Gonzalez v. El Dia, Inc.

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).

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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

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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.

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