Guzmán-Rosario v. United Parcel Service, Inc.

             United States Court of Appeals
                        For the First Circuit

No. 04-1046

                        ABIGAIL GUZMÁN-ROSARIO,
            CARLOS A. PÉREZ and their conjugal partnership,

                        Plaintiffs, Appellants,

                                  v.

                     UNITED PARCEL SERVICE, INC.,

                         Defendant, Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF PUERTO RICO

            [Hon. Héctor M. Laffitte, U.S. District Judge]


                                Before

                          Boudin, Chief Judge,

                       Torruella, Circuit Judge,

                      and Fusté,* District Judge.


     Lixandra Osorio-Félix and Nicolás Nogueras, Jr. Law Offices on
brief for appellants.
     Pedro J. Manzano-Yates, Carlos M. Aquino-Ramos and Fiddler
González & Rodríguez, PSC on brief for appellee.



                           February 3, 2005




     *
         Of the District of Puerto Rico, sitting by designation.
           BOUDIN, Chief Judge.    Abigail Guzmán-Rosario ("Guzmán")

sued United Parcel Service ("UPS") in the district court for

violations of Titles I and V of the Americans with Disabilities Act

of 1990 (“ADA”), 42 U.S.C. §§ 12,101-12,213 (2000), and section 504

of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (2000).1        The

district court granted summary judgment in favor of UPS and Guzmán

now appeals.

            The history can be briefly told.     In 1986, Guzmán began

part-time work with UPS (four to five hours a day) at its package

clearing center at its Muñiz Base facilities in Carolina, Puerto

Rico.    Her main work assignment was to scan (with a laser reader)

packages moving down an assembly line and, where necessary, to

reposition packages on the belt.        This required her to stand and

move around in the vicinity of the belt.

            In November 1997, Guzmán felt pain in her left side and

entered a hospital for a three-day stay.           She was eventually

diagnosed with ovarian cysts; this condition sometimes disappears

in a few months without surgery.         To see if the cysts resolved

themselves and perhaps for other reasons, surgery was deferred for



     1
      Title I prohibits employers from discriminating against a
"qualified individual with a disability because of the disability,"
42 U.S.C. § 12,112(a); Title V pertinently prohibits discrimination
against individuals who engage in certain acts protected under the
ADA, see 42 U.S.C. § 12,203(a). The counterpart provision of the
Rehabilitation Act is construed as congruent with Title I,
Oliveras-Sifre v. P.R. Dep't of Health, 214 F.3d 23, 25 n.2 (1st
Cir. 2000), and needs no separate treatment.

                                  -2-
about eight months.   In the end, the cysts did not disappear; they

were surgically removed in July 1998, restoring Guzmán to health.

           When she was hospitalized, Guzmán told her supervisor of

her condition to excuse herself from work, which he permitted. Yet

Guzmán thereafter suffered symptoms intermittently, including pain

and occasional dizzy spells that required her to sit down or double

over.   Occasionally her symptoms were severe enough to require her

to remain at home lying down.    Partly on this account and partly

because her son was repeatedly ill during this period and required

hospital care, Guzmán was absent from work several times (in excess

of her sick leave allowance) and was sometimes late to work.

           In March 1998, Guzmán explained her condition to two

supervisors, providing them with medical documentation evidencing

her condition, to justify her absences from work and her occasional

sitting down.    Though one supervisor told Guzmán that "it was

okay"; the other said that she had to resolve her condition because

her absences and her sitting down while working were adversely

affecting the company.    In May 1998, Guzmán received a warning

letter from the division manager--later withdrawn as untimely under

the collective bargaining agreement--for lateness and absences

during the period January through April.   A second warning letter,

relating to one more lateness in June, was timely.

           In July 1998, UPS conducted a monthly audit of telephone

usage and the auditor reported to the division manager that Guzmán


                                -3-
had been making excessive and unauthorized phone calls on company

time.   The division manager discharged Guzmán, treating the matter

as a theft of time from the company (and so a listed ground for

discharge); the company had apparently fired other employees in

1997 and 1998 on the same ground.          In a written declaration, the

division manager described the unauthorized phone calls as the

reason for Guzmán's discharge, although he separately described an

unrelated incident of Guzmán's conduct that he believed improper.

            In September 1999, about 13 months after her discharge,

an arbitrator found that the termination was not justified under

the collective bargaining agreement because the company had not

earlier described such calls as "theft" and the evidence against

Guzmán was not strong.      The company filed a court appeal but then

settled, reinstating Guzmán and providing partial back pay for the

period of her discharge.

           Several    months   before     the   arbitration    award   issued,

Guzmán filed an administrative charge of disability discrimination.

In January 2002, the relevant agency rejected her claim and issued

a right-to-sue letter.         Three months later, Guzmán brought the

present   action     in   federal   district     court.       Apart    from   an

unsupported claim under the Civil Rights Act of 1964, 42 U.S.C. §§

2000e et seq. (2000), which Guzmán has now abandoned, the complaint

charged UPS under the ADA and Rehabilitation Act with failure to




                                    -4-
accommodate her alleged disability and retaliation against her for

seeking an accommodation.

               After discovery, UPS moved for summary judgment based on

Guzmán's       deposition     and    other       documents.       Deeming   Guzmán's

statement of contested facts inadequate under the local Puerto Rico

rule,2 the district court adopted UPS's statement of uncontested

facts.      See Corrada Betances v. Sea-Land Serv., Inc., 248 F.3d 40,

43-44 (1st Cir. 2001).          The court then found that Guzmán had not

been       disabled   prior   to     her   surgery,      had     not   requested   an

accommodation, and had not been not subject to retaliation.                    This

appeal followed.

               Review of the grant of summary judgment is de novo. See,

e.g., Gelabert-Ladenheim v. Am. Airlines, Inc., 252 F.3d 54, 58

(1st Cir. 2001).         UPS's list of uncontested facts is accepted,

given      Guzmán's   failure       properly      to   contest    them;   otherwise,

inferences from the record are drawn in the light most favorable to

Guzmán.       See United Parcel Serv., Inc. v. Flores-Garcia, 318 F.3d

323, 330 (1st Cir. 2003).            Here, the main issues turn on applying

legal tests to (mostly) known circumstances.

               Where a worker is disabled an employer may not assume

stereotypically an inability to work and (beyond this) must provide


       2
      A local district court rule, now D.P.R. Rule 56 and formerly
D.P.R. Rule 311.12, requires that the statements of uncontested and
contested issues be specific and supported by record citations.
Guzmán's statement comprised six conclusory statements with no
citations.

                                           -5-
"reasonable accommodation" unless undue hardship is shown.                            42

U.S.C.    §     12,112(b)(5);       see    id.      §   12,112(a)-(b).       Having    a

"disability" means having or being "regarded as" having a mental or

physical impairment that "substantially limits one or more . . .

major    life       activities."        Id.    §    12,102(2)(A),   (C).      We   have

regularly consulted EEOC definitions of the terms, e.g., Wright v.

CompUSA, Inc., 352 F.3d 472, 476 (1st Cir. 2003), but no agency has

been granted authority to issue binding regulations interpreting

the term "disability."            Toyota Motor Mfg., Ky., Inc. v. Williams,

534 U.S. 184, 194 (2002).

               Two different issues are presented as to Guzmán's claim

that she was disabled during the period in question.                           One is

whether       the    ovarian   cysts      were      sufficiently    long-lasting       a

condition to qualify as a "disability" rather than a temporary

affliction;         the   other    is     whether,      duration    aside,   Guzmán's

condition impinged sufficiently on a "major life activity" to be

treated as disabling.             The district court ruled against Guzmán on

both counts.

               Starting with the first of these issues, the ADA is not

a medical leave act nor a requirement of accommodation for common

conditions that are short-term or can be promptly remedied.                         The

Supreme Court stated in Toyota that in order to be "substantially

limit[ing]," an impairment must be "permanent or long term."

Toyota, 534 U.S. at 198.             This may encompass conditions that are


                                              -6-
"potentially long-term, in that their duration is indefinite and

unknowable," Santiago Clemente v. Executive Airlines, Inc., 213

F.3d 25, 31 (1st Cir. 2000) (internal quotation marks omitted), but

not those that are brief or foreseeably temporary, Carroll v. Xerox

Corp., 294 F.3d 231, 240-41 (1st Cir. 2002) (three-month medical

leave for chest pains), Soileau v. Guilford of Me., Inc., 105 F.3d

12, 16 (1st Cir. 1997) (five-week leave from work and four-month

activity restriction because of a depressive attack).

             Although Santiago Clemente suggested in dictum that an

impairment of whose duration "is expected to be at least several

months" might qualify as a disability if severe enough, 213 F.3d at

31,   this    was    before      Toyota's      "permanent    or      long    term"

pronouncement, and other cases may suggest that longer periods are

required.     E.g., Carroll 294 F.3d at 240-41; Soileau, 105 F.3d at

16.   Case law in other circuits is also uncertain.3                 The reasons

for the uncertainty are apparent.

             The   statute    itself    says    nothing   about   duration     and

nothing in the term “disability” or its definition gives a judge,

and still less a jury, much guidance.             The problem is primarily a

policy choice to which Congress did not speak clearly; and the

Supreme   Court     has   done   no    more    than   extrapolate,    from   some



      3
      See 1 Americans with Disabilities Act Handbook § 3.08, at 127
n.453 (Henry H. Perritt, Jr. ed., 4th ed. 2003) (collecting cases);
Employment Discrimination Law 165-66 & nn.109-11 (C. Geoffrey
Weirich ed., 3d ed. supp. 2002) (same).

                                        -7-
estimated numbers of those to be covered, that severe restrictions

of very important activities were what Congress had in mind.               See

Toyota, 534 U.S. at 197-98. Until the Supreme Court fine-tunes its

interpretation, it will be unclear how lower courts should deal

with periods between, say, 6 and 24 months.

            In this case, Guzmán’s period of impairment falls within

this zone, very close to the shorter end.          That the impairment was

not severe lends some support to the district court’s resolution,

as our case law suggests that shorter durations are tolerated only

for more severe impairments.        See, e.g., Santiago Clemente, 213

F.3d at 31, Soileau, 105 F.3d at 15-16.      Still, we think it best to

reserve the issue and rest our own affirmance on the district

court’s second determination that Guzmán’s disability did not

"substantially" limit a major life activity.

            One major life activity relied on by Guzmán is "working."

The Supreme Court has expressed some doubt whether working can be

so described.     See Sutton, v. United Air Lines, Inc., 527 U.S. 471,

492 (1999). The EEOC regulations by contrast assume that "working"

is   a   major   life   activity.   They   state    that   a   plaintiff    is

"disabled" even if she can still work but if she is significantly

restricted in or precluded from performing either a "class" of

jobs--a set of jobs utilizing similar skills, knowledge, and

training to her prior job--or a "broad range" of jobs in various

classes--a large set of jobs that vary in what skills are required.


                                    -8-
See Gelabert, 252 F.3d at 60 (quoting 29 C.F.R. § 1630.2(j)(3)(ii)-

(iii)).

          Awaiting a definitive ruling from the Supreme Court

otherwise, we have assumed that "working" is a major life activity

and applied the EEOC's framework in dismissing plaintiffs' ADA

claims, e.g., Sullivan v. Neiman Marcus Group, Inc., 358 F.3d 110,

115-16 (1st Cir. 2004).   So doing, we have required claimants to

show that they were precluded from more than the performance of a

particular job. See Carroll, 294 F.3d at 240; Lebron-Torres v.

Whitehall Labs., 251 F.3d 236, 240 (1st Cir. 2001).       Guzmán's

evidence of work difficulties--the occasional need to sit down and

the occasional inability to come to work because dizziness and pain

required her to lie down–-showed at most difficulties in performing

her one particular job at UPS.

          Guzmán also claims as major life activities caring for

her family, socializing, doing housework, and driving.   Here, too,

the law is unclear as to what counts;4 but in all events caring for

oneself commonly treated as a major life activity, e.g., Fraser v.

Goodale, 342 F.3d 1032, 1038 (9th Cir. 2003); Fenney v. Dakota,


     4
      See, e.g. Felix v. N.Y. City Transit Auth., 324 F.3d 102, 106
(2d Cir. 2003) (driving is not a major life activity); Sinkler v.
Midwest Prop. Mgmt. Ltd. P'Ship, 209 F.3d 678, 685 (7th Cir. 2000)
(not deciding whether driving is a major life activity); see also
EEOC v. Sara Lee Corp., 237 F.3d 349, 353 (4th Cir. 2001)
(considering claimant's ability to care for her son as indicative
of her ability to care for herself); Krauel v. Iowa Methodist Med.
Ctr., 95 F.3d 674, 677 (8th Cir. 1996) (holding that "caring for
others" is not a major life activity).

                                 -9-
Minn. & E. R.R. Co., 327 F.3d 707, 714-15 (8th Cir. 2003).   In this

case, further refinements are not needed since Toyota requires that

the impairment "prevent[] or severely limit[]" the major life

activity.     534 U.S. at 198.    Guzman showed nothing more than

occasional pain or dizziness; there is no evidence that these

episodes were so frequent as to significantly impinge on the

overall performance of the above non-work activities, and the

record shows that she could perform these tasks most of the time.

            On appeal, Guzmán argues alternatively that she was

"regarded as" disabled by UPS.      See 42 U.S.C. § 12,102(2)(C);

Sutton, 527 U.S. at 489.    However, Guzmán never presented to the

district court her argument that she was disabled because she was

"regarded as" being unable to perform her work or any broader set

of jobs.    Cf. Sheehan v. City of Gloucester, 321 F.3d 21, 24 (1st

Cir. 2003).     This forfeits this claim on appeal.     Campbell v.

BankBoston, N.A., 327 F.3d 1, 10 (1st Cir. 2003).

            Finally, Guzmán claims that UPS retaliated against her

for protected conduct, which is separate claim under the ADA, see

42 U.S.C. § 12,203(a), and does not depend on the success of the

plaintiff's disability claim. See Wright, 352 F.3d at 477-78. The

claim is usually made by one who requests an accommodation or

complains about a refusal to accommodate and is then punished for

the request or the complaint.    See id.   But Guzmán never directly

requested an accommodation, and her only complaints–-to the agency


                                 -10-
and then to the court--came after her discharge, so the discharge

was certainly not retaliation for them.

                  Conceivably Guzmán might argue that by notifying her

supervisor of her condition she was implicitly requesting an

accommodation. Even on this doubtful assumption,5 nothing suggests

that her superiors had any negative reaction to being informed of

her condition or that her discharge was in any way a retaliation

for    this        disclosure,   see   Oliveras-Sifre,   214   F.3d   at   26,

particularly in light of the several-month delay between the

notification and her discharge.           Compare Williams v. Phila. Hous.

Auth. Police Dep't, 380 F.3d 751, 760-61 (3d Cir. 2004), petition

for cert. filed, (U.S. Dec. 22, 2004) (No. 04-873), with Wright,

352 F.3d at 478.

                  This case is a useful reminder that the ADA is not a cure

for all work-affecting medical difficulties and, also, that some of

them       have    other   remedies.    Here,   the   collective   bargaining

agreement appears to have done its work.              With reinstatement and

partial back pay, Guzmán must be content.

                  Affirmed.




       5
      See Estades-Negroni v. Assocs. Corp. of N. Am., 377 F.3d 58,
64 (1st Cir. 2004) ("Under the ADA, requests for accommodation must
be express and must be linked to a disability."); Reed v. LePage
Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001) ("[T]he ADA's
reasonable accommodation requirement usually does not apply unless
'triggered by a request' . . . .").

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