United States Court of Appeals
For the First Circuit
No. 01-2484
LYDIA GONZALEZ,
Plaintiff, Appellant,
v.
EL DIA, INC., et al.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Lynch, Circuit Judge,
Coffin and Cyr, Senior Circuit Judges.
Javier A. Morales Ramos, with whom Juan F. Matos Bonet was on
brief for appellant.
Pedro J. Manzano-Yates, with whom Fiddler, Gonzalez &
Rodriguez, LLP was on brief for appellees.
September 5, 2002
CYR, Senior Circuit Judge. Appellant Lydia Gonzalez
challenges various summary judgment rulings which prompted the
district court to dismiss the claims she filed against her
employer, El Dia, Inc., alleging that it violated the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.,
the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et
seq., and various Puerto Rico statutes. The record facts are
related in the light most favorable to Gonzalez. See Conto v.
Concord Hosp., Inc., 265 F.3d 79, 80 n.1 (1st Cir. 2001).
I
BACKGROUND
In 1991, at age 58, Gonzalez was hired as a reporter by
El Nuevo Dia, a Puerto Rico newspaper owned by defendant-appellee
El Dia. During the ensuing years, her supervisor, Maria Luisa
Ferre, frequently stated, inter alia, that (i) Gonzalez' demeanor
and couture were "[o]ut of style" and "colorless," and her coiffure
("like Phyllis Diller") was old-fashioned (viz., "manias de vieja,"
or "old person's ways"); (ii) she should have retired and gone to
live with her grandchildren in Florida long ago; and (iii) due to
her age she would not live long enough to see her grandson play
major league baseball.
On another occasion, after Ms. Ferre balked at Gonzalez'
expression of interest in covering fashion shows, Gonzalez stated:
"You want me to look like a Vogue model?" Rather than responding,
2
Ms. Ferre simply stared at Gonzalez. Moreover, Ms. Ferre routinely
assigned younger reporters to cover the fashion shows and often
told Gonzalez: "Dona Lydia, I don't know what I'm going to do with
you."
Similar remarks were made to Gonzalez by Jorge Mercado,
the director of the human resources department, who frequently
stated that Gonzalez had "manias de vieja." Moreover, often as
Gonzalez arrived at work in the morning, Mr. Mercado would accost
her in the lobby and inquire: "Mom, can I help you?" or "What did
you come here for, to visit or to request a job?" In addition,
when Mr. Mercado visited the department in which Gonzalez worked,
he would make such comments as: "Are you still here?" or "I
thought you had been discharged or terminated a long time ago."
Following a serious work-related injury in April 1997,
Gonzalez applied to the State Insurance Fund (SIF) for workers'
compensation benefits. The SIF determined that Gonzalez should
take medical leave while receiving treatment and rehabilitative
therapy. Apparently concerned about Gonzalez' extended absence
from work, Ms. Ferre contacted the El Dia human resources
department regarding retirement packages which might be offered
Gonzalez.
On June 12, 1997, Gonzalez discussed her health problems
and her job with Ms. Ferre. At one point, Ms. Ferre asked Gonzalez
whether she would like to retire, adding: "Look, [] you are
3
already 63 years old and your health is not good." When Gonzalez
responded that she did not wish to retire and instead offered to
return to work immediately, Ms. Ferre rejected her offer and
advised Gonzalez to take a vacation and return to work on July 1.
As Gonzalez had no remaining paid-vacation time, however, and Ms.
Ferre was well aware that Gonzalez was in difficult financial
straits, Ms. Ferre offered to make an advance on Gonzalez' salary.
Gonzalez promptly related the conversation to her former
supervisor, Iris Landron. On the following day, El Dia issued a
$6,000 check to Gonzalez. Although Gonzalez was surprised by the
large amount and concerned about her ability to repay it, she
nevertheless applied the entire advance toward her delinquent real
estate mortgage.
On June 16, Mr. Mercado asked Gonzalez to come to his
office, where she was presented with a resignation, release, and
compensation agreement. Mr. Mercado asserted that during her June
12 meeting with Ms. Ferre, Gonzalez had agreed to execute these
documents. Gonzalez denied any such agreement, refused to sign,
and informed Mr. Mercado that she planned to return to work on June
19, rather than July 1. Upon returning to work on June 20,
Gonzalez asked Mr. Mercado to draft an agreement, which she then
signed, promising to repay the $6,000 advance by June 27.
On June 27, Gonzalez and her union representatives met
with Mr. Mercado to explain that Gonzalez had been unable to obtain
4
a bank loan with which to repay her $6,000 debt to El Dia. Mr.
Mercado rejected Gonzalez' alternative offer either to tender
certain valuable artwork in lieu of cash or repay the loan through
payroll deductions. After asserting that Gonzalez had breached the
repayment agreement in "bad faith," Mr. Mercado suspended her
without pay, albeit with benefits (viz., e.g., health and life
insurance), until such time as she repaid the $6,000 advance.
As Gonzalez was left without a source of income, yet
required to mitigate damages, she accepted a position as a staff
reporter with The San Juan Star, an El Nuevo Dia competitor, then
submitted a grievance against El Dia pursuant to the collective
bargaining agreement (CBA). During the grievance proceeding,
Gonzalez admitted to having worked for The San Juan Star.
Thereafter, on July 15, 1997, Mr. Mercado terminated Gonzalez,
citing the conflict-of-interest provision in the CBA; viz.,
"[r]eporters working for the newspaper shall work exclusively on
reporting news for [the newspaper], and thus shall not write
articles and/or columns for any newspaper other than [El Nuevo
Dia]."1 (Emphasis added.)
In August 1998, Gonzalez initiated the present action
against El Dia, Ms. Ferre, and Mr. Mercado in the United States
1
Gonzalez argues on appeal that the conflict-of-interest
provision in the CBA is inapposite because she was not "working
for" El Dia while she was suspended. As she failed to raise this
claim in her opposition to El Dia's motion for summary judgment,
however, it has been waived. See Davis v. Lucent Techs., Inc., 251
F.3d 227, 232 (1st Cir. 2001).
5
District Court for the District of Puerto Rico, alleging inter alia
that her employment had been terminated in violation of the ADEA,
the ADA, and various Commonwealth of Puerto Rico statutes. El Dia
counterclaimed for its $6,000 advance to Gonzalez.
Ultimately, the district court entered summary judgment
for El Dia, dismissed all claims in the Gonzalez complaint, and
awarded El Dia summary judgment on its counterclaim.2 On appeal,
Gonzalez challenges the district court rulings which presaged the
dismissal of her complaint.
II
DISCUSSION
Summary judgment rulings are reviewed de novo, after all
the competent evidence and attendant reasonable inferences have
been assessed in the light most favorable to the nonmoving party.
See Conto, 265 F.3d at 80 n.1.3 Moreover, rather than weigh the
2
The earlier district court rulings, rejecting the Gonzalez
claims against Ms. Ferre and Mr. Mercado in their individual
capacities, are not before us on appeal.
3
The district court granted summary judgment to El Dia on the
grounds that: (i) the ageist comments attributed to Ms. Ferre,
made before and on June 12, 1997, were not probative, in that it
was Mr. Mercado, rather than Ms. Ferre, who determined that
Gonzalez should be suspended and terminated; (ii) Gonzalez failed
to establish that Mr. Mercado made any discriminatory remark,
either proximate to, or in the context of, the decision to suspend
and/or terminate Gonzalez; (iii) Gonzalez adduced no evidence that
El Dia lacked legitimate alternative grounds for not assigning her
to cover fashion shows; and (iv) the testimony given by Ms.
Landron, Gonzalez' former supervisor — that the El Dia retirement
offer was a subterfuge for age discrimination — constituted an
inadmissible lay opinion, see Fed. R. Civ. P. 701.
6
credibility of the testimony, we presume that a rational factfinder
would accept it as stated by the witness. See Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000).
A. The ADEA Claim
Under the ADEA, an employer may not "discharge . . . or
otherwise discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment,
because of [her] age." 29 U.S.C. § 623(a)(1).4 Gonzalez was
required to comply with the familiar burden-sharing paradigm
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1995). Thus, at the outset she needed to tender enough evidence
to establish a prima facie age-discrimination claim. See
Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 430 (1st Cir.
2000).5 For present purposes, El Dia acknowledges that Gonzalez
established a prima facie case under the ADEA. See id.
4
Since many of the relevant legal standards applicable in
employment-discrimination cases arising under the ADEA, the ADA,
and Title VII are closely comparable, see Dichner v. Liberty
Travel, 141 F.3d 24, 30 n.5 (1st Cir. 1998), we cite to them as
appropriate.
5
An ADEA claimant must adduce evidence that (1) she was at
least forty years of age; (2) her job performance met the
employer's legitimate expectations; (3) the employer subjected her
to an adverse employment action (e.g., an actual or constructive
discharge); and (4) the employer had a continuing need for the
services provided by the position from which the claimant was
discharged. See Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st
Cir. 2000).
7
The required prima-facie-case showing generates a
rebuttable presumption that the defendant-employer violated the
ADEA. Whereupon, the burden of production — as distinguished from
the burden of proof — shifts to the defendant-employer to
articulate a legitimate, nondiscriminatory basis for its adverse
employment action. Once this limited burden has been met by the
defendant-employer, the presumption which attended the prima facie
case vanishes and the claimant must adduce sufficient creditable
evidence that age was a motivating factor in the challenged
employment action. See id. The plaintiff-employee may meet her
burden of proof by showing that the employer's proffered reason for
the challenged employment action was pretextual, see id. at 430
n.5, from which the factfinder in turn may, but need not, infer the
alleged discriminatory animus. See Fite v. Digital Equip. Corp.,
232 F.3d 3, 7 (1st Cir. 2000) (citing Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133 (2000)).
El Dia plainly met its circumscribed burden of production
by identifying a nondiscriminatory basis for the Gonzalez
discharge: i.e., her acceptance of employment as a reporter for a
competing newspaper, in direct violation of the conflict-of-
interest provision in the CBA. Cf., e.g., King v. Preferred Tech.
Group, 166 F.3d 887, 893 (7th Cir. 1999) (Family and Medical Leave
Act) (noting that violation of CBA provision by employee was
legitimate nondiscriminatory basis for adverse employment action
8
taken by employer); Burmistrz v. City of Chicago, 186 F. Supp. 2d
863, 873-74 (N.D. Ill. 2002) (same, under ADA). Accordingly, the
burden then shifted back to Gonzalez to prove that the
nondiscriminatory basis assertedly relied upon by El Dia was merely
a pretext, and that age animus was the real reason for her
termination.
At this stage in the proceedings, Gonzalez cannot dispute
that she knowingly failed to comply with the pertinent CBA
provision, thereby entitling El Dia to discharge her. See Mechnig
v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988)
("[Federal courts] do 'not sit as a super-personnel department that
reexamines an entity's business decisions.' 'No matter how medieval
a firm's practices, no matter how high-handed its decisional
process, no matter how mistaken the firm's managers, [the ADEA
does] not interfere.'") (citations omitted).6 Accordingly, in
order to establish that an age-based animus nonetheless constituted
a motivating factor in the decision to terminate her employment,
Gonzalez relies principally upon six varieties of evidence.
1. The Ageist Remarks
Gonzalez asserts that, prior to June 12, Mr. Mercado and
Ms. Ferre engaged in a "pattern" of workplace remarks which
demonstrate an age-based animus. See supra Section I. Upon closer
6
Gonzalez abandoned her grievance under the CBA, which was
then dismissed with prejudice.
9
examination, however, the stray remarks she identified afforded an
inadequate foundation for the requisite discriminatory intent.
In the first place, "stray workplace remarks," as well as
statements made either by nondecisionmakers or by decisionmakers
not involved in the decisional process, normally are insufficient,
standing alone, to establish either pretext or the requisite
discriminatory animus. See Straughn v. Delta Air Lines, Inc., 250
F.3d 23, 36 (1st Cir. 2001); Laurin v. Providence Hosp., 150 F.3d
52, 58 (1st Cir. 1998). The Gonzalez deposition identified neither
the time nor the context of the pre-June 12 remarks made by Mr.
Mercado and Ms. Ferre, nor could Gonzalez state whether any
particular remark had been made at a time proximate either to June
12 or to her July 15 termination. See, e.g., Dominguez-Cruz, 202
F.3d at 433 n.6 (noting "circumscribed" evidentiary weight of
"temporally remote" statements).
Secondly, it is far from clear that the alleged remarks
bespeak any age-based animus at all. See Fernandes v. Costa Bros.
Masonry, Inc., 199 F.3d 572, 583 (1st Cir. 1999) (noting that "a
statement that plausibly can be interpreted two different ways -
one discriminatory and the other benign - does not directly reflect
illegal animus") (emphasis added); Speen v. Crown Clothing Corp.,
102 F.3d 625, 636 (1st Cir. 1996) ("'[A]mbiguous remarks, tending
to suggest animus based on age, are insufficient, standing alone,
to prove an employer's discriminatory intent.'") (citations
10
omitted; emphasis added); Lehman v. Prudential Ins. Co. of Am., 74
F.3d 323, 329 (1st Cir. 1996) (same).
Some statements, such as those made by Mr. Mercado,
merely displayed a measure of surprise that Gonzalez was still
employed at El Dia, without either asserting or implying that she
was too old to be working. Moreover, Mr. Mercado's alleged use of
the salutation "Mom" — though no doubt insensitive, perhaps even
rude — hardly constituted a self-sufficient foundation for an ADEA
claim, especially since these particular attributions — motherhood
and advanced age — plainly are not synonymous.
Similarly, the remarks Ms. Ferre allegedly directed at
Gonzalez are reasonably susceptible to interpretation simply as
descriptions of the somewhat dowdy appearance and demeanor which
Gonzalez herself acknowledges. Moreover, the Spanish phrase
"manias de vieja" ("old ways") did not unambiguously connote that
Gonzalez was old, let alone too old, but rather that she acted in
ways which did not appear in keeping with a person her age. See,
e.g., Pearson v. City of Manhattan, 33 F. Supp. 2d 1306, 1315 (D.
Kan. 1999) (holding that phrase "old ways" not evidence of ADEA
age-based animus, as such terms "apply more to a person's state of
mind than to a person's age"); Martin v. Ryder Distribution Res.,
Inc., 811 F. Supp. 658, 664 (S.D. Fla. 1992) (observing that simple
references to the plaintiff-employees — as "good old boys" and
"old-fashioned" — are insufficient evidence of age-based animus
11
under ADEA), aff'd, 16 F.3d 1232 (11th Cir. 1994). Nor did any
other statement, attributed either to Mr. Mercado or Ms. Ferre,
unambiguously communicate an age-based animus. Rather, their
remarks are readily susceptible to interpretations which are in no
sense discriminatory.
2. The Fashion Show Coverage
Similarly unavailing is the contention that the
unexplained refusal to allow Gonzalez to cover fashion shows
demonstrated an age-based animus. Given her acknowledged penchant
for old-fashioned clothing and hairstyles, it seems much more
plausible to attribute El Dia's decision to the fact that Gonzalez
was insufficiently attuned to current fashions; and, therefore,
that her representation of El Dia at fashion shows could very well
reflect adversely upon its business image in such circles. Cf.,
e.g., Rogosin v. Mayor and City Council of Baltimore, 197 F. Supp.
2d 345, 351 (D. Md. 2002) (noting that employer has right under
ADEA to consider plaintiff-employee's projection of "negative
public image").
3. The Ferre-Mercado "Conspiracy"
Further, Gonzalez contends that since Ms. Ferre
acknowledges that she contacted Mr. Mercado prior to June 12 in
regard to the retirement plan, both should be considered El Dia
decisionmakers, and that Ms. Ferre's remark on June 12 — viz., "you
are already 63 years old and your health is not good" — accordingly
12
constituted a discriminatory statement by a decisionmaker in the
context of the adverse employment action taken against her by El
Dia. The record on appeal does not square with her contention,
however.
Instead, Ms. Ferre simply stated that she contacted the
human resources department prior to June 12 regarding the
retirement options available to Gonzalez. There is no record
support whatever for the notion that Ms. Ferre stated that she had
spoken with Mr. Mercado about the matter. Accordingly, no rational
factfinder could construe Ms. Ferre's routine investigation into
the retirement options available to Gonzalez as either (i) somehow
sinister or (ii) a rational basis for surmising that Ms. Ferre
played a meaningful role in Mr. Mercado's subsequent decisions to
suspend and terminate Gonzalez.
4. The Remarks Made by Ms. Ferre on June 12
On June 12, Ms. Ferre adverted to Gonzalez' age while the
two were discussing Gonzalez' vacation plans and the retirement
offer which had been made to her. Of course the mere tender of a
retirement proposal does not evince the requisite discriminatory
animus. See Baralt v. Nationwide Mut. Ins. Co., 251 F.3d 10, 16
n.7 (1st Cir. 2001), cert. denied, 122 S. Ct. 1064 (2002); Alvarez-
Fonseca v. Pepsi Cola of P.R. Bottling Co., 152 F.3d 17, 27 (1st
Cir. 1998). Moreover, even viewed in the light most favorable to
Gonzalez, Ms. Ferre's statement plainly conveyed the rational
13
concern that retirement might prove the more prudent course,
especially since Gonzalez had been experiencing serious health
problems, as well as financial difficulties. See Hoffman v. MCA,
Inc., 144 F.3d 1117, 1122 (7th Cir. 1998) (finding no age-based
animus in supervisor's mere observation that employee was "getting
old"). Nor does Gonzalez contend that she felt pressured to retire
by Ms. Ferre's reference to age. Cf. Sempier v. Johnson & Higgins,
45 F.3d 724, 732 (3d Cir. 1995) ("[A]n early retirement program
designed to force employees who reach a senior age to leave or face
significant pressure to resign or retire might itself create an
inference of age discrimination.").
Yet more importantly, of course, the June 12 retirement-
plan offer tendered by Ms. Ferre is not the adverse employment
action at issue. Rather, the two pertinent employment decisions
(viz., the suspension without pay and the ensuing termination) were
made later, precipitated not by Gonzalez' age but by her
acknowledged (i) delinquency in repaying the $6,000 advance when
due, and (ii) violation of the conflict-of-interest provision in
the CBA.
5. The Allegedly False Communication by Ms. Ferre to Mr.
Mercado
Additionally, Gonzalez stresses that, after June 12, Ms.
Ferre falsely informed Mr. Mercado that Gonzalez had accepted the
retirement offer, thereby presumably causing the $6,000 check to
issue and corroborating Gonzalez' acceptance, all in an elaborate
14
effort to force Gonzalez to leave her employment. Even viewed in
the light most favorable to Gonzalez, see Conto, 265 F.3d at 80,
n.1, any such inference would be highly speculative at the very
least. We explain.
First, although at summary judgment we must credit the
assertion attributed to Gonzalez on June 12 — that she never agreed
to retire, see Santiago-Ramos, 217 F.3d at 55 — it does not follow
that Ms. Ferre spoke untruthfully. Rather, Ms. Ferre simply may
have misinterpreted Gonzalez' stated intentions. But more
importantly, we are unable to conceive a plausible motive for Ms.
Ferre to misrepresent Gonzalez' intentions. Had Gonzalez not
desired or agreed — on June 12 — to retire, surely her mere
acceptance of the $6,000 loan itself would not have pressured her
into executing the retirement agreement, particularly in light of
(i) Mr. Mercado's ready acceptance of Gonzalez' own
characterization of the June 12 transaction as a loan transaction,
and (ii) Mr. Mercado's willingness to accommodate her suggestion
that a repayment agreement immediately be reduced to writing.
Finally, Gonzalez' characterization of the $6,000 loan, as a mere
salary advance, severely strains credulity, especially since she
attested that she had been surprised by the large amount of the
check and wondered how she would repay it. Accordingly, the record
is devoid of creditable evidence that Ms. Ferre, in issuing the
15
$6,000 check to Gonzalez, harbored any illicit motive whatever, let
alone an age-based animus.
6. The Suspension Without Pay
Finally, Gonzalez points to Mr. Mercado's rejection of
her alternative proposals for repaying the $6,000 loan; i.e.,
through payroll deductions or by tendering "valuable artwork" in
lieu of cash. Mr. Mercado suspended Gonzalez for acting in "bad
faith," presumably because she had insisted, a mere seven days
earlier, that Mr. Mercado draw up a repayment agreement. Inasmuch
as Gonzalez was well aware on June 20 that she was in serious
financial straits, her contention that she reasonably expected to
obtain a bank loan within seven days seems suspect at best. As for
her belated alternative repayment proposal, Gonzalez tendered no
evidence that she possessed artwork with a ready fair-market value
approaching $6,000. Cf., e.g., Wooten v. Ravkind (In re Dixon),
143 B.R. 671, 675 (Bankr. N.D. Tex. 1992) (noting market value of
artwork often "speculative").
With regard to her contention that El Dia displayed an
age-based animus by declining to allow her to repay the $6,000 debt
in installments, Gonzalez cites but one instance in which El Dia
ever allowed an employee an extension on the original repayment
schedule. Moreover, in that case the employee was obligated to
repay a mere $200, mistakenly disbursed by El Dia in the first
instance, whereas the present record is devoid of any suggestion
16
that El Dia mistakenly disbursed the $6,000 loan to Gonzalez.
Additionally, after she accepted the advance, Gonzalez knowingly
and voluntarily executed a written agreement specifying the
repayment terms. See Rodriguez-Cuervos v. Wal-Mart Stores, Inc.,
181 F.3d 15, 21 (1st Cir. 1999) ("'[A] claim of disparate treatment
based on comparative evidence must rest on proof that the proposed
analogue is similarly situated in all material respects.'")
(citation omitted).
Further, Gonzalez asserts that Mr. Mercado demonstrated
an age-based animus, in that his decision to suspend her without
pay created a Catch-22; i.e., without a salary she would be unable
to repay the $6,000 and return to work at El Dia, yet her prior
work experience qualified her only for work as a reporter.
Alternatively, were she to accept work as a reporter for a
competing newspaper she would be in violation of the anti-conflict-
of-interest provision in the CBA. This thesis fails the reasonable
plausibility test as well.
First, as already noted, Gonzalez claimed that she owned
artwork worth $6,000, which, if sold on the open market, would have
enabled her to repay the $6,000 loan and return to work at El Dia
almost immediately. Second, and more importantly, her contention
that she was qualified to work only as a reporter is both
conclusory and without record support. That is to say, presumably
an experienced reporter would possess the requisite qualifications
17
for various other positions requiring research and writing skills,
but would not trigger the narrowly written conflict-of-interest
provision in the CBA. See supra Section I. Yet Gonzalez made no
attempt to demonstrate that no such positions were available in the
relevant geographic area.
Accordingly, as it would be overly speculative to infer
an age-based animus from the evidence contained in the record on
appeal, the district court ruling rejecting the Rule 56 proffer by
Gonzalez must be affirmed.7
B. The ADA Claim
The ADA prescribes that no employer "shall discriminate
against a qualified individual with a disability because of the
disability of such individual." 42 U.S.C. § 12112(a) (emphasis
added). The term "disability" is defined as "a physical or mental
impairment that substantially limits one or more of the major life
activities of such individual." Id. § 12102(2)(A). Gonzalez
insists that she tendered enough competent Rule 56 evidence from
which the trier of fact might reasonably infer that her various
orthopedic conditions, including back, neck and leg pain,
constitute a "disability" which substantially limits her ability to
7
The district court order dismissing the Law 100 claim must be
affirmed as well, since the merits of the age-discrimination claims
asserted under the ADEA and Law 100, see 29 P.R. Laws Ann. §§ 146-
151, are coterminous.
18
work, and that El Dia violated the ADA by failing to make a
"reasonable accommodation." Id. § 12112(b)(5)(A).
Assuming arguendo that Gonzalez established that her
orthopedic problems meet the "physical impairment" requirement, see
Gelabert-Ladenheim v. Am. Airlines, Inc., 252 F.3d 54, 58 (1st Cir.
2001); 29 C.F.R. § 1630.2(i), the remaining issue is whether she
adduced sufficient evidence to establish that her impairment
"substantially limits" her ability to work. Although the term
"substantially limits" is not defined in the ADA, the related EEOC
regulations define it as either (i) the inability "to perform a
major life activity that the average person in the general
population can perform," or (ii) being "[s]ignificantly restricted
as to the condition, manner or duration under which [one] 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); see also Toyota Motor Mfg., Kentucky, Inc.
v. Williams, 534 U.S. 184, 122 S. Ct. 681 (2002).
The relevant elements to be considered include: (i) the
nature or severity of the impairment; (ii) its expected duration;
and (iii) its anticipated long-term impact. See id. §
1630.2(j)(2). Where the major life activity at issue is "working,"
additional factors include: (i) the geographical area to which
plaintiff has reasonable access; (ii) the number of jobs in that
19
geographical area which require the same abilities as plaintiff's
former job, but from which plaintiff would be disqualified due to
her impairment; and (iii) the number of jobs in that geographical
area which do not require the same abilities as plaintiff's former
job, but from which plaintiff would be disqualified due to her
impairment. See id. § 1630.2(j)(3).
Evaluated against these standards the Rule 56 proffer
presented by Gonzalez is sparse, to say the least. For instance,
she attests that her impairment made it difficult to walk and
impossible to sit for extended periods of time. Her physician
diagnosed diabetes and obesity, and determined that after 1995
Gonzalez had become "significantly restricted to (sic) work as
compared to the average person in the working community and the
condition, manner or duration under which she can work are
significantly restricted." Moreover, her proffer was inadequate
for the following reasons as well.
First, Gonzalez tendered no evidence that her impairments
rendered her unable to perform a broad range of jobs, as
distinguished from the particular job she held at El Nuevo Dia
immediately prior to her termination. See Sutton v. United Air
Lines, Inc., 527 U.S. 471, 492 (1999); Gelabert-Ladenheim, 252 F.3d
at 58-59 (noting that ADA requires an "individualized inquiry," and
"[w]hen the major life activity of working is at issue . . . the
plaintiff 'assumes a more fact-specific burden of proof'")
20
(citation omitted); 29 C.F.R. § 1630.2(j)(3)(i) (same). Nor did
she adduce any evidence as to the employment demographics in the
relevant geographic area, from which a factfinder rationally might
assess the appropriate section 1630.2(j)(3) criteria. Cf. Quint v.
A.E. Staley Mfg. Co., 172 F.3d 1, 12 (1st Cir. 1999) (finding that
plaintiff-employee adduced sufficient evidence of relevant
demographics). The latter omission is especially serious given
Gonzalez' testimony that she went to work as a reporter for The San
Juan Star, without providing any indication as to whether she
requested a reasonable accommodation or The Star acceded to any
such request.
Second, the testimony presented by the treating physician
is highly conclusory. "It is insufficient for individuals
attempting to prove disability status . . . to merely submit
evidence of a medical diagnosis of an impairment." Toyota Motor,
122 S. Ct. at 691; see Sutton, 527 U.S. at 483 ("'The determination
of whether an individual has a disability is not necessarily based
on the name or diagnosis of the impairment.'") (citing 29 C.F.R. §
1630.2(j)). Yet, rather than documenting precisely how Gonzalez'
ability to work has been affected by her impairments, the treating
physician simply parroted the definition of the term “substantially
limits” contained in the EEOC regulations, which plainly would not
enable a rational trier of fact to undertake the case-by-case
21
assessment demanded under the ADA. See Toyota Motor, 122 S. Ct. at
692. Consequently, the ADA claim was properly dismissed.8
C. The Statutory Claims Under Puerto Rico Law
Further, Gonzalez argues on appeal that the district
court judgment dismissing her Law 80 “unjust discharge” claim, see
29 P.R. Laws Ann. § 185a-185m, should be set aside. Yet, as El Dia
points out, Gonzalez failed to oppose dismissal of the Law 80 claim
in her opposition to its motion for summary judgment before the
district court. Consequently, this contention has been waived.
See Davis v. Lucent Techs., Inc., 251 F.3d 227, 232 (1st Cir.
2001). Moreover, Gonzalez has submitted no reply brief relating to
the merits of the waiver argument advanced by El Dia on appeal.9
Even if we were to reach the merits of the Law 80 claim,
however, it is extremely doubtful that Gonzalez would fare any
better. After she established by a preponderance of the evidence
that she had been discharged, the burden shifted to El Dia to show
"just cause" for the dismissal. See Alvarez-Fonseca v. Pepsi Cola
of P.R. Bottling Co., 152 F.3d 17, 28 (1st Cir. 1998). Gonzalez
8
As Gonzalez acknowledges that the Law 44 claim, see 1 P.R.
Laws Ann. § 501, is coterminous with her ADA claim, see Acevedo
Lopez v. Police Dep't of P.R., 247 F.3d 26, 29 (1st Cir. 2001), its
dismissal by the district court must be affirmed as well.
9
Thus, it is unnecessary to determine whether, in the exercise
of our discretion, the waiver should be overlooked, given that the
district court nevertheless reached and determined the matter on
the merits in its final judgment. Cf., e.g., Shannon v. Ford Motor
Co., 72 F.3d 678, 684 (8th Cir. 1996).
22
suggests that an employer normally may not establish "just cause"
where the employee was without adequate advance notice of the
consequences of her actions, viz., constructive or actual
discharge, and that an employee can only be placed on notice once
she has engaged in a series of infractions. See 29 P.R. Laws §
185b(a) (noting that "just cause" may be established where "the
worker indulge[d] in a pattern of improper or disorderly conduct");
§ 185b(c) (noting that "just cause" may exist where employer can
demonstrate "[t]he employee's repeated violations of the reasonable
rules and regulations established for the operation of the
establishment, provided a written copy thereof has been opportunely
furnished to the employee"); cf. Alvarez-Fonseca, 152 F.3d at 28.
This suggestion is flawed as well.
First, Law 80 does not invariably require repeated
violations, particularly where an initial offense is so serious, or
so reflects upon the employee's character, that the employer
reasonably should not be expected to await further occurrences.
See Delgado Zayas v. Hosp. Interamericano de Medecina Avanzada, 137
D.P.R. 643, 650 (1994). The conflict-of-interest provision not only
treats with serious matters relating to employee trustworthiness
and loyalty, but El Dia considered it sufficiently important to
include it in the CBA.
Lastly, Gonzalez ignores the fact that, arguably at
least, she engaged in a series of infractions. She defaulted on a
23
promissory note which she had insisted that Mr. Mercado draw up,
and thereafter deliberately went to work for a competing newspaper
in direct contravention of the CBA. See Amalgamated Transit Union
v. City of Okla. City, 710 F. Supp. 1321, 1328 (W.D. Okla. 1988)
(presuming employees on notice of all pertinent CBA provisions).
Thus, no rational jury reasonably could conclude that El Dia lacked
"just cause" to terminate Gonzalez, even if Law 80 did invariably
require repeated violations, which it does not.
Affirmed. Costs to appellees.
24