Ruiz Rivera v. PEIZER PHARMACEUTICALS, LLC

United States Court of Appeals
For the First Circuit

No. 07-1595

DELIA RUIZ RIVERA,

Plaintiff-Appellant,

v.

PFIZER PHARMACEUTICALS, LLC

Defendant-Appellee.

______________________

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

[Hon. Raymond L. Acosta, U.S. District Judge]

Before

Lipez and Howard, Circuit Judges,
and Smith,* District Judge.

_________________________

Wilma Reveron Collazo, with whom Alberto J. Torrado Delgado
was on brief, for appellant.
Mariela Rexach, with whom Carl Schuster and Schuster Aguilo
LLP were on brief, for appellee.

March 27, 2008

*
Of the District of Rhode Island, sitting by designation.
 SMITH, District Judge. This case presents as a so-called

“regarded as” disability claim under the Americans with

Disabilities Act (“ADA”). However, as the discussion below

reveals, once the layers of argument are stripped away, the

regarded as claim is revealed to be a chimera. Thus, the District

Court’s grant of summary judgment, on reconsideration, as to the

regarded as claim was appropriate, and the judgment is affirmed.

I. Facts and Background

In late 1997, appellant Delia Ruiz Rivera (“Ruiz Rivera”)

began working, on a temporary basis, as a packaging operator in

appellee Pfizer Pharmaceutical LLC’s (“Pfizer”) Puerto Rico

facility. Nearly one year later, Ruiz Rivera achieved regular

employee status when she was assigned to Pfizer’s bottling

department. Ruiz Rivera’s position as a packaging operator in the

bottling department involved pouring pills, bottles, and caps,

monitoring the conveyor, packing and inspecting the product, and

cleaning machinery.

Ruiz Rivera became pregnant several months after becoming

a regular employee. As her pregnancy progressed, she submitted

several notes from her doctor to Pfizer informing it of certain

medical-related limitations, including a recommendation that she

avoid walking long distances, that her shifts be limited, and that

she work only in a seated position.

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 In August 1999, Ruiz Rivera informed Pfizer of several

medical problems, including edema, numbness, and continued effects

of a potentially herniated disc. Based on her doctor’s

recommendations, Pfizer, through its in-house physician, Dr. Felix,

authorized a short leave of absence. Soon after Ruiz Rivera

returned from leave, she submitted to Dr. Felix another medical

certificate from Dr. Ramos, her physiatrist, asking that she be

excused from work from August 30, 1999 through November 1, 1999,

citing her herniated disc-related medical problems. Accordingly,

Pfizer granted her temporary non-occupational disability leave

until November. Come November, Ruiz Rivera sought and was provided

another medical leave until January 1, 2000. She gave birth in

late December, at which time her eight-week maternity leave

commenced.

At the completion of her maternity leave, Ruiz Rivera

submitted to Dr. Felix at Pfizer a medical certificate from Dr.

Ramos indicating that she was being treated for carpal tunnel

syndrome and lumbo sacral disc herniation. Dr. Ramos indicated

that Ruiz Rivera was fit to return to work, with specific

limitations, recommended that she avoid repetitive hand motions,

placing her hands over her shoulders, lifting, pushing, holding,

and bending, and placed a twenty-five pound limitation on how much

she could lift. At the same time, Ruiz Rivera presented to Dr.

Felix a medical certificate from a different doctor diagnosing her

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with major depression. Based on these two submissions, Pfizer

granted an additional month of leave benefits to Ruiz Rivera. On

March 27, 2000, after Ruiz Rivera had been on authorized leave for

nearly seven straight months, she returned to work and insisted

that Pfizer implement her doctor’s earlier recommendations and

restrictions. Dr. Felix informed Ruiz Rivera that there were no

opportunities available where she could work with such stringent

limitations; however, Dr. Felix agreed to confer with Dr. Ramos,

and prepared for him a consultation form regarding Ruiz Rivera’s

condition, treatment options, and rehabilitation opportunities.

After an additional week of leave, Ruiz Rivera reported

back to work at Pfizer. At that time, she provided to Dr. Felix a

consultation report which provided, in pertinent part:

Diagnosis

Left Carpal Tunnel Syndrome
Both Wrists Tendinitis
L(subscript 5)S(subscript 1)Discs
Herniation

These are progressive diseases and may
deteriorate her condition. She uses wrists
splints at night and gets anti-inflammatory
and muscle relaxants, and needs to protect the
affected areas from damage. . . . She should
have some restrictions at her work area, so
she can do her job with minimal deterioration
of her condition. These restrictions should
last at least six months, but may be longer.

-Avoid repetitive motions of hands
-Avoid hands-over-the shoulders position
-Do not lift over 25 lbs.

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 -Limit lifting-carrying-pushing-pulling-
holding-bending.

Based on the information provided and the restrictions imposed by

Dr. Ramos, Dr. Felix concluded that, “[i]n view of this [sic]

recommendations and after conversation with [plaintiff’s] work area

supervisor where she can not perform the essential tasks of her job

and needs her hands I do not recommend a RTW [return to work] to

prevent further aggravation or lesion. Case discussed [with] HR

[Human Resources] for plan of action.”

Ruiz Rivera later spoke to Frances Guzman, Pfizer’s

Assistant Personnel Manager, who advised her that Pfizer did not

have to accommodate the restrictions imposed by her doctor because,

in Guzman’s view, Ruiz Rivera was not disabled under the ADA.1

Guzman testified at her deposition that she explained to Ruiz

Rivera that because she wasn’t entitled to accommodation, she

should pursue medical leave and again seek temporary non-

occupational disability insurance. Ruiz Rivera asserts that Guzman

also told her that because of the conditions imposed by her

1
At her deposition, Guzman testified as follows:

[B]ecause there is no permanent disability,
and this is exactly how I explained it to her,
and it’s based on what her physician is
saying, I don’t have to make an accommodation
under the ADA . . . . And then I explained
that what her doctor is writing, in fact she
cannot perform the duties of a packaging
operator . . . but that this is not a
qualified condition.

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physicians, there was no opportunity for her to work at Pfizer or

at any other pharmaceutical company. While Pfizer took no action

to terminate her at this point, Ruiz Rivera did not return to work

after these conversations.

Approximately three months later, in a letter dated June

21, 2000, Pfizer requested that Ruiz Rivera return for a meeting to

discuss her health and status. Ruiz Rivera responded by letter

shortly thereafter, but did not accept Pfizer’s request for a

meeting. Approximately six months later, Pfizer again wrote to

Ruiz Rivera requesting that she return to work. Ruiz Rivera did

not respond. After Ruiz Rivera rebuffed this request, Pfizer

officially terminated her employment.2

The Amended Complaint (the “Complaint”) in this matter

alleged numerous violations of federal and Puerto Rico law,

including the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§

12101 - 12213; the Puerto Rico law counterpart to the ADA, Law No.

44 of July 2, 1985 (“Law 44"); Title VII of the Civil Rights Act,

42 U.S.C. § 2000 et seq.; the Pregnancy Discrimination Act; the

Puerto Rico Pregnant Mothers Protection Act (Act No. 3 of March 13,

1942); the Puerto Rico Sex Discrimination in Employment Act (Act

No. 69 of July 6, 1985); the Puerto Rico Discrimination in

2
By this point, Ruiz Rivera already had begun to pursue her
discrimination claims against Pfizer. She filed a formal
administrative complaint before the Puerto Rico Labor Department
Anti-Discrimination Unit and the Equal Employment Opportunity
Commission in May, 2000.

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Employment Act (Act No. 100 of June 30, 1959); and Puerto Rico’s

Law 80 of May 30, 1976. Through summary judgment, Pfizer moved for

dismissal of the Complaint. Soon after, the parties stipulated to

dismissal with prejudice of all but the ADA and Law 44 claims. In

support of its motion for summary judgment, Pfizer argued that Ruiz

Rivera was not disabled within the meaning of the ADA, that she

thus could not establish a prima facie case of disability

discrimination, and as a result, she was not entitled to any

accommodations. In response, Ruiz Rivera asserted that she was

disabled under the ADA insomuch as she was “substantially limited

in the major life activity of sitting and standing,” and that

Pfizer’s failure to accommodate her disability violated the ADA.

In the alternative, she argued in her summary judgment opposition

papers that she was not disabled in the sense that she was not

“substantially limited on the major life activity of working” but

that Pfizer regarded her as such when it refused to accommodate the

restrictions imposed by her doctors. Notably, as we discuss in

more detail below, this was the first time that Ruiz Rivera raised

the regarded as claim with any degree of specificity.3

3
The claims we discuss herein - failure to accommodate a
disability, termination because of one’s disability, and
termination of employment based on a perceived disability - are all
cognizable causes of action under the ADA. For simplicity, we will
refer collectively to the claims dismissed by the District Court as
the failure to accommodate claim and to the remaining claim as the
regarded as claim.

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 The District Court conducted a thorough analysis of Ruiz

Rivera’s failure to accommodate claim. See generally Ruiz Rivera

v. Pfizer Pharm. LLC, 463 F. Supp. 2d 163 (D.P.R. 2006). The

District Court determined that the record was devoid of evidence

showing that Ruiz Rivera was disabled in any major life activity,

and, accordingly, found that she was not entitled to accommodation.

See id. at 172-75. The District Court then went on to assess Ruiz

Rivera’s purported parallel claim that she was not disabled, but

that Pfizer terminated her because it mistakenly regarded her as

disabled. Based on statements allegedly made by Dr. Felix and Ms.

Guzman, the District Court denied summary judgment, stating that

Ruiz Rivera had “proffered sufficient evidence to establish a prima

facie case that Pfizer regarded her as having an ADA-covered

impairment which prevented her from going back to work and which

led to her eventual termination.” Id. at 176-77.4

Pfizer filed a Motion for Reconsideration on December 14,

2006, arguing that Ruiz Rivera’s regarded as claim was legally

insufficient if based solely on statements made in connection with

her request for reasonable accommodation. Rather than rebut

Pfizer’s legal argument, in her opposition Ruiz Rivera asserted

only that reconsideration was inappropriate. The District Court,

4
The District Court simultaneously granted in part and denied in
part Pfizer’s motions for summary judgment on Ruiz Rivera’s Law 44
claims, as Law 44 mirrors the ADA and required no separate
analysis.

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in response, reversed course and issued an Order granting Pfizer’s

Motion for Reconsideration and dismissing the regarded as claim.5

Ruiz Rivera timely appealed that ruling to this Court, though she

did not appeal the District Court’s grant of summary judgment on

the failure to accommodate claim.

II. Standard of Review

We review a district court’s decision to grant or deny a

motion for reconsideration under Rules 59(e) and 60(b) of the

Federal Rules of Civil Procedure for manifest abuse of discretion.

See Kansky v. Coca-Cola Bottling Co. of New England, 492 F.3d 54,

60 (1st Cir. 2007); DiMaio Family Pizza & Luncheonette, Inc. v.

Charter Oak Fire Ins. Co., 448 F.3d 460, 462 (1st Cir. 2006). This

is the case because the district court has substantial discretion

and broad authority to grant or deny such a motion. United States

v. 5 Bell Rock Rd., 896 F.2d 605, 611 (1st Cir. 1990). A court

appropriately may grant a motion for reconsideration “where the

movant shows a manifest error of law or newly discovered evidence.”

Kansky, 492 F.3d at 60. Likewise, a motion for reconsideration

should be granted if the court “has patently misunderstood a party

5
The January 8, 2007 Order stated, in full:

Defendant’s Motion for Reconsideration (docket
No. 67) is GRANTED. Accordingly, the claims
for termination due to Plaintiff’s perceived
disability under the Americans with
Disabilities Act and Puerto Rico Law No. 44 of
July 2, 1985, as amended, are hereby DISMISSED
based on the arguments presented by defendant
in its request for reconsideration.

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. . . or has made an error not of reasoning but apprehension.”

Sandoval Diaz v. Sandoval Orozco, No. 01-1022, 2005 WL 1501672, at

*2 (D.P.R. June 24, 2005) (quoting Bank of Waunakee v. Rochester

Cheese Sales, Inc., 906 F.2d 1185, 1991 (7th Cir. 1990)).6

We review the district court’s entry of summary judgment

de novo. Desrosiers v. Hartford Life & Accident Co., 515 F.3d 87,

92 (1st Cir. 2008). Summary judgment is proper where there is no

genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). As was the

case in the District Court, we must take the facts of record in the

light most flattering to the nonmovant (here, Ruiz Rivera) and draw

all reasonable inferences in her favor. See Iverson v. City of

Boston, 452 F.3d 94, 98 (1st Cir. 2006); Dávila v. Corporación de

Puerto Rico para la Difusión Pública, 498 F.3d 9, 12 (1st Cir.

2007). “Once the moving party avers the absence of genuine issues

of material fact, the nonmovant must show that a factual dispute

does exist.” Velázquez-Fernández v. NCE Foods, Inc., 476 F.3d 6,

6
In her appellate brief, Ruiz Rivera explicitly sets forth as
issues on appeal only the propriety of the district court’s
decision to reconsider its denial of summary judgment on the
regarded as claims under the ADA and Law 44. Her argument in
support, however, addresses primarily the substantive issue of
whether summary judgment on these claims was appropriate. We
consider the appeal to be both a challenge to the reconsideration
and the entry of summary judgment. As to Ruiz Rivera’s appeal of
the district court’s granting of Pfizer’s motion for
reconsideration, we find no manifest abuse of discretion. As to
Ruiz Rivera’s appeal of the district court’s decision, on
reconsideration, to grant Pfizer’s motion for summary judgment on
the regarded as claims, our discussion follows herein.

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10 (1st Cir. 2007). Summary judgment cannot be defeated, however,

“by relying on improbable inferences, conclusory allegations, or

rank speculation.” Id.

III. The Regarded As Claim

The ADA provides “a clear and comprehensive national

mandate for the elimination of discrimination against individuals

with disabilities.” Katz v. City Metal Co., 87 F.3d 26, 30 (1st

Cir. 1996) (quoting 42 U.S.C. § 12101(b)(1)). To establish a prima

facie case of disability discrimination under the ADA, a plaintiff

must prove: (1) that she was “disabled” within the meaning of the

ADA; (2) that she was able to perform the essential functions of

her job with or without accommodation; and (3) that she was

discharged or adversely affected, in whole or in part, because of

her disability. Id.; see also Orta-Castro v. Merck, Sharp & Dohme

Química P.R., Inc., 447 F.3d 105, 111 (1st Cir. 2006). For

purposes of the ADA, one is considered disabled if she (a) has a

physical or mental impairment that substantially limits one or more

of her major life activities; (b) has a record of such an

impairment; or (c) is regarded as having such an impairment.

Bailey v. Georgia-Pacific Corp., 306 F.3d 1162, 1166 (1st Cir.

2002); see also 42 U.S.C. § 12102(2). The regarded as prong of the

ADA exists to cover those cases “in which ‘myths, fears and

stereotypes’ affect the employer’s treatment of an individual,”

Plant v. Morton Int’l, Inc., 212 F.3d 929, 938 (6th Cir. 2000)

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(quoting 29 C.F.R. § 1630.2(l)), because Congress has recognized

that “society’s accumulated myths and fears about disability and

disease are as handicapping as are the physical limitations that

flow from actual impairment.” Sullivan v. Neiman Marcus Group,

Inc., 358 F.3d 110, 117 (1st Cir. 2004) (citations omitted).

Regarded as claims primarily fall into one of two

categories: “(1) a covered entity mistakenly believes that a

person has a physical impairment that substantially limits one or

more major life activities, or (2) a covered entity mistakenly

believes that an actual, nonlimiting impairment substantially

limits one or more major life activities.” Sullivan, 358 F.3d at

117 (citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 489

(1999)).

“A plaintiff claiming that he is ‘regarded’ as disabled

cannot merely show that his employer perceived him as somehow

disabled; rather, he must prove that the employer regarded him as

disabled within the meaning of the ADA.” Bailey, 306 F.3d at 1169.

When “working” is the major life activity at issue, a plaintiff

“must demonstrate not only that the employer thought that he was

impaired in his ability to do the job that he held, but also that

the employer regarded him as substantially impaired in ‘either a

class of jobs or a broad range of jobs in various classes as

compared with the average person having comparable training,

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skills, and abilities.’” Sullivan, 358 F.3d at 117 (quoting Murphy

v. United Parcel Serv., Inc., 527 U.S. 516, 523 (1999)).

Because Ruiz Rivera did not appeal the District Court’s

dismissal of her failure to accommodate claim, that issue is not

before us. Ruiz Rivera, 463 F. Supp. 2d at 177. Therefore, it is

the law of the case that for the periods of time relevant to this

inquiry Ruiz Rivera was not disabled within the meaning of the ADA,

did not have an impairment that substantially limited a major life

activity, and Pfizer was not obligated to accommodate her. On

appeal, however, Ruiz Rivera appears to continue to press her

argument that her impairment renders her disabled and entitles her

to accommodation, while simultaneously arguing that Pfizer

mistakenly believed her to be substantially limited in a major life

activity, regarded her as disabled, and terminated her as a result

of this perception of disability.

From our review of Ruiz Rivera’s submissions, from the

Complaint to her papers on appeal, it is apparent that her regarded

as claim is really nothing more than a poorly disguised version of

her failure to accommodate claim. In fact, the initial pleading of

her regarded as claim was so indistinct that Pfizer did not even

move for summary judgment on that claim, apparently because it was

unaware it had even been raised.7 Indeed, the first time Ruiz

7
The Complaint states, in pertinent part:

41. Plaintiff alleges that the employer’s
termination because of plaintiff’s

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Rivera spells out her regarded as theory is in her Opposition to

Pfizer’s Motion for Summary Judgment, something that Pfizer

strenuously, but unsuccessfully objected to as being an “11th Hour”

claim. On appeal, with the failure to accommodate claim not on

review, the only issue is whether the District Court erred in

granting summary judgment on the regarded as claim, on a motion for

reconsideration, after initially finding material facts in dispute

and denying the motion. We can understand how the District Court

may have been tripped up over this issue given the way in which

Ruiz Rivera has plead and argued the case. But in the end, we

think the District Court got to the right result, as we will

explain.

disability was in violation of 42 USCA sec.
12112(a).

. . .

43. Plaintiff is “disabled” as defined by
ADA, 42 USCA sec. 12102(2), in that she has
a record of a physical and mental impairment
that substantially limits one or more of her
major life activities in that plaintiff’s
disability, to wit: a herniated disc and
carpal tunnel syndrome . . . .

. . .

45. On March 27, 1999, Pfizer intentionally
discriminated against plaintiff because of
her disability as described above in that
Pfizer terminated plaintiff because of her
perceived disability.

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 We begin with the Complaint itself. As noted above, Ruiz

Rivera’s Complaint does not separate her failure to accommodate

claim and her regarded as claim into distinct causes of action.

The “First Cause of Action,” which alleges that Pfizer’s

“termination because of plaintiff’s disability was in violation of”

the ADA, contains nothing that would signal to a reader that it

intended to raise a regarded as claim. Instead, it affirmatively

declares that Ruiz Rivera is “disabled,” because “she has a record

of a physical and mental impairment that substantially limits one

or more of her major life activities.” There is no factual

allegation that Ruiz Rivera had any non-limiting impairment which

Pfizer wrongly regarded as limiting a major life activity; any

allegation that Pfizer had “stereotyped” her; or anything in fact

that could remotely be characterized as a description of an

impairment being mischaracterized or misperceived. Rather, the

only indication that a regarded as claim might have been lurking in

the shadows of the Complaint was the inclusion of the word

“perceived” in one paragraph of her eleven paragraph First Cause of

Action.

Paragraph 45 of the Complaint alleges: “On March 27,

1999, Pfizer intentionally discriminated against plaintiff because

of her disability as described above in that Pfizer terminated

plaintiff because of her perceived disability.” (Emphasis added).

While this paragraph could signal to a defendant that plaintiff is

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asserting a regarded as claim, with no facts alleged to explain any

false perception on Pfizer’s part, and no facts alluding to any

non-limiting impairment which Pfizer mistakenly believed to be

substantially limiting, this allusion falls far short of the mark.

As recently clarified by the Supreme Court, “a plaintiff’s

obligation to provide the ‘grounds’ of his ‘entitle[ment] to

relief’ requires more than labels and conclusions,” Bell Atl. Corp.

v. Twombly, 127 S. Ct. 1955, 1965-66 (2007) (citations omitted),

and “[t]o survive Rule 12(b)(6) dismissal, [a plaintiff’s] well-

pleaded facts must ‘possess enough heft to sho[w] that [plaintiff

is] entitled to relief.’” Clark v. Boscher, 514 F.3d 107, 112 (1st

Cir. 2008) (quoting Twombly, 127 S. Ct. at 1959)). The fundamental

purpose of our pleadings rules is to protect a defendant’s

“inalienable right to know in advance the nature of the cause of

action being asserted against him.” Rodriguez v. Doral Mortgage

Corp., 57 F.3d 1168, 1171 (1st Cir. 1995). We do not think that

the mere inclusion in the Complaint of the word “perceived” was

enough to put Pfizer on notice that Ruiz Rivera was making a

regarded as claim against it. On this basis alone, the regarded as

claim was subject to dismissal.

Moreover, the Supreme Court has implied that regarded as

claims under the ADA require an even greater level of specificity

than other claims. Sutton, 527 U.S. at 489-91. In order to allege

an actionable regarded as claim, a plaintiff must select and

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identify the major life activity that she will attempt to prove the

employer regarded as being substantially limited by her impairment.

See Sutton, 527 U.S. at 491 (dismissing ADA regarded as claim in

part for inadequacy of its pleading, wherein the petitioners failed

to state “a claim that respondent regard[ed] their impairment as

substantially limiting their ability to work”); see also Amadio v.

Ford Motor Co., 238 F.3d 919, 925 (7th Cir. 2001); Kaiser v. Banc

of Am. Inv. Servs., Inc., 296 F. Supp. 2d 1219, 1221 (D. Nev.

2003).

It is apparent from our review that at the time Ruiz

Rivera filed her Complaint, regarded as disability discrimination

was barely an afterthought - a throwaway line in one paragraph of

a lengthy complaint. Faced with a well-reasoned and convincing

motion for summary judgment on her ADA claim, however, Ruiz Rivera

shifted legal theories and sought to re-characterize her Complaint

in a way that might parry Pfizer’s blow. It simply will not do for

a plaintiff to fail to plead with adequate specificity facts to

support a regarded as claim, all-the-while hoping to play that card

if her initial hand is a dud. See Fleming v. Lind-Waldock & Co.,

922 F.2d 20, 24 (1st Cir. 1990) (“[S]ummary judgment is not a

procedural second chance to flesh out inadequate pleadings.”).

Ruiz Rivera’s regarded as claim also fails on substantive

grounds. The undisputed facts8 reveal that, in late March 2007,

8
From our review of the record, it appears that both Pfizer and
Ruiz Rivera submitted, without translation, Spanish language

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Ruiz Rivera presented to Dr. Felix at Pfizer a list of workplace

restrictions imposed by her doctor based on her various ailments.

Her doctor’s note indicated that the restrictions should remain in

place for at least six months, perhaps longer. Based on these

restrictions - and these restrictions alone - Pfizer determined

that Ruiz Rivera could not perform the essential tasks of her job

as a packaging operator in the bottling department. Ruiz Rivera

maintains that she then sought accommodation for her limitations

and in doing so requested that she be given a different job at the

facility.9 Pfizer denied Ruiz Rivera’s request, and, according to

the testimony of Frances Guzman, Assistant Personnel Manager,

informed Ruiz Rivera that Pfizer did not consider her to be

documents as exhibits to their briefs at the summary judgment
stage. Documents may not be submitted in a foreign language
without translations. See L.R.P.R. 10, 43; First Circuit L.R.
30(d) (“The court will not receive documents not in the English
language unless translations are furnished.”). As is our policy,
we cannot consider materials, or facts adduced solely in reliance
on those materials, that have not been translated. Along with its
appellate briefing, Pfizer provided translations of relevant
exhibits and those portions of Ruiz Rivera’s deposition upon which
it has relied. However, the record may not be supplemented on
appeal in order to cure a defect below. See Estades-Negroni v.
Assocs. Corp. of N. Am., 359 F.3d 1, 2 (1st Cir. 2004)
(“Depositions that have not been translated into English are not -
and cannot on appeal become - part of the record.”).
9
Ruiz Rivera requested a move from the position of packaging
operator to one of the following: inspecting blisters, filling out
documentation, or entering a lot with a finger machine. She
provides no support for her contention that these jobs were
available at the plant, or that the restrictions imposed by her
doctor would not impact the work performed in these positions.

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disabled within the meaning of the ADA and Pfizer was under no

obligation to accommodate her.

These undisputed facts, of course, were the basis for

Ruiz Rivera’s now-dismissed claims for termination and failure to

accommodate. She asserted that the impairments upon which her

doctor’s restrictions were based constituted a disability under the

ADA which Pfizer was required to reasonably accommodate. Pfizer

disagreed, concluding that Ruiz Rivera was not disabled within the

meaning of the ADA, and thus not entitled to any accommodation, and

the District Court concurred.10 Now, Ruiz Rivera uses Pfizer’s

lawful refusal to provide her with the sought-after accommodation

as the primary basis for her regarded as claim. Ruiz Rivera does

not maintain that she could perform her job as packaging operator

in the bottling department with the restrictions imposed by her

doctor, but that Pfizer mistakenly believed her unable to do so;

rather, she maintains that she could perform her job if granted the

accommodations to which the District Court found she was not

entitled. This, coupled with Pfizer’s refusal to accommodate Ruiz

Rivera’s request for a different job, is what forms the basis for

her regarded as claim.

10
The District Court determined that the impairment upon which Ruiz
Rivera’s workplace restrictions were based did not substantially
limit her in any major life activity, including performance of
manual tasks, working, and sitting and standing. See Ruiz Rivera
v. Pfizer Pharm. LLC, 463 F. Supp. 2d 163, 172-75 (D.P.R. 2006).

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 Specifically, Ruiz Rivera insists that Pfizer mistakenly

regarded her as being substantially limited in the life activity of

“working.” For her support, she cites to two events: first, she

cites Dr. Felix’s response to the restrictions imposed by her

personal physician, wherein Dr. Felix determined she could not

return to and work at her position in the bottling department at

the Pfizer plant; and second, she points to the comment allegedly

made to her by Guzman to the effect that with the conditions

imposed by her doctors, she could not perform any work at the

Pfizer plant or anywhere else in the pharmaceutical industry. As

correctly argued by Pfizer in its Motion for Reconsideration, Ruiz

Rivera may not rely exclusively on her employer’s recognition or

implementation of the restrictions imposed by her own physician to

establish a regarded as claim. See Lusk v. Ryder Integrated

Logistics, 238 F.3d 1237, 1241 (10th Cir. 2001) (“Where the

recognition of Plaintiff’s limitations is not an erroneous

perception, but is instead a recognition of fact, a finding that

Plaintiff was regarded as disabled is inappropriate.”); Breitkreutz

v. Cambrex Charles City, Inc., 450 F.3d 780, 783 (8th Cir. 2006)

(“If a restriction is based upon the recommendations of physicians,

then it is not based upon myths or stereotypes about the disabled

and does not establish a perception of disability.”); see also

Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir. 1995)

(employer who terminated employee because of the restrictions

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associated with employee’s impairment did not regard employee as

disabled in the major life activity of working where its perception

of employee’s impairment was based not on speculation, stereotype,

or myth, but on a doctor’s written restrictions). Thus, Pfizer’s

recognition of Ruiz Rivera’s impairment, and unwillingness to

provide the accommodation that Ruiz Rivera sought, but to which she

was not entitled, simply does not transform its actions into

regarded as discrimination. Moreover, to allow this regarded as

claim to stand would be tantamount to allowing her dismissed

failure to accommodate claim in through the back door. See Nuzum

v. Ozark Auto. Distrib., Inc., 432 F.3d 839, 848-49 (8th Cir.

2005).

Although the District Court’s reconsideration of its

original decision to deny summary judgment on the regarded as claim

lacked written justification, it is clear to us that dismissal on

reconsideration was both appropriate and warranted. Any reliance

on Dr. Felix’s statements or opinion, based entirely on Ruiz

Rivera’s own doctor’s recommendations, cannot support a regarded as

claim. Furthermore, the allegation that Pfizer mistakenly regarded

Ruiz Rivera to be substantially limited in the life activity of

working makes little sense in the face of the undisputed record

that Pfizer told Ruiz Rivera that it did not consider her

impairment to constitute an ADA covered disability. Moreover,

Pfizer did not terminate Ruiz Rivera’s employment when it refused

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to accommodate the restrictions imposed by her doctor; rather, it

terminated her over nine months later, after numerous unsuccessful

attempts to seek updates on her medical status. Finally, the

isolated comment allegedly made by Guzman as to the impact of the

restrictions on Ruiz Rivera’s ability to find work in the

pharmaceutical industry is of no help to Ruiz Rivera. At the time

that Guzman allegedly made this comment, Pfizer had determined, in

reliance upon Ruiz Rivera’s own doctor’s recommendations, that Ruiz

Rivera could not perform the essential functions of her job; her

impairment did not constitute a disability under the ADA; and it

had no obligation to accommodate her. Thus, while Guzman may have

considered the restrictions imposed by Ruiz Rivera’s doctors as

limiting her chances of finding work elsewhere in the

pharmaceutical industry, there simply is no evidence that Ruiz

Rivera was refused accommodation or terminated because of this

generalization. In light of the record, Guzman’s statement at

worst amounts to little more than a stray remark, one which

standing alone is insufficient to defeat summary judgment. See

Patten v. Wal-Mart Stores E., Inc., 300 F.3d 21, 25 (1st Cir. 2002)

(direct evidence of discrimination excludes “mere background noise”

and “stray remarks”); Laurin v. Providence Hosp., 150 F.3d 52, 58

(1st Cir. 1998) (stray remarks, including “statements by

decisionmakers unrelated to the decisional process itself normally

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are insufficient to establish discriminatory animus”) (citations

omitted).

IV. Law 44

On reconsideration, the District Court also dismissed

Ruiz Rivera’s parallel regarded as claim under Law 44 of July 2,

1995, P.R. Laws Ann. tit. 1, §§ 501 et seq., the Puerto Rico

analogue to the ADA. Because Law 44 and the ADA are coterminous,

we affirm the District Court’s dismissal of both regarded as

claims. See Gonzalez v. El Dia, Inc., 304 F.3d 63, 74 n.8 (1st Cir.

2002).

V. Law 80

Ruiz Rivera asserts on appeal that the District Court

erred when it failed to address and state whether it was going to

exercise supplemental jurisdiction over Ruiz Rivera’s purported Law

80 claim. While the issue of whether to retain supplemental

jurisdiction over any remaining state law claim, and the viability

of any such claim, is generally for the District Court in the first

instance, we believe the Law 80 claim, on its face, is so

inadequately plead that the District Court acted appropriately and

committed no error by not addressing the issue.11

11
We note that Ruiz Rivera’s appellate brief marks her first
substantive mention of the Law 80 claim. Pfizer did not move
specifically for its dismissal, Ruiz Rivera did not assert its
viability in her Opposition to Pfizer’s Motion for Summary
Judgment, and the District Court did not address the issue in
either of its Orders.

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 “Puerto Rico Law 80 prohibits dismissal of employees

without just cause.” Hoyos v. Telecorp Comm’ns, Inc., 488 F.3d 1,

6 (1st Cir. 2007). Nowhere in the Complaint does Ruiz Rivera

allege termination for lack of just cause. Likewise, Ruiz Rivera

does not raise Law 80 as one of her several causes of action.

Instead, the sole reference to Law 80 in the Complaint is in the

first paragraph, titled “Introduction,” which lists Law 80 as one

of many statutes under which the action was brought. There are no

facts plead in support of this claim, and it is not raised in her

Third Cause of Action, which alleges violation of various laws of

Puerto Rico, specifically “Art. II section 7 of the Constitution of

Puerto Rico; Act 100 of June 30, 1959, Act 3 of March 13, 1942, Act

69 of July 6, 1985 and Act 60 of May 30, 1976.”

Thus, it appears on the face of the Complaint that the

Law 80 claim fails to meet the most basic of pleading requirements,

as it consists of nothing more than a solitary statutory reference,

with nothing to support it. A plaintiff may not simply throw a

statutory reference into a complaint hoping to later flesh out its

claim with facts in support. “[A] simple request for relief

without stating any grounds therefor is inadequate.” Pujol v.

Shearson/Am. Express, Inc., 829 F.2d 1201, 1207 (1st Cir. 1987).

Because the reference to Law 80 was so fleeting and inadequate,

there was nothing for the District Court to review. There was no

error in its non-review of this non-issue.

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VI. Conclusion

For the reasons stated above, the District Court’s

January 8, 2007 Order is AFFIRMED.

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