United States Court of Appeals
For the First Circuit
No. 04-1046
ABIGAIL GUZMÁN-ROSARIO,
CARLOS A. PÉREZ and their conjugal partnership,
Plaintiffs, Appellants,
v.
UNITED PARCEL SERVICE, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Héctor M. Laffitte, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Fusté,* District Judge.
Lixandra Osorio-Félix and Nicolás Nogueras, Jr. Law Offices on
brief for appellants.
Pedro J. Manzano-Yates, Carlos M. Aquino-Ramos and Fiddler
González & Rodríguez, PSC on brief for appellee.
February 3, 2005
*
Of the District of Puerto Rico, sitting by designation.
BOUDIN, Chief Judge. Abigail Guzmán-Rosario ("Guzmán")
sued United Parcel Service ("UPS") in the district court for
violations of Titles I and V of the Americans with Disabilities Act
of 1990 (“ADA”), 42 U.S.C. §§ 12,101-12,213 (2000), and section 504
of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (2000).1 The
district court granted summary judgment in favor of UPS and Guzmán
now appeals.
The history can be briefly told. In 1986, Guzmán began
part-time work with UPS (four to five hours a day) at its package
clearing center at its Muñiz Base facilities in Carolina, Puerto
Rico. Her main work assignment was to scan (with a laser reader)
packages moving down an assembly line and, where necessary, to
reposition packages on the belt. This required her to stand and
move around in the vicinity of the belt.
In November 1997, Guzmán felt pain in her left side and
entered a hospital for a three-day stay. She was eventually
diagnosed with ovarian cysts; this condition sometimes disappears
in a few months without surgery. To see if the cysts resolved
themselves and perhaps for other reasons, surgery was deferred for
1
Title I prohibits employers from discriminating against a
"qualified individual with a disability because of the disability,"
42 U.S.C. § 12,112(a); Title V pertinently prohibits discrimination
against individuals who engage in certain acts protected under the
ADA, see 42 U.S.C. § 12,203(a). The counterpart provision of the
Rehabilitation Act is construed as congruent with Title I,
Oliveras-Sifre v. P.R. Dep't of Health, 214 F.3d 23, 25 n.2 (1st
Cir. 2000), and needs no separate treatment.
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about eight months. In the end, the cysts did not disappear; they
were surgically removed in July 1998, restoring Guzmán to health.
When she was hospitalized, Guzmán told her supervisor of
her condition to excuse herself from work, which he permitted. Yet
Guzmán thereafter suffered symptoms intermittently, including pain
and occasional dizzy spells that required her to sit down or double
over. Occasionally her symptoms were severe enough to require her
to remain at home lying down. Partly on this account and partly
because her son was repeatedly ill during this period and required
hospital care, Guzmán was absent from work several times (in excess
of her sick leave allowance) and was sometimes late to work.
In March 1998, Guzmán explained her condition to two
supervisors, providing them with medical documentation evidencing
her condition, to justify her absences from work and her occasional
sitting down. Though one supervisor told Guzmán that "it was
okay"; the other said that she had to resolve her condition because
her absences and her sitting down while working were adversely
affecting the company. In May 1998, Guzmán received a warning
letter from the division manager--later withdrawn as untimely under
the collective bargaining agreement--for lateness and absences
during the period January through April. A second warning letter,
relating to one more lateness in June, was timely.
In July 1998, UPS conducted a monthly audit of telephone
usage and the auditor reported to the division manager that Guzmán
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had been making excessive and unauthorized phone calls on company
time. The division manager discharged Guzmán, treating the matter
as a theft of time from the company (and so a listed ground for
discharge); the company had apparently fired other employees in
1997 and 1998 on the same ground. In a written declaration, the
division manager described the unauthorized phone calls as the
reason for Guzmán's discharge, although he separately described an
unrelated incident of Guzmán's conduct that he believed improper.
In September 1999, about 13 months after her discharge,
an arbitrator found that the termination was not justified under
the collective bargaining agreement because the company had not
earlier described such calls as "theft" and the evidence against
Guzmán was not strong. The company filed a court appeal but then
settled, reinstating Guzmán and providing partial back pay for the
period of her discharge.
Several months before the arbitration award issued,
Guzmán filed an administrative charge of disability discrimination.
In January 2002, the relevant agency rejected her claim and issued
a right-to-sue letter. Three months later, Guzmán brought the
present action in federal district court. Apart from an
unsupported claim under the Civil Rights Act of 1964, 42 U.S.C. §§
2000e et seq. (2000), which Guzmán has now abandoned, the complaint
charged UPS under the ADA and Rehabilitation Act with failure to
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accommodate her alleged disability and retaliation against her for
seeking an accommodation.
After discovery, UPS moved for summary judgment based on
Guzmán's deposition and other documents. Deeming Guzmán's
statement of contested facts inadequate under the local Puerto Rico
rule,2 the district court adopted UPS's statement of uncontested
facts. See Corrada Betances v. Sea-Land Serv., Inc., 248 F.3d 40,
43-44 (1st Cir. 2001). The court then found that Guzmán had not
been disabled prior to her surgery, had not requested an
accommodation, and had not been not subject to retaliation. This
appeal followed.
Review of the grant of summary judgment is de novo. See,
e.g., Gelabert-Ladenheim v. Am. Airlines, Inc., 252 F.3d 54, 58
(1st Cir. 2001). UPS's list of uncontested facts is accepted,
given Guzmán's failure properly to contest them; otherwise,
inferences from the record are drawn in the light most favorable to
Guzmán. See United Parcel Serv., Inc. v. Flores-Garcia, 318 F.3d
323, 330 (1st Cir. 2003). Here, the main issues turn on applying
legal tests to (mostly) known circumstances.
Where a worker is disabled an employer may not assume
stereotypically an inability to work and (beyond this) must provide
2
A local district court rule, now D.P.R. Rule 56 and formerly
D.P.R. Rule 311.12, requires that the statements of uncontested and
contested issues be specific and supported by record citations.
Guzmán's statement comprised six conclusory statements with no
citations.
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"reasonable accommodation" unless undue hardship is shown. 42
U.S.C. § 12,112(b)(5); see id. § 12,112(a)-(b). Having a
"disability" means having or being "regarded as" having a mental or
physical impairment that "substantially limits one or more . . .
major life activities." Id. § 12,102(2)(A), (C). We have
regularly consulted EEOC definitions of the terms, e.g., Wright v.
CompUSA, Inc., 352 F.3d 472, 476 (1st Cir. 2003), but no agency has
been granted authority to issue binding regulations interpreting
the term "disability." Toyota Motor Mfg., Ky., Inc. v. Williams,
534 U.S. 184, 194 (2002).
Two different issues are presented as to Guzmán's claim
that she was disabled during the period in question. One is
whether the ovarian cysts were sufficiently long-lasting a
condition to qualify as a "disability" rather than a temporary
affliction; the other is whether, duration aside, Guzmán's
condition impinged sufficiently on a "major life activity" to be
treated as disabling. The district court ruled against Guzmán on
both counts.
Starting with the first of these issues, the ADA is not
a medical leave act nor a requirement of accommodation for common
conditions that are short-term or can be promptly remedied. The
Supreme Court stated in Toyota that in order to be "substantially
limit[ing]," an impairment must be "permanent or long term."
Toyota, 534 U.S. at 198. This may encompass conditions that are
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"potentially long-term, in that their duration is indefinite and
unknowable," Santiago Clemente v. Executive Airlines, Inc., 213
F.3d 25, 31 (1st Cir. 2000) (internal quotation marks omitted), but
not those that are brief or foreseeably temporary, Carroll v. Xerox
Corp., 294 F.3d 231, 240-41 (1st Cir. 2002) (three-month medical
leave for chest pains), Soileau v. Guilford of Me., Inc., 105 F.3d
12, 16 (1st Cir. 1997) (five-week leave from work and four-month
activity restriction because of a depressive attack).
Although Santiago Clemente suggested in dictum that an
impairment of whose duration "is expected to be at least several
months" might qualify as a disability if severe enough, 213 F.3d at
31, this was before Toyota's "permanent or long term"
pronouncement, and other cases may suggest that longer periods are
required. E.g., Carroll 294 F.3d at 240-41; Soileau, 105 F.3d at
16. Case law in other circuits is also uncertain.3 The reasons
for the uncertainty are apparent.
The statute itself says nothing about duration and
nothing in the term “disability” or its definition gives a judge,
and still less a jury, much guidance. The problem is primarily a
policy choice to which Congress did not speak clearly; and the
Supreme Court has done no more than extrapolate, from some
3
See 1 Americans with Disabilities Act Handbook § 3.08, at 127
n.453 (Henry H. Perritt, Jr. ed., 4th ed. 2003) (collecting cases);
Employment Discrimination Law 165-66 & nn.109-11 (C. Geoffrey
Weirich ed., 3d ed. supp. 2002) (same).
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estimated numbers of those to be covered, that severe restrictions
of very important activities were what Congress had in mind. See
Toyota, 534 U.S. at 197-98. Until the Supreme Court fine-tunes its
interpretation, it will be unclear how lower courts should deal
with periods between, say, 6 and 24 months.
In this case, Guzmán’s period of impairment falls within
this zone, very close to the shorter end. That the impairment was
not severe lends some support to the district court’s resolution,
as our case law suggests that shorter durations are tolerated only
for more severe impairments. See, e.g., Santiago Clemente, 213
F.3d at 31, Soileau, 105 F.3d at 15-16. Still, we think it best to
reserve the issue and rest our own affirmance on the district
court’s second determination that Guzmán’s disability did not
"substantially" limit a major life activity.
One major life activity relied on by Guzmán is "working."
The Supreme Court has expressed some doubt whether working can be
so described. See Sutton, v. United Air Lines, Inc., 527 U.S. 471,
492 (1999). The EEOC regulations by contrast assume that "working"
is a major life activity. They state that a plaintiff is
"disabled" even if she can still work but if she is significantly
restricted in or precluded from performing either a "class" of
jobs--a set of jobs utilizing similar skills, knowledge, and
training to her prior job--or a "broad range" of jobs in various
classes--a large set of jobs that vary in what skills are required.
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See Gelabert, 252 F.3d at 60 (quoting 29 C.F.R. § 1630.2(j)(3)(ii)-
(iii)).
Awaiting a definitive ruling from the Supreme Court
otherwise, we have assumed that "working" is a major life activity
and applied the EEOC's framework in dismissing plaintiffs' ADA
claims, e.g., Sullivan v. Neiman Marcus Group, Inc., 358 F.3d 110,
115-16 (1st Cir. 2004). So doing, we have required claimants to
show that they were precluded from more than the performance of a
particular job. See Carroll, 294 F.3d at 240; Lebron-Torres v.
Whitehall Labs., 251 F.3d 236, 240 (1st Cir. 2001). Guzmán's
evidence of work difficulties--the occasional need to sit down and
the occasional inability to come to work because dizziness and pain
required her to lie down–-showed at most difficulties in performing
her one particular job at UPS.
Guzmán also claims as major life activities caring for
her family, socializing, doing housework, and driving. Here, too,
the law is unclear as to what counts;4 but in all events caring for
oneself commonly treated as a major life activity, e.g., Fraser v.
Goodale, 342 F.3d 1032, 1038 (9th Cir. 2003); Fenney v. Dakota,
4
See, e.g. Felix v. N.Y. City Transit Auth., 324 F.3d 102, 106
(2d Cir. 2003) (driving is not a major life activity); Sinkler v.
Midwest Prop. Mgmt. Ltd. P'Ship, 209 F.3d 678, 685 (7th Cir. 2000)
(not deciding whether driving is a major life activity); see also
EEOC v. Sara Lee Corp., 237 F.3d 349, 353 (4th Cir. 2001)
(considering claimant's ability to care for her son as indicative
of her ability to care for herself); Krauel v. Iowa Methodist Med.
Ctr., 95 F.3d 674, 677 (8th Cir. 1996) (holding that "caring for
others" is not a major life activity).
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Minn. & E. R.R. Co., 327 F.3d 707, 714-15 (8th Cir. 2003). In this
case, further refinements are not needed since Toyota requires that
the impairment "prevent[] or severely limit[]" the major life
activity. 534 U.S. at 198. Guzman showed nothing more than
occasional pain or dizziness; there is no evidence that these
episodes were so frequent as to significantly impinge on the
overall performance of the above non-work activities, and the
record shows that she could perform these tasks most of the time.
On appeal, Guzmán argues alternatively that she was
"regarded as" disabled by UPS. See 42 U.S.C. § 12,102(2)(C);
Sutton, 527 U.S. at 489. However, Guzmán never presented to the
district court her argument that she was disabled because she was
"regarded as" being unable to perform her work or any broader set
of jobs. Cf. Sheehan v. City of Gloucester, 321 F.3d 21, 24 (1st
Cir. 2003). This forfeits this claim on appeal. Campbell v.
BankBoston, N.A., 327 F.3d 1, 10 (1st Cir. 2003).
Finally, Guzmán claims that UPS retaliated against her
for protected conduct, which is separate claim under the ADA, see
42 U.S.C. § 12,203(a), and does not depend on the success of the
plaintiff's disability claim. See Wright, 352 F.3d at 477-78. The
claim is usually made by one who requests an accommodation or
complains about a refusal to accommodate and is then punished for
the request or the complaint. See id. But Guzmán never directly
requested an accommodation, and her only complaints–-to the agency
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and then to the court--came after her discharge, so the discharge
was certainly not retaliation for them.
Conceivably Guzmán might argue that by notifying her
supervisor of her condition she was implicitly requesting an
accommodation. Even on this doubtful assumption,5 nothing suggests
that her superiors had any negative reaction to being informed of
her condition or that her discharge was in any way a retaliation
for this disclosure, see Oliveras-Sifre, 214 F.3d at 26,
particularly in light of the several-month delay between the
notification and her discharge. Compare Williams v. Phila. Hous.
Auth. Police Dep't, 380 F.3d 751, 760-61 (3d Cir. 2004), petition
for cert. filed, (U.S. Dec. 22, 2004) (No. 04-873), with Wright,
352 F.3d at 478.
This case is a useful reminder that the ADA is not a cure
for all work-affecting medical difficulties and, also, that some of
them have other remedies. Here, the collective bargaining
agreement appears to have done its work. With reinstatement and
partial back pay, Guzmán must be content.
Affirmed.
5
See Estades-Negroni v. Assocs. Corp. of N. Am., 377 F.3d 58,
64 (1st Cir. 2004) ("Under the ADA, requests for accommodation must
be express and must be linked to a disability."); Reed v. LePage
Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001) ("[T]he ADA's
reasonable accommodation requirement usually does not apply unless
'triggered by a request' . . . .").
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