of
uncontested facts and granted summary judgment to defendant.
Carreras argues on appeal that the district court improperly
invoked Local Rule 56 and erred in rejecting his claims under the
Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213
("ADA"), and various Puerto Rico anti-discrimination laws. We
disagree and affirm.
I.
We begin with a recitation of the basic facts underlying
the dispute, derived from the facts explicitly admitted by
Carreras. SGP, a marketing agency, hired Carreras as an Art
Director in December 2003. Carreras' responsibilities included
preparing the creative art for products being marketed by SGP. In
August 2004, Carreras and Sajo Ruíz, an SGP partner, exchanged
heated emails about Carreras' alleged failure to complete work on
time.1 Carreras has type II diabetes, which he controls by taking
insulin every morning and evening. At the commencement of his
1
Although Carreras characterizes Ruíz's email as a tantrum, he
does not deny that it was sent and that he replied.
-2-
employment with SGP, Carreras filled out a form on which he
indicated that he had diabetes and was dependent on insulin.
On October 21, 2004, Carreras emailed Ruíz informing him
that he had worked late that evening and had been prevented from
taking his insulin shot. Ruíz replied the next morning asking
Carreras to clarify what had prevented him from taking his medicine
and stating that there should be no obstacle to Carreras taking his
treatment. In response, Carreras stated that he was prevented from
administering his medicine because he had to stay late at the
office.2 SGP terminated Carreras' employment on October 25, 2004.
Carreras filed suit against SGP alleging that he had
experienced discrimination based on his disability and retaliation
for requesting a reasonable accommodation in violation of the ADA.
42 U.S.C. §§ 12101-12213. After discovery was complete, SGP moved
for summary judgment and filed a separate Statement of Uncontested
Facts in support of its motion. In response, Carreras submitted a
document styled as "Plaintiff's Response and Objections to
Defendant's Proposed Statement of Uncontested Facts." The district
court found that statement to be defective under Puerto Rico Local
Rule 56 because it failed to admit, qualify or deny certain facts
2
SGP's personnel manual listed working hours as 9 a.m. to 6 p.m.,
but expressly stated that working hours are irregular in the
advertising industry and that all employees must be available when
necessary during and/or after normal hours. The only storage
requirement for Carreras' insulin was refrigeration. SGP had a
refrigerator available to employees at its offices.
-3-
proposed by SGP, it did not contain a separate section for the new
facts it sought to introduce, and it did not contain appropriate
citation to the record to support denied facts.
In accordance with the anti-ferret rule, the district
court disregarded those portions of Carreras' opposition it found
defective and deemed as admitted many of SGP's properly supported
facts. See D.P.R.R. 56(e). With its recitation of the facts in
its written opinion, the district court made clear the facts it
deemed admitted. The court focused primarily on those facts
pertaining to the effect, or lack thereof, of Carreras' diabetes on
his work and daily life. In a footnote, the court explained that
"the reason for [Carreras'] dismissal is in dispute. However,
because it is immaterial for the resolution of this case, we will
eschew any discussion in this regard." Hence, the court's
recitation of "Uncontested Facts" in its opinion, where it sets
forth the effect of its deeming analysis on the summary judgment
record, does not focus on the retaliation claim.
After making its deeming determination, the district
court granted summary judgment to SGP based on Carreras' failure to
create a genuine issue of material fact as to whether he is
disabled within the meaning of the ADA. The court noted, however,
that even if Carreras qualified as disabled, his arguments that SGP
failed to accommodate his disability must fail because Carreras had
neither requested nor been denied accommodation. For the same
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reason, the district court rejected Carreras' claim that he was
retaliated against for making a request for reasonable
accommodation.
Carreras appeals, contending that his statement complied
with the local rule and that the district court erred in granting
summary judgment based on its deeming order.
II.
Carreras argues that the district court improperly
applied Local Rule 56(c), the District of Puerto Rico's anti-ferret
rule. The rule states, in relevant part:
A party opposing a motion for summary judgment
shall submit with its opposition a separate,
short, and concise statement of material
facts. The opposing statement shall admit,
deny or qualify the facts by reference to each
numbered paragraph of the moving party's
statement of material facts and unless a fact
is admitted, shall support each denial or
qualification by a record citation as required
by this rule. The opposing statement may
contain in a separate section additional
facts, set forth in separate numbered
paragraphs and supported by a record citation
as required by subsection (e) of this rule.
D.P.R.R. 56(c). Subsection (e) of the rule states that citations
must be "to the specific page or paragraph of identified record
material supporting the assertion." D.P.R.R. 56(e). Failure to
comply with the anti-ferret rule permits the court to "disregard
any statement of fact not supported by a specific citation to
record material properly considered on summary judgment." D.P.R.R.
56(e). We review the district court's application of a local
-5-
rule for abuse of discretion. See Sánchez-Figueroa v. Banco
Popular de Puerto Rico, 527 F.3d 209, 213 (1st Cir. 2008). While
a district court may choose not to invoke the rule in response to
every violation, we have consistently upheld the enforcement of the
rule, and we treat the district court's decision to apply it with
deference. See CMI Capital Market Inv. v. González-Toro, 520 F.3d
58, 62-63 (1st Cir. 2008); Mariani-Colón v. Dep't of Homeland Sec.,
511 F.3d 216, 219 (1st Cir. 2007); Cabán Hernández v. Philip Morris
USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007). The rule is intended "to
relieve the district court of any responsibility to ferret through
the record to discern whether any material fact is genuinely in
dispute." CMI Capital Market, 520 F.3d at 62. It prevents parties
from "improperly shift[ing] the burden of organizing the evidence
presented in a given case to the district court." Mariani-Colón,
511 F.3d at 219. As such, the rule is important to the functioning
of the district court.
Here, Carreras did submit a response to SGP's Statement
of Uncontested Facts. Although he argues that his response
properly accepted or denied every fact with appropriate citation,
Carreras properly denied only certain of SGP's facts. Accordingly,
the district court stated that it would "partially disregard"
Carreras' opposing statement of unconstested facts.3 The record
3
Carreras argues that, despite its assertion to the contrary, the
district court rejected his entire response to SGP's Statement of
Uncontested Facts. We disagree. In its recitation of the facts,
-6-
shows that in many instances Carreras' response manifestly ignores
the express requirements of the anti-ferret rule. Most blatantly,
in at least two instances, Carreras' opposition fails to "accept,
qualify or deny" the fact listed by his opponent. Instead, it
explains discursively why Carreras believes the fact to be
irrelevant. Furthermore, Carreras' opposition frequently fails to
support denied facts with appropriate citation to the record.
Finally, Carreras' response includes argumentation
asserting numerous additional facts. Those facts are often
unsupported by record citations, they are not numbered, and they
are not "contain[ed] in a separate section." Carreras' argument
that the rule does not require additional facts to be adduced in a
separate section is unavailing. The plain language of the rule
specifically requires that additional facts be put forward in a
"separate section." D.P.R.R. 56(c). In light of these substantial
failings, the district court acted well within its discretion when
it deemed as admitted a portion of SGP's properly supported facts.
set forth in a portion of the opinion entitled "Uncontested Facts,"
the district court made clear which facts it considered to be
uncontested with citations to the record signifying that certain of
those facts were derived from SGP's Statement of Uncontested Facts.
As noted, the court's focus in this recitation was on Carreras'
workplace discrimination claim, not his retaliation claim. The
district court was under no obligation to go beyond the relevant
facts, as it saw them, in order to catalogue the sufficiency of
Carreras' opposition to every one of SGP's proposed facts.
-7-
III.
To survive summary judgment on his discrimination and
retaliation claims, Carreras must establish a genuine issue of
material fact as to whether he experienced disability
discrimination or was retaliated-against within the meaning of the
ADA. Fed. R. Civ. P. 56(c).4 Our review of the district court's
grant of summary judgment is de novo. Cabán-Hernández, 486 F.3d at
8. We "draw all reasonable inferences in the light most favorable
to the nonmovant." Id. We will not, however, "draw unreasonable
inferences or credit bald assertions, empty conclusions, [or] rank
conjecture." Id. (emphasis in original).
A. Disability Discrimination under the ADA
The district court found that Carreras failed to
establish a prima facie case of discrimination under the ADA
because he could not establish that he is disabled within the
meaning of the statute. Under the ADA, a disability is defined as:
(a) a physical or mental impairment which substantially limits one
or more of an individual's major life activities; (b) a record of
such impairment; or (c) being regarded as having such an
impairment. 42 U.S.C. § 12102(1).5 We have employed a three-part
4
"A 'genuine' issue is one that could be resolved in favor of
either party, and a 'material fact' is one that has the potential
of affecting the outcome of the case." Calero-Cerezo v. U.S. Dep't
of Justice, 355 F.3d 6, 19 (1st Cir. 2004).
5
Although Carreras states on appeal that he was regarded as having
an impairment, he did not assert this argument below and we deem it
-8-
test to determine whether an individual qualifies as disabled under
the first definition, which is at issue here. First, does the
plaintiff suffer a mental or physical impairment? Second, does the
life activity limited by the impairment qualify as "major"? And
finally, does the impairment, in fact, substantially limit that
major life activity? See Calero-Cerezo, 355 F.3d at 20. The
burden is on the plaintiff to establish these three elements. Id.
Carreras contends that he is disabled because his diabetes is a
physical impairment that substantially limits his ability to eat
and see, two major life activities.
We must determine the existence of a disability "on a
case-by-case basis." Albertson's, Inc., v. Kirkingburg, 527 U.S.
555, 566 (1999). Thus, we must assess the effect of Carreras'
alleged impairment on his life, rather than relying on his
diagnoses alone, in order to determine whether he is disabled
within the meaning of the ADA. Id. We agree with Carreras that
insulin-dependant diabetes is a physical impairment. See, e.g.,
Rohr v. Salt River Project Agric. Improvements and Power Dist., 555
F.3d 850, 858 (9th Cir. 2009) ("Diabetes is a 'physical impairment'
because it affects the digestive, hemic and endocrine systems. . .
to be waived. Even if Carreras had not waived this argument below,
it would fail here because his brief contains no support for the
claim. As we have explained on many occasions, "'[i]ssues adverted
to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.'" United States v.
Rivera Calderon, 578 F.3d 78, 94 n.4 (1st Cir. 2009) (quoting
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).
-9-
."). It is similarly beyond dispute that eating and seeing qualify
as "major life activities." See, e.g., Gillen v. Fallon Ambulance
Serv., Inc., 283 F.3d 11, 21 (1st Cir. 2002) (major life activities
include "functions such as caring for oneself, . . . seeing");
Calero-Cerezo, 355 F.3d at 21 (recognizing eating as a major life
activity for purposes of the ADA).
We cannot agree, however, that on the record before us
there is any genuine issue of material fact as to whether Carreras'
diabetes "substantially limited" his ability to eat or to see.
"The ADA does not define 'substantially limits,' but
'substantially' suggests 'considerable' or 'specified to a large
degree.'" Sutton v. United Air Lines, Inc., 527 U.S. 471, 491
(1999), superseded by statute on other grounds, ADA Amendments Act
of 2008, Pub. L. No. 110-325, 172 Stat. 3553 (2008). To be
substantially limiting, an impairment must cause a person to be
"unable to perform a major life activity that an average person in
the general population can perform," or to be significantly
restricted in the performance of a particular major life activity
as compared to an average person in the general population. 29
C.F.R. § 1630.2(j)(1); see also Carroll v. Xerox Corp., 294 F.3d
231, 239 (1st Cir. 2002).6 In assessing in this case the degree of
6
In considering whether a litigant's physical impairment is
substantially limiting for purposes of the ADA, the inquiry is not
confined to limitations that might occur in the workplace. Toyota
Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 200-01
(2002), superseded by statute on other grounds, ADA Amendments Act
-10-
limitation occasioned by a physical impairment, we also take into
consideration "the effectiveness, side effects and burdens of a
plaintiff's mitigating measures," in this case Carreras' twice-
daily insulin shots. Rohr, 555 F.3d at 859 (citing Sutton, 482
U.S. at 482-84).7 Our inquiry is "fact-intensive and
individualized." Sepulveda v. Glickman, 167 F. Supp. 2d 186, 191
(D.P.R. 2001); Sutton, 527 U.S. at 483.
1. Carreras' claim that his diabetes substantially limits
his vision
The facts of record fail to create a genuine issue of
material fact as to whether Carreras' vision is substantially
limited by his diabetes. Carreras asserts that high blood sugar
levels cause his vision to blur, constituting a substantial
limitation under the ADA. He does not contest, however, that his
of 2008, Pub. L. No. 110-325, 172 Stat. 3553 (2008). Rather,
courts must focus on whether a major life activity is substantially
impaired in the course of a litigant's daily life. Id. at 200-02.
7
Carreras has made no argument about the effect of the ADA
Amendments Act of 2008 on his claim. See Pub. L. No. 110-325, §
2(a)(4)-(6), 122 Stat. 3553 (2008). Regardless, that law is not
retroactive where, as here, the disputed activity occurred before
its passage and Congress expressed no clear intent to make the
statute retroactive. We have recently suggested as much, see
Thornton v. United Parcel Serv., Inc., 587 F.3d 27, 34 n.3 (1st
Cir. 2009), and all circuits to consider the issue to date have so
held. See Becerril v. Pima County Assessor's Office, 587 F.3d
1162, 1164 (9th Cir. 2009) (per curiam); Fredericksen v. United
Parcel Serv., 581 F.3d 516, 521 n.1 (7th Cir. 2009); Lytes v. DC
Water & Sewer Auth., 572 F.3d 936, 940 (D.C. Cir. 2009);
Milholland v. Summer County Bd. of Educ., 569 F.3d 562 (6th Cir.
2009); E.E.O.C. v. Agro Distribution, LLC, 555 F.3d 462, 469 n.8
(5th Cir. 2009).
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latest blurred vision episode occurred a year before he was deposed
in this case. Nor does he set forth facts that would explain how
such infrequent episodes of blurred vision cause him to be
significantly restricted in his ability to see. "To qualify as
disabling, a limitation . . . must be permanent or long term, and
considerable compared to the [seeing] most people do in their daily
lives." Fredricksen v. United Parcel Serv., Co., 581 F.3d 516, 522
(7th Cir. 2009) (citation and quotation marks omitted).
The facts show that Carreras' ability to see does not
differ in a significant way from the ability to see of the general
population. Cf. Albertson's, Inc., v. Kirkingburg, 527 U.S. 555,
565-67 (1999) (finding that monocular individuals must "prove a
disability by offering evidence that the extent of the limitation
in terms of their own experience, as in loss of depth perception
and visual field, is substantial"); Kelly v. Drexel Univ., 94 F.3d
102, 106, 108 (3d Cir. 1996) (finding plaintiff's limp and
inability to walk more than a mile or jog did not "substantially
limit him in the relevant major life activity, walking"). It is
undisputed that Carreras drives his son to school and himself to
work every morning, drives home again in the evening, reads as part
of his current employment, and performs other routine daily
activities that presumably would not be possible if his vision were
substantially impaired. See Scheerer v. Potter, 443 F.3d 916, 920
(7th Cir. 2006) (finding diabetic with "intermittent episodes of
-12-
significant neuropathy" not substantially limited in his ability to
walk because "he nonetheless was generally able to walk and stand
during the pertinent time period"). As described in the record,
Carreras' diabetes does not limit his sight to a degree that would
differentiate him from the rest of the population.
2. Carreras' claim that his diabetes substantially limits
his eating
Carreras has also failed to raise a genuine issue of
material fact as to whether his diabetes substantially limits his
life activity of eating. It is undisputed that Carreras' diabetes
requires certain adjustments to his diet. He avoids refined
flours, drinks juice that is not artificially sweetened, and eats
six meals a day. Proof that a medical condition "requires
medication, a fixed meal schedule, [and] timely snack breaks,"
without more, does not amount to a "substantial limitation" under
the ADA. Sepulveda, 167 F. Supp. 2d at 191 (quotation marks
omitted).
The analysis of when and under what conditions diabetes
is considered a disability for ADA purposes "is a matter of
degree." Id. at 190. We recognize that living with diabetes may
result in a complex calculus balancing food intake, activity level,
and the amount of insulin administered. An individual living with
diabetes may or may not experience a substantial limitation in his
or her ability to eat as contrasted with the rest of the
population. See, e.g., Lawson v. CSX Transp., Inc., 245 F.3d 916,
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924 (7th Cir. 2001) (describing substantial limitation on eating
entailed by "perpetual, multi-faceted and demanding treatment
regime" for plaintiff's diabetes (quotation marks omitted)); Rohr,
555 F.3d at 859 (finding genuine issue of material fact as to
whether plaintiff had a substantial impairment in eating where he
described controlling his disease through a combination of diet and
insulin as "being on a chemical rollercoaster" (quotation marks
omitted)). Many diabetics follow a "severely restrictive, and
highly demanding" regimen to control their disease from which any
deviation could result in a trip to the emergency room. See Fraser
v. Goodale, 342 F.3d 1032, 1041 (9th Cir. 2003).
The record indicates, however, that Carreras is at the
far end of the spectrum from those plaintiffs who "cannot put a
morsel of food" into their mouths "without carefully assessing
whether it will tip [their] blood sugar[]" levels. Id.8 He does
not dispute that his twice daily insulin shots successfully control
his diabetes. Cf. Lawson, 245 F.3d at 924 (finding jury question
as to whether diabetic could meet the substantial limitation
threshold because "even when taking insulin, [plaintiff's] 'ability
to regulate his blood sugar and metabolize food is difficult,
erratic, and substantially limited'"). Indeed, the facts are that,
by taking two insulin shots each day and eating fairly often,
8
Carreras' complaint states that failure to take his insulin
causes headaches and an undefined "loss of control of his
condition."
-14-
Carreras succeeds in preventing his diabetes from substantially
limiting any of his major life activities. Compare Sutton, 527
U.S. at 488-89 (the wearing of corrective lenses to neutralize the
effects of myopia negated substantial impairment of vision caused
by plaintiff's disability) with Lawson, 245 F.3d at 925-26 (the
need to coordinate "multifaceted factors" and to maintain "constant
vigilance" over plaintiff's insulin regimen, coupled with the grave
effects of noncompliance, distinguished plaintiff's case from
Sutton).
3. Summary
In summary, Carreras adduces no evidence that his
diabetes causes more than minor limitations on his eating and
seeing. See Rohr, 555 F.3d at 860 ("If daily insulin injections
alone more or less stabilized [plaintiff's] blood sugar levels,
such that any limitation imposed on his diet would be minor, then
[his] major life activity of eating might not be substantially
limited."). We therefore agree with the district court that
Carreras has not raised a genuine issue of material fact as to
whether he is disabled under the ADA.
B. Retaliation under the ADA9
The retaliation provision in the ADA states that "[n]o
person shall discriminate against any individual because such
9
We note that the district court did not circumscribe the summary
judgment record with a deeming order that applies to the
retaliation claim.
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individual has opposed any act or practice made unlawful by this
chapter." 42 U.S.C. § 12203(a). In order to establish a claim of
retaliation under the ADA, a plaintiff must show (1) that he
engaged in protected conduct, (2) that he suffered an adverse
employment action, and (3) that there was a causal connection
between the protected conduct and the adverse employment action.
Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir.
1997).10 It is well established that "requesting an accommodation,
without filing a formal charge or engaging in other specific
behaviors listed in § 12203(a), is nonetheless behavior protected
from an employer's retaliation." Wright v. CompUSA, Inc., 352 F.3d
472, 477-78 (1st Cir. 2003). Even if he fails to bring a
successful disability claim under the ADA, a plaintiff may
nonetheless assert a claim for retaliation. Soileau, 105 F.3d at
16.
Once a plaintiff makes out a prima facie case of
retaliation, "the burden shifts to the employer to articulate a
legitimate, nondiscriminatory reason for its employment decision."
Wright, 352 F.3d at 478 (citation and quotation marks omitted); see
also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973)
(establishing burden-shifting framework for Title VII cases). The
10
In Soileau, we explained that because of the relatedness of the
two statutes, “guidance on the proper analysis of [an] ADA
retaliation claim is found in Title VII cases.” 105 F.3d at 16.
We therefore refer to cases interpreting Title VII’s retaliation
provision as well as those specifically addressing the ADA in
conducting our analysis of Carreras’ retaliation claim.
-16-
employer's burden is "one of production, not persuasion." Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). If
the employer produces a legitimate reason for its decision, "the
burden under McDonnell Douglas shifts back to the plaintiff to show
that the motive was discriminatory [or retaliatory]." Sabinson v.
Trs. of Dartmouth Coll., 542 F.3d 1, 4 (1st Cir. 2008) (citing
Reeves, 530 U.S. at 142-43); see also Kersey v. Wash. Metro. Area
Transit Auth., 586 F.3d 13, 17 (D.C. Cir. 2009). Thus, the
plaintiff bears the ultimate burden to create a plausible inference
that the employer had a retaliatory motive. Benoit v. Technical
Mfg. Corp., 331 F.3d 166, 174 (1st Cir. 2003).
Carreras argues that his email to Ruíz and three other
SGP supervisors sent on October 21, 2004, in which he informed them
that he had to work late and had been prevented from taking his
insulin shot, constituted a request for a reasonable accommodation
under the ADA.11 He contends that his firing on October 25, 2004
was a direct result of that request for accommodation. He asserts
that he is entitled to an inference of causal connection between
the two events because his termination occurred in such close
temporal proximity to his engaging in protected conduct.
11
Carreras attempts to argue, in the alternative, that his email
somehow constituted opposition to his employer's "interfer[ence]
with the treatment for his diabetes," and that such opposition is
protected conduct under the ADA. This claim is undeveloped and
therefore waived. Even if it were not, our analysis of the
retaliation claim would be the same.
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The district court found that Carreras had not requested
an accommodation within the meaning of the ADA and granted summary
judgment for SGP on the claim of retaliation. We affirm that
judgment, albeit on different grounds. See Estades-Negroni v.
Assocs. Corp. of North Am., 377 F.3d 58, 62 (1st Cir. 2004) ("We
may affirm . . . on any grounds supported by the record.").
For convenience we assume, without deciding, that
Carreras has made his prima facie case. As noted, once an employee
has made a prima facie showing of retaliation, the burden shifts to
the employer to produce evidence that there was a legitimate, non-
retaliatory motive for the adverse employment action. Wright, 352
F.3d at 478. SGP has met its burden. SGP claims that Carreras'
deficient performance and insubordination prompted the SGP partners
to terminate his employment. In support of its claim, SGP
introduced the email from Ruíz to Carreras. That email, written in
all capital letters and dated August 25, 2004, reads, in relevant
part:
IT IS VERY FRUSTRATING TO NOT BE ABLE TO COUNT
ON YOUR PRESENCE WHEN I MOST NEED YOU. I
CERTAINLY UNDERSTAND THE UNEXPECTED, BUT IT
ALWAYS HAPPENS THAT WHEN I HAVE A MEETING WITH
A CLIENT, I AM MISSING THE UNFINISHED
MATERIAL; AND THE RESPONSIBLE PERSON HAS A
PERSONAL ISSUE TO SOLVE.12
. . .
12
From Carreras' response to this email, which is also in the
record, we deduce that the "personal issue" to which Ruíz refers
was Carreras' failure to come to work on time because he did not
have his glasses.
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IN THE FUTURE, CALL ME DIRECTLY AT THE CELL
PHONE OR AT MY HOME, AND I'LL COME AND FINISH
THE ART EVEN IF I HAVE TO WORK ALL NIGHT.
This documentary evidence showing Ruíz's dissatisfaction with
Carreras meets SGP's burden of producing evidence that demonstrates
its legitimate, non-retaliatory reason for firing Carreras.
In the face of such evidence, Carreras bears the ultimate
burden of establishing that SGP's stated reason for his dismissal
is a pretext for retaliation. Santiago-Ramos v. Centennial P.R.
Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000). Carreras attempts
to meet this burden by pointing to what he characterizes as
inconsistencies in statements given by SGP managers about the
reason he was fired, when the decision to fire him was made, and
why there was a delay between the making of that decision and the
firing. Specifically, Carreras cites deposition testimony showing
that two of three members of SGP's management recalled that the
decision to terminate Carreras was made in early-to-mid October,
while another thought it was made at the end of September.
Further, Carreras cites deposition testimony showing that one of
those managers thought there was some delay between the decision
and Carreras' firing because Carreras might improve his performance
in that time, a second thought it was in order to hire a
replacement, and a third thought the delay involved the need to
complete legal paperwork. Finally, in its Joint Initial Scheduling
Conference Memorandum, SGP said the reason for Carreras' firing was
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that his "output was not timely and up to the quality standards
that defendant requested for him." By contrast, Carreras argues,
Ruíz stated in his deposition that Carreras did good work, but that
he was fired because of "coworker complaints and because he was not
getting his job done in time."13
An employee can establish pretext "by showing weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions
in the employer's proffered legitimate reasons such that a
factfinder could infer that the employer did not act for the
asserted non-discriminatory reasons." Id. at 56 (quotation marks
and citation omitted) (emphasis added). The minor inconsistencies
cited by Carreras, however, do not undermine SGP's contention that
his work performance was unsatisfactory. The slight differences in
SGP's accounts of the timing of the decision or the reason for the
short delay before its implementation do not permit a reasonable
factfinder to infer that SGP did not fire Carreras because of his
poor work performance. The evidence was consistent on the
essential point, i.e., that Carreras' work was untimely and
therefore unsatisfactory. Our laws are designed to ensure against
discrimination and retaliation, not "inaccuracy by an employer."
Rivas Rosado v. Radio Shack, Inc., 312 F.3d 532, 535 (1st Cir.
2002). Moreover, the dissatisfaction with Carreras was expressed
13
Carreras also cites the lack of "written evidence" of any
deficiencies in his performance during the months preceding his
firing. In making this argument, Carreras overlooks the August
2004 email from Ruíz.
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in writing two months before he complained about having to work
late and was fired. This is not a case in which the employer's
"nondiscriminatory reasons were after-the-fact justifications,
provided subsequent to the beginning of legal action." Santiago-
Ramos, 217 F.3d at 56.
In the final analysis, the only evidence in the summary
judgment record supporting Carreras' retaliation claim is the
temporal proximity between his October 21, 2004 email to Ruíz and
his firing on October 25, 2004. Such temporal proximity may
suffice for a prima facie case of retaliation. It does not satisfy
Carreras' ultimate burden to establish that the true explanation
for his firing was retaliation for engaging in protected conduct
rather than poor performance. See Holloway, 275 F. App'x at 27
(suspicions raised by temporal proximity "can be authoritatively
dispelled . . . by an employer's convincing account of the
legitimate reasons for the firing"); see also Soileau, 105 F.3d at
16-17 (rejecting claim of retaliation based solely on temporal
proximity). We affirm the entry of summary judgment for SGP on
Carreras' retaliation claim under the ADA.14
Affirmed.
14
We also affirm the district court's dismissal without prejudice
of Carreras' claims arising under Puerto Rico law. See Penobscot
Indian Nation v. Key Bank of Maine, 112 F.3d 538, 564 (1st Cir.
1997) ("[T]he decision to retain or disclaim jurisdiction over the
remaining state law claims at issue in this case lies in the broad
discretion of the district court.")
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