United States Court of Appeals
For the First Circuit
No. 04-1072
NEREIDA FELICIANO-HILL,
Plaintiff, Appellant,
v.
ANTHONY J. PRINCIPI,
Secretary of the Department of Veterans Affairs,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Lipez and Howard, Circuit Judges,
and Gibson,* Senior Circuit Judge.
John Ward-Llambias for the appellant.
Lisa E. Bhatia-Gautier, Assistant United States Attorney,
with whom H.S. Garcia, United States Attorney and Miguel A.
Fernandez, Assistant United States Attorney, Chief, Civil
Division, were on brief, for the appellee.
February 22, 2006
*
Of the Eighth Circuit, sitting by designation.
LIPEZ, Circuit Judge. On behalf of herself, her husband,
and their conjugal partnership, Dr. Nereida Feliciano-Hill, a
psychiatrist formerly employed by the Department of Veterans
Affairs (the department), brought suit in the district court,
alleging that the department had failed to accommodate her
disability, as required by the Rehabilitation Act, 29 U.S.C.
§§ 701, 794 (1999). The case went to trial, and a jury found for
the department. Dr. Feliciano-Hill now appeals the district
court's denial of her motion for a new trial. We affirm.
I.
We review the facts in the light most favorable to the
verdict. Whitfield v. Melendez-Rivera, 431 F.3d 1, 3 (1st Cir.
2005). Dr. Feliciano-Hill worked at the department's San Juan
Medical Center from 1990 until 2000. Her tenure at the hospital
was uneventful until 1999, when the University of Puerto Rico
Medical School stopped sending psychiatry residents to work at the
Medical Center. In November 1999, the department reached an
agreement with Dr. Feliciano-Hill's union, pursuant to which senior
physicians would be required to perform the tasks formerly
delegated to residents. Under the agreement, a staff psychiatrist
would be available for patient care at all times. Consequently,
Dr. Feliciano-Hill would be required to work one night or weekend
shift a month, and occasionally (about once a month) to see
patients at their bedsides. Previously, she had worked only
-2-
Tuesday through Friday and had seen patients only in her office.
Dr. Feliciano-Hill expressed unhappiness -- to her union steward
and to officials in Washington D.C. -- about the new arrangement.
After her complaints failed to produce results, Dr.
Feliciano-Hill wrote a letter to the Medical Center's human
resources staff, explaining that she suffered from arthritis and
had difficulty walking, and requesting a "reasonable accommodation
. . . under the ADA . . . for a qualified person with a
disability."1 The department sought medical certification of Dr.
Feliciano-Hill's condition. Dr. Feliciano-Hill's rheumatologist,
Dr. Rafael Gonzalez-Alcover, produced first a "diagnostic
impression," and later a diagnosis of rheumatoid arthritis, among
other conditions. When the department asked him to clarify how Dr.
Feliciano-Hill's medical condition affected her, Dr. Gonzalez-
Alcover opined that she was "unable to cover the different areas as
required in her new responsibilities." Dr. Gonzalez-Alcover
declined the department's request for more specific information
about Dr. Feliciano-Hill's limitations.
On the basis of Dr. Gonzalez-Alcover's diagnosis, the
department offered to provide Dr. Feliciano-Hill a motorized
1
Although Feliciano-Hill initially cited the Americans with
Disabilities Act as grounds for relief, the ADA does not provide
for suits against the federal government. However, the
Rehabilitation Act, which predated the ADA, does and generally is
analogous in its prohibition of employment discrimination. See
Calero-Cerezo v. Dep't of Justice, 355 F.3d 6, 19 (2004).
-3-
wheelchair to use when, on occasion, she had to travel around the
hospital. She refused to be so accommodated, averring that she was
"not crippled or otherwise in need of a wheelchair" and did not
want to appear disabled to her patients and colleagues. She
requested, instead, that she be allowed to see all of her patients
in her office, during her customary working hours.
Dr. Feliciano-Hill refused to come to work during her
negotiations with the hospital because, she said, she felt
harassed. She asked at least twice for leave. The department
granted her two weeks of sick leave but denied her request for a
longer term of unpaid leave. The department offered Dr. Feliciano-
Hill an opportunity to return to work. Instead, she resigned her
position at the hospital.
Dr. Feliciano-Hill, her husband, and their conjugal
partnership then brought suit under the Rehabilitation Act,
alleging that the department had failed reasonably to accommodate
her disability, and that her supervisors had treated her "in an
aggressive and hostile manner" in retaliation for her request for
accommodation. The plaintiffs complained of lost income, emotional
distress, and loss of consortium.
The district court granted summary judgment on the claims
brought by Mr. Hill and the conjugal partnership, after concluding
that their claims were not cognizable under the Rehabilitation
-4-
Act.2 The district court rejected the department's motion for
summary judgment as to Dr. Feliciano-Hill. The case went to trial,
focused on whether the department had denied Dr. Feliciano-Hill a
reasonable accommodation for a disability. Dr. Feliciano-Hill
attempted to prove that she was disabled by rheumatoid arthritis
and that the department's offer to provide her a motorized
wheelchair did not constitute a reasonable accommodation for her
disability. The department sought to convince the jury that Dr.
Feliciano-Hill actually was not disabled, and that if she was, the
department's offer to provide her a motorized wheelchair was a
reasonable accommodation. Dr. Feliciano-Hill also contended that
the department took adverse employment action against her in
retaliation for her disability discrimination complaint. The
department denied that allegation as well.
On the reasonable accommodation issue, both sides
presented rheumatologists, who gave conflicting opinions as to
whether Dr. Feliciano-Hill was disabled. Dr. Feliciano-Hill relied
on testimony from Dr. Gonzalez-Alcover, from whom she had sought
treatment.3 Dr. Gonzalez-Alcover testified that Dr. Feliciano-Hill
2
The district court adopted the magistrate judge's recommendations
as to resolution of the summary judgment motion. The magistrate
judge had concluded that the Rehabilitation Act does not provide
relief to employees' spouses or conjugal partnerships on employment
discrimination claims. Dr. Feliciano Hill has not appealed from
that ruling.
3
Dr. Gonzalez-Alcover testified on the first day of the trial, the
only day for which we do not have a transcript. Apparently, the
-5-
may have suffered from rheumatoid arthritis, but that he could not
so conclude for certain. Although he recalled that Dr. Feliciano-
Hill had complained of pain in her joints, he admitted that his
records did not contain any reference to a complaint by Dr.
Feliciano-Hill that she was having difficulty walking. However,
Dr. Gonzalez-Alcover reaffirmed his judgment, first expressed in
letters to the department around the time of Dr. Feliciano-Hill's
request for an accommodation, that she was capable only of "limited
ambulation." He agreed that a motorized wheelchair would have
aided Dr. Feliciano-Hill.
Dr. Ramadés Sierra-Zorita, testifying for the department,
opined that "there was nothing to suggest that [Dr. Feliciano-Hill]
had rheumatoid arthritis" at the time she made her complaints. Dr.
Sierra-Zorita testified that he had performed four physical
examinations of Dr. Feliciano-Hill and inspected her medical
records. In his view, she did not have "much of a difficulty in
transcript of his testimony was not produced, and Dr. Feliciano-
Hill has not submitted to us any statement summarizing Dr.
Gonzalez-Alcover's testimony. See Fed. R. App. P. 10(c). We
recount Dr. Gonzalez-Alcover's testimony as it has been summarized
in the briefs and other record materials. Although the available
record allows us to decide this case with confidence, we note that
Dr. Feliciano-Hill was obligated to produce the transcript or a
statement of the evidence and that she must "'bear the brunt of an
insufficient record on appeal.'" Surprenant v. Rivas, 424 F.3d 5,
15 (1st Cir. 2005) (quoting Real v. Hogan, 828 F.2d 58, 60 (1st
Cir. 1987)); see also Fed. R. App. P. 10(b)(2) ("If the appellant
intends to urge on appeal that a finding or conclusion is
unsupported by the evidence or is contrary to the evidence, the
appellant must include a transcript of all evidence relevant to
that finding or conclusion.").
-6-
walking." Indeed, he said, he had found no evidence that Dr.
Feliciano-Hill was disabled at all in "her history and from what
was seen on the available record." Dr. Sierra-Zorita testified
that he had no opinion regarding the suitability of a motorized
wheelchair as an accommodation for a disabled psychiatrist.
Dr. Feliciano-Hill twice asked the district court to
limit the impact of Dr. Sierra-Zorita's testimony. Though she had
not challenged Dr. Sierra-Zorita's qualifications before trial (as
the district court required), Dr. Feliciano-Hill objected to the
admission of his testimony at trial on the ground that his report
and testimony did not meet the standards for expert evidence
imposed by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), and Fed. R. Evid. 702. The district court admitted the
testimony over the objection. Dr. Feliciano-Hill also asked the
district court to augment its charge to the jury (taken from Dr.
Feliciano-Hill's written proposed instructions) with an additional
later-proposed instruction that Dr. Sierra-Zorita's testimony
should not be considered on the question of reasonable
accommodation. The district court declined this request as well.
On the retaliation issue, Dr. Feliciano-Hill sought to
prove that her supervisors had reacted to her complaints about the
new union agreement by subjecting her to harassment, by requiring
her to comply with unnecessary bureaucratic requests, and by
denying her leave. She pointed particularly to two interactions
-7-
with her supervisor, Dr. Luis Iguina. One concerned a veteran who
was Dr. Feliciano-Hill's patient. Dr. Iguina complained to Dr.
Feliciano-Hill that, despite the patient's urgent need for
psychiatric services, Dr. Feliciano-Hill had cancelled three of her
appointments, resulting in a delay that Dr. Iguina feared could
verge on "patient abuse." Dr. Feliciano-Hill averred that the
patient was difficult and that she would need support from other
professionals to care for the patient. Dr. Iguina arranged for
such support. Dr. Felicano-Hill contended at trial that Dr.
Iguina's reference to "patient abuse" helped create a hostile
working environment. On another occasion, Dr. Iguina said
something to the effect that "women are always complaining about
their illnesses," a remark that Dr. Feliciano-Hill contended was
harassment.
Dr. Feliciano-Hill also argued that the department
created a hostile work environment and prompted her resignation by
asking repeatedly for more specific medical documentation about her
disability, and that the department retaliated against her by
refusing to grant all of her requests for leave.
After the jury returned a verdict for the defendant, Dr.
Feliciano-Hill moved for a new trial. She argued that the court
should not have allowed the department's medical expert to testify,
and should have given the limiting instruction she had requested.
Additionally, she contended that the jury's verdict was against the
-8-
weight of the evidence. The district court rejected both arguments
in a written order, Feliciano-Hill, et al. v. Principi, et al., Cv.
No. 00-2439(SEC) (D.P.R. 2004), and this appeal followed.
II.
Dr. Feliciano-Hill enumerates ten issues for review.
These fall into three categories -- one is her contention that Dr.
Sierra-Zorita should not have been allowed to testify, two are
arguments that the judge should have given a limiting instruction
as to that doctor's testimony, and seven are objections to the
jury's view of the evidence. We address first the issues relating
to Dr. Sierra-Zorita and second the arguments about the sufficiency
of the evidence.
A. Defense Expert Testimony
1. Admission of Dr. Sierra-Zorita's Testimony and Report
Dr. Feliciano-Hill argues that, pursuant to Daubert and
Rule 702, the district court should have refused to admit Dr.
Sierra-Zorita's testimony as evidence. The district court denied
Dr. Feliciano-Hill's motion both because it was untimely -- Dr.
Feliciano-Hill waited until the moments before Dr. Sierra-Zorita's
testimony to object, even though she had received the doctor's
report five months earlier -- and because Dr. Sierra-Zorita's
report and proposed testimony met the applicable standard. The
district court was correct on both grounds.
-9-
Parties have an obligation to object to an expert's
testimony in a timely fashion, so that the expert's proposed
testimony can be evaluated with care. Dr. Feliciano-Hill did not
make a timely motion here and has not offered any reason for her
delay. The district court was on firm ground in refusing her
motion as untimely. See Alfred v. Caterpillar, Inc., 262 F.3d
1083, 1087 (10th Cir. 2003) (explaining that "because Daubert
generally contemplates a 'gatekeeping' function, not a 'gotcha'
junction," untimely Daubert motions should be considered "only in
rare circumstances"); see also Club Car, Inc. v. Club Car (Quebec)
Import, Inc. 362 F.3d 775, 780 (11th Cir. 2004) ("A Daubert
objection not raised before trial may be rejected as untimely.").
In any case, Dr. Feliciano-Hill's Daubert motion lacked
merit. Dr. Feliciano-Hill argues that Dr. Sierra-Zorita's
testimony should have been excluded because Dr. Sierra-Zorita's
opinion differed from that of Dr. Feliciano-Hill's treating
physician, Dr. Gonzalez-Alcover, a "very well respected and beloved
rheumatologist," and because Dr. Sierra-Zorita's report did not
"cite[] medical authorities and w[as] based on 'experience' and
general knowledge." The mere fact that two experts disagree is not
grounds for excluding one's testimony. Even if we were to assume
that Dr. Gonzalez-Alcover was somehow more qualified than Dr.
Sierra-Zorita -- and there is no reason in the record for us to do
so -- the district court could not have excluded Dr. Sierra-
-10-
Zorita's testimony on that ground alone. See Holbrook v. Lykes
Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996) ("[W]itnesses may
be competent to testify as experts even though they may not, in the
court's eyes, be the 'best' qualified. Who is 'best' qualified is
a matter of weight upon which reasonable jurors may disagree.").
We also reject Dr. Feliciano-Hill's assertion that Dr.
Sierra-Zorita's testimony did not meet the standard of Daubert and
Rule 702 because the doctor failed to support his diagnosis with
citations to published authorities. As the district court noted,
the underlying medical question -- whether Dr. Feliciano-Hill's
medical condition prevented her from walking around the hospital --
was "not a complex medical situation." Dr. Sierra-Zorita's
testimony and report did not involve novel medical theories. The
doctor was called upon only to offer a routine diagnosis, on a
patient he had examined, pertaining to a common condition well
within his particular expertise. In this case, the doctor's
training and experience placed his report and testimony well above
the Rule 702/Daubert bar. Indeed, even in more complicated cases
when an examining physician calls upon training and experience to
offer a differential diagnosis (a determination of which of two or
more diseases, presenting with similar symptoms, has caused a
patient's ailments), most courts have found no Daubert problem.
See, e.g., Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1123 (10th
Cir. 2004) (collecting cases holding that qualified doctor's
-11-
differential diagnosis of patient was sufficiently reliable for
Rule 702 and Daubert purposes); Mattis v. Carlon Elec. Products,
295 F.3d 856, 861 (8th Cir. 2002) ("A medical opinion based upon a
proper differential diagnosis is sufficiently reliable to satisfy
Daubert.").
2. Limiting Instruction
Dr. Feliciano-Hill argues that the district court should
have instructed the jury that Dr. Sierra-Zorita's testimony should
only be considered on the question of whether Dr. Feliciano-Hill
was disabled, not on the issue of reasonable accommodation. The
district court denied the motion both because it was untimely --
Feliciano-Hill had not requested the instruction in her written
proposed jury instructions, which the court had adopted -- and
because it was unnecessary. Again, the district court ruled
correctly.
The instruction Dr. Feliciano-Hill requested was plainly
unnecessary. The district court noted, and the transcript
confirms, that "[t]he witness was . . . crystal clear" that he had
no opinion regarding the reasonableness of a motorized wheelchair
as an accommodation for a person with rheumatoid arthritis. As the
district court concluded, "The jury ha[d] that message." The
district court did not err in refusing to offer an unnecessary
instruction about the scope of Dr. Sierra-Zorita's testimony. See,
e.g., Elliot v. S.D. Warren Co., 134 F.3d 1, 6 (1st Cir. 1998)
-12-
(finding no error in district court's refusal to give requested
instruction that was unnecessary to explain the applicable law to
the jury).
B. Sufficiency of the Evidence
We will reverse the district court's refusal to order a
new trial on the ground of insufficient evidence only where "the
jury's verdict was so clearly against the weight of the evidence as
to constitute a manifest miscarriage of justice." Wagenmann v.
Adams, 829 F.2d 196, 201 (1st Cir. 1987) (internal quotation marks
omitted). This is not such a case.
1. Reasonable Accommodation
To succeed on her Rehabilitation Act reasonable
accommodation claim Dr. Feliciano-Hill had to convince the jury:
(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.
Calero-Cerezo, 355 F.3d at 20. The jury could have rejected Dr.
Feliciano-Hill's case either because Dr. Feliciano-Hill was not
disabled or because the department had offered a reasonable
accommodation in the form of a motorized wheelchair. (The
department agreed that Dr. Feliciano-Hill possessed the
qualifications for her job.) Because we have focused on the
-13-
dueling expert testimony on whether Dr. Feliciano-Hill was
disabled, we will review the sufficiency of the evidence on that
issue.
Dr. Sierra-Zorita, a qualified expert, gave compelling
testimony that Dr. Feliciano-Hill did not actually have rheumatoid
arthritis. He also testified that the plaintiff had little
difficulty walking. Moreover, Dr. Gonzalez-Alcover's contrary
testimony was not emphatic. He revealed that Dr. Feliciano-Hill's
lab tests were negative for rheumatoid arthritis and that Dr.
Feliciano-Hill had no swelling in her joints. Dr. Gonzalez-Alcover
admitted that he had examined Dr. Feliciano-Hill only four times
over the six-year period leading up to her complaint. He indicated
that he had no knowledge of how far Dr. Feliciano-Hill would have
been required to walk at her job and that he was not familiar with
the layout of the Medical Center. On this evidence the jury could
reject Dr. Feliciano-Hill's claim that she was disabled.
2. Retaliation
This leaves only Dr. Feliciano-Hill's argument that the
department retaliated against her for her disability discrimination
complaint, a claim she is entitled to press even though the jury
reasonably rejected her case on outright discrimination. See
Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997)
(recognizing that retaliation claim may succeed even where
disability discrimination claim fails). To make out a case for
-14-
retaliation, "a plaintiff must show that (i) she undertook
protected conduct, (ii) she suffered an adverse employment action,
and (iii) the two were causally linked." Noviello v. City of
Boston, 398 F.3d 76, 88 (1st Cir. 2005); see also Weber v.
Cranston Sch. Comm., 212 F.3d 41, 48 (1st Cir. 2000) (holding that
Rehabilitation Act prohibits retaliation). At trial, Dr.
Feliciano-Hill argued that she suffered an "adverse employment
action" through the creation of a hostile work environment and a
constructive termination. To prove that a hostile work environment
constituted "adverse employment action," the plaintiff must show
that the harassment she complains of was "so severe or pervasive
that it alters the conditions of the plaintiff's employment."
Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 26 (1st Cir
2002). Similarly, to establish a constructive discharge, a
plaintiff must show "that her working conditions were so difficult
or unpleasant that a reasonable person in her shoes would have felt
compelled to resign," an objective standard that "cannot be
triggered solely by the employee's subjective beliefs, no matter
how sincerely held." Id. at 28 (internal quotation marks and
brackets omitted). The question whether a work environment is
sufficiently hostile to create liability is best left to a jury.
Che v. Mass. Bay Trans. Auth., 342 F.3d 31, 40 (1st Cir. 2003).
Here, the evidence allowed the jury to find that Dr.
Feliciano-Hill's treatment by the department was not "objectively
-15-
intolerable." Marrero, 304 F.3d at 28. On the record, the jury
could have found that Dr. Iguina's concerns about the treatment of
the female veteran were properly expressed and unobjectionable.
And the jury could have found, after listening to testimony on the
point, that Dr. Iguina's remark "about women complaining a lot" and
any other isolated comments from her peers did not constitute
severe or pervasive harassment, or a course of conduct that would
have led a reasonable person to resign.
As for the department's insistence that Dr. Feliciano-
Hill provide medical documentation supporting her insistence that
she could not walk around the hospital, the jury could have found,
in reliance on the evidence, that the hospital reasonably needed
more specific guidance from Dr. Alcover-Gonzalez and that its
procedures were not harassing or unreasonable. Finally, the jury
could have found that the department's denial of Dr. Feliciano-
Hill's request for additional leave did not, in the circumstances,
create a hostile work environment or constitute an "adverse
employment action."
In short, on examination of the record we cannot conclude
that the verdict represented a "manifest miscarriage of justice."
Wagenmann, 829 F.2d at 201.
Affirmed.
-16-