Gomez-Gonzalez v. Rural Opportunities, Inc.

United States Court of Appeals
For the First Circuit

No. 09-2557

MYRIAM GÓMEZ-GONZÁLEZ,
GERARDO ARRIBAS,

Plaintiffs, Appellants,

v.

RURAL OPPORTUNITIES, INC.,

Defendant, Appellee.

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

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Boudin, Ripple,* and Selya,
Circuit Judges.

Erick Morales-Pérez for appellants.
Jessica A. Figueroa-Arce with whom Radamés A. Torruella and
McConnell Valdés LLC, were on brief for appellee.
____________

December 2, 2010

*
Of the Seventh Circuit, sitting by designation.
 RIPPLE, Circuit Judge. Myriam Gómez-González, along with

her husband, Gerardo Arribas, instituted this action in the United

States District Court for the District of Puerto Rico against Ms.

Gómez’s former employer, Rural Opportunities, Inc. (“ROI”),

alleging violations of Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. § 2000e-2, the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 623(a), the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12112, and the Employment

Retirement Income Security Act (“ERISA”), 29 U.S.C. §

1132(a)(1)(B); they also sought damages for wrongful discharge and

mental distress under Puerto Rico law. ROI moved for summary

judgment on all of the plaintiffs’ claims. The district court

granted ROI’s motion for summary judgment on all of the federal

claims and dismissed the pendent state claims without prejudice.

Ms. Gómez and Mr. Arribas timely appealed. For the reasons set

forth in the following opinion, we affirm the judgment of the

district court.

I

BACKGROUND

A. Facts

ROI is a private, not-for-profit regional community

development and human services organization. Its mission is to

provide services to farm workers, low-income families and depressed

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communities. ROI’s principal office is located in Rochester, New

York, and it has an office in Adjuntas, Puerto Rico.

In 1999, ROI was looking for a director of its Puerto

Rico operations, and Ms. Gómez was assisting ROI in finding a

candidate. During the process, Lee Beaulac, Senior Vice-President

of Housing and Economic Development for ROI, approached Ms. Gómez

and asked her to take the position; Ms. Gómez was then forty-nine

years old.

At the time Ms. Gómez was hired as director of ROI’s

Puerto Rico operations, she had a preexisting back problem. To

accommodate her condition, ROI allowed Ms. Gómez, at her

discretion, to work from home a few days per week and to work out

of the Adjuntas office a few days per week. When working in

Adjuntas, she stayed at a hotel at company expense.

In 2004, Ms. Gómez knew that the housing development

program was demanding a great deal of her time and detracting from

her ability to focus on other programs. She requested an

additional person to staff the Puerto Rico division and to work as

a housing developer. Ms. Gómez had the task of reviewing

applicants and interviewing candidates for the housing development

position. This interview process began in December 2004. In

January 2005, Roger Hernandez applied for the position. Ms. Gómez

interviewed Hernandez and believed that he was qualified for the

position. Ms. Gómez identified four finalists for the position; of

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those, she ranked Hernandez highest and recommended that he be

offered the position at a higher salary level than that which was

initially posted.

Around the time that Hernandez applied for the position

at ROI, ROI’s executive committee traveled to Puerto Rico to

inspect the development sites under Ms. Gómez’s authority. Later

in January, Stuart Mitchell, Chief Executive Officer of ROI, issued

a memo to Ms. Gómez and others that gave notice of a meeting

scheduled for early February in Rochester; the purpose of the

meeting was to conduct an internal audit of the Puerto Rico

projects and programs. In preparation for this meeting, Mitchell

asked Ms. Gómez, as well as each member of the staff responsible

for administering, supervising and providing technical assistance

to Ms. Gómez or to the Puerto Rico programs, to compile a

comprehensive list of all the issues that they had encountered with

respect to the Puerto Rico operations.

The day before the meeting in Rochester, Mitchell

provided Ms. Gómez with a memorandum of issues raised by the

Rochester-based staff concerning Ms. Gómez’s performance. At the

meeting, budget and project issues were discussed, as were issues

related to Ms. Gómez’s performance. The following areas of concern

were articulated: Ms. Gómez and her staff did not communicate

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adequately with the Rochester office;1 Ms. Gómez was making

decisions without consulting Rochester program managers; there had

been complaints about verbal abuse by Ms. Gómez; Ms. Gómez

instilled fear and anxiety in her staff; ROI Puerto Rico operations

were not attaining program goals; there were serious difficulties

with three real estate development projects in Puerto Rico; and

there had been an overall failure of management. Ms. Gómez

disagreed with this assessment; however, because she was

embarrassed and did not wish to cause a scene, she decided not to

contest the items during the meeting.

The following day, Ms. Gómez was given a Notice of

Disciplinary Probation, which provided that she was being placed on

probation in part because of “[n]ot meeting expectations of the

Director for Real Estate Development and other technical

supervisors in regard to timely communication, effective problem-

solving and establishing meaningful levels of trust and confidence

needed to insure that our programs and projects are managed

properly.” App.261. The Notice also advised that management

expected improvement in several areas, including:

Immediate communication with Jay Golden
(telephone preferred, e-mail second choice) or
Keith when any issue arises that could pose a

1
More specific complaints included that Ms. Gómez did not
communicate voluntarily with the Rochester staff unless she was
under pressure or urgently needed something, that she missed
conference calls with ROI’s central staff and that Ms. Gómez was
difficult to get in touch with and, at times, unreachable.

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 problem for the project--this is the essence
of accountability and trust building. Jay is
the Developer of Record for all of the Puerto
Rico Projects and must be consulted whenever
problems arise--even if you think you can
resolve it you must communicate it to him
immediately. If he is unavailable you call
Keith or Stuart. If the issue is related to
homeownership you would call Jean Lipani.

Id. The Notice also informed Ms. Gómez that her job description

would be changed “to more accurately reflect [her] key areas of

responsibility,” and her job title would “be changed to Director of

Community Development, Puerto Rico.” Id. Ms. Gómez’s salary was

not affected by either change.

On March 14, 2005, ROI hired Hernandez as Director of

Housing Development for Puerto Rico. In this position, Hernandez

assumed much of the responsibility for real estate projects that

previously had been handled by Ms. Gómez; Hernandez also reported

directly to Jay Golden, ROI’s Senior Director for Real Estate

Development. Ms. Gómez was upset that Hernandez was not going to

report to her.

Shortly after Hernandez was hired, Ms. Gómez visited a

psychiatrist, Dr. Jose A. Nunez, because she felt desperate and

harassed by ROI. She attributed her anxiety to the Rochester

meeting, but did not know if her condition also might be related to

a family history of mental illness. The following day, Ms. Gómez

requested a leave of absence for two weeks due to severe

depression. Mitchell told Ms. Gómez to do whatever she needed to

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do in order to maintain her health. Elizabeth Scott, ROI’s

Benefits Administrator, sent Ms. Gómez paperwork to begin a

disability claim related to her depression.

Later in March, Ms. Gómez traveled to New Jersey to take

care of an emergency situation with her daughter. Her daughter’s

condition delayed Ms. Gómez’s own recovery. As a result, Ms.

Gómez’s physician increased her dosage of medication and initially

extended her rest period until April 18, 2005, and later to May 12,

2005.

Dr. Nunez completed the physician’s section of Ms.

Gómez’s disability form on April 4, 2005. He indicated that Ms.

Gómez’s depression was work-related. On the basis of this

assessment, Guardian Life Insurance Company (“Guardian”), ROI’s

disability insurance provider, denied Ms. Gómez’s disability claim.

When Scott received the denial from Guardian, she informed Ms.

Gómez that, because her disability was work-related, her claim had

to be processed through Puerto Rico’s State Insurance Fund (“SIF”)

for worker’s compensation.

After being notified of the denial of her claim, Ms.

Gómez sent a letter to Mary Hanson, the Senior Vice-President of

Human Resources for ROI. In this letter, Ms. Gómez articulated,

for the first time, that she believed that she has been subjected

to sex and age discrimination. Specifically, she stated:

I had initiated the recruitment process for a
developer a couple of months before and I had

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 a pool of candidates and an agreed Job
Description. I had interviewed the person
hired before my visit to Rochester, and though
he honestly admitted not having substantial
development experience in New York and no
knowledge of the processes in Puerto Rico, I
recommended him because he had enough
background to accomplish what the original
intention of that position was under my
supervision and responsibility.

As it turns out, the developer was hired by
Rochester staff in substitution of myself and
not as an assistant but as a “peer” Director.
His recruitment letter states clearly that I
was to “transition out” of development and
assist in administrative matters while he
retains all responsibilities and duties
related to development, including searching
for new opportunities.

Relieving me of the most important of the
responsibilities that I had, and not allowing
me to supervise this staff person is
humiliating. Due to the fact that this person
accepts not having the development expertise
or the knowledge of the Puerto Rico market and
its housing development industry, the only
conclusion that I can reach for being
substituted is that I am being discriminated
due to gender and age.

App.312-13.

In addition to filing her internal complaint of

discrimination, Ms. Gómez pursued the disability claim, related to

her depression, with the SIF. In her claim, she identified the

Rochester meeting as the source of her work-related depression.

On May 3, Ms. Gómez sent an email to Hanson and others at

ROI stating that she had visited the SIF, which had notified her

that she could not return to work until it had concluded the

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investigation of her claim. Ms. Gómez informed ROI that she could

not afford to continue without her regular income and had decided

to withdraw her claim. She indicated that she would return to work

on May 12, 2005. Hanson responded that the SIF “is now in control”

of the claim and informed Ms. Gómez that she needed to obtain and

submit a medical release prior to returning to work. App.319. On

May 11, 2005, Hanson reminded Ms. Gómez that, prior to returning to

work, she would need a release from her doctor and the SIF’s

clearance stating that her case was withdrawn.2

On May 12, 2005, while Ms. Gómez was on medical leave

related to her depression, she suffered a setback related to her

back condition. Ms. Gómez informed Scott that, as a result of this

condition, she would not be able to return to work until June 5,

2005. Ms. Gómez also completed a claim for disability benefits

through Guardian, and, on May 27, 2005, ROI sent a letter to

Guardian submitting Ms. Gómez’s new claim. On May 31, 2005, ROI

updated Ms. Gómez on her new disability claim and informed her that

Guardian would not approve the new claim because she was currently

on worker’s compensation leave.

On June 9, 2005, while Ms. Gómez’s worker’s compensation

claim still was pending, she informed Mitchell that, although the

crisis with her back condition had been stabilized,

2
The SIF finally issued a notification that the claim had
been withdrawn on July 15, 2005.

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 I still cannot conduct long drives within a
period of three months specially [sic], in the
types of roads that comprise our service area.
As per the agreements made upon my recruitment
with ROI, I request reasonable accommodation
during such period. I can work the first 2-3
weeks from home, and then I can travel one way
and stay in Adjuntas (as before), then I can
travel back another day. I can attend project
meetings with Roger.

App.478. Hanson responded to Ms. Gómez’s request accordingly:

Regarding your request included in a
letter to Stuart Mitchell dated June 9, 2005,
you are requesting that you be allowed to work
out of your home for three weeks and then to
drive to the service area one day per week.
At this time I am advised by housing
management that this is not programmatically
justifiable. If your neurologist is stating
you cannot drive long distances for three
months then we must follow that advice.
However, we are willing to discuss with you
and consider other possibilities of reasonable
accommodation. With this in mind, please let
us know any other ideas, requests, and/or
suggestions you may have along the lines of
reasonable accommodation which you feel will
make it possible for you to perform the
essential elements of your job in spite of the
conditions which you are telling us that you
have. We will consider them and respond to
you.

App.542.

While Ms. Gómez was on leave, various projects had to be

taken over by other staff members. At this time, ROI discovered

that, contrary to ROI policy and specific directions given to Ms.

Gómez, Ms. Gómez had “established an unauthorized checking bank

account apparently for the purpose of avoiding use of the ROI

financial system for receipt of donations to the corporation and

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processing payments.” Id. Hanson sent a letter to Ms. Gómez

informing her that, “[i]f true, this would be a serious breach of

authority” and that “[ROI] intend[ed] to investigate fully.” Id.

In the same letter, ROI asked Ms. Gómez to explain “in writing the

purpose for this account at Banco Popular and if there exist any

other accounts unknown to our Chief Financial Officer that you

established.” Id.

ROI’s investigation of this situation revealed that an

affiliate of ROI, Rural Opportunities of Puerto Rico, Inc.

(“ROPRI”), with Ms. Gómez’s knowledge and participation, had opened

an island-based bank account. Prior to this action, Ms. Gómez had

received instructions that ROPRI could not have an island-based

bank account because ROI’s financial processes were regulated

strictly by federal and state law. Ms. Gómez did not deny her

involvement in the opening of the bank account or in the depositing

of funds into that account. Consequently, Ms. Gómez was informed

on August 5, 2005, that her employment was terminated.

Specifically, the termination letter stated:

It is evident to ROI management that you
established this account, and failed to
disclose it, to avoid the ROI financial
accounting system. Both of your supervisors,
Lee Beaulac and Keith Scholes[,] state that on
more than one occasion, when you would raise
the subject with them, they specifically
instructed you not to establish an Island
based checking account. Once again, you
refused to follow specific directions.

Given this serious breach of procedure and

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 your failure to in any way respond to our
request for an explanation or to disclose any
rationale for your actions, we have no option
but to assume that you have no valid or
acceptable explanation for creating the
account and diverting funds made payable to
ROI. In combination with the numerous other
performance issues we have previously
detailed, I find you[r] performance
unacceptable, in violation of several policies
and warranting immediate termination.
Accordingly, we have no[] alternative but to
terminate you effective the date of this
letter.

App.481.

B. District Court Proceedings

Ms. Gómez then brought this action, alleging that ROI had

discriminated against her on the basis of her gender, age and

disability, had terminated her employment on these bases, and had

violated ERISA by denying her benefits. She and her husband also

brought state-law wrongful termination and damages claims.

ROI moved for summary judgment with respect to the

discrimination claims on the ground that Ms. Gómez was not meeting

ROI’s legitimate expectations, and, therefore, she could not

establish a prima facie case of discrimination. In the

alternative, ROI maintained that Ms. Gómez could not show that the

nondiscriminatory reason for her termination was pretextual.

Turning to the ERISA claim, ROI argued that Ms. Gómez had not

established that ROI was a plan fiduciary and, therefore, had not

established that ROI could be held liable for failure to provide

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benefits under ERISA.

The district court was persuaded by ROI’s arguments and

entered summary judgment on its behalf with respect to all of the

federal claims.3 It then dismissed, without prejudice, the

3
In conjunction with its motion for summary judgment, and as
required by rule, ROI submitted a statement of uncontested material
facts. Ms. Gómez filed a response to ROI’s statement of
uncontested material facts, which ROI moved to strike on the ground
that a number of Ms. Gómez’s responses “were denied or qualified by
plaintiff’s [sic] through conclusory allegations, inadmissible
evidence (hearsay), speculation, insult, argumentation, incomplete
statements and/or citations, and unsupported facts without
appropriate reference to adequate record material.” App.618. The
district court agreed with ROI:

After conducting a thorough review of
plaintiffs’ response to defendant’s statement of
uncontested material facts (Docket No. 38), the
court finds that plaintiff failed to properly
contest the vast majority of defendant’s statements
of fact. Plaintiffs’ denials and qualifications
are either irrelevant to the matter at hand, add
facts that should have been filed in a separate
statement, or consist of mere “speculation,
generalities, conclusory assertions, improbable
inferences, and, for lack of a better phrase, a lot
of ‘hot air.’” Dominguez v. Eli Lilly and Co., 958
F. Supp. 721, 7[2]8 (D.P.R. 1997). Consequently,
the court will cull most of the relevant facts from
defendant’s statement.

Gómez-González v. Rural Opportunities, Inc., 658 F. Supp. 2d 325,
328 n.2 (D.P.R. 2009).
In her statement of issues to this court, Ms. Gómez does
not claim that the district court’s ruling was in error or
constituted an abuse of discretion. Appellants’ Br. 8-9. Ms.
Gómez also does not argue, at any point in her brief, that the
district court’s characterization of her response, as a whole, is
incorrect.
With respect to one piece of evidence, see infra pp.23-
24, which Ms. Gómez tacitly admits “was not properly
authenticated,” she argues that, “in fairness and pursuant to the
spirit of Federal Rule[] of Evidence 102, it should have been

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plaintiffs’ pendent state claims.

II

DISCUSSION

A. Discriminatory Discharge Claims

Ms. Gómez first claims that the district court erred in

granting summary judgment in favor of ROI on her discriminatory

discharge claim. To set forth a prima facie case of gender-based

discriminatory discharge under Title VII, “the plaintiff must show

that (1) she was within a protected class, (2) [she] possessed the

necessary qualifications and adequately performed her job, (3) but

was nevertheless dismissed and (4) her employer sought someone of

roughly equivalent qualifications to perform substantially the same

work.” Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d

considered, or at the least Appellant be allowed to authenticate
said document, in order to ascertain the truth.” Appellant’s Br.
18, n.3. We disagree. We have stated that, “[i]n opposing a
motion for summary judgment, a plaintiff must proffer admissible
evidence that could be accepted by a rational trier of fact as
sufficient to establish the necessary proposition.” Gorski v. N.H.
Dep’t of Corr., 290 F.3d 466, 475-76 (1st Cir. 2002). Ms. Gómez
does not allege that she had insufficient time to respond to the
motion for summary judgment at the district court, nor did she make
any effort, after the issue of authentication (among others) had
been raised by ROI, to provide the district court with proof of
authenticity. In short, she has not provided us with any basis on
which to conclude that the district court abused its discretion in
issuing its ruling. See Mariani-Colón v. Dep’t of Homeland Sec. ex
rel. Chertoff, 511 F.3d 216, 218-19 (1st Cir. 2007) (reviewing for
an abuse of discretion the district court’s order “deeming
appellee’s statement of uncontested facts . . . admitted”).
Consequently, we shall not disturb the district court’s ruling.

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52, 58 (1st Cir. 2005). The formulation for establishing a prima

facie case of age-based termination under the ADEA is only slightly

different: The plaintiff must establish that (1) she was at least

forty years old; (2) she was qualified for the position she had

held; (3) she was fired; and (4) “the employer subsequently filled

the position, demonstrating a continuing need for the plaintiff’s

services.” Vélez v. Thermo King de P. R., Inc., 585 F.3d 441, 447

(1st Cir. 2009). If a plaintiff establishes a prima facie case of

discrimination (based on sex or age), the burden of production

shifts to the employer to come forward with a legitimate,

nondiscriminatory reason for its action. Id. “If the employer

does so, the focus shifts back to the plaintiff, who must then

show, by a preponderance of the evidence, that the employer’s

articulated reason for the adverse employment action is pretextual

and that the true reason for the adverse action is discriminatory.”

Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 470 (1st Cir. 2010).

Although the parties dispute whether Ms. Gómez can

establish a prima facie case of age or sex discrimination, their

primary focus is on whether ROI’s grounds for terminating Ms.

Gómez’s employment--her opening and use of the local ROPRI bank

account--were pretextual. We believe it both expeditious and

appropriate under these circumstances to “assume that [Ms. Gómez]

has made out a prima facie case in order to move on to the real

issues in the case.” García v. Bristol-Myers Squibb Co., 535 F.3d

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23, 31 (1st Cir. 2008). Indeed, we have observed that, “[o]n

summary judgment, the need to order the presentation of proof is

largely obviated, and a court may often dispense with strict

attention to the burden-shifting framework, focusing instead on

whether the evidence as a whole is sufficient to make out a jury

question as to pretext and discriminatory animus.” Fennell v.

First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996). We

turn, therefore, to Ms. Gómez’s evidence that ROI’s reason for

terminating her employment was pretextual.

“Pretext can be shown by such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions

in the employer’s proffered legitimate reasons for its action that

a reasonable factfinder could rationally find them unworthy of

credence and hence infer that the employer did not act for the

asserted non-discriminatory reasons.” Morgan v. Hilti, Inc., 108

F.3d 1319, 1323 (10th Cir. 1997) (internal quotation marks and

citations omitted). Ms. Gómez argues that it is implausible that

the real reason ROI terminated her employment was the opening of

the island account because she had no power over the ROPRI board

and, therefore, could not prevent this action. However, this fact

is largely irrelevant. Ms. Gómez was ROI’s liaison to the ROPRI

board and was responsible for providing them with assistance. She

failed to advise the ROPRI board that its action in opening the

island bank account was contrary to ROI’s policies. After the

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ROPRI board voted to open the account, she failed to apprise ROI

headquarters that such a measure had been passed. Finally, Ms.

Gómez participated in the opening of the account and directed that

donations made to ROI be deposited in that account. She did so

knowing that, as an employee of ROI, she was required to adhere to

ROI’s fiscal policies and procedures.4

Ms. Gómez further maintains that ROI has offered

differing or shifting justifications for its actions against her,

which is sufficient evidence of pretext. See Billings v. Town of

Grafton, 515 F.3d 39, 56 (1st Cir. 2008) (holding that “[a]n

employer’s ‘different and arguably inconsistent explanations’ for

its challenged employment action can serve as evidence of pretext”

(quoting Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432

(1st Cir. 2000))). Specifically, Ms. Gómez argues that the reasons

for terminating her employment set forth in the termination letter,

signed by Mitchell, differ from the reasons that Mitchell

articulated in his deposition. After reviewing the letter and the

4
Similarly, Ms. Gómez argues that the reason for her
termination must be pretextual because ROI took pains, subsequent
to this issue arising, to have affiliates specifically incorporate,
in their by-laws, a prohibition against establishing checking
accounts in the affiliates’ names. In essence, she claims that,
because there was no explicit provision in ROPRI’s by-laws
prohibiting such an action, her employment was terminated because
she violated a nonexistent policy. However, Ms. Gómez was not an
employee of ROPRI, but of ROI. Regardless of whether the ROPRI
board clearly understood its authority under the by-laws, this
evidence does nothing to mitigate Ms. Gómez’s participation in the
opening of the account and the depositing of funds in that account,
in contravention of her employer’s fiscal policies.

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testimony, however, we conclude that they are entirely consistent

with one another. The termination letter is two pages long and

discusses, in depth, that Ms. Gómez opened an island account for

ROPRI, that she deposited ROI donations into the ROPRI account,

that she had been told previously not to open island accounts and

that the opening of the account was in serious breach of ROI’s

fiscal policies. The letter concludes:

Given this serious breach of procedure and
your failure to in any way respond to our
request for an explanation or to disclose any
rationale for your actions, we have no option
but to assume that you have no valid or
acceptable explanation for creating the
account and diverting funds made payable to
ROI. In combination with the numerous other
performance issues we have previously
detailed, I find you[r] performance
unacceptable, in violation of several policies
and warranting immediate termination.

App.481. This letter does not conflict in any way with Mitchell’s

deposition testimony that “the reason” that Ms. Gómez was fired was

the opening of the ROPRI bank account. App.456.5

Ms. Gómez also points to a number of other pieces of

evidence that, she claims, establish that she was performing her

job responsibilities to ROI’s satisfaction. Because ROI was

5
Mitchell testified accordingly:

Q. She was strictly fired because of the checking account?
A. Yes.
Q. That’s the main reason?
A. That’s the main reason. That is the reason.

App.456.

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satisfied with her performance, she concludes that ROI’s decision

to terminate her employment must be pretextual. For instance, she

points to evidence that ROI initially was supportive of her hiring

a Real Estate Development Project Manager to work directly under

her supervision, that she was making progress with some of her real

estate projects and that she had a “wealth” of real estate

experience from which Hernandez could benefit, App.275.

Ms. Gómez’s evidence misses the mark. ROI terminated her

employment because she committed a serious breach of policy in

opening the ROPRI account and depositing ROI funds into that

account. Evidence that, prior to this discovery, ROI believed that

Ms. Gómez capably could supervise and train an additional employee

or that Ms. Gómez was making progress on some projects within the

scope of her responsibility, is not inconsistent with, and does not

undermine in any way, ROI’s stated reason for terminating Ms.

Gómez’s employment.

Because the evidence proffered by Ms. Gómez does not

raise a genuine issue of material fact with respect to pretext, we

affirm the district court’s grant of summary judgment on Ms.

Gómez’s discriminatory termination claims.

B. Reasonable Accommodation

Ms. Gómez next argues that ROI violated the ADA by

failing to provide a reasonable accommodation for her back

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condition. We have outlined the following elements of a prima

facie case of failure to accommodate:

To survive a motion for summary judgment on a
failure-to-accommodate claim, a plaintiff
ordinarily must furnish significantly
probative evidence that he is a qualified
individual with a disability within the
meaning of the applicable statute; that he
works (or worked) for an employer whom the ADA
covers; that the employer, despite knowing of
the employee’s physical or mental limitations,
did not reasonably accommodate those
limitations; and that the employer’s failure
to do so affected the terms, conditions, or
privileges of the plaintiff’s employment.

Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st

Cir. 1999).

The parties do not discuss these elements in detail.

Rather, they focus on whether Ms. Gómez’s requested accommodation,

following the aggravation of her back condition, was reasonable.

Ms. Gómez maintains that her request must be considered reasonable

because it is identical to the accommodation request that she had

made to ROI when she first was hired, and ROI had agreed to the

accommodation at that time. Appellants’ Br. 32 (“Not only did

Appellee renege on the, initially, reasonable accommodation

afforded to Appellant, but he ignored and gave a halfhearted excuse

that to do so, again, would not be ‘programmatically justifiable’

(an unexplained concept[)] . . . .”).

As a factual matter, however, Ms. Gómez is incorrect.

Originally, ROI agreed to allow Ms. Gómez to work from her home a

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few days per week and to work out of the Adjuntas office a few days

per week. However, the new accommodation contemplated Ms. Gómez

spending only one day per week in Adjuntas and traveling home the

following day.6 The original accommodation also did not permit Ms.

Gómez to work from home for weeks at a time without any travel;

however, this was an aspect of Ms. Gómez’s later request.

Ms. Gómez bears the burden of proof with respect to the

elements of her failure-to-accommodate claim. Kvorjak v. Maine,

259 F.3d 48, 55 (1st Cir. 2001) (“We recently have confirmed that

the plaintiff bears the burden of proposing an accommodation that

would enable him to perform his job effectively and is, at least on

the face of things, reasonable. This necessarily entails a showing

that the accommodation would effectively enable [him] to perform

[his] job.” (internal quotation marks and citations omitted)

(modifications in original)); Higgins, 194 F.3d at 264 (“To survive

a motion for summary judgment on a failure-to-accommodate claim, a

plaintiff ordinarily must furnish significantly probative evidence

that . . . the employer . . . did not reasonably accommodate [his]

limitations . . . .”). Because Ms. Gómez has offered no other

argument or evidence as to how the proposed accommodation, which

involved her spending significantly less time at the Adjuntas

6
At least this is how ROI interpreted the request, App.542
(“[Y]ou are requesting that you be allowed to work out of your home
for three weeks and then drive to the service area one day per
week.”), and Ms. Gómez did nothing to correct any misconception.

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office, was reasonable, she has failed to meet her burden with

respect to her ADA claim. We therefore affirm the district court’s

entry of summary judgment for ROI on this claim.

C. ERISA Claim

Finally, Ms. Gómez claims that ROI is liable under 29

U.S.C. § 1132(a)(1)(B)7 because it wrongfully denied her disability

claim. “[T]he proper party defendant in an action concerning ERISA

benefits is the party that controls administration of the plan.”

Terry v. Bayer Corp., 145 F.3d 28, 36 (1st Cir. 1998) (internal

quotation marks and citations omitted). There is an exception to

this general rule: If an entity or person other than the named

plan administrator takes on the responsibilities of the

administrator, that entity may also be liable for benefits. Law v.

Ernst & Young, 956 F.2d 364, 372-73 (1st Cir. 1992). However, “the

mere exercise of physical control or the performance of mechanical

administrative tasks generally is insufficient to confer fiduciary

7
Section 1132(a)(1) of Title 29 provides in relevant part:

A civil action may be brought--
(1) by a participant or beneficiary--
. . .
(B) to recover benefits due to him under the
terms of his plan, to enforce his rights under
the terms of the plan, or to clarify his
rights to future benefits under the terms of
the plan . . . .

29 U.S.C. § 1132(a)(1)(B).

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status.” Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 18

(1st Cir. 1998); see also Terry, 145 F.3d at 35-36 (quoting a

Department of Labor interpretive bulletin for the proposition that

“an entity which merely processes claims ‘is not a fiduciary

because such person does not have discretionary authority or

discretionary control respecting management of the plan’” (quoting

29 C.F.R. § 2509.75-8, D-2 (1997))).

In this case, ROI established, through the deposition

testimony of its benefits administrator, that it received Ms.

Gómez’s claims for disability benefits, completed the employer

portion of the forms and passed on the forms to Guardian, the plan

administrator, to determine whether benefits would be paid. Ms.

Gómez did not come forward with any evidence that ROI performed

anything except ministerial functions in the processing of her

disability claims. Consequently, ROI cannot be held liable under

ERISA for the denial of Ms. Gómez’s disability claims.

Ms. Gómez claims that there is a genuine issue of

material fact with respect to her ERISA claim. According to Ms.

Gómez, Scott, the ROI Benefits Administrator, “LIED UNDER OATH”

when she testified that she had filed the disability claim with

Guardian. App.403. As support for this assertion, Ms. Gómez

points to an email, which she included in the materials filed in

opposition to ROI’s motion for summary judgment. The email is

dated 3/12/09, purportedly from Marysol Sanquiche, a customer

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service representative at Guardian. The email reads as follows:

Dear Mr. Erick Morales Perez,

As per our telephone conversation in regards
of Mrs. Gómez Gozalez [sic], Myriam S.S # [].
We have not received a notice and proof of
claim for disability benefits for the above
claimant or for this S.S #[] as [of] 03/11/09.

Any further questions feel free to contact our
office.

App.494. This unauthenticated, unsworn document cannot be relied

upon to defeat ROI’s motion for summary judgment. We have

explained that

the nonmovant bears “the burden of producing
specific facts sufficient to deflect the swing
of the summary judgment scythe.” Mulvihill v.
Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir.
2003). Those facts, typically set forth in
affidavits, depositions, and the like, must
have evidentiary value; as a rule, “[e]vidence
that is inadmissible at trial, such as
inadmissible hearsay, may not be considered on
summary judgment.” Vazquez v. Lopez-Rosario,
134 F.3d 28, 33 (1st Cir. 1998). . . .

Noviello v. City of Boston, 398 F.3d 76, 84 (1st Cir. 2005). The

email submitted by Ms. Gómez is not only hearsay, see Fed. R. Evid.

801, 802, but also it is not, on its face, relevant, see Fed. R.

Evid. 401, 402, or based on the personal knowledge of the author,

see Fed. R. Evid. 602. The email, therefore, cannot be used to

defeat ROI’s motion for summary judgment. Noviello, 398 F.3d at

84.

Conclusion

Ms. Gómez has failed to come forward with evidence

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establishing that her termination was pretextual. Similarly, she

has not come forward with evidence establishing that ROI failed to

provide her with a reasonable accommodation or that ROI was liable

for any denial of disability benefits. We therefore affirm the

district court’s grant of summary judgment with respect to Ms.

Gómez’s federal claims.8

AFFIRMED.

8
As noted previously, the district court dismissed without
prejudice Ms. Gómez’s pendent state claims. In her brief, Ms.
Gómez requested that this court adjudicate her state claims if she
were to prevail on appeal with respect to her federal claims.
However, she did not allege any error in the district court’s
dismissal, nor did she make any argument or present any evidence
establishing an independent basis for the district court’s
jurisdiction. Therefore, we also affirm the district court’s
dismissal without prejudice of Ms. Gómez’s state claims.

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