United States Court of Appeals
For the First Circuit
No. 05-1984
SANDRA I. ORTA-CASTRO; JOSÉ A. NIEVES-ROMERO,
CONJUGAL PARTNERSHIP ORTA-NIEVES,
Plaintiffs, Appellants,
v.
MERCK, SHARP & DOHME QUÍMICA P.R., INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Juan M. Frontera-Suau, with whom Frontera Suau Law Offices was
on brief, for appellants.
Pedro J. Manzano-Yates, with whom Fiddler González &
Rodríguez, PSC was on brief, for appellee.
May 9, 2006
TORRUELLA, Circuit Judge. In this appeal, plaintiffs-
appellants Sandra I. Orta-Castro ("Orta") and her husband, José A.
Nieves-Romero, contest the decision of the district court to grant
summary judgment in favor of defendant-appellee Merck, Sharp &
Dohme, Química of Puerto Rico, Inc. ("Merck") in an employment
discrimination case arising out of Orta's employment at Merck. In
particular, plaintiffs-appellants argue that the district court
should not have dismissed their claims under the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Family
Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and Puerto
Rico law. After careful consideration, we affirm.
I. Background
Orta began her employment with Merck in Caguas, Puerto
Rico in December 1992. A year later, on December 1, 1993, Orta
became the Standard Operating Procedures ("SOP") Coordinator at the
company and worked in the Quality Operations Department. As SOP
Coordinator, Orta worked with the company's pharmaceutical
manufacturing operation. Among her responsibilities, she oversaw
the standard operating procedures for the company, served as the
custodian of the company's regulations, maintained documents
related to the manufacturing process, and worked with Merck's forms
system. Orta was the only employee assigned to the SOP unit.
In 2000, Orta worked under the supervision of Antonio
Nieves ("Nieves"), head of the Quality Operations Department.
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Quality Operations, in turn, was supervised by Operations Manager
Carlos Montoyo ("Montoyo"). Toward the end of 2000, Montoyo
suspected that an unannounced audit by the Food and Drug
Administration ("FDA") was imminent and was concerned with some
deficiencies that he had noticed in the SOP unit. To address the
deficiencies and prepare the SOP unit for the FDA audit, Montoyo
placed Orta under the supervision of Validation Engineer Rosa M.
Lugo ("Lugo") on October 19, 2000. Montoyo's decision was based on
his belief that Lugo was good with systems and that she had the
necessary skills to analyze the unit's problems and get it in
proper working order. Montoyo gave Lugo express instructions to
address the deficiencies in the SOP unit to prepare it for the
eventuality of an FDA audit.
Orta and Lugo had a prior history at Merck. They had
first met back in 1992 when Orta began work at the company. In
April 2000, before Lugo became Orta's supervisor, they had an
incident related to an FDA visit to the plant. In preparation for
the visit, Orta had to update a procedure document in a binder
located in Lugo's office. Although Orta inserted the new document
in the binder, she failed to remove the old one because it was
marked with a "post it," and Orta believed that Lugo was reading
it. Lugo told Orta that the document was her (Orta's)
responsibility, and that she (Lugo) could not assume responsibility
for something that was not part of her job description. Orta felt
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uncomfortable with Lugo's comment and the way she said it with a
raised tone. This incident was discussed with Nieves, who met with
both Orta and Lugo. Although Orta said that she did not know why
Lugo was angry with her, she later stated that Lugo's anger may
have been caused by stress associated with the upcoming FDA visit.
Orta stated that she did not know of any other reason that Lugo
would be mad at her.
A few days before Lugo officially became Orta's
supervisor, Lugo asked Orta to produce various documents and
information pertaining to the SOP unit. The information that Lugo
requested was under Orta's control. The work associated with this
request prompted Orta to talk with Montoyo. Orta complained about
the work pressure she felt and about the fact that Lugo was
constantly changing her requests and not providing any additional
time to comply. Orta also told Montoyo that Lugo's requests made
her nervous and that she thought Lugo's behavior was related to the
binder incident.
As a consequence of the stress she felt, Orta went to
visit the infirmary at Merck to receive medical attention.
Furthermore, in November 2000, Orta sought medical treatment from
a psychiatrist, Dr. Celia Rodríguez-Valdez ("Dr. Rodríguez"), who
diagnosed that Orta was suffering a major depression and should be
out of work for three months. As a result, Orta was on leave from
November 2, 2000 to February 2, 2001. Upon taking this leave, Orta
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was advised about benefits such as non-occupational temporary
disability insurance and long-term disability.
When Orta returned to work on February 2, 2001, she
discovered that her office had been moved from the second floor to
the first. Nieves, her former supervisor, told her that she had
been moved to the first floor to be closer to Lugo, her supervisor,
and because books and other work materials were on the first floor.
Orta found her new work area uncomfortable mainly because of the
size of her desk. However, the desk was soon changed, and Orta was
more comfortable.
On March 2, 2001, Lugo sent Orta an e-mail addressing a
series of tasks that she had failed to perform and requesting a
meeting to discuss the problem. Orta explained to Lugo at the
meeting how, when she returned from her leave, the paperwork had
been in disarray, that the person who substituted for her did not
do what was required of her, and that she (Orta) had to make up for
what had not been done. Before the meeting ended, Orta told Lugo
that she needed to go to the infirmary. Lugo accompanied Orta to
the infirmary and waited for her until she came out. Lugo and Orta
then met with Montoyo. During this meeting, Lugo restated what she
had discussed with Orta regarding her responsibilities. Montoyo
listened and then asked Orta whether she had anything else to say.
At this point, Orta requested a private meeting with Montoyo.
During her meeting alone with Montoyo, Orta indicated how nervous
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she was. She said that many of Lugo's requirements were related to
previous years when she was not present, that the person who had
substituted for her had not complied with some requirements, and
that she now had to make up for these oversights, in addition to
continuing with her daily work. According to Orta, Montoyo
promised her that he would help her by speaking with Lugo, told her
not to worry, and requested that she work as best she could.
On April 17, 2001, Orta took a second medical leave for
major depression upon the advice of her doctor, Dr. Rodríguez.
However, sometime between May and July 2001, Dr. Rodríguez moved to
the continental United States. As a result, Orta had to find a new
doctor, and she began to be treated by Dr. Edgardo Prieto-Agostini
("Dr. Prieto"). On July 30, 2001, Dr. Prieto provided Merck with
a certificate stating that Orta was suffering from a severe
depressive condition that prevented her at that time from doing
work and recommending that Orta's medical leave be extended until
December 31, 2001. This recommendation was accepted, and Orta's
leave was extended.
Nevertheless, on November 1, 2001, Orta received a call
from Merck's Human Resources Department informing her of a position
available in technical services for which she was qualified. Orta
informed the Human Resources official who had called her that she
was on medical leave until December 31, 2001 and could not go to
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the company for anything. Orta admitted that she was not bothered
by this call.
On December 11, 2001, Dr. Prieto certified to Orta that
she could return to work at Merck in January 2002, if the following
accommodations were provided: (1) she had to work only four hours
a day for the first two weeks; (2) she had to be relocated and be
placed outside the supervision of Lugo; and (3) she had to continue
visiting her psychiatrist every two weeks. Orta sent Dr. Prieto's
certification along with a letter to Félix Amador, a Merck Plant
Manager.
Orta also discussed Dr. Prieto's recommendations with
Marilyn Maldonado of the Human Resources Department and signed a
document dated January 11, 2002 that was related to her request for
accommodation. The document acknowledged Merck's acceptance of the
recommendations made by Dr. Prieto and the actions to be taken by
Merck in order to comply with the recommendations. Specifically,
the January 11, 2002 memo acknowledged:
a) That pursuant to Dr. Prieto's
recommendations, Orta would return to work on
January 15, 2002, as an Administrative
Assistant in the Engineering Department, at
the same level and with the same salary rate.
b) That instead of reporting to Lugo, Orta
would report to Jesús Martínez, head of the
Engineering Department in Caguas; and
c) That Orta would enjoy a four-hour work
schedule, from 8:00 a.m. to 12:00 noon, until
she returned to her regular eight-hour
schedule after January 29, 2002.
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To implement the substantive provisions of this
accommodation, Orta was assigned to work in a trailer outside the
Merck office facilities. She, however, found the trailer dirty,
depressing, and isolating. Such a working environment led her to
apply for other positions within the company. For example, she
applied for a secretarial position in the Quality Control
Department. She, however, was denied the position. Orta alleges
that she was told by an unidentified Human Resources representative
-- she does not recall the person's name -- that she was not given
the position because of her absenteeism. However, there may have
been another reason for her rejection: if Orta was given the
position, she would have had contact with Lugo, who was part of the
Quality Control Department, and such a placement would have been
contrary to Dr. Prieto's express recommendation.
On May 1, 2002, as a direct consequence of an incident
inside the trailer with the person who replaced her in the position
of SOP Coordinator, Orta visited Dr. Lillian T. Serrano ("Dr.
Serrano"), a psychiatrist. She could not visit her usual
psychiatrist, Dr. Prieto, because Merck's medical plan had changed,
and it no longer listed Dr. Prieto as an approved medical provider.
Dr. Serrano placed Orta on leave as of May 1, 2002, and Orta
provided Merck with a certificate from Dr. Serrano to this effect.
Despite being under the care of Dr. Serrano at this time, Orta, on
May 7, 2002, visited Dr. Prieto at the insistence of her husband.
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After examining her, Dr. Prieto put Orta on medical leave until
December 31, 2002. This medical leave was later extended until
April 30, 2003. Certificates documenting this additional leave were
also provided to the company.1
As of May 2, 2003, Orta had not returned to her
employment with Merck. On May 3, 2003, Orta received a letter
dated May 2, 2003 from Abigail Pérez, Merck's Director of Human
Resources. The letter stated that because Orta had been absent for
a non-occupational illness since May 1, 2002 and because more than
the 365 days required by law for her employment to be reserved had
elapsed, her employment with Merck was terminated.
On June 3, 2003, Orta and her husband filed an employment
discrimination action against Merck. They alleged, inter alia,
violations to Orta's rights under the ADA, the FMLA, and Puerto
Rico law. After the parties engaged in discovery, Merck filed a
motion for summary judgment, which Orta and her husband opposed.
On April 25, 2005, the district court issued its Opinion
and Order, in which it granted Merck's summary judgment motion.
The court then dismissed the plaintiffs' federal claims with
prejudice and their commonwealth law claims without prejudice.
Orta and her husband now appeal these rulings.
1
According to Merck's records, Orta was on non-occupational
temporary disability leave from May 1, 2002 to May 1, 2003.
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II. Discussion
A. Standard of Review
This Court reviews the district court's grant of summary
judgment de novo. See Vélez-Rivera v. Agosto-Alicea, 437 F.3d 145,
150 (1st Cir. 2006); EEOC v. Unión Independiente de la Autoridad de
Acueductos y Alcantarillados, 279 F.3d 49, 55 (1st Cir. 2002).
B. Sworn Statement Under Penalty of Perjury
Before reaching appellants' federal and Puerto Rico
claims, we must address a preliminary issue. In assessing Merck's
summary judgment motion, the district court disregarded Orta's
Sworn Statement Under Penalty of Perjury ("Statement"), an
affidavit submitted in support of the appellants' opposition to
summary judgment. The court disregarded the Statement because it
was in conflict with the answers Orta had given in her deposition
and because the appellants had failed to provide "a satisfactory
explanation for the subsequent change in her testimony." For two
reasons, the appellants now argue that the district court erred in
disregarding Orta's Statement. First, they claim that the court
failed specifically to enumerate the contradictions in her
testimony. Second, they contend that Orta provided a "wholly
satisfactory" explanation for the change in testimony.
This Court "review[s] the district court's decision as to
'the evidentiary materials it will consider in deciding a motion
for summary judgment' only for 'a clear abuse of discretion.'"
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Lennon v. Rubin, 166 F.3d 6, 8 (1st Cir. 1999) (quoting EEOC v.
Green, 76 F.3d 19, 24 (1st Cir. 1996)).
With regard to the appellants' first ground for error, we
can find no authority whatsoever for the proposition that a
district court must specifically enumerate the contradictions that
lead it to disregard a given piece of evidence. Orta's second
asserted ground is similarly baseless. The appellants claim that
they provided a satisfactory explanation for the change in Orta's
testimony -- namely, the fact that Orta was having trouble with her
memory, and after reviewing certain documents she was able to
recall events that she did not recall during her deposition. We,
however, do not find this explanation to be satisfactory. Rather,
we believe that the district court was warranted in finding the
explanation to be an attempt to manufacture an issue of fact in
order to survive summary judgment. See Colantuoni v. Alfred
Calcagni & Sons, 44 F.3d 1, 4-5 (1st Cir. 1994) ("When an
interested witness has given clear answers to unambiguous
questions, he cannot create a conflict and resist summary judgment
with an affidavit that is clearly contradictory, but does not give
a satisfactory explanation of why the testimony is changed.").
Several factors lead us to this conclusion. First, the
Statement was executed only after Merck had filed its motion for
summary judgment, thus suggesting that the Statement was made
solely to create an issue of fact for the purpose of surviving
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summary judgment.2 In both Colantuoni, 44 F.3d at 5, and Torres v.
E.I. Dupont de Nemours & Co., 219 F.3d 13, 20 (1st Cir. 2000), we
found such a chronology to be probative of the fact that the non-
movant was merely attempting to create an issue of fact. Second,
Orta's deposition was taken on two different occasions. The first
session was on January 28, 2004 and the second session on April 7,
2004. At both sessions, she was accompanied by her attorneys. At
no point did they suggest that she was having trouble with her
memory. See Colantuoni, 44 F.3d at 5 (noting that plaintiff's
attorney "was present at the deposition, and had the opportunity to
clarify any incorrect impressions"). Orta's memory problems seem
to have developed only after Merck filed its summary judgment
motion. The district court could well find incredible this sudden,
retroactive bout of amnesia. We therefore accept the district
court's conclusion that Orta's proffered explanation was not
satisfactory and find here that the district court did not abuse
its discretion in disregarding Orta's Statement.
C. ADA claims
We now turn our attention to the more substantive
arguments made by the appellants. First, they argue that the
district court erred in dismissing their claims under the ADA
because there were genuine disputes of material fact that precluded
2
In fact, the Statement was executed on the same date that Orta
filed her opposition to Merck's motion for summary judgment.
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summary judgment. More specifically, the appellants state that
three distinct ADA claims were dismissed in error: 1) a
discriminatory discharge claim; 2) a disability harassment claim;
and 3) a "failure to accommodate" claim. We address these in turn.
We first look at the discriminatory discharge claim. For
the appellants to establish a prima facie case of disability
discrimination under the ADA, they were required to prove:
a) that Orta was "disabled" within the meaning
of the Act;
b) that Orta was able to perform, with or
without reasonable accommodation, the
essential functions of her job; and
c) that Orta was discharged or adversely
affected, in whole or in part, because of her
disability.
See Dichner v. Liberty Travel, 141 F.3d 24, 29-30 (1st Cir. 1998).
In this case, there is no controversy that the appellants produced
sufficient evidence to satisfy the first two elements. The
district court, however, held that the appellants could not
establish the third, and final, element -- namely, that Orta was
discharged or adversely affected, in whole or in part, because of
her disability. The court found that "the uncontested material
facts demonstrate[d] that Merck's decision to terminate Orta from
her employment was based on her failure to return from a leave of
absence for a non-occupational condition after the three hundred
and sixty five (365) days period provided by law ended," and not on
her disability. The court specifically noted that the appellants
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did not provide any evidence to establish that Orta's termination
was because of her disability.
On appeal, we find the same deficiency. In their brief,
the appellants cite only to the information contained in Orta's
Statement to demonstrate that Orta was discharged because of her
disability. More specifically, they cite to Orta's comment in the
Statement that her medical leave commenced on May 7, 2002 and was
to last until May 7, 2003. Such a comment, if accepted, might
create a genuine factual controversy as to the reason Orta's
employment was terminated. On the one hand, there would be Merck's
proffered explanation that Orta was fired because she had failed to
return from leave as expected on May 2, 2003. On the other hand,
there would be Orta's explanation -- namely, that her leave was
supposed to last until May 7, 2003 and that Merck, by ending her
employment prior to that date, fired her because of her disability.
As discussed above, however, we agree with the district
court's decision to disregard Orta's Statement. In the absence of
any other evidence that Merck terminated Orta because of her
disability, we are compelled to agree with the district court that
Merck's decision to terminate Orta from her employment was based on
her failure to return to work by a particular date. The district
court correctly found that the appellants had failed to satisfy the
third element of their prima facie case. Accordingly, summary
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judgment on the appellants' discriminatory discharge claim was
proper.
Next, we turn to the appellants' disability harassment
claim. On appeal, they argue that Orta was the victim of a hostile
working environment as a result of her disability. This claim is
easily disposed of, as we can find no evidence that it was raised
before the district court. This Court has long held that an issue
not raised in the district court cannot be raised for the first
time on appeal. See Waterproofing Sys., Inc. v. Hydro-Stop, Inc.,
440 F.3d 24, 31 n.2 (1st Cir. 2006); Tobin v. Liberty Mut. Ins.
Co., 433 F.3d 100, 105 n.3 (1st Cir. 2005); Roche v. John Hancock
Mut. Life Ins. Co., 81 F.3d 249, 257 n.6 (1st Cir. 1996).
Finally, we examine the appellants' "failure to
accommodate" claim under the ADA. As the district court correctly
noted, a "failure to accommodate" claim has a different set of
requirements from the "discriminatory discharge" claim. A
plaintiff in a "failure to accommodate" case must:
a) furnish sufficient admissible evidence that
she is a qualified individual with a
disability within the meaning of the ADA;
b) establish that she worked for an employer
covered by the ADA;
c) demonstrate that the employer, despite its
knowledge of the employee's limitations, did
not accommodate those limitations; and
d) show that the employer's failure to
accommodate the known limitations affected the
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terms, conditions, or privileges of the
plaintiff's employment.
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st
Cir. 1999). Although Merck conceded that the appellants produced
enough evidence to meet the first two elements, the district court
found that the appellants failed to establish either of the last
two elements. The court therefore held that summary judgment was
proper on the appellants' "failure to accommodate" claim.
On appeal, the appellants acknowledge the district
court's conclusion that Merck had "reasonably accommodated" Orta
because the company had, for instance, provided her with a number
of medical leaves. They contend, however, that there were many
ways in which Merck did not properly accommodate Orta. For
example, they assert that the company only complied in "form" and
not in "substance" with Dr. Prieto's December 2001 recommendations.
We, however, do not find this argument to be persuasive. Dr.
Prieto made three specific recommendations: 1) that Orta work for
four hours for the first two weeks upon returning from leave; 2)
that she have no contact with Lugo; and 3) that she be allowed to
be absent one afternoon every two weeks to see Dr. Prieto. From
our reading of the record, we believe Merck complied with these
recommendations to the letter, whether viewed from the perspective
of either "form" or "substance." We fail to see how the factors
cited by the appellants -- for example, that Orta was placed in a
dirty and depressing trailer, that Orta was not given a job
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description for her new position, and that Orta was not supervised
-- are at all relevant to whether Orta was in fact allowed to work
only four hours each day upon returning from leave, whether Merck
removed Orta from Lugo's supervision, or whether Orta was allowed
to be absent an afternoon every two weeks to be able to see her
psychiatrist.
The appellants also argue that the district court erred
because it failed to consider several reasonable accommodations
requested by Orta between February 2001 and March 2002. First,
they point to the fact that in February 2001, Orta requested the
relocation of her office from the first to the second floor. Even
if this is true, we do not see how such an accommodation is related
to Orta's claimed disability. See Estades-Negroni v. Assocs. Corp.
of N. Am., 377 F.3d 58, 64 (1st Cir. 2004) (noting that "under the
ADA, requests for accommodation must be . . . linked to a
disability"). Second, the appellants cite to a number of instances
in which Orta purportedly requested to be removed either from
Lugo's supervision or the trailer that she found depressing. Under
the ADA, requests for accommodation must be express, see id., and
we can find no evidence that Orta explicitly made either of these
requests. The district court came to the same conclusion, noting
that Orta only made two requests: 1) a written request to have
Merck implement Dr. Prieto's recommendations; and 2) a verbal
request to have her desk changed because it was uncomfortable. See
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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' . . . .") (quoting Henry
Perrett, Jr., 1 Americans With Disabilities Act Handbook § 4.17, at
121 (3d ed. 1997)). Third, the appellants point to how Orta's
request to be transferred to a secretarial position was denied.
The district court, however, fully considered this request for
accommodation and concluded that Merck was fully within its rights
to deny Orta the position, since "in that position Orta would have
had contact with Lugo, in contravention of Dr. Prieto's very
specific recommendation that she not have any contact with her
former supervisor."
Finally, the appellants argue that Merck failed to
properly accommodate Orta because the company terminated her
employment while she was on medical leave. There is, however, no
evidence that Orta was terminated while she was on leave. The only
proof offered by the appellants demonstrating that Orta was on
leave on May 2, 2003, the date of her termination, was Orta's
Statement, which we (and the district court) have disregarded.
There is ample evidence, however, to support the proposition that
by May 2, 2003, Orta's one-year leave had elapsed. For example,
there are the sworn statements of Merck employees Giselle Olmo and
Abigail Pérez, which state unequivocally that Orta's leave was to
end on May 1, 2003. Even more important is the district court's
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finding that Orta herself had submitted a certificate from her
doctor stating that she was on leave beginning May 1, 2002. This
demonstrates to us that Orta's one-year leave had indeed elapsed by
May 2, 2003 and that Merck, in releasing Orta on that date, did not
terminate her while she was on medical leave. Therefore, the
district court was correct in granting summary judgment on the
appellants' "failure to accommodate" claim.
D. FMLA claim
The appellants' next argument is that the district court
erred in granting summary judgment on their FMLA claim. More
specifically, they take issue with the district court's resolution
of their claim that Orta was discriminated and retaliated against
under the FMLA because she was denied the position of secretary in
the Quality Control department due to her absences under the FMLA.
The district court found that the appellants had not proffered any
significantly probative evidence to sustain their allegation that
Orta was denied the position because of her absences.
We agree with the district court. As the court correctly
stated, to establish their retaliation claim, the appellants were
required to establish their prima facie case by showing that 1)
Orta had availed herself of a protected right under the FMLA; 2)
Orta was adversely affected by an employment decision; and 3) there
was a causal connection between the protected conduct and the
adverse employment action. Hodgens v. Gen. Dynamics Corp., 144
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F.3d 151, 161 (1st Cir. 1998). Only the third prong of this test
is at issue in this appeal.
In the parties' briefs, there is some dispute about the
precise date that Orta applied for the position of secretary in the
Quality Control department. Merck claims that Orta only applied
for the position in January 2002, after Dr. Prieto had made his
December 2001 recommendation that Orta should be placed outside
Lugo's supervision. The company argues that Orta was not named to
the secretarial position because, as noted above, in that position
she would have had contact with Lugo, who at the time was a
supervisor in the Quality Control department. The appellants,
however, contend that Orta applied for the position not in January
2002, but in March 2001. They point out that, at that time, Lugo
was not a supervisor in the Quality Control department. Therefore,
there would have been no medically-related reason for not placing
Orta in the secretarial position. They allege that the real reason
that Orta was denied the job was the earlier medical leaves she had
taken under the FMLA. They came to this conclusion after an
unidentified Human Resources representative (they do not recall the
name of the person) told Orta that she was not given the position
because of her absenteeism.
We find it unnecessary to resolve this dispute about the
date of Orta's application for the secretarial position, because
even assuming that the appellants are correct and that Orta had
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applied for the secretarial position in March 2001, we would still
come to the conclusion that the appellants' FMLA retaliation claim
fails. Simply put, the appellants offer no proof that Orta's
absences were taken into account in denying her the secretarial
position. The only evidence they offer to support their claim is
the comment by the unidentified Human Resources representative who
told Orta that she was not given the position because of her
absenteeism. It is unclear, however, whether this statement was
made by someone with authority to make such a statement on behalf
of the company, in which case it could be admissible as an
admission of a party-opponent under Fed. R. Evid. 801(d)(2). As
there is no evidence in the record that the unknown employee had
such authority in this case, the evidence is inadmissible hearsay.
Accordingly, the appellants offer no significantly
probative evidence to show that there was in fact a causal
connection between Orta's FMLA leave and Merck's decision to deny
her the position of secretary in the Quality Control department.
We therefore find that the district court was correct in dismissing
the appellants' claim under the FMLA.
E. Puerto Rico claims
The appellants' final argument relates to their state law
claims. Since the district court dismissed all of the appellants'
federal causes of action, the court exercised its discretion under
28 U.S.C. § 1367(c)(3) and declined to exercise supplemental
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jurisdiction over the appellants' state law claims. The court
dismissed all of the appellants' state law claims without prejudice
so that the appellants would be able, if they wished, to refile the
state claims in state court. On appeal, the appellants were hoping
that we would reverse the district court's decision to grant
summary judgment on the federal claims and then require the
district court to exercise its supplemental jurisdiction and
reinstate the state law claims, thereby allowing for the efficient
use of judicial resources.
Since we have found that the district court properly
dismissed the appellants' federal claims, we decline the
appellants' invitation to compel the district court to exercise its
supplemental jurisdiction. See 28 U.S.C. § 1367(c)(3) (providing
that federal district courts, in their discretion, may "decline to
exercise supplemental jurisdiction over a claim under subsection
(a)," e.g., a state law claim, if the court "has dismissed all
claims over which it has original jurisdiction").
III. Conclusion
For the reasons expressed herein, the decision of the
district court granting summary judgment on behalf of Merck is
affirmed.
Affirmed.
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Orta-Castro v. Merck, Sharp & Dohme Química P.R., Inc.
Court: Court of Appeals for the First Circuit
Date filed: 2006-05-09
Citations: 447 F.3d 105
Copy CitationsCombined Opinion