United States Court of Appeals
For the First Circuit
No. 02-2643
SYLVIA I. CALERO-CEREZO,
Plaintiff, Appellant,
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Selya, Circuit Judge,
Lipez, Circuit Judge,
and Ponsor*, District Judge.
Sylvia I. Calero-Cerezo, pro se.
Fidel A. Sevillano-Del Rio, Assistant United States Attorney,
with whom H.S. Garcia, United States Attorney, and Miguel A.
Fernandes, Assistant United States Attorney, were on brief for the
United States.
January 14, 2004
*Of the District of Massachusetts, sitting by designation.
PONSOR, District Court Judge. This cases raises, among
other issues, the knotty question of how far the Rehabilitation Act
of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701 et seq., requires
an employer to go to accommodate an employee whose disability –
clinically diagnosed major depression – has affected, in some
respects, her ability to function in the workplace. The trial
judge, grappling with claims under several statutes, granted
summary judgment for defendants on all the plaintiff's causes of
action. Because we find that the record, viewed in the light most
favorable to the appellant, might support a claim under the
Rehabilitation Act, and (equally importantly) that appellees'
counsel has entirely failed to address either the facts or the law
buttressing this claim, we are constrained to reverse and remand
for further proceedings.
I. Procedural Background
A brief review of the procedural history of this case
will serve to put the issues in context.
After pursuing administrative remedies starting in 1998,
plaintiff-appellant, Sylvia I. Calero-Cerezo ("Calero"), an attorney
employed by the Immigration and Naturalization Service ("INS")
proceeding pro se, filed her complaint in the United States District
Court on October 4, 1999. The defendants were the United States
Department of Justice ("DOJ"), the INS, then-Attorney General Janet
Reno, and then-Commissioner of the INS Doris Meissner. Amended
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complaints followed in May 2000 and May 2002. Perhaps because
plaintiff was representing herself, the precise causes of action
were rather hard to discern from the pleadings. Plaintiff now
asserts that, while she may have included additional theories in her
administrative proceedings, her complaint and amended complaints as
submitted to the district court were intended to encompass only two
claims: (1) a claim for failure to accommodate her disability under
the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et
seq.,1 and the Rehabilitation Act, and (2) a claim for retaliation
under Title VII, 42 U.S.C. § 2000e et seq.
Eventually the parties filed cross-motions for summary
judgment, and on September 18, 2002, the district court issued its
opinion granting the defendants' motion and denying the plaintiff's.
In his memorandum, the district court judge conscientiously
addressed all causes of action that might reasonably have been
inferred from the plaintiff's less than artfully drafted pleadings,
including claims for discrimination based on gender, national origin
and age, which the plaintiff has not pursued, as well as the claims
for failure to accommodate and for retaliation, which the plaintiff
1
This opinion will concentrate almost entirely on the
Rehabilitation Act, since the ADA is not available to federal
employees. Rivera v. Hayman, 157 F.3d 101, 103 (2d Cir. 1998).
The same standards, however, apply to claims under the ADA and
under the Rehabilitation Act. Oliveras-Sifre v. Puerto Rico Dep't
of Health, 214 F.3d 23, 25 n.2 (1st Cir. 2000). The elimination of
the ADA claim does not, therefore, affect the legal analysis or the
scope of remedy available to the plaintiff.
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has continued to press on this appeal. Specifically, with regard
to plaintiff's claim for failure to accommodate her disability, the
district court suggested, first, that "depression per se" is not
a recognized disability, then went on to conclude that, in any
event, the record conclusively indicated that plaintiff could not
perform the legitimate requirements of her position, and moreover
that plaintiff's requested accommodation was not feasible.
On November 15, 2002, Calero filed her Notice of Appeal,
challenging only the district court's rulings regarding her claims
for failure to accommodate and for retaliation. Despite clear
notification of the scope of this appeal, and further confirmation
in the appellant's brief, appellees' counsel has inexplicably
treated this appeal as though it involved merely a garden variety
claim of discrimination under Title VII. No significant discussion
whatever addresses Calero's claim – the heart of her case – that the
defendants failed to make any reasonable effort to accommodate her
disability. This neglect has played a substantial part in the
court's decision to remand.
II. Factual Background
We recount the facts in the light most favorable to
Calero, the party opposing summary judgment. Motorsport Eng'g, Inc.
v. Maserati SPA, 316 F.3d 26, 28 (1st Cir. 2002).
Calero began practicing law in 1977 in Puerto Rico's
Department of Justice. Later, she worked for private firms and
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agencies in Puerto Rico, and, from 1993 to 1995, in East Hartford,
Connecticut with the Federal Deposit Insurance Corporation. In
1995, Calero was hired as an assistant district counsel in the New
York District Office of the INS' Office of the General Counsel
("OGC"). Her performance was rated "excellent" in her 1996-97
appraisal, and in May 1997 Calero successfully petitioned for a
transfer to the San Juan District Office of the OGC, where she began
working part-time as an assistant district counsel. Nothing in the
record suggests that Calero, up to this point in her twenty-year
career as an attorney, had ever encountered significant difficulties
in performing her job at or above the level of her employers'
expectations.
During the summer of 1997, Calero began to suffer from
tension headaches and lethargy, the first sign of the onset of a
disability that was soon to erode her capacity to function without
accommodation. On January 16, 1998, Dr. Roberto Rodriguez ("Dr.
Rodriguez") diagnosed Calero with a recurrence of depression and
prescribed the antidepressant Paxil. Calero had suffered previously
from depression, in 1990 when her mother and father died and again
in 1992 upon the death of her brother. The record does not suggest,
however, that at these earlier times her depression interfered with
her capacity to work.
In February 1998, Calero began working full-time at the
San Juan District Office. One month later, and two months following
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her diagnosis of depression, Calero's emotional fragility catapulted
her into the first of a series of acrimonious episodes with her
supervisor Vivian Reyes-Lopez ("Reyes"). Before summarizing the
evidence related to these incidents, two observations about the
state of the record are appropriate.
First, in recounting her conflicts with Reyes, plaintiff's
pro se papers sometimes appear to suggest that Calero's problems at
work derived not from a failure to accommodate her disability, but
simply from Reyes' general unfairness to her. To the extent Calero
might succeed in placing blame for her problems at work on Reyes
personally, she may vindicate her own virtue but doom her case. The
Rehabilitation Act is not, of course, designed to provide a worker
a remedy against an arbitrary supervisor, per se. It is designed
to insure that a capable, disabled worker, covered by the statute,
is not deprived of the opportunity to work and earn a living due to
the refusal of the employer to make a reasonable accommodation.
Viewed in the light most favorable to the plaintiff, therefore, the
summary below will concentrate on facts that a reasonable factfinder
might find supportive of this statutory claim, and not on Calero's
occasional self-justifying suggestions that it was Reyes, not she,
who was responsible for their ongoing problems.
Second, we are aware in recounting this background that
a reasonable factfinder might conclude that Calero's friction with
her supervisor (and, as will be seen, others including family and
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friends) might be explained on the ground that she was simply a very
difficult, not a disabled, person. In the context of summary
judgment, however, we must respect the role of the factfinder to
choose between alternative, reasonably supported inferences. Since
the factual mosaic, seen from plaintiff's perspective, might
reasonably support a claim of disability, we summarize the facts in
a manner consistent with that viewpoint.
The first episode of what was to be a lengthy series of
problems between Calero and Reyes arose over what should have been
a trivial matter. On March 9, 1998, Reyes denied Calero's request
to make up a lost work hour during lunchtime. In response, Calero
complained in a loud voice that Reyes was the worst supervisor she
ever had and that Reyes treated her like a child. The outburst was
vociferous enough to be overheard by other INS staff in the office.
The following day, March 10, 1998, Reyes asked Calero to
come to her office to discuss the previous day's contretemps. At
the meeting, Reyes told Calero that raising her voice in the office
was not necessary. Calero responded with a further verbal attack,
criticizing Reyes' supervisory skills, telling Reyes that she had
a bad attitude, and suggesting that Reyes had lost an appointment
as an immigration judge because of her poor professional ability.
A week later, on March 17, 1999, Calero consulted Dr.
Filia S. Garcia, who referred Calero to a psychologist for
evaluation of her "masked depression."
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On March 18, 1998, Calero received a formal reprimand (a
so-called memorandum of "admonishment") from Reyes for her behavior
on March 9th and 10th.
The day following her receipt of this reprimand, Calero
sent an e-mail message to Jack Penca ("Penca"), the Regional
District Counsel and Reyes' immediate supervisor, who worked out of
the Vermont office of the INS, regarding the recent friction with
Reyes. Calero complained to Penca that Reyes was harassing her and
that this daily harassment was affecting her emotionally. Calero
informed Penca that she was taking the antidepressant Paxil "to be
able to continue working." This was the first time Calero informed
a supervisor that she was suffering from depression and was on
medication for her condition.
In mid-April 1998, Calero was seen by psychiatrist Dr.
Margarita Alonso Cedo ("Dr. Alonso"). On April 13th, Calero's
condition was serious enough that Dr. Alonso recommended to Calero
that she take a medical leave from work for the next three weeks.
On April 17, 1998, Dr. Alonso diagnosed Calero with "major
depression" and, like Dr. Rodriguez in January 1998, prescribed the
antidepressant Paxil.
Significantly, Dr. Alonso also wrote a note to Calero's
employer giving notice of Calero's condition and confirming her
recommendation that Calero take a three-week break from work. After
receiving two doctors' notes from Dr. Alonso explaining Calero's
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diagnosis, medication and plan for treatment, Reyes approved
Calero's sick leave, which lasted from April 14 to May 1, 1998.
On April 21, 1998, Calero contacted the Office of Equal
Employment Opportunity, Immigration and Naturalization Service, U.S.
Department of Justice ("EEO") in Washington, D.C. to inquire about
filing a complaint for discrimination and harassment. On April 22,
1998, Calero contacted Dr. Ruth Prevor ("Dr. Prevor"), a
psychologist with the INS Employee Assistance Office. Thereafter,
Calero met with Dr. Prevor on several occasions to receive
assistance regarding her mental disability.
Also on April 22nd, while Calero was on medical leave,
Reyes left Calero two memoranda instructing Calero to complete
certain tasks in preparation for her upcoming annual vacation.
Reyes asked Calero to review her cases scheduled for hearings in the
immigration court during her vacation and also to prepare a
particular case to be discussed with Reyes before the vacation's
starting date, which was May 22, 1998.
On May 7, 1998, after Calero returned from her medical
leave but before she left for her annual vacation, Calero and Reyes
met to discuss Calero's cases. Reyes had previously requested that
Calero copy her on certain e-mail messages, and Calero again entered
into a nasty argument with Reyes, this time about Reyes' concern
that Calero was failing to follow Reyes' instructions. Calero told
Reyes during this conversation that Reyes was reprimanding her as
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a mother might scold a child and treating her unfairly. At the end
of the meeting, Calero asked, with heavy sarcasm, "Is that all
Vivian? Can I leave now?" Later, when Reyes approached Calero's
desk and asked her why she had again failed to copy her on an e-mail
as requested, Calero became furious and told Reyes to stop scolding
her, that she was not a child and Reyes was not her mother.
Bizarrely, Calero began calling Reyes "mother" and "mommy," refused
to provide Reyes an explanation of why she did not copy Reyes on
e-mail messages as Reyes had instructed, and repeated, "Don't punish
me, stop punishing me." Again, this strange and confrontational
behavior was observed by other INS employees.
Not surprisingly, Reyes reported Calero's conduct to
Penca. Her memo summarized the May 7th incident and recommended
that disciplinary action be taken against Calero. Reyes indicated
that Calero was a "disruptive element" and recommended that Calero
either be dismissed or transferred out of the San Juan District
office.
On May 11, 1998, Calero mailed Penca a copy of her EEO
complaint, and informed him that she had been getting counseling
from the EEO office of the INS and that she was submitting the
complaint to her EEO counselor. Penca subsequently forwarded a copy
of the complaint to Reyes.
On May 22, 1998, Calero went on her scheduled two-week
annual leave, returning to work on June 2, 1998. Before she left
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Calero failed to prepare her cases properly, as Reyes had
instructed.
On May 26, 1998, Reyes sent a memorandum to Penca
detailing Calero's failure to review her files, as requested. Reyes
noted that, in order to prepare the cases with hearings scheduled
during the two weeks Calero was out, she and another OGC attorney
had been required to work ten hours of overtime.
On June 22, 1998, Penca sent Calero a Notice of Proposed
Ten Day Suspension ("Notice"). The two grounds for this suspension
were: (1) Calero's disrespectful behavior toward Reyes on May 7,
1998, and (2) Calero's disregard of Reyes' instruction to prepare
her cases before going on leave. Calero submitted a 35-page reply
in opposition to this Notice.
On July 23, 1998, Calero received her performance
appraisal for July 1, 1997, through June 30, 1998. Calero received
a "minimally satisfactory" rating in the category of "Advocates
for/Represents the Agency" but was given ratings of "fully
successful" in categories of "Provides Legal Advice" and "Conducts
Legal Research and Writing." Her formal rating, overall, was "fully
successful."
Despite these rather positive ratings, Calero received
several negative comments in her review. For example, the review
noted that Calero failed to prepare several of her cases for
hearings, that she failed to inform her supervisor of the status of
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her cases and that she required substantial supervision. Despite
her titularly satisfactory ratings, Calero viewed this as the first
negative review that she had received during her employment with the
INS.
On June 24, 1998, Dr. Alonso again recommended that Calero
take a few days off from work to rest, and Calero did so.
Despite the rest, it was clear by the middle of the summer
that Calero's depression was infecting her relations with persons
other than her supervisor. In a memo dated August 12, 1998, Reyes
noted Calero's excessive and unwarranted criticism of other
attorneys, evident in the e-mails she was sending to lawyers outside
the office.
On August 17, 1998, at Dr. Alonso's recommendation, Calero
was "partially" hospitalized for ten days due to her depression.2
In addition, side effects from the antidepressant medication were
troubling Calero to the extent that Dr. Alonso changed her
prescription.
Following her partial hospitalization, on September 1,
1998, Calero sent an e-mail entitled "transfer on detail" to Paul
Virtue, General Counsel, INS ("Virtue"), with a copy to David Dixon,
Deputy General Counsel, INS ("Dixon"). Calero informed Virtue and
Dixon that she had been suffering from major depression since April
2
The record does not indicate what is meant by "partial"
hospitalization.
-12-
13, 1998, and that she was being discriminated against and harassed
by her supervisors, Reyes and Penca. She noted, among other things,
INS' duty to consider a reasonable accommodation that would allow
her to perform her job. As her own suggestion for an accommodation,
she requested a temporary assignment (a so called "detail") out of
her current work site, to the INS office at the San Juan
International Airport.
The September 1, 1998, e-mail was the first of what would
be many explicit requests for some sort of an accommodation, or at
least a dialogue concerning accommodation, to permit plaintiff to
continue working while she received treatment for her major
depression. The specific accommodation proposed by Calero –
temporary assignment to the San Juan airport – may perhaps have
presented certain practical problems for the INS. The record is not
clear on this point, and, again, the appellees' failure to offer any
discussion on the issue has handcuffed the court. It is clear,
however, that Calero's employer made no effort to offer any
realistic alternative accommodation, or even to discuss the
difficulties that plaintiff's major depression was creating for her
at work.
On September 4, 1998, Calero once again sent an e-mail
notification to Virtue, with a copy to Dixon, to the effect that the
lack of any response by the INS to her complaints was causing a
deterioration of her physical and emotional health, and that she was
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requesting an alternative assignment as a reasonable accommodation
for her disability of depression.
On September 8, 1998, a simmering problem related to
Calero's apparent tape recording in the office boiled over. In June
of 1998, some co-workers of Calero's had told Reyes that they
thought that Calero was taping their conversations. In response,
Reyes sent out an e-mail reminding all staff that surreptitious tape
recording of conversations was impermissible, against INS policy,
and could result in discipline. On September 8th, a staff member
told Reyes that she observed Calero using a tape recorder while
talking with Reyes. Reyes approached Calero, obtained the recorder
after some argument and found that, indeed, the tape contained a
recording of her conversation. When Reyes told Calero she was going
to take the tape, Calero screamed at her and tried to block the
doorway. After she managed to make her exit, Reyes turned the tape
over to the local FBI office.
Some months later, in a letter to Penca, dated January 20,
1999, Calero claimed that someone in the office had been attempting
to tape her conversations without her knowledge in order to "frame"
her. She asserted that she taped Reyes inadvertently, unaware that
the tape recorder was turned on.
On September 14, 1998, after the screaming incident over
the tape recorder, Dr. Alonso recommended that Calero take a medical
leave from work for two weeks.
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On October 7, 1998, Dixon suspended Calero for five days
for disrespectful behavior toward her supervisor and for failure to
follow orders. Dixon based his decision on Penca's Notice of
Proposed Action issued on June 22, 1998, Calero's response, and
Reyes' memorandum of admonishment of March 18, 1998.
Later in October, Calero e-mailed Virtue a third time and
again requested a temporary assignment to the INS Airport office in
San Juan. Once more, she received no response.
On October 30, 1998, when a new attorney was being hired
in the office, Reyes contacted Calero and gave her the choice of
either accepting replacement furniture for her office and keeping
her office, or keeping her newer furniture and turning her office
over to the new attorney. Calero chose to keep her newer furniture
and was moved to a less desirable work area, described by Calero as
a "grot."
On November 2, 1998, Dr. Alonso observed, in a handwritten
note on a prescription pad, that Calero should be transferred to a
different workplace in Puerto Rico so that "she could benefit from
continued treatment, decreased stressful situations and family
support." It is not clear whether this notation reached the
defendants.
The following day, Calero faxed Virtue her fourth request
for an accommodation. She detailed the medical treatment she was
receiving, described the discrimination and harassment she perceived
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herself as suffering and emphasized her concern that her depression
was affecting her job performance. Significantly, Calero disclosed
to Virtue that her problems went beyond her relationship with Reyes:
Due to the depression, I have detached myself
from my family and friends, who have been very
worry [sic] about me and had been reaching me
and giving me support. My social life had been
extremely limited.
In this November 3, 1998, letter, Calero again asked for a transfer
to the San Juan International Airport office. Again, the INS made
no response.
On November 9, 1998, Dr. Alonso made another
recommendation that Calero absent herself from work in order to rest
for the remainder of the week. Three days later, Calero made yet
another request to be transferred to the San Juan International
Airport office in a letter to Virtue. At the end of that month, Dr.
Alonso recommended Calero rest from work for ten days starting
November 27, 1998.
On December 9, 1998, Reyes issued a Notice of a Proposal
of Suspension of Calero for fourteen days for (1) failure to follow
orders by surreptitiously tape-recording conversations in the office
on September 8, 1998; (2) failure to follow orders by refusing to
update Reyes on a particular case; and (3) failure to be forthright
with a supervisor by taping conversations in the office and then
denying doing so.
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On December 15, 1998, Michael Coaster, a Division Chief
with the INS' Office of the General Counsel ("Coaster"), denied
Calero's requests for an accommodation. His letter stated:
You wrote that you are depressed because "of
the discrimination and harassment based on sex
and national origin that (you) have endured
within the INS San Juan District Office." This
is not a disability as defined by the
Rehabilitation Act of 1973 and the Age
Discrimination in Employment Act. As such, the
agency is not under an obligation to provide
you with an accommodation.
This letter made no mention of the medical evidence
submitted by Calero confirming her major depression. The Coaster
letter did indicate that the INS had at some unspecified time
offered to consider reassigning Calero to an existing vacant
position outside Puerto Rico, but that Calero had rejected this
offer because she did not want to leave Puerto Rico. Except for
this reference in the Coaster letter, no documentation exists in the
record memorializing this supposed offer to transfer Calero. No
details specify the location or nature of the new position, the
timing of the supposed transfer, or the identity and authority of
the person making the offer.
On February 4, 1999, Calero filed her second EEO complaint
alleging discrimination based on gender, national origin, age,
mental and physical disability, and retaliation.
On February 16, 1999, Penca found the second ground of
Reyes' Proposed Suspension of December to be supported by a
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preponderance of the evidence. Penca determined that disciplinary
action for Calero's failure to follow orders in reporting to Reyes
the status of a case was warranted and imposed a ten day suspension
without pay on February 16, 1999. In response, Calero filed several
complaints with law enforcement agencies calling for an
investigation of the supposed illegal tape-recording of her
conversations by coworkers.
On April 6, 1999, Reyes reminded Calero that she was late
for an appearance before an immigration judge. In response Calero
falsely denied that she was late. It later emerged that the judge
had been kept waiting because of Calero's tardiness.
In early May 1999, Calero was involved in yet another
unseemly office incident. Calero told a student-employee, Lenga
Siberon ("Siberon"), to be on guard for "illegal things" that Reyes
might ask her to do. Siberon replied that she was not doing
anything illegal. In a written statement provided to Reyes, Siberon
reported that she felt "intimidated and somewhat threatened" by
Calero.
On June 4, 1999, a second disturbing incident involving
Calero and a different student-employee occurred. The student,
Carmen Ortiz ("Ortiz"), did not interrupt a meeting to give Calero
two telephone messages from Calero's son. Calero exploded at Ortiz
for not giving her the messages immediately, screaming at the young
woman and berating her.
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On June 11, 1999, Calero's counsel, Miriam Ramos
Grateroles, faxed a letter to Doris Meissner, the Commissioner of
the INS. Calero's counsel requested that Calero be given a
reasonable accommodation in accordance with the Rehabilitation Act
and that she be transferred to the Airport office. She also wrote
that the conduct and behavior of Reyes was the principal factor
underlying Calero's major depression and that some separation from
Reyes and the environment at the San Juan office would allow Calero
to continue to work despite her disability. Calero's counsel also
included a note from Dr. Alonso, which reported that Calero was
having difficulty interacting with family and friends due to her
depression. The doctor recommended that any transfer of Calero be
within Puerto Rico, so that Calero could receive needed family and
community support to the extent possible during her illness.
At work, plaintiff's behavioral manifestations of her
severe depression continued. During the spring and summer of 1999,
Reyes reported to Penca that Calero was at various times "agitated,"
"out of control," "impossible to work with," "bizarre," and "a
constant source of aggravation." On July 9, 1999, during a
discussion of a scheduling conflict, Calero repeatedly stated in a
loud voice, in the presence of two other employees, that Reyes was
harassing her on a daily basis, and that her absences were due to
Reyes' constant humiliation.
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The final blow-up between Calero and Reyes occurred four
days later. Again, the trigger for the eruption should have been
a routine matter. Reyes instructed Calero to leave for court so
that she would be on time. In a raised voice, Calero called Reyes
a liar and stated that Penca and Reyes had made false accusations
against her and fabricated evidence against her. Once again, other
employees were in the area and overheard the contentious exchange
between the two.
The following day, July 14, 1999, Reyes placed Calero on
paid administrative leave, where she remained until her termination
the following May.
On January 3, 2000, Bo Cooper, General Counsel of the INS,
issued a Notice of Proposed Removal to Calero. The Notice was based
on four specific grounds: (1) making statements to a co-worker that
advocated the mistrust of a mutual supervisor and resulted in
anxiety in the workplace; (2) disruptive behavior; (3) conduct
unbecoming a Service attorney; and (4) disrespectful behavior
towards a supervisor.
On May 4, 2000, Marc Salans ("Salans"), Assistant Director
of the Office of Attorney Personnel Management of the Department of
Justice, found Calero's removal warranted and made her termination
effective as of May 19, 2000.
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III. Standard of Review
We review a district court's ruling on cross-motions for
summary judgment de novo. See Bienkowski v. Northeastern Univ., 285
F.3d 138, 140 (1st Cir. 2002); Wightman v. Springfield Terminal Ry.
Co., 100 F.3d 228, 230 (1st Cir. 1996).
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to a material fact and that the moving party is entitled
to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A
"genuine" issue is one that could be resolved in favor of either
party, and a "material fact" is one that has the potential of
affecting the outcome of the case. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-50 (1986).
Once the moving party has asserted that no genuine issue
of material fact exists, the burden is on the opposing party to
point to specific facts demonstrating that there is, indeed, a
trialworthy issue. Nat'l Amusements, Inc. v. Town of Dedham, 43
F.3d 731, 735 (1st Cir. 1995). Not every genuine factual conflict,
of course, necessitates a trial. "It is only when a disputed fact
has the potential to change the outcome of the suit under the
governing law if found favorably to the nonmovant that the
materiality hurdle is cleared." Parrilla-Burgos v. Hernandez-
Rivera, 108 F.3d 445, 448 (1st Cir. 1997) (citation omitted).
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On the other hand, to survive summary judgment a plaintiff
is not required to rely only on uncontradicted evidence. Medina-
Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 n.3 (1st Cir.
1990). In this case, as noted, the record as a whole presents many
inconsistencies, displaying perspectives that favor in some lights
the defendants and in others the plaintiff. So long as the
plaintiff's evidence is both cognizable and sufficiently strong to
support a verdict in her favor, the factfinder must be allowed to
determine which version of the facts is most compelling.
IV. Discussion
Two issues are in play in this appeal: first, whether on
the record a reasonable factfinder might conclude that the
defendants violated the Rehabilitation Act by failing to offer
Calero a reasonable accommodation for her disability; second,
whether a factfinder might reasonably find that the defendants
violated Title VII by retaliating against Calero for asserting her
rights. We begin with the claim under the Rehabilitation Act.
A. Discrimination Based on Disability
The ADA and Rehabilitation Act prohibit discrimination
against an otherwise qualified individual based on his or her
disability. The Rehabilitation Act, the precursor to the ADA,
applies to federal agencies, contractors and recipients of federal
financial assistance, while the ADA applies to private employers
with over 15 employees and state and local governments. Although,
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as noted supra n.1, the ADA does not apply here, the case law
construing the ADA generally pertains equally to claims under the
Rehabilitation Act.
The federal statutes barring discrimination based on
disability do more than merely prohibit disparate treatment; they
also impose an affirmative duty on employers to offer a "reasonable
accommodation" to a disabled employee. 42 U.S.C. § 12112(b)(5)(A).
García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 n.9
(1st Cir. 2000).
To assert a claim for failure to accommodate under the
Rehabilitation Act, Calero would have to establish the following:
(1) that she suffered from a "disability" within the meaning of the
statute; (2) that she was a qualified individual in that she was
able to perform the essential functions of her job, either with or
without a reasonable accommodation; and (3) that, despite her
employer's knowledge of her disability, the employer did not offer
a reasonable accommodation for the disability. See Carroll v. Xerox
Corp., 294 F.3d 231, 237 (1st Cir. 2002); Higgins v. New Balance
Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999). We will
address each of these three elements separately.3
3
Two other elements, sometimes noted, require no discussion.
It is undisputed that the defendants are covered by the
Rehabilitation Act, and that plaintiff suffered in the terms and
conditions of her employment.
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1. Disability
The ADA defines "disability" as either (a) a physical or
mental impairment which substantially limits one or more of an
individual's major life activities; (b) a record of such impairment;
or (c) being regarded as having such an impairment. 42 U.S.C. §
12102(2); see also 29 C.F.R. § 1630.2(g). Here, plaintiff contends,
under subsection (a), that she actually suffered a mental impairment
that limited one or more of her major life activities.
It is well established that the determination of whether
a plaintiff has a disability must be made on a case-by-case basis.
See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198
(2002); Sutton v. United Airlines, Inc., 527 U.S. 471, 483 (1999).
The analysis leading to this determination requires the court to
consider the record in the light of three questions. First, did the
plaintiff suffer a physical or mental impairment? Second, did the
"life activity" limited by the impairment qualify as "major"?
Finally, did the impairment, in fact, substantially limit the
plaintiff's identified major life activity? See Bragdon v. Abbott,
524 U.S. 624, 630-31 (1998). The burden is on the plaintiff to
establish these three elements. See Bailey v. Georgia-Pacific
Corp., 306 F.3d 1162, 1167 (1st Cir. 2002); Carroll, 294 F.3d at
238. We now take up these three inquiries.
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a. Did the Plaintiff Suffer a Mental Impairment?
The answer to the first question, on the facts of this
case, is obviously in the affirmative. This circuit has recognized
depression as a mental impairment that may constitute, at least in
some circumstances, a disability under federal law. See Criado v.
IBM Corp., 145 F.3d 437, 442 (1st Cir. 1998). A number of other
circuits have also recognized depression as a qualifying mental
impairment. See, e.g., Ogborn v. United Food & Commercial Workers
Union, Local No. 881, 305 F.3d 763, 767 (7th Cir. 2002) ("Major
depression can constitute a disability under the ADA."); Snead v.
Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1088 n.8 (9th Cir.
2001) ("In Oregon, stress and depression can be considered mental
impairments. The same is true under the ADA."); Pritchard v.
Southern Co. Servs., 92 F.3d 1130, 1132 (11th Cir. 1996), amended
in part on reh'g, 102 F.3d 1118, cert. denied, 520 U.S. 1274 (1997)
("Depression has been held to constitute a mental impairment."); Doe
v. Region 13 Mental Health-Mental Retardation Comm'n., 704 F.2d
1402, 1408 (5th Cir. 1983) (same).
Moreover, the record in this case provides more than
sufficient evidence to permit a factfinder to conclude that the
plaintiff, in fact, was suffering from major depression during the
relevant period. The record confirms Calero's prior history of
depression, her diagnosis of depression by at least two physicians,
her antidepressant medication, her numerous required medical leaves
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from work, and her partial hospitalization. In sum, as a matter of
law and of fact, the record clearly favors the plaintiff on the
first of the three pertinent questions. A factfinder could easily
determine that she suffered a qualified mental impairment. To
determine whether the record would support a finding that plaintiff
suffered a disability, we now turn to the next question.
b. Did the Plaintiff's Mental Impairment Limit
a "Major" Life Activity?
Calero has highlighted numerous life activities that she
says were limited by her depression: sleeping, eating, learning,
concentrating, thinking, working and interacting with others. A
"major life activity" is an activity of central importance to
people's daily lives. Toyota Motor, 534 U.S. at 197. Many of the
activities cited by the plaintiff have been recognized, by this
court or others, as "major," including sleeping and eating, Criado,
145 F.3d at 442-43; Lawson v. CSX Transp., Inc., 245 F.3d 916, 923
(7th Cir. 2001), learning, Bercovitch v. Baldwin Sch., Inc., 133
F.3d 141, 155 (1st Cir. 1998), and thinking and concentrating,
Whitney v. Greenberg, Rosenblatt, Kull & Bitsoli, P.C., 258 F.3d.
30, 33 n.4 (1st Cir. 2001). The Supreme Court has assumed, without
deciding, that working itself may be considered a major life
activity for purposes of the ADA. Sutton, 527 U.S. at 492.
Likewise, this court has on occasion assumed arguendo that working
might be deemed a major life activity under the Rehabilitation Act.
See, e.g., Bailey, 306 F.3d at 1168 n.5; Carroll, 294 F.3d at 239;
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Gelabert-Ladenheim v. American Airlines, Inc., 252 F.3d 54, 58 (1st
Cir. 2001).
In granting summary judgment for the defendant, the
district court did not take issue with plaintiff's claim that her
disability interfered with one or more of these recognized major
life activities. Moreover, as noted, the appellees' brief has
offered us not a word of discussion on the issue. In view of the
documented severity of plaintiff's disability, we assume that the
defendants concede, at least for purposes of summary judgment, that
it interfered with one or more of the major life activities
specified by Calero.
c. Was the Major Life Activity "Substantially" Limited?
It is a simple matter to find sufficient evidence in the
record that Calero's mental impairment did "substantially" limit a
major life activity. Although the federal statutes do not
explicitly define the phrase "substantially limits," in Sutton the
Supreme Court instructed that the phrase "suggests 'considerable'
or 'specified to a large degree.'" Sutton, 527 U.S. at 491. Even
so, "while substantial limitations should be considerable, they
also should not be equated with 'utter inabilities.'" Taylor v.
Phoenixville Sch. Dist., 184 F.3d 296, 307 (3d Cir. 1999). The
Supreme Court has stated that "[w]hen significant limitations result
from an impairment, the disability definition is met even if the
difficulties are not unsurmountable." Bragdon, 524 U.S. at 641.
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An impairment can substantially limit a major life activity, even
though the plaintiff is still able to engage in the activity to some
extent. See Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11,
22 (1st Cir. 2002).
As before, neither the district court nor the appellees
here have contested Calero's assertion that her major depression
substantially limited one or more of her recognized major life
activities. Given this, we must conclude by default that the
evidence was sufficient to satisfy the first element of Calero's
Rehabilitation Act claim; she did suffer a "disability." The next
question is whether she was a "qualified individual." Was she able
to perform the essential functions of her job, with or without an
accommodation?
2. Qualified Individual
To be a "qualified individual" under the Rehabilitation
Act, a plaintiff must show first that she possesses the requisite
skill, experience, education and other job-related requirements for
the position and, second, that she is able to perform the essential
functions of the position with or without a reasonable
accommodation. García-Ayala, 212 F.3d at 646.
An "essential function" is a fundamental job duty
associated with a particular position; this function can extend
beyond "'an employee's technical skills and experience, even
including such individual or idiosyncratic characteristics as
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scheduling flexibility.'" Ward, 209 F.3d at 34 (quoting Laurin v.
Providence Hosp., 150 F.3d 52, 59 n.6 (1st Cir. 1998)).
In this case, the evidence shows that Calero was an
experienced trial attorney. She practiced law for over twenty years
and had two successful years of prior experience in this same
position in the INS' New York Office. She received above average
to excellent performance reviews through June 30, 1998. Based on
this, a factfinder might easily find that she possessed the
requisite skill and experience for the position of Assistant
District Counsel.
A much closer question is whether a reasonable factfinder
could conclude that Calero, while suffering the powerful effects of
her disability, still possessed the ability to function competently
and productively in the workplace, either without any modification
of her work situation or with a reasonable accommodation. After
all, an employee who is unable to control her bizarre and disruptive
behavior may be unfit for employment, no matter how advanced her
objective skills or how extensive her experience. Although
appellees' brief ignores the issue entirely, the district court
anchored its summary judgment ruling, in part, on its conclusion
that the record indisputably confirmed plaintiff's inability to
perform her job at an acceptable level.
A plaintiff offering a claim under the Rehabilitation Act
confronts a potential "Catch-22" when arguing that she is a
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qualified individual under the Act. She must show both that her
impairment substantially limits a major life activity and that she
is "otherwise qualified" for her job, meaning she is able to perform
the essential functions her position requires, or would be if
reasonably accommodated. In shorthand, the law requires the
individual to be both substantially limited and reasonably
functional. Several authors have discussed this quandary. E.g.,
Jonathan Brown, Defining Disability in 2001: A Lower Court Odyssey,
23 WHITTIER L. REV . 335, 381-85 (2001); Chai R. Feldblum, Definition
of Disability under Federal Anti-Discrimination Law: What Happened?
Why? And What Can We Do About It?; 21 BERKELEY J. EMP . & LAB . L. 91,
160-61 (2000); Randal I. Goldstein, Note, Mental Illness in the
Workplace after Sutton v. United Airlines, 86 CORNELL L. REV . 927, 944
(2001).
This court need not explore the nuances of this
interesting conundrum, since the record in this case is adequate to
generate an issue for consideration by a factfinder regarding
plaintiff's capacity to perform her job, even while suffering her
major depression, with or without an accommodation. The defendants'
own evaluation, issued less than a year before plaintiff ceased
working for the INS and several months after Calero's attack of
depression, gave Calero a job rating, not merely of average, but of
"fully successful." In other words, despite some flaws and
problems, the INS pronounced itself fully satisfied with Calero's
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level of performance even while she suffered from her major
depression. Contrary facts produced at a trial may very well put
in play the question of Calero's capacity to perform, but this
documentation alone entitles the plaintiff to consideration by a
factfinder of the second element of her claim.
To satisfy the third and final element of her
Rehabilitation Act claim, plaintiff must prove that her employer,
having knowledge of her disability, failed to offer her a reasonable
accommodation.
3. Reasonable Accommodation
If an employer, aware of an employee's disability, refuses
to provide a requested reasonable accommodation, the employer
violates the Rehabilitation Act, unless it can show that the
proposed accommodation would pose an undue hardship for its
business. See Higgins, 194 F.3d at 264.
Reasonable accommodations may include "job restructuring,
part-time or modified work schedules, reassignment to a vacant
position . . . and other similar accommodations for individuals with
disabilities." 42 U.S.C. § 12111(9) (B). A careful, individualized
review of an accommodation request in light of the specific facts
of the case is needed to determine whether the request was
reasonable. García-Ayala, 212 F.3d at 647.
To show that a proposed accommodation was reasonable, a
plaintiff must prove "not only that the proposed accommodation would
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enable her to perform the essential functions of her job, but also
that, at least on the face of things, it is feasible for the
employer under the circumstances." Reed v. LePage Bakeries, Inc.,
244 F.3d 254, 259 (1st Cir. 2001). The request for accommodation
must be "'sufficiently direct and specific,' giving notice that she
needs a 'special accommodation.'" Id. at 261 (quoting Wynne v.
Tufts Univ., 976 F.2d 791, 795 (1st Cir. 1992)).
If the plaintiff offers proof that a sufficiently specific
request was made, the defendant may attempt to prove that, in fact,
the proposed accommodation was not feasible and would constitute an
"undue" hardship. Id. An adequately supported denial of an
accommodation request requires the employer "to produce at least
some modicum of evidence showing that the [requested accommodation]
would be a hardship, financial or otherwise." Ward, 209 F.3d at 37.
In some cases, a request for a reasonable accommodation
may trigger a responsibility on the part of the employer to enter
into an interactive process with the employee to determine an
appropriate accommodation. Reed, 244 F.3d at 262 n.11. The ADA's
regulations state that "it may be necessary for the covered entity
to initiate an informal, interactive process with the qualified
individual." 29 C.F.R. § 1630.2(o) (1) (iii). The scope of the
employer's obligation in this process is not crystal clear, but
"[t]he employer has at least some responsibility in determining the
necessary accommodation," since "the regulations envision an
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interactive process that requires participation by both parties."
29 C.F.R. § 1630.2(o) (3).
As this court has noted, this interactive process
"requires a great deal of communication between the employee and
employer." García-Ayala, 212 F.3d at 648 n.12, citing Criado, 145
F.3d at 444. An employer's refusal to participate in the process
may itself constitute evidence of a violation of the statute. See
Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 515 (1st Cir. 1996)
("There may well be situations in which the employer's failure to
engage in an informal interactive process would constitute a failure
to provide a reasonable accommodation that amounts to a violation
of the ADA.").
Other circuits have also found that both the employee and
a responsible representative of the employer have a duty to
participate in this process. See, e.g., Mengine v. Runyon, 114 F.3d
415, 420 (3d Cir. 1997) ("We agree that both parties have a duty to
assist in the search for an appropriate reasonable accommodation and
to act in good faith."); Beck v. Univ. of Wis. Bd. of Regents, 75
F.3d 1130, 1135 (7th Cir. 1996) ("A party that obstructs or delays
the interactive process is not acting in good faith. A party that
fails to communicate, by way of initiation or response, may also be
acting in bad faith. In essence, courts should attempt to isolate
the cause of the breakdown and then assign responsibility."); Taylor
v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996)
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("[O]nce an accommodation is properly requested, the responsibility
for fashioning a reasonable accommodation is shared between the
employee and employer. Thus, it is the employee's initial request
for accommodation which triggers the employer's obligation to
participate in the interactive process of determining one.").
Viewing the facts of this case in the light of these
principles, and faced yet again with an utter lack of argument on
this point by appellees' counsel, the court must conclude that the
evidence regarding reasonable accommodation, while conflicting, is
sufficient to generate an issue for a factfinder when viewed in the
light most favorable to the plaintiff. First, Calero requested an
accommodation on at least six occasions, specifically identifying
a transfer as an acceptable form of accommodation. Second, Calero's
supervisor, Reyes - usually her adversary - seconded Calero's
request by suggesting the transfer herself. Third, on the record
as it stands, a factfinder could find that Calero's suggestion of
a transfer to a work site at the San Juan airport was "at least on
the face of things" feasible. Fourth, a factfinder could also find
that the defendants failed to offer a sufficient "modicum of
evidence" showing that the accommodation proposed by plaintiff would
constitute a hardship.4 Fifth, even if the proposed accommodation
4
At oral argument, appellees' counsel dismissed the notion of
a transfer to the INS office at the San Juan airport,
characterizing it as, essentially, unworkable and unprecedented.
The record of the case, however, offers no concrete evidence of any
justification offered by the defendants to support their rejection
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might in some way have been less than ideal from defendants'
viewpoint – for reasons not articulated anywhere in the record – a
factfinder could well find that the defendants failed to engage in
any good faith interactive process to explore whether some variant
of the plaintiff's proposal might have been workable. Indeed, a
factfinder might well conclude that, in the face of plaintiff's
increasingly desperate requests for an accommodation, the defendants
simply stonewalled – going so far as to deny, in the face of
substantial medical evidence, that plaintiff suffered a disability
at all. Finally, to the extent that the record hints that the
defendants, at some unspecified point and in some unspecified way,
offered a transfer out of Puerto Rico as an accommodation (and the
record supplies only a wisp of indirect evidence on this point), a
factfinder could well conclude that the offer was either grossly
inappropriate, given plaintiff's medical condition, or lacking in
good faith.
In sum, the record offers sufficient evidence from which
a factfinder could conclude that the defendants, being aware of
plaintiff's disability and of her request for accommodation, failed
to make a reasonable response. Given that the record contains
evidence that, if believed by a factfinder, might have proved (1)
that Calero did suffer from a disability within the meaning of the
statute, (2) that she was a qualified individual who was able to
of the requested accommodation.
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perform the functions of her job, and (3) that her employer failed
to reasonably accommodate her disability, plaintiff was entitled to
present her Rehabilitation Act claim to a factfinder.
B. Title VII Retaliation Claim
To prove a claim of retaliation, a plaintiff must
establish that (1) she engaged in protected conduct; (2) she
experienced an adverse employment action; and (3) there was a causal
connection between the protected conduct and the adverse employment
action. See Gu v. Boston Police Dep't., 312 F.3d 6, 14 (1st Cir.
2002).
The district court held that Calero did prove the first
two elements of her retaliation claim. She did engage in protected
activity by filing her two complaints with the INS' EEO office, and
she was subjected to adverse employment actions. However, the court
held that the evidence was insufficient, even viewed in the light
most favorable to the plaintiff, to prove a causal connection
between the protected activity and the adverse employment actions.
Calero relies primarily on the timing of the employment
actions as her primary evidence of causal connection. The Supreme
Court has stated that "[t]he cases that accept mere temporal
proximity between an employer’s knowledge of protected activity and
an adverse employment action as sufficient evidence of causality to
establish a prima facie case uniformly hold that the temporal
proximity must be 'very close.'" Clark County Sch. Dist. v.
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Breeden, 532 U.S. 268, 273-74 (2001) (citation omitted). Three and
four month periods have been held insufficient to establish a causal
connection based on temporal proximity. See Richmond v. ONEOK,
Inc., 120 F.3d 205, 209 (10th Cir. 1997); Hughes v. Derwinski, 967
F.2d 1169, 1174-75 (7th Cir. 1992). We have held that "a showing
of discharge soon after the employee engages in an activity
specifically protected by . . . Title VII . . . is indirect proof
of a causal connection between the firing and the activity because
it is strongly suggestive of retaliation." Oliver v. Digital Equip.
Corp., 846 F.2d 103, 110 (1st Cir. 1988).
The facts demonstrate sufficient temporal proximity
between the protected conduct and the employment action in this case
to make out a prima facie case. On March 18, 1998, Calero received
the memorandum of admonishment, the first adverse employment action.
On April 21, 1998, Calero first contacted the EEO Office. On May
11, 1998, Calero filed her first EEO complaint. Calero sent Penca
a copy of this complaint, and Penca in turn, forwarded the complaint
to Reyes. We have noted that the prima facie burden in this context
is not an onerous one. Fennell v. First Step Designs, Ltd., 83 F.3d
526, 535-36 (1st Cir. 1996). As plaintiff received her first
proposed suspension on June 22, 1998, roughly a month after she made
defendants aware that she filed her EEO complaint, we find plaintiff
has met her burden of making out a prima facie case of retaliation.
Once the plaintiff has made a prima facie showing of
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retaliation, the McDonnell Douglas burden-shifting approach is
employed, and defendant must articulate a legitimate, non-
retaliatory reason for its employment decision. If the defendant
meets this burden, the plaintiff must now show that the proffered
legitimate reason is in fact a pretext and that the job action was
the result of the defendant's retaliatory animus. See St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). We have noted
the manner in which courts should consider the McDonnell Douglas
analysis in the context of summary judgment: "[O]n summary judgment,
the need to order the presentation of proof is largely obviated, and
a court may often dispense with strict attention to the burden-
shifting framework, focusing instead on whether the evidence as a
whole is sufficient to make out a question for a factfinder as to
pretext and discriminatory animus." Fennell, 83 F.3d at 535.
Defendants have, in fact, identified numerous clear,
specific reasons for the adverse employment actions taken against
Calero having nothing to do with any impulse to retaliate against
her for protected conduct. The troubling history of plaintiff's
insubordinate and disruptive behavior and the occasions when she
failed to perform her duties in a satisfactory manner all provided
legitimate justification for disciplinary action entirely untainted
by retaliatory animus. That plaintiff may point to this same
evidence in support of her Rehabilitation Act claim does not
diminish the significance of these shortcomings as legitimate bases
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for discipline. The analytical matrix is different for the two
statutes, and evidence that may assist a plaintiff's case from one
vantage may damage it from another. Since Calero has failed to
point to specific facts that would demonstrate any sham or pretext
intended to cover up defendants’ retaliatory motive, we will affirm
the dismissal of her retaliation claim under Title VII.
V. Conclusion
The precedential value of this decision may be limited,
to some extent, by its unusual circumstances: the confused state
of the record, plaintiff's pro se status, and the failure of
appellees' counsel to address in any way the central issues raised
by the appeal. In any event, we are unable to say with confidence
that no reasonable factfinder, taking the facts from this record as
plaintiff might present them, could return a favorable verdict on
the Rehabilitation Act claim. For this reason, we must conclude
that the district court's allowance of defendants' motion for
summary judgment on this count was in error. We therefore REVERSE
AND VACATE the district court's judgment regarding the
Rehabilitation Act and REMAND for further proceedings consistent
with this opinion. In all other respects, the judgment of the
district court is AFFIRMED.
Costs are assessed against the appellees.
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