United States Court of Appeals
For the First Circuit
No. 02-1638
ORVILLE ROCAFORT, ET AL.,
Plaintiffs, Appellants,
v.
IBM CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Boudin, Chief Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.
Eric M. Quetglas-Jordan for appellants.
Gloria M. DeCorral-Hernandez with whom Angel R. DeCorral-Julia
and DeCorral & DeMier were on brief for appellee.
June 30, 2003
BOWNES, Senior Circuit Judge. In this appeal, Orville
Rocafort ("Rocafort") alleges that his employer, IBM Corporation
("IBM"), subjected him to discrimination because of his panic and
anxiety disorder in violation of the Americans with Disabilities
Act ("ADA"), 42 U.S.C. § 12101 (2000). Rocafort claims that IBM
failed to reasonably accommodate his disability and subjected him
to a hostile work environment. The district court granted summary
judgment in favor of IBM on both claims, but for different reasons.
The reasonable accommodation claim, according to the district
court, lacked sufficient evidence and the hostile work environment
claim was inadequately argued. For the same reasons, we affirm.
I. BACKGROUND
Since approximately 1973, Rocafort worked in the marketing
department of IBM's Puerto Rico office. In 1992, Rocafort began to
suffer from episodes of anxiety and panic attacks. In 1994, IBM
announced plans to eliminate up to 3,000 jobs. After Rocafort
learned of this plan, he had a severe panic attack at work. Two
fellow employees sought assistance for Rocafort through an IBM
hotline. The hotline staff arranged for Rocafort to meet with a
psychiatrist, Dr. Michael Farina Woodbury ("Dr. Woodbury"). After
meeting with Rocafort, Dr. Woodbury diagnosed him as having a panic
disorder and recommended that Rocafort take a sick leave from his
job. Rocafort was placed on sick leave starting September 28,
1994, and ending January 28, 1995. During his sick leave,
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Rocafort's panic disorder improved, but depression, a sexual desire
disorder, and an anxiety disorder emerged. Nonetheless, Dr.
Woodbury believed that Rocafort could return to work, so long as he
was only confronted with the same kind of stress to which he had
become accustomed.
Upon returning to work, Rocafort was assigned to a new
marketing job. This job required Rocafort to perform a variety of
novel tasks. Rocafort, for example, had to field calls from
customers over the telephone instead of making in-person sales
pitches. Rocafort was also required to learn new computer programs
and, unlike his previous position, work as part of a group.
Rocafort soon suffered from more panic attacks and again took sick
leave, starting July 12, 1995, and ending July 31, 1995.
In January 1996, Rocafort received a performance evaluation.
Despite the fact that Rocafort's direct supervisor and co-employees
viewed his work favorably, a higher level manager who filled out
the evaluation gave Rocafort the lowest available score. Through
IBM's review process, Rocafort twice appealed his performance
evaluation, which was sustained both times. This was the first
time in Rocafort's career with IBM that he received a poor
performance evaluation. In previous years, Rocafort was
consistently rewarded for his outstanding sales figures. Most
recently, on January 19, 1996, Rocafort was given a $1,000 Team
Achievement Award. After receiving his poor evaluation, Rocafort
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suffered from another panic attack and was absent from work between
January 30, 1996, and February 6, 1996.
When Rocafort returned to IBM, he was transferred to yet
another new job. This new job, like the prior one, required
Rocafort to perform tasks that he had never done before. In an
effort to ease his transition, IBM assigned him a mentor and
offered him a ninety day training period. Before the training
period expired, however, Rocafort's immediate supervisor, David
Williams ("Williams"), threatened to fire him if he did not start
producing results immediately. Rocafort suffered another panic
attack and took sick leave starting July 10, 1996, and ending
August 12, 1996. During his absence, Dr. Woodbury told a member of
IBM's medical staff that Rocafort was afraid of being fired and
that IBM should provide Rocafort with "support and assurance" that
it was not going to terminate his job.
In response to Dr. Woodbury's request, IBM's medical staff
sent an e-mail message to one of Rocafort's other supervisors, Juan
De Choudens ("De Choudens"), stating:
I assured Orville's private health care provider that his
patient will not be fired the day he returns to work. I
told him that you plan to spend a great deal of time that
first day making the employee feel comfortable and making
sure he understands what will be expected of him after he
returns to work. If you can somehow communicate this to
the employee in the next up coming days I think it will
help a great deal.
Upon returning to work, Rocafort met with De Choudens. In order to
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mitigate the pressure on Rocafort to make sales and earn
commissions, De Choudens offered to extend Rocafort's training
period and pay him full salary. Afterwards, De Choudens indicated
in an e-mail message to Rocafort that the purpose of the meeting
was "to clarify any misunderstanding you could have on your status
in IBM." Rocafort responded with an e-mail message thanking De
Choudens "for the courteous and honest discussion we had this
morning," and "the concern you demonstrated regarding this
situation and the interest you have shown in understanding the
unpleasant predicament I went through . . . ."
Shortly thereafter, a letter that originated from Rocafort's
computer was found on an IBM printer. The letter was addressed to
a local news reporter and contained confidential IBM information.
De Choudens, Williams and another manager inspected Rocafort's
computer and found a draft copy of the letter. Rocafort was
informed that he could be fired if it was determined that he wrote
the letter. Rocafort denied writing the letter; he argued that it
was printed at a time when he was attending a therapy session with
Dr. Woodbury.
IBM offered Rocafort a separation package. IBM told Rocafort
that if he did not accept the separation package, an investigation
would be conducted regarding the letter. Before any action was
taken, Rocafort took an extended leave of absence between September
16, 1996, and January 7, 1997, because of stress. During this
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absence, Rocafort rejected the separation package.
When Rocafort returned to work, Williams met with him to
discuss his training. IBM again offered to extend his training
period and continue to provide him with full salary. IBM also
provided Rocafort with a flexible work schedule, so he could avoid
traveling to work during heavy commuter traffic. Rocafort was,
however, required to meet with an IBM investigator to discuss the
letter incident. The meeting lasted seven hours.
What happened next is disputed by the parties. Rocafort
claims that Williams sent him home to await the outcome of the
investigation. IBM claims that Rocafort left work on his own
volition. In any case, it is clear that Rocafort soon took sick
leave at the behest of Dr. Woodbury and never returned to work.
Later that year, Rocafort applied for benefits under IBM's Long
Term Disability Plan and was approved.
On August 27, 1998, Rocafort filed a complaint in the district
court against IBM alleging discrimination under the ADA and Puerto
Rico law. Rocafort, his wife, and son also brought claims for
emotional damages. In his complaint, Rocafort pursued two
alternative theories of disability discrimination under the ADA.
Rocafort's first count alleged that IBM failed to reasonably
accommodate his disability. The district court granted IBM's
motion for summary judgment on this claim because Rocafort was
unable to present a prima facie case of discrimination. The
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district court reasoned that some of the accommodations Rocafort
sought had been adequately provided by IBM, while others were
either unreasonable or not even requested in the first instance.
Rocafort's second count alleged that IBM subjected him "to an
intimidating, hostile, abusive and offensive working environment"
because of his disability. The district court dismissed this claim
as well, but on the ground that Rocafort waived the issue by not
adequately addressing it in his opposition to IBM's motion for
summary judgment.
Having disposed of the federal claims, the district court
declined to exercise jurisdiction over the pendent state law
claims. Rocafort appeals only the district court's decision on the
two federal claims, which we address in turn.
II. DISCUSSION
We review a district court's grant of summary judgment de
novo. Patterson v. Patterson, 306 F.3d 1156, 1158 (1st Cir. 2002).
A motion for summary judgment should be granted when the evidence,
taken in the light most favorable to the nonmoving party, shows
that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. Sands v.
Ridefilm Corp., 212 F.3d 657, 660-61 (1st Cir. 2000).
A. Rocafort's Reasonable Accommodation Claim
Under the ADA, "an employer who knows of a disability yet
fails to make reasonable accommodations violates the statute."
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Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st
Cir. 1999). In order to avoid summary judgment on his reasonable
accommodation claim, Rocafort must produce enough evidence for a
reasonable jury to find that (1) he is disabled within the meaning
of the ADA, (2) he was able to perform the essential functions of
the job with or without a reasonable accommodation, and (3) IBM,
despite knowing of Rocafort's disability, did not reasonably
accommodate it. See Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st
Cir. 2002). The district court's decision and the brunt of the
parties' arguments revolve around the third part of the analysis.
We will therefore assume, without deciding, that Rocafort presented
sufficient evidence to meet his burden on the first two parts. See
Whitney v. Greenberg, Rosenblatt, Kull & Bitsoli, P.C., 258 F.3d
30, 33 (1st Cir. 2001) ("We need not dwell on the first or last of
these three prongs [of the disability analysis] as the middle one
provides an obvious basis for decision.").
We turn our attention to the heart of the matter: whether
Rocafort has presented enough evidence to prove that IBM failed to
reasonably accommodate his disability. The district court made
rulings regarding several different requested accommodations.
Rocafort's appellate brief, however, discusses only one.1 Rocafort
1
Rocafort has therefore waived any argument as to the other
requested accommodations. KPS & Assocs., Inc. v. Designs by FMC,
Inc., 318 F.3d 1, 25 (1st Cir. 2003) (issues not adequately raised
in brief are waived).
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states that he made "a specific request for accommodation when on
August 1, 1996, Dr. Woodbury discussed with IBM medical that he had
high anxiety due to the fear of being fired when he returned to
work, and that upon return to work he should receive support and
assurance from IBM management that it was not looking for a way to
fire him." The district court determined that IBM "adequately
dealt" with this specific request. We agree.
After Dr. Woodbury made the request, De Choudens met with
Rocafort to discuss his return to work. IBM extended Rocafort's
training period and offered him full salary, so as to reduce the
pressure on him to make sales and earn commissions. De Choudens
also wrote to Rocafort that the purpose of the meeting was "to
clarify any misunderstanding you could have on your status in IBM."
In response, Rocafort expressed his gratitude for De Choudens'
assistance. IBM continued to extend Rocafort's training period and
his salary arrangement even after Rocafort's subsequent absences.
In addition, IBM permitted Rocafort to adjust his work schedule in
order to avoid commuter traffic.
The only stressful event that occurred after Rocafort
requested "support and assurance" was when IBM offered him a
separation package after discovering the letter on his computer.
After Rocafort rejected the package, IBM launched an investigation
into the incident and interviewed Rocafort at length. Even if we
assume that Rocafort's request for "support and assurance" amounted
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to a request to be immune from suspicion for writing the letter, we
have no trouble concluding that such a request would have been
unreasonable. IBM was not required to ignore the letter entirely
or pretend that Rocafort was not a suspect. See Reed v. LePage
Bakeries, Inc., 244 F.3d 254, 262 (1st Cir. 2001) ("The ADA is not
a license for insubordination at the workplace.").
The decision by IBM to investigate the matter, question
Rocafort, but still provide an extension of his training, full
salary, and an altered work schedule was reasonable. We reach this
conclusion mindful that "cases involving reasonable accommodation
turn heavily upon their facts and an appraisal of the
reasonableness of the parties' behavior." Jacques v. Clean-Up
Group, Inc., 96 F.3d 506, 515 (1st Cir. 1996). After carefully
reviewing the facts in the light most favorable to Rocafort, we
hold that he has not presented enough evidence to show that IBM
failed to reasonably accommodate his disability.
B. Rocafort's Hostile Work Environment Claim
Rocafort's claim of disability-based hostile work environment
touches an area of law that is not firmly settled in this circuit.
Hostile work environment claims usually arise in cases involving
gender or racial discrimination under Title VII of the Civil Rights
Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2(a). See, e.g.,
Crowley v. L.L. Bean, Inc., 303 F.3d 387, 395 (1st Cir. 2002);
Lattimore v. Polaroid Corp., 99 F.3d 456, 463 (1st Cir. 1996). We
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have not yet had an opportunity to explicitly rule on whether
hostile work environment claims exist under the ADA, although we
have at least on one occasion assumed such claims to be
cognizable.2 See Rivera-Rodriguez v. Frito Lay Snacks Caribbean,
A Div. of Pepsico P.R., Inc., 265 F.3d 15, 23 (1st Cir. 2001).
Rocafort invites us to follow the lead of other circuits and
declare for the first time that the ADA provides for hostile work
environment claims. See Flowers v. S. Reg'l Physician Serv., Inc.,
247 F.3d 229, 235 (5th Cir. 2001); Fox v. Gen. Motors Corp., 247
F.3d 169, 176 (4th Cir. 2001).
Were we to accept Rocafort's invitation, our holding above –-
that he failed to present a prima facie case under the ADA -– would
seem an obvious basis for affirming the district court's dismissal
of the hostile work environment claim. This approach, however,
would require us to import the prima facie elements of a reasonable
accommodation claim into a disability-based hostile work
environment claim. Whether this is the proper approach, and
whether disability-based hostile work environment claims exist
under the ADA, are questions best left for another day. We choose
instead to decide Rocafort's hostile work environment claim on our
2
District courts within this circuit have either held that the
ADA provides for disability-based hostile work environment claims,
Rodriguez v. Loctite P.R., Inc., 967 F. Supp. 653, 662-63 (D.P.R.
1997), or assumed such claims to exist, Ward v. Mass. Health
Research Inst., Inc., 48 F. Supp.2d 72, 80 (D. Mass. 1999), rev'd
on other grounds, 209 F.3d 29 (1st Cir. 2000).
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well established "raise-or-waive" rule.
"The law in this circuit is crystalline: a litigant's failure
to explicitly raise an issue before the district court forecloses
that party from raising the issue for the first time on appeal."
Boston Beer Co. Ltd. P'ship v. Slesar Bros. Brewing Co., Inc., 9
F.3d 175, 180 (1st Cir. 1993). This rule applies with equal force
to situations where a plaintiff properly raises an issue in his
complaint, but then fails to adequately address it as part of his
summary judgment argument. See Grenier v. Cyanamid Plastics, Inc.,
70 F.3d 667, 678 (1st Cir. 1995).
The district court stated in its ruling on IBM's motion for
summary judgment that:
In their opposition to Defendant's motion for summary
judgment, Plaintiffs fail to make any response to
Defendant's request for summary dismissal of the
allegations under Title VII. It is not clear that any
such allegation is raised in the complaint, but the Court
surmises that Plaintiffs' failure to respond is most
likely no oversight, but instead a critical realization
that no Title VII violation lies in the facts as pled.
As such, we will not analyze this issue in our
discussion, and Plaintiffs' cause of action under Title
VII, to the extent that one is pled, is dismissed with
prejudice.
In his appellate brief, Rocafort argues that the district
court's decision was erroneous because the hostile work environment
theory was properly presented in his opposition to IBM's motion for
summary judgment. We have carefully reviewed Rocafort's motion
opposing summary judgment and his memorandum of law in support of
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his motion. Nowhere in either document did Rocafort present an
even partially developed argument on the issue of hostile work
environment. The most that can be said is that on a few occasions
Rocafort mentioned the phrase "hostile work environment," and
cited, without discussion, to one case involving a disability-based
hostile work environment.
Passing reference to legal phrases and case citation without
developed argument is not sufficient to defeat waiver. See
DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 34 (1st Cir. 2001)
("Simply noting an argument in passing without explanation is
insufficient to avoid waiver."); CMM Cable Rep, Inc. v. Ocean Coast
Props., Inc., 97 F.3d 1504, 1525-26 (1st Cir. 1996) (three
sentences with three undiscussed citations did not defeat waiver);
McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991)
(claims that are "insinuated rather than actually articulated" are
waived).
Instead, a party has a duty "to incorporate all relevant
arguments in the papers that directly address a pending motion."
CMM Cable, 97 F.3d at 1526. This duty includes analyzing relevant
statutes and presenting applicable legal authority. See Higgins,
194 F.3d at 263. It also includes explaining arguments "squarely
and distinctly." McCoy, 950 F.2d at 22. These requirements are
even more incumbent when, as here, a party urges the court to adopt
new legal principles.
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That said, this court has the discretion to reach issues not
raised below. Singleton v. Wulff, 428 U.S. 106, 121 (1976). But
we have been particularly cautious in exercising that discretion,
and do so only when "error is plain and the equities heavily
preponderate in favor of correcting it." Correa v. Hosp. San
Francisco, 69 F.3d 1184, 1196 (1st Cir. 1995). We apply the plain
error doctrine "in exceptional cases or under peculiar
circumstances to prevent a clear miscarriage of justice . . . [or]
where the error seriously affected the fairness, integrity or
public reputation of judicial proceedings." Beatty v. Michael Bus.
Machs. Corp., 172 F.3d 117, 121 (1st Cir. 1999).
There was no plain error in this case. See Town of Norwood v.
New England Power Co., 202 F.3d 408, 417 (1st Cir. 2000) ("[I]t is
normally not error at all, let alone plain error, for a court to
ignore a possible claim or defense that a party fails to proffer or
pursue."). To begin with, none of the scenarios in which we might
be inclined to find plain error, are present here. See Babcock v.
Gen. Motors Corp., 299 F.3d 60, 65 (1st Cir. 2002) (describing
scenarios). In addition, Rocafort never called the district
court's attention to its alleged error by way of a motion for
reconsideration or otherwise. See MCI Telecomm. Corp. v. Matrix
Communications Corp., 135 F.3d 27, 33 (1st Cir. 1998).
III. CONCLUSION
Rocafort did not present sufficient evidence of IBM's failure
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to reasonably accommodate his disability. Rocafort also waived his
hostile work environment claim, and we see no reason to invoke our
discretion to revive it on appeal. The district court's grant of
summary judgment is AFFIRMED. So ordered.
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