United States Court of Appeals
For the First Circuit
No. 00-1724
MARIBEL LEBRON-TORRES, HER HUSBAND
NORBERTO VALENTIN-MERCADO, AND THEIR CONJUGAL PARTNERSHIP,
Plaintiffs, Appellants,
v.
WHITEHALL LABORATORIES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Campbell, Senior Circuit Judges.
Juan F. Matos-Bonet, with whom Javier A. Morales Ramos was
on brief for appellants.
Anita Montaner-Sevillano, with whom Maria Victoria Múnera-
Pascual and McConnell Valdés were on brief for appellee.
May 30. 2001
CAMPBELL, Senior Circuit Judge. Plaintiff-Appellant
Maribel Lebrón-Torres (“Lebrón”) brought suit against her former
employer, Defendant-Appellee Whitehall Robins Laboratories
(“Whitehall”), alleging disability discrimination under the
Americans with Disabilities Act, 42 U.S.C. § 12101-12771 (“the
ADA”).1 The district court allowed defendant’s motion for
summary judgment on the ground that Lebrón failed to proffer
sufficient facts from which a reasonable jury could find that
she was disabled within the meaning of the ADA. We affirm.
I.
The summary judgment record before the district court
was composed of the depositions of Lebrón, her husband, and a
Whitehall supervisor, and various medical and employment
records. Both parties filed their own versions of the
uncontested facts. See D.P.R. Loc. R. 311.12. From these
sources, we describe the relevant facts in the light most
favorable to the appellant. New York State Dairy Foods, Inc. v.
Northeast Dairy Compact Comm’n, 198 F.3d 1, 3 (1st Cir. 1999).
1 Lebrón’s husband and their conjugal partnership joined as
plaintiffs. Their claims are derivative of Lebrón’s own and
thus for convenience we treat Lebrón as the sole plaintiff.
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For nearly three years, from 1993-1996, Lebrón worked
in the manufacturing department of Whitehall, a pharmaceutical
manufacturing company located in Guayama, Puerto Rico. For the
first two and one half years, she worked as a manufacturing
operator. The task of a manufacturing operator required both
manual and administrative work. Lebrón had to carefully
document the manufacturing process in a log book and perform
tests to check the quality of the product being manufactured.
She also used heavy equipment, such as forklifts, to move and
sort pallets of materials. She sifted materials with a large
screen and transported, by hand, thirty-five pound pails. There
is no dispute that Lebrón’s job as a manufacturing operator
required moderate but constant physical labor, such as climbing
ladders, using heavy machinery, bending over, reaching above
shoulder level, and lifting moderately heavy loads.
In July 1994, Lebrón first reported to Whitehall’s
infirmary complaining of back pain. She was treated with
acupuncture. On May 1, 1995, she returned, complaining of the
same kind of back pain. On that second time, she was given a
safety belt to support her back and then she returned to work.
The following day, Lebrón visited her personal physician, Dr.
Murabak, for a consultation about her back pain. Dr. Murabak
ordered rest and suggested that she see the State Insurance Fund
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(“SIF”) for treatment. On May 8, 1995, Lebrón was diagnosed by
an SIF physician as suffering from cervico dorso lumbar strain.
She was ordered to rest while receiving physical therapy under
the auspices of the SIF.
On May 22, 1995, SIF authorized Lebrón to return to
work. She did not return to the same exact duties, however,
having asked for and received a transfer to the compression area
of the manufacturing department, which requires less strenuous,
but nonetheless physical, activity. According to Lebrón,
however, she performed many of the same tasks as before. On May
31, 1995, Lebrón returned to the SIF for a check-up and was
ordered to return home to rest. Thereafter, Lebrón went on
leave until July 7, 1995.
Upon her return to work on July 7, 1995, neither the
SIF nor Lebrón’s personal physician recommended or issued her
any work-related restrictions. Lebrón did continue with
physical therapy, however, until August 13, 1996, when she was
officially released from treatment with the SIF. On November
13, 1996, Lebrón was fired from Whitehall. Lebrón contends she
was fired because she was disabled by her back injury.
Whitehall contends she was fired because of her repeated
violations of safety and quality protocols occurring (and
documented) in April 1994, October 1995, and October 1996.
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We note that from the time of her return to work on
July 7, 1995, until her termination on November 13, 1996, Lebrón
did not complain to her employer, Whitehall, that she suffered
from back pain while at work. However, SIF medical records show
that during this period she was being treated for complaints of
chronic neck and back pain that restricted mobility in her arms
and back, preventing her from lifting her arms above her head
without some pain and sitting or bending over for long periods
of time. She says that she did not have trouble walking or
standing for any length of time. On January 23, 1997, the SIF
notified Lebrón of an award of a twenty percent impairment of
her general physiological function due to her cervico dorso
lumbar strain.
Lebrón now works nearly full-time as a hair stylist,
running a salon out of her home. While at Whitehall, Lebrón
worked weekends and weekday evenings as a hair stylist. She is
presently also the primary care-giver to her grandson. She says
she requires help with household chores and avers that she still
experiences chronic pain from her work-related injury, making it
more difficult for her than most people to accomplish her
necessary daily chores.
II.
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The ADA prohibits discrimination in employment against
qualified persons with a disability.2 To establish a prima facie
case of disability discrimination under the ADA, Lebrón must
show: (1) that she suffers from a "disability" within the
meaning of the Act; (2) that she was able to perform the
essential functions of the job, either with or without
reasonable accommodation; and (3) that the employer discharged
her in whole or in part because of that disability. See Criado
v. IBM Corp., 145 F.3d 437, 441 (1st Cir. 1998). Like the
district court, we conclude that Lebrón’s ADA case founders for
failure to show that she had a disability as that term has been
construed for purposes of the statute.
Not all physical impairments rise to the level of
disability under the ADA. See Albertson’s, Inc. v. Kirkingburg,
527 U.S. 555, 565-66 (1999). Rather, the ADA defines the term
"disability" as (A) "a physical or mental impairment that
substantially limits one or more of the major life activities of
[an] individual," (B) "a record of such an impairment," or (C)
"being regarded as having such an impairment." 42 U.S.C. §
2 The ADA provides that "[n]o covered entity shall
discriminate against a qualified individual with a disability
because of the disability of such individual in regard to job
application procedures, the hiring, advancement or discharge of
employees, employee compensation, job training, and other terms,
conditions, and privileges of employment." 42 U.S.C. § 12112(a).
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12102(2)(A)-(C). Lebrón asserts that she fits within prong (A)
of the statute.
In contending that she qualifies for ADA protection
under 42 U.S.C. § 12102(2)(A), Lebrón argues that her back
injury substantially limits her major life activity of working.
Whether a condition is an impairment that substantially limits
one or more of an individual's major life activities is
determined in a three-step analysis. See Bragdon v. Abbott, 524
U.S. 624, 631 (1998). First, we need to determine whether
Lebrón’s back injury constitutes a physical impairment. Second,
we must determine whether the life activity which Lebrón claims
is affected -- working -- meets the definition of a major life
activity within the ADA. Third, tying the two statutory phrases
together, we ask whether the impairment substantially limits the
activity found to be a major life activity. See id.
Read most favorably to Lebrón, her evidence satisfies
the first two requirements of this analysis. Her back condition
was a physical impairment under the relevant EEOC definitions,
being a "physiological disorder or condition" affecting the
“musculoskeletal” system. See 29 C.F.R. § 1630.2(h)(1). And
the activity claimed to have been impaired -- working -- has
been explicitly recognized as a "major life activity" under EEOC
regulations. See id. § 1630.2(i). See Sutton v. United Air
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Lines, 527 U.S. 471, 492 (1999) (assuming without deciding that
working is a major life activity but noting the “conceptual
difficulty in defining ’major life activities’ to include work,
for it seems to argue in a circle”); Lessard v. Osram Sylvania,
Inc., 175 F.3d 193, 197 (1st Cir. 1999) (describing working as
a major life activity for purposes of the ADA). See also
Colwell v. Suffolk County Police Dept., 158 F.3d 635, 642 (2d
Cir. 1998), cert. denied, 526 U.S. 1018 (1999) (activities
listed in EEOC regulations are treated as major life activities
per se, rather than as major life activities only to the extent
that they are shown to affect a particular ADA plaintiff).
Where Lebrón's claim falters is at the third and final
step of the analysis: she has not shown that her back
impairment substantially limits her ability to work. In order
to prove such a limitation, Lebrón is required to demonstrate
that her back injury has precluded her from a substantial class
of jobs or a broad range of jobs. See Sutton, 527 U.S. at 491-
92; Santiago Clemente v. Executive Airlines, Inc., 213 F.3d 25,
33-34 (1st Cir. 2000). Even “[t]he inability to perform a
single, particular job does not constitute a substantial
limitation in the major life activity of working.” 29 C.F.R. §
1630.3(j)(3)(I). “If jobs utilizing an individual's skills (but
perhaps not his or her unique talents) are available, one is not
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precluded from a substantial class of jobs. Similarly, if a host
of different types of jobs are available, one is not precluded
from a broad range of jobs.” Sutton, 527 U.S. at 492.
Here, specific evidence is not only completely lacking
as to Lebrón's inability to perform a class of jobs or broad
range of jobs in various classes, but the evidence fails even to
show that Lebrón could not perform the specific jobs she has
held. The record indicates that Lebrón performed her employment
at Whitehall without restriction for more than a year after she
returned from the medical leave imposed by the SIF. While she
was being treated at this time for back pain, she never told her
employer she could not perform her job and the evidence does not
otherwise demonstrate that her back condition actually prevented
her from performing her work at Whitehall. Moreover, since
leaving Whitehall, she has been working nearly full-time at home
as a hair stylist, a previous occupation, as well as acting as
her grandson’s primary care-giver.
To prevail at summary judgment, Lebrón would have had
to offer some evidence from which a reasonable jury could find
that she is significantly restricted in her ability to perform
a class of jobs or a broad range of jobs in various classes, an
evidentiary burden the EEOC regulations delineate, see 29 C.F.R.
§ 1630.2(j)(3)(i), and the Supreme Court has recently confirmed
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is required, see Sutton, 527 U.S. at 492. Such evidence is
often proffered in the form of expert vocational testimony,
although expert testimony is not necessarily required. See
Duncan v. Washington Metro. Area Transit Auth., 240 F.3d 1110,
1116-17 (D.C. Cir. 2001) (“[T]he evidentiary burden [of
proffering testimony or data on the class of jobs or range of
jobs from which the plaintiff is disqualified] . . . is not
onerous. [Plaintiff] need not necessarily produce expert
vocational testimony, although such evidence might be very
persuasive. In the proper case simple government job statistics
may suffice.”); Mullins v. Cromwell, 228 F.3d 1305, 1314 n.18
(11th Cir. 2000) ("[E]xpert vocational evidence, although
instructive, is not necessary to establish that a person is
substantially limited in the major life activity of working.
Furthermore, a plaintiff could testify from his or her own
extensive job search whether other jobs that he or she could
perform were available in the geographical area.").
Lebrón’s failure to proffer any evidence specifying the
kinds of jobs that her back condition prevented her from
performing dooms her ADA claim. See Webb v. Clyde L. Choate
Mental Health & Dev. Ctr., 230 F.3d 991, 997 (7th Cir. 2000)
(upholding summary judgment against psychologist suffering from
severe asthma, osteoporosis, and a weakened immune system
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because he "ha[d] not presented evidence that his condition
prevents him from performing a class of jobs"); Taylor v.
Nimock's Oil Co., 214 F.3d 957, 961 (8th Cir. 2000) (concluding
that former cashier required to work 40 hours per week and who
could not lift more than 10 pounds did not establish disability
because she "presented no evidence to create a genuine issue of
material fact about whether she could perform a class of jobs
with her restrictions"); Santiago Clemente, 213 F.3d at 32-33
(upholding summary judgment for employer because former flight
attendant failed to show that temporary hearing loss was
disability under ADA because she offered "no evidence of how
many jobs call for this ability, or that she was precluded from
any class of jobs"). Without some evidence as to the kinds of
jobs from which she is disqualified, a jury would not be able
“to perform the careful analysis that is necessary to determine
that [Lebrón] was substantially limited in her ability to work.”
Colwell, 158 F.3d at 645.
Indeed, not only did Lebrón not proffer evidence as to
the kinds of jobs her back injury prevented her from performing,
the record, as said, is insufficient to show that her physical
condition at the time of her discharge rendered her unable to
perform the two types of work she had been performing, namely,
her former job at Whitehall and her work as a hair stylist. As
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to the Whitehall job, she offered no explicit evidence from
which it can be deduced that she was physically incapable of
doing what was required during the more than a year after she
returned from the medical leave imposed by the SIF. She did
not, during this period, seek an accommodation from her employer
nor conduct herself otherwise so as to evidence physical
incapacity. As to hair styling, Lebrón asserted in her
deposition that her physical impairment prevents her from
“performing as she used to when she worked” as a hair stylist
before she injured her back. Yet the fact remains that she
continues to work out of her home nearly full-time as a hair
stylist.
Hence, on this record, we think that no juror could
reasonably find that Lebrón was so precluded by her impairment
from a class of jobs or a broad range of jobs in various classes
as to be substantially limited in the major activity of working.
Lebrón has not presented evidence sufficient to create a triable
issue as to whether or not she is disabled within the meaning of
the ADA.
To be sure, Lebrón presented evidence of an SIF finding
of a twenty percent disability during her medical leave from
Whitehall that was issued in January 1997 for which she was
compensated $5,850. She also presented medical records
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indicating on-going treatment for physical limitations and pain
at various times while she was employed by Whitehall. But while
this evidence is suggestive of possible disability, it is
insufficient by itself to establish that she was substantially
limited in the performance of a class of jobs or a broad range
of jobs in various classes. It was Lebrón’s responsibility as
the party with the evidentiary burden to provide evidence tying
her back condition into an inability to work at relevant jobs.
That she was injured and experienced back pain is not enough to
meet that evidentiary burden where it remains speculative
whether and to what degree her condition renders her unsuited to
work at particular jobs which would, in aggregate, constitute a
major life activity.
As there is insufficient evidence of the existence of
a disability, we need not reach Lebrón’s claim of failure to
accommodate for which the finding of a disability as defined in
the ADA is a prerequisite.
Affirmed.
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