Delgado-Echevarria v. AstraZeneca Pharmaceuticals LP , 856 F.3d 119 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 15-2232
TAYMARI DELGADO ECHEVARRÍA,
Plaintiff, Appellant,
v.
ASTRAZENECA PHARMACEUTICAL LP; ASTRAZENECA LP,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
Before
Thompson, Dyk,* and Kayatta,
Circuit Judges.
Vilma Maria Dapena Rodriguez for appellant.
Lourdes C. Hernández-Venegas, with whom Elizabeth Pérez-
Lleras and Schuster Aguiló LLC were on brief, for appellees.
May 2, 2017
* Of the Federal Circuit, sitting by designation.
THOMPSON, Circuit Judge. The plaintiff, Taymari Delgado
Ecvhevarría (Delgado), appeals from the entry of summary judgment
in favor of her former employer, AstraZeneca Pharmaceutical LP
(AstraZeneca).1 Although Delgado labors mightily to demonstrate
the existence of a litany of genuine disputes of material fact,
her inability to do so with respect to each of the essential
elements of her claims compels us to affirm.
BACKSTORY
Consistent with Delgado's effort to show the existence
of a host of factual disputes in this case, each party's brief
provides an in-depth discussion of the facts. We prefer to take
a different tack: briefly sketching here the general background
and setting forth in detail only those facts that are relevant to
our disposition of this appeal, augmenting this background as
necessary in the pages that follow. As in all other summary-
judgment cases, we view the facts (and all reasonable inferences
that can be drawn from them) in the light most favorable to
Delgado, the nonmovant. See Garmon v. Nat'l R.R. Passenger Corp.,
844 F.3d 307, 312 (1st Cir. 2016).
In 2001, AstraZeneca hired Delgado to work as a
Pharmaceutical Sales Specialist (PSS). She was promoted to a
1 Delgado sued AstraZeneca Pharmaceutical LP and AstraZeneca
LP. Taking our cue from Delgado's complaint, we refer to both
entities collectively as "AstraZeneca."
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Hospital Specialist in 2009. With the new position came a new
supervisor, Maribel Martínez (Martínez).
In November 2010, Delgado sought treatment for
depression and anxiety with Dr. Jorge A. Sánchez Cruz (Sánchez),
a psychiatrist. Nearly one year later, Delgado learned that she
had a pituitary microadenoma (a small brain tumor, in layman's
terms). Delgado informed Martínez of the tumor and the two biopsy
procedures that flowed from this diagnosis, but did not disclose
her depression or anxiety.
On December 12, 2011, Sánchez diagnosed Delgado with
severe depression and extreme anxiety, and he recommended that she
refrain from working. Later that day, Delgado emailed an
AstraZeneca occupational health nurse in order to get the ball
rolling on her application for benefits under the company's short-
term disability (STD) policy.2 Initially, AstraZeneca denied
2 A quick primer on that policy: It "provides full or partial
income replacement for eligible employees during brief periods of
disability," including "disability due to . . . mental illness,"
provided that the employee submits "the medical information
necessary to substantiate the [benefits] claim" to the company's
Corporate Health Services department (CHS). CHS is tasked with
approving or disapproving a request for benefits and, in the event
of approval, determining how long benefits will be paid. The
policy also declares that "[t]he maximum period of time for which
STD benefits are payable is 26 weeks for any single period of
disability." After this 26-week window closes, the employee may
be eligible for long-term disability (LTD) benefits or an "unpaid
extended disability leave." However, CHS can terminate benefits
prior to the expiration of the 26-week period where, among other
scenarios, it determines that the employee is no longer disabled
or the employee fails to submit the necessary supporting
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Delgado's request for STD benefits because CHS determined that she
had not submitted the necessary documentation. In response,
Sánchez provided additional paperwork on Delgado's behalf in which
he estimated that she needed to be out on leave for about five
months until May 2012.
AstraZeneca subsequently awarded Delgado STD benefits
(retroactive to December 12, 2011) until January 22, 2012.3 The
record does not reflect the reason that AstraZeneca did not grant
Delgado STD benefits until May, as Sánchez requested. AstraZeneca
periodically extended her benefits on several occasions. Delgado
received treatment in a hospital on an outpatient basis sometime
in late January or early February, and her benefits were extended
until February 12. Delgado's benefits were then extended again
until March 4, and once more until March 11.
In two treatment records that Sánchez submitted to
AstraZeneca on Delgado's behalf — one dated February 22 and the
other dated March 8 — Sánchez described Delgado as "[m]ildly
[i]ll." On March 11, AstraZeneca terminated Delgado's STD benefits
because she failed to submit what it viewed as adequate
documentation. The policy warns that, if "benefits are suspended
or denied and the employee does not return to work, the employee
may be considered to have abandoned the employee's job and be
subject to immediate termination from employment."
3 From here on out, all specified dates are from the year 2012
unless otherwise noted.
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documentation of her disability. Five days later, Michael Cohran
(Cohran), the then Senior Employment Practices Partner in the Human
Resources department at AstraZeneca, sent a letter to Delgado
instructing her to return to work by March 22 and informing her
that, if she failed to do so, AstraZeneca would presume that she
resigned from her employment with the company. In response,
Sánchez requested that AstraZeneca continue Delgado's medical
leave until March 30.
When Delgado did not return to work on March 22, Cohran
called her, put pressure on her to resign, offered her a severance
package, and suggested that, once she took care of her health, she
reapply for her position with AstraZeneca in six months if her
position was still open. The conversation was an upsetting one
for Delgado; she became "pretty hysterical," began to cry, was
unable to finish the call, and suffered a "relapse" of her
condition as a result. One week after Cohran's phone call with
Delgado, Sánchez submitted additional documentation in support of
his request that AstraZeneca continue Delgado's medical leave;
Sánchez characterized Delgado as "[s]everely [i]ll" in this
paperwork. AstraZeneca then extended Delgado's STD benefits until
April 29.
By letter dated May 7, AstraZeneca informed Delgado that
her STD benefits terminated on April 30. Cohran sent another
letter to Delgado on May 14 informing her that, if she did not
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return to work on May 17, AstraZeneca would presume that she
resigned from the company.
Delgado did not return to work on May 17. Instead,
Sánchez faxed additional documentation to AstraZeneca on Delgado's
behalf that day.4 In one section of AstraZeneca's leave form,
Sánchez related that Delgado's medical condition commenced in 2009
and would probably last "more than a year." In another section of
the same form, Sánchez requested additional leave for Delgado and
indicated that she was "unable to work at this time"; additionally,
in response to a question on the form calling for an "estimate
[of] the beginning and ending dates for the period of incapacity,"
Sánchez entered: "12 months."5 An AstraZeneca occupational health
4
We note that the record is not crystal clear on when Sánchez
faxed this documentation to AstraZeneca. Although a form that
Sánchez faxed to AstraZeneca is dated May 14 and Sánchez testified
in his deposition that he "submitted [the form] on behalf of
[Delgado] on May 14," Delgado states in her opening brief to this
court that Sánchez sent the form to AstraZeneca "[o]n May 17."
Additionally, as far as we can tell, the record does not reflect
precisely when on May 17 Sánchez faxed this documentation to
AstraZeneca. The closest we can come to pinpointing that time is
to note that, at 2:07 p.m., an AstraZeneca occupational health
nurse sent Cohran an email explaining that she had reviewed the
form and determined that it did not support reinstating Delgado's
benefits. Given the manner in which we resolve this appeal, we
need not grapple with any uncertainty of when AstraZeneca received
the documentation.
5 Sánchez later testified at his deposition that this entry
was meant to convey his estimate "that [it] would have been May
14, 2013, at a minimum, before . . . Delgado would be able to work"
and that his "expectation was for her to . . . resolve her problems
and be able to return to work in 12 months."
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nurse told Cohran via email on May 17 that she reviewed this form
the same day that it was faxed to the company, determined it did
not support reinstating Delgado's STD benefits, and left Delgado
a voicemail later that day. AstraZeneca did not follow up with
Delgado's psychiatrist that day or at any point thereafter.
Rather, on May 18, Cohran sent Delgado yet another
letter. This letter reiterated that Delgado had been required to
return to work the day before or else "be presumed to have resigned
[her] employment with AstraZeneca" and confirmed that she had
neither reported to work as instructed nor contacted her
supervisor. The letter indicated that Delgado's "termination
effective date [was] July 19." The letter also noted another
update; that, "due to a recent reorganization in field sales, we
are making a non-negotiable offer of severance to you." Finally,
on July 17, with no other communications passing between
AstraZeneca and Delgado in the interim, Cohran sent Delgado one
more letter that informed her: "As outlined in my letter dated
May 18, 2012, due to a recent reorganization in field sales your
position was eliminated . . . ." The July 17 letter also reminded
Delgado of the effective date of her termination two days later
and the severance-package offer.
Delgado did not accept AstraZeneca's offer. Instead, in
February 2013, she initiated this action against her former
employer, alleging a host of claims under federal and Puerto Rico
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law. In particular, Delgado alleged that AstraZeneca violated the
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213,
by discriminating against her on account of her disability, failing
to reasonably accommodate that disability, failing to engage in an
interactive process to discuss reasonable accommodations, and
retaliating against her for engaging in protected activity under
the ADA. Delgado also alleged that AstraZeneca violated several
provisions of Puerto Rico law, including Law 44, Article 1802, and
Law 80.6 The district court entered summary judgment in
AstraZeneca's favor. Delgado timely appealed.
STANDARD OF REVIEW
We review the entry of summary judgment de novo. Ortiz-
Martínez v. Fresenius Health Partners, PR, LLC, No. 16-1453, 2017
WL 1291193, at *4 (1st Cir. Apr. 7, 2017); Garmon, 844 F.3d at
312. Summary judgment is appropriate when "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Ameen v. Amphenol Printed Circuits,
6
Delgado also asserted claims of hostile-work environment,
interference with and retaliation for requesting leave under the
Family and Medical Leave Act (FMLA), see 29 U.S.C. §§ 2601-2654,
age discrimination in violation of the Age Discrimination in
Employment Act (ADEA), see id. §§ 621-634, and Puerto Rico's Law
100, as well as a claim for violation of Puerto Rico's Act No.
115. Because Delgado either withdrew these claims at the district-
court level or has not addressed the district court's entry of
summary judgment on these claims in her briefing before this court,
however, we need not discuss these claims or the facts giving rise
to them.
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Inc., 777 F.3d 63, 68 (1st Cir. 2015). We are free to affirm the
entry of summary judgment "on any basis apparent in the record."
Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 86 (1st Cir. 2012)
(quoting Chiang v. Verizon New Eng. Inc., 595 F.3d 26, 34 (1st
Cir. 2010)).
ANALYSIS
On appeal, Delgado argues that the district court erred
in entering summary judgment for AstraZeneca on both her ADA claims
and Puerto Rico law claims. We address her ADA claims first and
then turn to her remaining claims.
A. ADA Claims
Delgado's complaint asserted that AstraZeneca violated
the ADA in several respects. Those claims can be classified into
one of two general categories: disability discrimination and
retaliation. We address each category in turn.
1. ADA Disability-Discrimination Claim
To withstand summary judgment on an ADA disability-
discrimination claim, Delgado needs to show the existence of a
genuine dispute of material fact as to all three elements of her
prima facie case: (1) that she is disabled under the ADA; (2) that
she "is qualified to perform the essential functions of [her] job
with or without reasonable accommodation"; and (3) that she "was
discharged or otherwise adversely affected in whole or in part
because of [her] disability." Jones, 696 F.3d at 87. In this
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case, the district court assumed, without deciding, that Delgado
was disabled under the ADA on account of her depression and
anxiety, and we do the same. Delgado and AstraZeneca spar over
the remaining elements.
We narrow our focus to the qualified-individual element,
which imposes a burden on Delgado to show: (1) "that she possesses
the requisite skill, experience, education and other job-related
requirements for the position"; and (2) "that she is able to
perform the essential functions of the position with or without
reasonable accommodation." Mulloy v. Acushnet Co., 460 F.3d 141,
147 (1st Cir. 2006). AstraZeneca does not dispute that Delgado
satisfies this first requirement — her qualification for the
position — and Delgado does not contend that she was able to
perform the essential functions of her position without a
reasonable accommodation.7 Thus, the scope of our inquiry shrinks
further still; we need only address whether Delgado has shown a
genuine dispute of material fact that she was able to perform the
essential functions of her position with a reasonable
accommodation. See id.The ADA compels an employer "to make 'reasonable
accommodations to the known physical or mental limitations of an
7 Indeed, she concedes in her reply brief that she "was unable
to work at the time she was on leave, and at the time she requested
an extension of her leave."
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otherwise qualified individual with a disability who is an
applicant or employee, unless [the employer] can demonstrate that
the accommodation would impose an undue hardship on [its] operation
of the business.'" Ortiz-Martínez, 2017 WL 1291193, at *4 (quoting
42 U.S.C. § 12112(b)(5)(A)); see also U.S. Airways, Inc. v.
Barnett, 535 U.S. 391, 393 (2002) (explaining that the ADA
"prohibits an employer from discriminating against an 'individual
with a disability' who, with 'reasonable accommodation,' can
perform the essential functions of the job" (quoting § 12112(a),
(b))). The plaintiff bears the burden of showing the existence of
a reasonable accommodation. See Reed v. LePage Bakeries, Inc.,
244 F.3d 254, 258 (1st Cir. 2001). To satisfy that burden, "a
plaintiff needs to show not only that [(1)] the proposed
accommodation would enable her to perform the essential functions
of her job, but also that, [(2)] at least on the face of things,
it is feasible for the employer under the circumstances."8 Id. at
259; see also Jones, 696 F.3d at 90; Freadman, 484 F.3d at 103;
Mulloy, 460 F.3d at 148. We have referred to the second aspect of
this burden as an obligation to show that the requested
accommodation is "facially reasonable." Reed, 244 F.3d at 260.
8
We have also recognized that "[a] plaintiff may sometimes
be able to establish the reasonableness of a proposed accommodation
by showing it is a method of accommodation that is feasible in the
run of cases," although we also added that "this will not always
be so." Reed, 244 F.3d at 259 n.5.
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Delgado argues that her May 17 request for an additional
twelve months of leave was a reasonable accommodation.9 The
district court thought otherwise, concluding that, in essence,
Delgado was seeking indefinite leave — an accommodation that is
not reasonable under the ADA.10 See Fiumara v. President & Fellows
of Harvard Coll., 327 F. App'x 212, 213 (1st Cir. 2009); Watkins
v. J & S Oil Co., 164 F.3d 55, 62 (1st Cir. 1998); see also Robert
v. Bd. of Cty. Comm'rs of Brown Cty., 691 F.3d 1211, 1218-19 (10th
Cir. 2012). Having set the stage, we now provide our take.
First things first: All agree that a leave of absence
or a leave extension can constitute a reasonable accommodation
9 The record is unclear on whether Delgado was seeking paid
or unpaid leave. At oral argument, Delgado's counsel suggested
that her client was seeking paid leave, although she also seemed
to suggest that Delgado had made payroll contributions to the
source of the funds that would be used to pay for that leave. Given
this lurking uncertainty about the true nature of the leave
requested, we assume, favorably to Delgado, that she requested
unpaid leave.
10 As Delgado points out, the district court erroneously
stated in its decision that Sánchez "asserted that the expected
duration of [Delgado's] need for additional leave was for more
than a year." Actually, Sánchez had indicated on the form he faxed
to AstraZeneca that the "[p]robable duration of [Delgado's]
condition" was "more than one year." (Emphasis added.) In a
separate section of the form asking for an "estimate [of] the
beginning and ending dates for the period of [Delgado's]
incapacity," Sánchez wrote "12 months." (Emphasis added.) So,
Sánchez did not indicate that Delgado needed additional leave for
more than one year. But, as we view things, the district court's
mistake is immaterial. Cf. Jones, 696 F.3d at 88 ("While we agree
with Jones that several of the 'facts' stated in the district
court's opinion are mistaken, none of those facts is material to
our analysis.").
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under the ADA "in some circumstances." García-Ayala v. Lederle
Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000); see also
Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir. 1998). And, to
be sure, "[w]hether [a] leave request is reasonable turns on the
facts of the case." García-Ayala, 212 F.3d at 647 (alterations in
original) (quoting Criado, 145 F.3d at 443). But the fact-
intensive nature of the reasonable-accommodation inquiry does not
insulate disability-discrimination cases from summary judgment.
To the contrary, a plaintiff must show, even at the summary-
judgment stage, that the requested accommodation is facially
reasonable. See Reed, 244 F.3d at 259-60. And, where a plaintiff
fails to show facial reasonableness, summary judgment for the
defendant is appropriate. See, e.g., Jones, 696 F.3d at 91. So
it is here.
The combined effect of two aspects of this case convince
us that Delgado has failed to show that her request for twelve
more months of leave was a reasonable accommodation. First, it
seems doubtful that Delgado shouldered her burden of showing that
the requested accommodation would have enabled her to perform the
essential functions of her position. Second, Delgado has not shown
that additional leave for this duration is a facially reasonable
accommodation, either in the circumstances of her particular case,
Reed, 244 F.3d at 259, or "in the run of cases," id. at 259 n.5.
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On appeal, Delgado disputes both of these conclusions, but to no
avail.
a. Effectiveness of Accommodation
Delgado seems to assert that Sánchez informed
AstraZeneca that the requested additional twelve months "would
have improved [Delgado's] condition and [that] she would have been
able to return to work."11 Upon closer inspection, however, this
claim is dubious.
For starters, Delgado relies, at least in part, on
Sánchez's deposition testimony to support her assertion. This is
problematic. Even if Sánchez opined during his deposition in 2014
that Delgado would have been able to return to work after twelve
more months of leave, "[t]he facts relevant to a determination of
whether a medical leave is a reasonable accommodation are the facts
11 Relatedly, Delgado's brief appears to suggest that the
request for twelve additional months of leave was reasonable simply
because Sánchez specified this number and his past treatment of
Delgado "was effective." This suggestion (to the extent Delgado
intended to make it) is a nonstarter. As we explained in Reed, an
employee cannot establish the reasonableness of the requested
accommodation simply by showing that the accommodation will be
effective (i.e., that it will allow the employee to perform the
essential functions of her position); instead, a plaintiff must
also show that the accommodation is facially reasonable. See 244
F.3d at 259-60 (rejecting EEOC's argument that "the only burden a
plaintiff has on proving reasonable accommodation is to show that
the accommodation would effectively enable her to perform her job"
because "proving an accommodation's effectiveness is part of the
plaintiff's burden[,] but it is not the whole" and adopting instead
a two-pronged burden requiring plaintiff to show both an
accommodation's effectiveness and its facial reasonableness).
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available to the decision-maker at the time of the employment
decision." Amadio v. Ford Motor Co., 238 F.3d 919, 928 (7th Cir.
2001); cf. Jones, 696 F.3d at 90-91 (explaining that "'[o]ne
element in the reasonableness equation is the likelihood of
success'" and concluding that employee failed to show that
requested accommodation — an extension of time to take a test —
was reasonable because he "did not show any reason for the employer
to conclude he would pass the exam if given yet another opportunity
to take it" (quoting Evans v. Fed. Express Corp., 133 F.3d 137,
140 (1st Cir. 1998))); Henry v. United Bank, 686 F.3d 50, 60 (1st
Cir. 2012) (affirming entry of summary judgment on failure-to-
accommodate claim brought under analogous state law because, "as
of the date of her termination, the plaintiff . . . had given the
bank neither a relative time frame for her anticipated recovery
nor any indication of when or whether she would ever be able to
return to her credit analyst position in the future"). With one
possible exception discussed below, Delgado has pointed us to no
evidence in this record suggesting that Sánchez communicated his
one-year-to-recover opinion to AstraZeneca in 2012, "[a]nd we will
not become archeologists, devoting scarce judge-time to dig
through the record in the hopes of finding something [Delgado]
should have found." Belsito Commc'ns, Inc. v. Decker, 845 F.3d
13, 22 (1st Cir. 2016).
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The closest thing in this record to evidence that Sánchez
informed AstraZeneca that the requested twelve additional months
of leave would likely enable Delgado to return to work appears to
be an entry in the form Sánchez faxed to AstraZeneca on May 17.
Delgado seizes upon this entry, but it's hardly the golden ticket
that she thinks it is.
In the space on the form calling for an "estimate [of]
the beginning and ending dates for the period of incapacity,"
Sánchez wrote: "12 months." That's all. As far as we can tell,
Delgado evidently believes that, because (1) the form calls for an
estimate of the ending date of the period of incapacity and (2)
Sánchez wrote twelve months in response, (3) the implication is
that, after the twelve months elapsed, Delgado would be ready to
return to work.
Although we are duty-bound at this juncture to view the
facts in the light most favorable to Delgado and to draw all the
reasonable inferences that can be drawn from those facts in her
favor, we are leery to conclude that the form could be reasonably
understood to have conveyed to AstraZeneca that the proposed
accommodation of an additional twelve months of leave would allow
Delgado to return to work able to perform the essential functions
of her position. Read literally, this single entry on the form
says no such thing. But, even if we accepted Delgado's argument
that Sánchez impliedly suggested by this entry that Delgado would
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return to work after twelve additional months of leave and that
AstraZeneca should have understood as much by reading between the
lines, Delgado has not told us whether Sánchez submitted any
supporting medical documentation when he faxed the form to
AstraZeneca — let alone that any such documentation supported what
Delgado views as Sánchez's implicit assertion that she would have
been able to return to work after twelve more months of leave.12
This barren record strikes us as a rather meager attempt, in the
circumstances of this case, to demonstrate that the requested
accommodation would have been effective. Nonetheless, given our
obligation to view the evidence in the light most favorable to
Delgado, we assume that she has met her burden on this score.
b. Facial Reasonableness
There is an even larger flaw in Delgado's case: She has
failed to show that her proposed accommodation of an additional
twelve months — a lengthy period — of leave is a facially
12 We note that, in addition to the form that Sánchez signed
on May 14 and faxed to AstraZeneca on May 17, Delgado submitted
two pages of Sánchez's treatment records, dated May 10, as a
separate exhibit to support her opposition to AstraZeneca's motion
for summary judgment. It is not clear whether these records
accompanied the form that Sánchez faxed to AstraZeneca. Even if
they did, however, we see nothing in these two pages of medical
records that contains any suggestion that Delgado would be able to
return to work in twelve months' time. The AstraZeneca occupational
health nurse who reviewed whatever documents Sánchez faxed to
AstraZeneca concluded that the documentation did not support
reinstatement of Delgado's STD benefits, and Delgado has not
pointed us to anything specific in the record to rebut that
assessment.
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reasonable accommodation. For starters, the sheer length of the
delay, when coupled with her prior five-month leave from December
2011 to May 2012, jumps off the page. Courts confronted with
similar requests — even ones for half the amount of time that
Delgado requested — have concluded that such requests are not
facially reasonable. See, e.g., Hwang v. Kan. State Univ., 753
F.3d 1159, 1162-63 (10th Cir. 2014) (Gorsuch, J.); see also Luke
v. Bd. of Trustees of Fla. A & M Univ., No. 15-13995, 2016 WL
7404677, at *3 (11th Cir. Dec. 22, 2016) (holding that request for
additional leave, after employee had already received nine months
of leave, was unreasonable-accommodation request where employee
would remain unable to perform essential function for another six
months); Stallings v. Detroit Pub. Schs., 658 F. App'x 221, 226-
27 (6th Cir. 2016) (holding that teacher's request for four months'
leave was not a reasonable accommodation); Epps v. City of Pine
Lawn, 353 F.3d 588, 593 n.5 (8th Cir. 2003) (concluding that
employee failed to show that requested accommodation of six months
of leave was reasonable); cf. Larson v. United Nat. Foods W., Inc.,
518 F. App'x 589, 591 (9th Cir. 2013) ("[A]n indefinite, but at
least six-month long, leave of absence to permit [the employee] to
fulfill the [substance-abuse professional's] treatment
recommendations so that he might eventually be physically
qualified under the DOT regulations is not a reasonable
accommodation."); Byrne v. Avon Prods., Inc., 328 F.3d 379, 380-
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81 (7th Cir. 2003) (suggesting that two months employee spent away
from work for treatment for mental difficulties would not qualify
as reasonable accommodation because "[i]nability to work for a
multi-month period removes a person from the class protected by
the ADA").
Our newest judicial superior, Justice Gorsuch, then
writing for the Tenth Circuit in Hwang, nicely captured the dilemma
that lengthy leave requests pose for employers:
By her own admission, [the plaintiff] couldn't
work at any point or in any manner for a period
spanning more than six months. It perhaps
goes without saying that an employee who isn't
capable of working for so long isn't an
employee capable of performing a job's
essential functions — and that requiring an
employer to keep a job open for so long doesn't
qualify as a reasonable accommodation. After
all, reasonable accommodations — typically
things like adding ramps or allowing more
flexible working hours — are all about
enabling employees to work, not to not work.
. . . .
. . . [I]t's difficult to conceive how an
employee's absence for six months — an absence
in which she could not work from home, part-
time, or in any way in any place — could be
consistent with discharging the essential
functions of most any job in the national
economy today. Even if it were, it is
difficult to conceive when requiring so much
latitude from an employer might qualify as a
reasonable accommodation.
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753 F.3d at 1161-62 (internal citations omitted).13 Compliance
with a request for a lengthy period of leave imposes obvious
burdens on an employer, not the least of which entails somehow
covering the absent employee's job responsibilities during the
employee's extended leave. Delgado's facial-reasonableness
showing must take these obvious burdens into account. See Reed,
244 F.3d at 259-60 ("[T]he difficulty of providing plaintiff's
proposed accommodation will often be relevant . . . to the
reasonableness of the accommodation . . . . Plaintiff will often
need to take such difficulties into account in proving whether the
accommodation is facially practicable . . . .").14 She has not
done so.
In an attempt to show that her requested accommodation
was facially reasonable, Delgado points out that, under
AstraZeneca's leave policy, employees are entitled to exhaust 26
weeks of STD leave and then also to receive LTD benefits after
13Hwang was a Rehabilitation Act case, not an ADA case. See
753 F.3d at 1161. This matters not at all, however, because "[t]he
same standards . . . apply to [failure-to-accommodate] claims under
the ADA and under the Rehabilitation Act." Calero-Cerezo v. U.S.
Dep't of Justice, 355 F.3d 6, 11 n.1 (1st Cir. 2004).
14Importantly, this does not mean that a plaintiff must show
the absence of an undue hardship. The burden to show undue
hardship always remains with the employer. Reed, 244 F.3d at 258.
But "where[, as here,] the costs of an accommodation are relatively
obvious — where they really are what they appear to be on the face
of things — plaintiff's burden and defendant's burden may in
application be quite similar, even to the extent of being mirror
images." Id. at 260.
- 20 -
that. This is true as far as it goes, but it doesn't take Delgado
very far. After all, employees are entitled to benefits only if
they have sufficiently documented the need for them to the
satisfaction of CHS. AstraZeneca determined that Delgado's May 17
request for leave was not adequately supported by the provided
documentation, and Delgado did not challenge that determination
through the internal, company appeals procedure outlined in
AstraZeneca's STD policy.15 So, notwithstanding the theoretical
availability of benefits under AstraZeneca's policy, Delgado has
not shown that, "under the circumstances" of this case, Reed, 244
F.3d at 259, her request for an additional twelve months of leave
was facially reasonable.
Undaunted, Delgado claims that our decision in García-
Ayala supports the reasonableness of her request for extended STD
leave. She is mistaken. As an initial matter, Delgado
misapprehends the precise accommodation request at issue in
García-Ayala. Contrary to her assertion that we held that a
15
We note that each written notice that AstraZeneca sent
Delgado explaining that her STD benefits had been terminated
clearly informed her of the company's appeals process. For
example, the May 7 letter informed Delgado that, "[i]f you disagree
with this decision, you may file an appeal with the Administrator
of the STD policy . . . or AstraZeneca STD Administrative
Committee," and provided her with contact information for those
entities. There is nothing in the record to suggest that Delgado
ever utilized this appeals procedure. Similarly, the record does
not reflect whether Delgado ever pressed an ERISA claim for
benefits under either the STD or LTD plans; she presses no such
claim in the case before us.
- 21 -
"request for leave up to 17 months did not constitute an undue
burden," the only leave request at issue in that case was the
plaintiff's request for an additional two months of leave from the
date of the request. García-Ayala, 212 F.3d at 647.16 We reversed
the entry of summary judgment for the employer in that case because
the district court improperly "applied per se rules — rather than
an individualized assessment of the facts." Id. at 647. And the
employee had demonstrated, in the circumstances of that case, that
"the requested accommodation of a few additional months of
unsalaried leave, with the job functions being satisfactorily
performed in the meantime, [was] reasonable." Id. at 649. She
pointed to evidence that showed that the employer was able to fill
the employee's "position with individuals hired from temporary
agencies" and "had no business need . . . to replace [the employee]
with an in-house hire, and hence would not have suffered had it
waited for several more months until [the employee's] return."
Id. at 648. Moreover, "the employer did not contest the
reasonableness of the accommodation except to embrace a per se
16
In her reply brief, Delgado asserts that the leave request
was for five additional months. But this assertion, too, is
incorrect. We plainly stated in García-Ayala that "the leave that
García requested on June 10 was for less than two months." 212
F.3d at 647. We then noted that "[t]he district court viewed the
request as being for five months" and explained in dictum that,
"[e]ven if the request were for an additional five months of unpaid
leave," the result would not change. Id.- 22 -
rule that any leave beyond its one-year reservation period was too
long." Id. at 649.
In this case, Delgado's request for twelve months of
leave — on top of the five months already taken — is very different.
Our holding in García-Ayala was driven by the particular facts of
that case. See id. at 650 ("We add that our analysis, while
applicable to these facts, may not be applicable in other cases.").
Indeed, we acknowledged that, "on different facts, a request for
an extended leave could indeed be too long to be a reasonable
accommodation and no reasonable factfinder could conclude
otherwise." Id. at 649. This coda seems tailor-made for this
case, where Delgado's leave request was for a far lengthier period
of time, and her attempt to overcome the relatively obvious burdens
associated with such a leave request is woefully deficient. In
these circumstances, Delgado has failed to shoulder her burden of
showing facial reasonableness, and no reasonable factfinder could
conclude that Delgado's leave request was reasonable.
Finally, Delgado points out that AstraZeneca has failed
to offer any evidence or argument that her request for an
additional twelve months of leave would have imposed an undue
hardship on it.17 But this is beside the point here. Because
17In a single sentence in connection with this argument,
Delgado stated that an AstraZeneca employee testified during a
deposition "that the accounts of plaintiff's new assigned
territory were already being visited by other [Pharmaceutical
- 23 -
Delgado failed to shoulder her burden to identify a reasonable
accommodation, we need not consider the question of undue hardship.
See Mulloy, 460 F.3d at 154 n.7.
We add that, as was true in García-Ayala, our conclusion
today is a narrow one. Although we have previously suggested that
"there may be requested leaves so lengthy or open-ended as to be
an unreasonable accommodation in any situation," García-Ayala, 212
F.3d at 648, we need not — and therefore do not — decide that a
request for a similarly lengthy period of leave will be an
unreasonable accommodation in every case. It suffices to say that,
in these circumstances, Delgado failed to shoulder her burden of
showing that a request for twelve more months of leave was facially
reasonable.
There is one loose end to tie up. Delgado also contends
that AstraZeneca violated the ADA when it failed to engage in an
interactive process after she requested the additional twelve
months of leave.18 And, true enough, "[a]n employee's request for
Sales Specialists]." To the extent that Delgado intended this
one-line observation to be part of her effort to show that the
requested accommodation was facially reasonable in these
circumstances (as opposed to part of her misguided effort to
criticize AstraZeneca for its failure to put forth evidence of
undue hardship), it is far too undeveloped to warrant our
consideration. See United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990) (warning litigants that "issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived").
18Delgado also raises a procedural objection to the district
court's consideration of this claim in the first place. Because
- 24 -
accommodation sometimes creates a duty on the part of the employer
to engage in an interactive process," Ortiz-Martínez, 2017 WL
1291193, at *4 (internal quotation marks omitted) (quoting EEOC v.
Kohl's Dep't Stores, Inc., 774 F.3d 127, 132 (1st Cir. 2014)),
though the specifics of what process is required "var[y] depending
on the circumstances of each case," id. But Delgado's contention
need not detain us long. Where, as here, the employee fails to
satisfy her burden of showing that a reasonable accommodation
existed, the employee cannot maintain a claim for failure to engage
in an interactive process. See Lang v. Wal-Mart Stores E., L.P.,
813 F.3d 447, 456 (1st Cir. 2016) ("[T]he 'omission' of an
interactive process 'is of no moment if the record forecloses a
AstraZeneca failed to address this claim in its initial memorandum
in support of its motion for summary judgment, Delgado protests,
the district court should not have considered its argument — raised
for the first time in its reply — that it was entitled to summary
judgment on this claim. Although it's true that courts routinely
preclude a litigant from raising new arguments in a reply brief,
this rule is not inflexible; courts retain discretion to excuse
parties from procedural gaffes such as this. Cf. United States v.
Torres-Rosario, 658 F.3d 110, 116 (1st Cir. 2011) (recognizing
that "courts may excuse waivers and disregard stipulations where
justice so requires"). And we discern no abuse of discretion here.
Delgado's complaint set forth seven separately titled causes of
action, and failure to engage in an interactive process was not
one of them. Instead, that claim comprised two paragraphs within
her first cause of action, which she labeled "ADA and Law No. 44
(Disability Discrimination - Wrongful Termination & Failure to
Accommodate)." In these circumstances, the district court was not
obligated to deem AstraZeneca's initial oversight inexcusable.
Moreover, Delgado was permitted to file a sur-reply in which she
both asked the district court to refuse to consider AstraZeneca's
new argument and attacked the merits of that argument.
- 25 -
finding' that the employee could do the essential 'duties of the
job, with or without reasonable accommodation,' — which, for
reasons already given, is the case here." (citation omitted)
(quoting Kvorjak v. Maine, 259 F.3d 48, 53 (1st Cir. 2001))). So
we say no more about this claim.
That's that for Delgado's ADA disability-discrimination
claim. Because Delgado failed to argue that she was able to
perform the essential functions of her position without
accommodation and failed to show that her requested accommodation
of twelve more months of leave is facially reasonable, she is
unable to establish a genuine dispute of material fact as to the
qualified-individual element of her prima facie case. See Mulloy,
460 F.3d at 154. Therefore, AstraZeneca was entitled to summary
judgment on Delgado's ADA disability-discrimination claim.
2. ADA Retaliation Claim
In addition to her ADA disability-discrimination claim,
Delgado also asserts that AstraZeneca violated the ADA by
retaliating against her because she engaged in protected activity.
It is well settled that "[a]n ADA plaintiff may assert a claim for
retaliation even if she fails to succeed on a disability[-
discrimination] claim." Freadman, 484 F.3d at 106.
Because Delgado's retaliation claim is premised on
circumstantial evidence, the familiar burden-shifting analysis
applies. See Collazo-Rosado v. Univ. of P.R., 765 F.3d 86, 92
- 26 -
(1st Cir. 2014). To establish a prima facie case of retaliation
under the ADA, "a plaintiff must show that (1) she engaged in
protected conduct, (2) she suffered an adverse employment action,
and (3) there was a causal connection between the protected conduct
and the adverse employment action." Freadman, 484 F.3d at 106.
If Delgado succeeds in making this prima facie showing, the burden
then shifts to AstraZeneca "to offer a legitimate, nonretaliatory
reason for [its] actions." Collazo-Rosado, 765 F.3d at 92. If
AstraZeneca meets its burden, the burden shifts back to Delgado
"to show that the [articulated] reason was mere pretext." Id.
Delgado "bears the ultimate burden to create a plausible inference
that the employer had a retaliatory motive." Carreras v. Sajo,
García & Partners, 596 F.3d 25, 36 (1st Cir. 2010). And, as we
have repeatedly explained, "[e]ven in employment discrimination
cases where elusive concepts such as motive or intent are at issue,
summary judgment is appropriate if the nonmoving party rests merely
upon conclusory allegations, improbable inferences, and
unsupported speculation." Ameen, 777 F.3d at 68 (quoting Benoit
v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003)); see
also Vega-Colón v. Wyeth Pharms., 625 F.3d 22, 31 (1st Cir. 2010).
Delgado claims on appeal (as she did below) that her May
17 request for an additional twelve months of leave was protected
- 27 -
activity.19 The district court accepted (and AstraZeneca did not
contest) Delgado's position that this leave request constituted
protected activity, but it concluded that Delgado failed to
establish a causal connection between the request for leave and
the adverse employment action (Delgado's termination). In the
district court's view, Delgado was terminated on May 14 when Cohran
sent a letter to Delgado instructing her to return to work three
days later or else be presumed to have resigned from her
employment. Because the May 17 additional-leave request postdated
Delgado's termination, the court reasoned, Delgado could not
establish the causal-connection element of her prima facie case.
On appeal, the parties stake out competing positions in favor of
and against the district court's conclusion.
We need not enter this fray, however. Instead, we assume
without deciding that Delgado established her prima facie case of
retaliation. See, e.g., Collazo-Rosado, 765 F.3d at 93 (employing
similar approach); Carreras, 596 F.3d at 36 (same). And we readily
conclude that AstraZeneca has met its burden of offering a
legitimate, nondiscriminatory reason for Delgado's termination.
In fact, it offers two such reasons: "that Delgado was terminated
19
In addition to the leave request, Delgado identified below
other activity — namely, an internal complaint of discrimination
that she lodged with AstraZeneca on December 12, 2011 — that served
as a basis of her retaliation claim. Because Delgado eschews any
reliance on this activity on appeal, we need not consider it.
- 28 -
after her . . . position was eliminated and [that] she went on STD
leave from which she did not return once it expired." AstraZeneca
repeatedly informed Delgado that she would be presumed to have
resigned from her employment with AstraZeneca if she failed to
return to work after her STD benefits were terminated, and yet she
failed to return to work as instructed on May 17. Further, as
explained below, the deposition testimony of Cohran, Martínez, and
Elsa Saavedra (Saavedra), another AstraZeneca supervisor, supports
the notion that Delgado's territory and position were eliminated
in reorganizations.
Therefore, we now consider whether Delgado can shoulder
her ultimate burden of demonstrating that these articulated
justifications were pretextual. "To establish pretext she must
show that the explanation[s] [were] . . . lie[s], which would let
a factfinder infer that [AstraZeneca] made the story up to cover
[its] tracks." Collazo-Rosado, 765 F.3d at 92. Delgado makes
several attempts to show pretext, but none persuades.
Delgado first claims that the reasons given by
AstraZeneca for her termination — "elimination of position,
failure to return to work, and resignation" — are inconsistent.
We disagree. For starters, we see no inconsistency between the
failure-to-return justification and the resignation justification
on these facts. The May 14 letter from Cohran to Delgado warned:
"[I]f you do not return to work by Thursday, May 17, 2012[,] you
- 29 -
will be presumed to have resigned your employment with
AstraZeneca."20 (Emphasis added.) Similarly, Cohran's May 18
letter reminded Delgado: "[Y]ou were to have returned to work by
Thursday, May 17, 2012 or you would be presumed to have resigned
your employment with AstraZeneca." Thus, the letters, using
language similar to that contained in the STD policy, equated
Delgado's failure to return to work with her presumed resignation.
Therefore, the fact that Martínez, who filled out AstraZeneca's
Termination Details form for Delgado, entered that Delgado's
resignation notice was turned in on May 18 is unremarkable; by not
showing up to work on May 17 as instructed, she was presumed to
have resigned under the terms of the May 14 letter.21
Nor do we agree that AstraZeneca's other stated
justification for terminating Delgado — that her position was
20
We note that this was not the first time that Delgado was
informed of the consequence of her failure to return to work after
the termination of her STD benefits. She received a similar
notification two months earlier.
21
Delgado also notes that Martínez entered "S06," which
evidently is short for "Separation 6 mo[nths]," on the form and
that Martínez did not know what this entry on the form meant. But
this minor inconsistency or mere inaccuracy does not show any
broader inconsistency between the failure-to-return and
resignation justifications. Cf. Carreras, 596 F.3d at 37 ("The
minor inconsistencies cited by Carreras, however, do not undermine
SGP's contention that his work performance was unsatisfactory.
The slight differences in SGP's accounts of the timing of the
decision or the reason for the short delay before its
implementation do not permit a reasonable factfinder to infer that
SGP did not fire Carreras because of his poor work performance.").
- 30 -
eliminated in a reorganization — is inconsistent with the failure-
to-return-to-work justification. To be sure, "an employee can
establish pretext 'by showing weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons such that a factfinder
could infer that the employer did not act for the asserted non-
discriminatory reasons.'" Carreras, 596 F.3d at 37 (emphasis
omitted) (quoting Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 54 (1st Cir. 2000)); see also Collazo-Rosado,
765 F.3d at 93. But Delgado has failed to do so here.
The May 18 termination letter first recounted the
consequences of Delgado's failure to return to work. It then
stated: "However, due to a recent reorganization in field sales,
we are making a non-negotiable offer of severance to you." This
reorganization was also referenced in the July 17 letter, which
provided: "As outlined in my letter dated May 18, 2012, due to a
recent reorganization in field sales your position was eliminated
and you were made an offer for a non-negotiable severance."
Although the elimination of her position was not referenced in the
May 18 letter, these two letters were consistent in the reference
to a reorganization in field sales and the resultant severance
offer. See Collazo-Rosado, 765 F.3d at 94. And Delgado has not
given us any basis to conclude that each termination letter "had
to give every reason [AstraZeneca] had for" terminating her. Id.
- 31 -
at 93. There is simply nothing contradictory, incoherent,
implausible, or inconsistent in these two different legitimate,
nondiscriminatory reasons for her termination; "[a]t the very
least[,] the rationales are not so inconsistent as to be 'unworthy
of credence,' which is the test." Id. at 94 (quoting Hodgens v.
Gen. Dynamics Corp., 144 F.3d 151, 168 (1st Cir. 1998)).
For similar reasons, we reject Delgado's argument that
AstraZeneca has, at various points in this litigation, offered
inconsistent justifications for her termination. In support of
this contention, Delgado notes that AstraZeneca (1) relied on its
elimination-of-position justification in its answer to Delgado's
complaint, its representations in the joint case-management
memorandum, and its answers to interrogatories, (2) relied on its
failure-to-return justification in its motion for summary
judgment, and (3) relied on both justifications in its appellate
brief. But because, for reasons already explained, we perceive no
inconsistency between these two justifications, we fail to see how
AstraZeneca's reliance on one or the other in various documents
through the course of this litigation renders these "rationales
. . . so inconsistent as to be 'unworthy of credence.'" Id.(quoting Hodgens, 144 F.3d at 168).
Delgado's second pretext argument is grounded in
AstraZeneca policy. Starting from the rock-solid premise that an
employer's inadequately explained material deviation from standard
- 32 -
procedure can establish a genuine dispute of material fact as to
whether the employer's stated justifications are pretextual, see
Acevedo-Parilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 142-43
(1st Cir. 2012), Delgado identifies two instances of AstraZeneca's
failure to follow its applicable STD policy: (1) that Delgado was
not placed in an unpaid extended disability leave, an option under
AstraZeneca's STD policy when an employee exhausts his or her STD
benefits and is still unable to return to work; (2) Cohran's
unauthorized selection of a return-to-work date, a task reserved
for the CHS case manager, in consultation with an employee's
treating physician after the physician approves the employee's
return to work. We are unpersuaded.
The provision relating to LTD benefits and unpaid
extended disability leave is contained in a section entitled
"Employment Status After Exhausting STD Benefits." Consistent
with this title, this section applies only to "[a]n employee who
is unable to return to work due to continuing disability after
exhausting" the full 26 weeks of available STD benefits. (Emphasis
added.) Delgado did not exhaust her benefits, however. Instead,
CHS terminated them after invoking its right under a separate
section of the policy to terminate benefits when it determines
that the employee is no longer totally disabled or the employee
failed to submit adequate supporting documentation, and Delgado
did not challenge the termination of her benefits through the
- 33 -
appeals procedure set forth in the policy and communicated to her
in the benefits-termination letter.
Delgado's attempt to show pretext through Cohran's
selection of her return-to-work date fares no better because
AstraZeneca's STD policy is not as clear-cut as Delgado believes.
Although the policy contains a section (section 8) outlining the
return-to-work procedure and specifying that "[p]rior to returning
to work, the employee must submit to the CHS case manager a
completed [health-care physician s]tatement," the policy also
provides in a separate section (section 5.4) that, "[i]f STD
benefits are suspended or denied and the employee does not return
to work, the employee may be considered to have abandoned the
employee's job and be subject to immediate termination from
employment." The policy is not clear on the need for a completed
health-care physician statement and the applicability of section
8 where, as here, AstraZeneca suspends an employee's benefits under
section 5.4 even when the employee's health-care physician
requests that the employee remain out of work.22
Delgado's position — that, even in this scenario, a
return-to-work date cannot be established absent "a statement from
[the employee's] doctor that [the employee] is safely able to
22In his deposition, Cohran acknowledged the policy's silence
on this issue, but testified that, in this scenario, a return-to-
work statement from the physician is not required.
- 34 -
return to work" — would allow a recalcitrant health-care physician
to remain steadfast in his or her opposition to AstraZeneca's
benefits denial or termination, refuse to authorize the employee's
return to work, and thereby singlehandedly render section 5.4 a
nullity. We need not decide whether Delgado's interpretation of
the policy language is erroneous; it suffices that, because it is
not clear that Cohran's selection of the return-to-work date
actually violated the policy in these circumstances, it does not
create a genuine dispute of material fact as to whether
AstraZeneca's stated justifications for firing Delgado were
pretextual.
Delgado's third pretext argument asserts that
AstraZeneca's stated justification that her position had been
eliminated as part of the reorganization "is completely false."
Relying on deposition testimony of Martínez and Saavedra, Delgado
insists that the reorganization eliminated her territory but not
her position. This false justification, Delgado argues, shows
that AstraZeneca's justifications are pretextual. This argument
rests on a flawed starting premise.
Although Martínez and Saavedra did indeed discuss a
reorganization involving the elimination of Delgado's territory,
Cohran discussed a second, separate reorganization in his
deposition. According to Cohran, in this second reorganization,
the floating position to which Delgado had been assigned as a
- 35 -
result of the elimination of her territory in the first
reorganization was itself eliminated. Although AstraZeneca noted
this aspect of Cohran's testimony in its brief to this court,
Delgado failed to effectively address this testimony in either her
opening or reply brief, and — we say it again — it is not our
responsibility to dig through the record in the hopes of unearthing
some nugget that creates a genuine dispute of material fact. See
Belsito Commc'ns, 845 F.3d at 22. Therefore, given Delgado's
failure to address Cohran's deposition testimony that her position
was eliminated in a second reorganization, it effectively stands
unrebutted on appeal and compels us to reject Delgado's assertion
that AstraZeneca's reorganization justification "is completely
false."23
23Delgado also scatters complaints in her brief to the effect
that the district court failed to consider the evidence of her
"stellar performance history" with AstraZeneca from 2001 until
late 2011. True, Delgado provided a detailed chronicle of her
positive work history in the statement of facts that she submitted
to the district court. And, to be sure, our cases indicate that
positive performance evaluations can be relevant to the pretext
inquiry, at least where poor performance is one of the
justifications that the employer puts forward for the adverse-
employment action. See Collazo v. Bristol-Myers Squibb Mfg., Inc.,
617 F.3d 39, 52-53 (1st Cir. 2010) (considering evidence of
employee's positive work evaluations and concluding that genuine
issue of material fact existed as to whether performance-problems
justification was pretextual); cf. Rodriguez-Torres v. Caribbean
Forms Mfr., Inc., 399 F.3d 52, 62 (1st Cir. 2005) (affirming
district court's admission of employee's positive performance
evaluations to show that employee possessed necessary
qualifications and adequately performed job and to rebut
employer's assertion that employee lacked relevant knowledge to
perform job). But, unlike in Collazo, AstraZeneca has not sought
- 36 -
That leaves Delgado's argument about the temporal
proximity between the May 17 request for twelve more months of
leave and the May 18 termination letter. Although such close
temporal proximity "may suffice for a prima facie case of
retaliation," it "does not[, standing alone,] satisfy [Delgado's]
ultimate burden to establish that the true explanation for [her]
firing was retaliation for engaging in protected conduct rather
than" the reasons articulated by AstraZeneca. Carreras, 596 F.3d
at 38. And we reiterate that, although the pretext inquiry entails
consideration of "elusive concepts," Ameen, 777 F.3d at 68, summary
judgment may still be appropriate on that issue, see, e.g.,
Collazo-Rosado, 765 F.3d at 94-95.
And it is in this case: Delgado cannot shoulder her
ultimate burden of showing pretext, and the district court
therefore properly granted summary judgment to AstraZeneca on
Delgado's ADA retaliation claim.
B. Remaining Claims
Now that we've addressed Delgado's ADA claims, we
finally turn briefly to her claims sounding in Puerto Rico law.
to justify its termination of Delgado on the ground that her
performance was deficient. Instead, it has asserted that Delgado
violated AstraZeneca policy by failing to report to work once her
STD benefits were terminated and that her position had been
eventually eliminated in a reorganization. And Delgado has not
shown us why her positive work history in any way impacts those
justifications.
- 37 -
She asserts claims under three Puerto Rico statutes: Law 44,
Article 1802, and Law 80. We address each claim in turn.
1. Law 44
We can make quick work of the first of these claims: As
Delgado appropriately concedes, "Law 44 and the ADA are
coterminous." Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 87
(1st Cir. 2008). Therefore, because we affirm the district court's
entry of summary judgment on Delgado's ADA disability-
discrimination claim, we affirm the entry of summary judgment on
her Law 44 claim for the same reasons. See id.
2. Article 1802
We next examine Delgado's Article 1802 claims. As we
read her complaint, she asserts two Article 1802 claims, one for
negligence and the other for tortious infliction of emotional
distress. We easily affirm the district court's entry of summary
judgment on Delgado's claim that AstraZeneca (in Delgado's words)
"was negligent by not adhering to the requirements of Law 44 and
the ADA in accommodating the plaintiff in accordance with her
doctor's certifications." Even assuming that such a claim is
cognizable under Article 1802 — and we express no opinion on this
issue — Delgado's failure to prevail on her ADA and Law 44 claims
dooms her negligence claim premised on AstraZeneca's violation of
those statutes.
- 38 -
With respect to Delgado's Article 1802 infliction-of-
emotional-distress claim, the district court entered summary
judgment in favor of AstraZeneca because the conduct underlying
that claim was the same conduct that was "arguably covered by the
ADA, Law 44, and the FMLA" and, "to the extent a specific labor or
employment statute covers the conduct for which a plaintiff seeks
damages, she is barred from using the same conduct to also bring
a claim for damages under Article 1802."
In challenging the district court's entry of summary
judgment on appeal, Delgado's argument is not a model of clarity.
Indeed, it is tough for us to discern precisely what she is
arguing, but we'll do the best we can. The main thrust of her
argument seems to be that she alleged "specific conduct that
supports her tort action independent from her other claims."
But Delgado has not told us what that specific other
conduct is or explained how it is independent from the conduct
giving rise to her other claims. According to the complaint, the
conduct giving rise to her Article 1802 claim consisted of "various
negative actions" on the part of AstraZeneca "[a]fter plaintiff
disclosed her diagnosis to her supervisor," including "constant
pressures to return to work while on a valid leave," "threats of
termination," "ignor[ing] [her] doctor's recommendations," and
continued harassment. No real specifics were provided. Similarly,
in her briefing both below and on appeal, Delgado makes vague
- 39 -
references to "Cohran's undue and unreasonable interference with
[Delgado's] treatment" and "Cohran's negligent and reckless
intervention" without explaining how this conduct is independent
from that giving rise to her other claims. She simply has not
pointed to any record support for her assertion that her Article
1802 claim is premised on independent conduct, and we reject it
for that reason.
All that remains of Delgado's Article 1802 arguments on
appeal is the following cryptic assertion: "It is well settled
that to the extent that the facts that comprise the actions
executed against the plaintiff are not covered by the employment
statutes, Article 1802 must provide." The meaning of this sentence
is not readily apparent. In support of this assertion, Delgado
cited Rios v. Municipality of Guaynabo, 938 F. Supp. 2d 235, 260
(D.P.R. 2013). We suspect that Delgado might have intended her
cryptically phrased sentence and citation to Rios to constitute an
argument that, if AstraZeneca's conduct is not covered by the
various employment and discrimination statutes undergirding her
other claims (by virtue of the district court's entry of summary
judgment on those claims), then her Article 1802 claims necessarily
survive. See id. (declining to enter summary judgment on Article
1802 and 1803 claims premised on the same conduct that gave rise
to the retaliation claims for which summary judgment entered for
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defendants because "such potentially tortious claims are no longer
covered by any specific labor law").
The problem for Delgado, however, is that "[j]udges are
not expected to be mindreaders. Consequently, a litigant has an
obligation to spell out its arguments squarely and distinctly, or
else forever hold its peace." Zannino, 895 F.2d at 17 (internal
quotation marks omitted) (quoting Rivera–Gomez v. de Castro, 843
F.2d 631, 635 (1st Cir. 1988)); see also Town of Norwood v. Fed.
Energy Regulatory Comm'n, 202 F.3d 392, 405 (1st Cir. 2000)
("[D]eveloping a sustained argument out of . . . legal precedents
is the job of the appellant, not the reviewing court, as we have
previously warned."). Delgado has failed to do her part with
respect to this Article 1802 argument. The combination of a
single, confusing sentence and an unexplained citation to a case
that offers an unsupported and unauthoritative view of the scope
of Article 1802 is no substitute for developed argumentation. See
Zannino, 895 F.2d at 17 ("[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived."); see also United States v. Bulger, 816 F.3d
137, 148 (1st Cir. 2016) (explaining that "'we consider waived
arguments confusingly constructed and lacking in coherence'" and
declining to consider argument where litigant "fail[ed] to provide
us with intelligible analysis, or case law, to support his claim"
(internal quotation marks omitted) (quoting Rodríguez v.
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Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011))).24
Therefore, we decline to consider this undeveloped argument.
Because Delgado has not presented us with a developed,
coherent, and convincing argument for overturning the district
court's entry of summary judgment in AstraZeneca's favor on her
Article 1802 claims, we affirm on this issue.
3. Law 80
That leaves Delgado's Law 80 claim for wrongful
discharge. Law 80 provides a remedy to employees who are
discharged "without just cause." P.R. Laws Ann. tit. 29, § 185a;
see also Pérez v. Horizon Lines, Inc., 804 F.3d 1, 9 (1st Cir.
2015). It employs the following burden-shifting framework (one
different from that applied in the ADA context): (1) the employee
must show that he or she has been discharged and allege that the
dismissal was not justified; (2) the burden then shifts to the
employer to show, by a preponderance of the evidence, that the
dismissal was justified; and (3) if the employer shoulders that
burden, the employee must rebut the showing of good cause. Pérez,
804 F.3d at 9. In this case, Delgado has met her initial burden;
she has shown that she has been terminated and alleged in her
complaint that her termination was not justified.
24 Delgado also fails to address her Article 1802 claims in
her reply brief or to respond to AstraZeneca's argument that those
claims must fail because they are premised on the same conduct
that forms the basis of her other claims.
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Moving on to AstraZeneca's burden, Law 80 "specifies
several grounds that are considered good cause for termination,"
id., including "[t]he employee's repeated violations of the
reasonable rules and regulations established for the operation of
the establishment, provided a written copy thereof has been
opportunely furnished to the employee," P.R. Laws Ann. tit. 29,
§ 185b(c), as well as three other grounds "that relate to company
restructuring or downsizing." Carrasquillo-Ortiz v. Am. Airlines,
Inc., 812 F.3d 195, 196 (1st Cir. 2016); see also P.R. Laws Ann.
tit. 29, § 185b(d)-(f). The statute also provides that "[a]
discharge made by the mere whim of the employer or without cause
relative to the proper and normal operation of the establishment
shall not be considered as a discharge for good cause." P.R. Laws
Ann. tit. 29, § 185b.
In order to shoulder its burden of establishing just
cause, AstraZeneca "need only demonstrate that it had a reasonable
basis to believe that [Delgado] has engaged in one of those actions
that the law identifies as establishing such cause." Pérez, 804
F.3d at 9. "A 'just' discharge," we have said, "is one where an
employer provides a considered, non-arbitrary reason for an
employee's termination that bears some relationship to the
business' operation." Id. This inquiry focuses not on "the
objective veracity of the employer's action" but instead "on the
employer's reasonable belief"; even "a 'perceived violation
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suffices to establish that [the employer] did not terminate [the
employee] on a whim, but rather for a sensible business-related
reason.'" Id. at 10 (quoting Hoyos v. Telecorp Commc'ns, Inc.,
488 F.3d 1, 10 (1st Cir. 2007)).
For reasons we explained in our discussion of Delgado's
retaliation claim, AstraZeneca has shouldered its burden here by
offering two potential bases for a finding of a just-cause
termination: her failure to return to work after termination of
her STD benefits and the elimination of her position. Both of
these reasons are considered, non-arbitrary, and bear some
relationship to AstraZeneca's business operation. See id. at 9.
Therefore, "a reasonable jury could only conclude that
[AstraZeneca] has met its burden of showing just cause." Id. at
10.
Because AstraZeneca satisfied its burden, Delgado can
defeat summary judgment only if she can rebut AstraZeneca's just-
cause showing. Id. To shoulder her burden, Delgado "must do more
than show that [AstraZeneca] may have gotten some of the
particulars wrong. Instead, [Delgado] had the burden to adduce
probative evidence that [AstraZeneca] did not genuinely believe in
or did not in fact terminate [Delgado] for the reason[s] given."
Id. at 11. To this end, Delgado offers several reasons why, she
contends, AstraZeneca's reasons are pretextual. See Collazo, 617
F.3d at 53 n.10 (vacating summary judgment on employee's Law 80
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claims because genuine issue of material fact existed as to whether
employee's "termination was the result of retaliatory animus,
rather than company reorganization and inadequate performance").25
But we've already considered (and rejected) each of these
contentions in the course of affirming the entry of summary
judgment on Delgado's retaliation claim. Thus, for the same
reasons, we conclude that Delgado has failed to shoulder her burden
to proceed to trial on her Law 80 claim.
CONCLUSION
For these reasons, we affirm the district court's entry
of summary judgment in AstraZeneca's favor. Each party shall bear
its own costs.
25
We note that, even where an employer terminates an employee
for one of the three specified grounds relating to restructuring
and downsizing, Law 80 imposes additional obligations on the
employer. In particular, "the employer must give preference to
those employees with greater seniority over those with less
seniority within the same occupational classification."
Carrasquillo-Ortiz, 812 F.3d at 196; see also P.R. Laws Ann. tit.
29, § 185c. "If the employer terminates a more senior employee
and retains a less senior employee within the same occupational
classification, the employer must pay the terminated employee a
mesada." Carrasquillo-Ortiz, 812 F.3d at 196; see also P.R. Laws
Ann. tit. 29, §§ 185a, 185c. We need not concern ourselves with
the application of these provisions in this appeal, however,
because Delgado's sole focus on appeal is demonstrating that
neither of AstraZeneca's stated justifications are the true reason
why it terminated her. Therefore, because she makes no argument
that AstraZeneca still owes her a mesada even if it terminated her
on the basis of company restructuring or downsizing, we need not
consider this issue.
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