Lopez-Lopez v. The Robinson School ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1386
SANDRA LÓPEZ-LÓPEZ,
Plaintiff, Appellant,
v.
THE ROBINSON SCHOOL; MARÍA TERESA LARRIEU; DANIEL M. HILDEBRAND;
MELVIN SANTONI-CRESPO; ÁNGEL M. NARVÁEZ-MORELL; AIG INSURANCE
COMPANY-PUERTO RICO,
Defendants, Appellees,
CONTINENTAL INSURANCE COMPANY; SAN JUAN CAPESTRANO HOSPITAL,
INC.; MEDICAL DEFENSE INSURANCE COMPANY; ASPEN AMERICAN
INSURANCE COMPANY,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Dyk, and Barron,
Circuit Judges.
José G. Fagot Díaz, with whom Fagot Law Offices and Manuel E.
López Fernández, were on brief, for appellant.
Maralyssa Álvarez-Sánchez, with whom Juan Felipe Santos-
Caraballo and Jackson Lewis LLC, were on brief, for appellees The
Robinson School, Inc. and María Teresa Larrieu.

Of the Federal Circuit, sitting by designation.
Ramonita Dieppa González, with whom Dieppa González Law
Offices, LLC on brief, for appellee Melvin Santoni-Crespo.
Doris Quiñones Tridas, with whom Quiñones Tridas Law Office,
PSC on brief, for appellee Ángel M. Narváez-Morell.
May 11, 2020
- 2 -
DYK, Circuit Judge. Sandra López-López ("Ms. López"),
a teacher at the Robinson School ("Robinson") in Puerto Rico, sued
the school and two school administrators (María Teresa Larrieu and
Daniel Hildebrand) in the United States District Court for the
District of Puerto Rico. She asserted claims under the Americans
with Disabilities Act ("ADA") and Age Discrimination in Employment
Act ("ADEA"), as well as under analogous Puerto Rico laws, for
discrimination and retaliation. 1 The district court entered
summary judgment against Ms. López. We affirm.
I.
As this appeal arises from a grant of summary judgment,
we state the facts in the light most favorable to Ms. López, the
non-moving party. Alvarez-Torres v. Ryder Mem'l Hosp., Inc., 582
F.3d 47, 49 (1st Cir. 2009) (citing Levesque v. Doocy, 560 F.3d
82, 84 (1st Cir. 2009)). At this juncture, we describe the
allegations central to Ms. López's ADA discrimination claim that
she was forced to seek a medical examination and treatment for a
psychiatric disorder as a condition of continued employment and
the allegations relating to her ADA claims of retaliation.
Ms. López also asserted a variety of ADEA claims. The facts
1Ms. López asserted various state law claims against
Robinson, Larrieu, Hildebrand, and numerous other defendants. The
district court entered judgment against Ms. López with respect to
those claims, and Ms. López does not challenge that judgment on
appeal except to argue that some of the state claims should be
reinstated if we reverse summary judgment of her federal claims.
- 3 -
relating to those claims are described later in the opinion.
Ms. López has been a teacher at Robinson since 2005.
The school offered the Pathways Program, which supports special
needs students with mild language-based learning disabilities.
For the 2015–2016 academic year, Ms. López taught Social Studies
and English classes within the Pathways Program. She reported to
Larrieu who was the Supervisor of the Pathways Program. On
numerous occasions, the school evaluated Ms. López's performance
and advised her that she needed to improve skills such as planning,
organizing, and communication, and issued performance improvement
plans. For instance, in May 2015, the school administrators met
with Ms. López and informed her that she needed to improve in
several areas, including grading, organization, communication,
teamwork, and honesty.
On September 1, 2015, Larrieu visited Ms. López's 6th
grade Social Studies class during a test. According to Ms. López,
when Larrieu asked for her lesson plans, "the students started
walking around, looking at each others' test papers, and they got
a little rowdy." When Ms. López saw this, she "hit the desk
because [she] had the [l]esson [p]lans in [her] hand," although
she usually clapped, and she told the students that they needed to
sit down. Larrieu testified that some students said that they
cried during the test. After Larrieu left the classroom, she wrote
an email to Jannette Santiago, the Business Operations Manager,
- 4 -
and Zuleyka Carmona, the Human Resources Officer, about the visit
to Ms. López's classroom. Larrieu wrote that when answering the
students' questions Ms. López's "interaction towards [the]
students seemed odd [and was] disproportionate and rude," and that
it appeared "[she] had lost control of herself . . . [and m]any of
the things discussed with her in the last meeting[] [concerning
her performance] were found unresolved in this visit."
The next day, on September 2, 2015, one of the students'
parents complained about Ms. López's behavior during the Social
Studies test, asserting that Ms. López had frightened their child
by raising her voice and that the child had complained of prior
similar incidents. That afternoon, Ms. López was summoned to a
meeting with Larrieu (the author of the September 1 email) and
Santiago and Carmona (the recipients of the email) concerning what
happened in the classroom. They discussed Ms. López's
communication style with the students, and Ms. López stated that
"I'm firm, but with love." Santiago then told Ms. López that she
would be placed on suspension pending an investigation. Upon
hearing of her suspension, Ms. López "plead[ed] . . . not to
suspend [her]," "that [she] did nothing to [the students]," and
"[she] would never do anything to hurt a child."
Ms. López then by her own account suffered a "temporary
nervous breakdown," fell to the floor, and started crying.
Ms. López stated at that time "I want[] to kill myself" and
- 5 -
testified later that she was "in so much stress and . . . much
pain." At some point, Hildebrand, the Head of Robinson at the
time, came into the meeting room and helped Ms. López to get up
and sit on a chair. Ms. López told Hildebrand that she "w[as]n't
okay." Carmona reached out to Ms. López's emergency contacts, but
none was available to help. Larrieu spoke with the school's
clinical psychologist, Dr. Rita Tamargo, who recommended that the
school administrator seek help and contact San Juan Capestrano
Hospital ("Capestrano"), a mental health facility. Carmona called
Capestrano, which recommended that Ms. López be brought in for an
evaluation.
Hildebrand then told Ms. López that he wanted to take
her to a "crisis center to speak with someone" and that her "job
would depend on it." Ms. López told him that she had an
appointment with her realtor to see an apartment so she could sign
a lease that day, and that she needed to keep the appointment.
Hildebrand asked Ms. López to put in writing that she would agree
to go to a "crisis center" after she returned from her appointment.
Ms. López wrote on a paper:
I will listen to advise [sic]. Things are
getting in the way of good intension [sic]
with my students. Visit the apart. possibly
available. Get an appointment. Fondo -> Get
taxi to get there. Can get there own [sic] my
own. Yes. I can do it safely.
I will go to the appointment with appointment
[sic] then go with Maritere [Larrieu] to
- 6 -
Capestrano. To seek help with a crisis
(personal) crisis [sic]. Come back to campus.
Sandra López. 5:05 p.m. Sept. 2nd, 2015.
Ms. López later testified that she did not know Capestrano was a
psychiatric hospital. While Ms. López was at her appointment,
Hildebrand and Larrieu spoke with Dr. Esther Pérez Prado, the
school's psychologist, about Ms. López. Dr. Pérez told them that
it was important to make sure Ms. López was safe by receiving an
evaluation from a mental health professional and that a court order
might be necessary.
After Ms. López returned from her appointment,
Hildebrand and Larrieu drove her to Capestrano. At the hospital,
Ms. López was interviewed by a doctor, but she refused to
voluntarily admit herself. After Ms. López walked outside, the
hospital staff forcefully brought her back into the building. The
doctor told Hildebrand and Larrieu that they would have to get a
court order to involuntarily admit Ms. López to the hospital.
Hildebrand signed an "Informed Consent for Psycho-Active
Medication" form and, that night, Hildebrand and Larrieu obtained
a court order from the Municipal Court under Puerto Rico's Mental
Health Act. The order required involuntary admission of Ms. López
to allow a "psychiatric institution . . . to perform the
evaluation, observation and initiate treatment" of her and
permitted the institution to detain Ms. López "for a period greater
than twenty-four (24) hours[]" if the institution certified that
- 7 -
such hospitalization was necessary. Ms. López was treated at
Capestrano and released from the hospital on September 4, 2015.
Thereafter, she received treatment through an outpatient program.
That program certified that she would be able to return to work on
September 21, 2015.
On September 18, 2015, Ms. López filed an administrative
charge with the Equal Employment Opportunity Commission ("EEOC")
and Puerto Rico Anti-Discrimination Unit ("ADU"), alleging that
the school had discriminated and retaliated against her because of
her age and perceived disability, in violation of the ADA and ADEA
and their Puerto Rico law analogs. On September 21, 2015,
Ms. López returned to the school and resumed her previously
assigned class schedule. Also on September 21, 2015, the school
placed Ms. López on a Teacher Improvement Plan ("TIP") to address
her teaching skills in light of the Social Studies classroom
incident and other performance issues identified in May 2015. The
school provided follow-up TIPs in November 2015 and May 2016,
summarizing areas that were improved and needed further
improvement.
On July 20, 2016, Ms. López filed an action in the United
States District Court for the District of Puerto Rico. She
asserted that she was a victim of discrimination and retaliation
under the ADA and ADEA as well as under the analogous Puerto Rico
laws. On summary judgment, the district court ruled against
- 8 -
Ms. López after applying the test set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) (described below). The
district court held that Ms. López's ADA discrimination claim
relating to the hospital incident failed. It reasoned that
Ms. López failed to show a prima facie case because the school's
action in taking her to Capestrano was not a prohibited
discriminatory act since her compensation remained the same, i.e.,
there was no adverse employment action. The district court also
pointed out that Ms. López "continued with the regular class
schedule" when she returned to work at Robinson. It further held
that, even if Ms. López had established a prima facie case, the
school showed a "non-discriminatory reason for its decision to
take [Ms.] López to . . . Capestrano . . . , for her suspension
with pay, and for the . . . TIP" because she "suffered a nervous
breakdown" and was not meeting Robinson's work performance
expectations. The district court also rejected Ms. López's ADEA
discrimination claims.
Lastly, the district court concluded that Ms. López on
the summary judgment record had no support for her ADA and ADEA
retaliation claims. Ms. López claimed that the retaliation
involved being suspended on September 2, 2015, and being placed on
the TIP program. The district court held that Ms. López's
suspension was an adverse employment action but that Robinson
"provided legitimate reasons for suspending Ms. López" in light of
- 9 -
her responses during the September 2 meeting and Larrieu's
classroom observation. The district court also held that the TIP
dated September 21, 2015, and later follow-ups were not "adverse
employment actions because [Ms.] López'[s] salary and terms of
employment did not change as a result of these plans."
The district court dismissed without prejudice the
discrimination and retaliation claims under the analogous Puerto
Rico laws against Robinson upon declining to exercise supplemental
jurisdiction.
Ms. López now appeals. We have jurisdiction pursuant to
28 U.S.C. § 1291. "We review the district court's disposition of
a summary judgment motion de novo, 'scrutiniz[ing] the evidence in
the light most agreeable to the nonmoving party, giving that party
the benefit of any and all reasonable inferences.'" Murray v.
Kindred Nursing Ctrs. W. LLC, 789 F.3d 20, 25 (1st Cir. 2015)
(alteration in original) (quoting Noviello v. City of Bos., 398
F.3d 76, 84 (1st Cir. 2005)).
II.
We first address Ms. López's ADA discrimination claim
relating to the hospital visit.
A.
Under the McDonnell Douglas framework, 2 "a plaintiff
2 We apply the McDonnell Douglas burden-shifting framework
- 10 -
must first establish a prima facie case of discrimination."
Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n.3 (2003). "The burden
then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its employment action." Id. If the
employer does so, the plaintiff can rebut the employer's reason by
offering evidence that the action was pretextual. Id.To establish a prima face case, the plaintiff must show:
"(1) that she was 'disabled' within the meaning of the ADA;
(2) that she was able to perform the essential functions of her
job with or without accommodation; and (3) that she was discharged
or adversely affected, in whole or in part, because of her
disability [(i.e., suffered an adverse employment action)]." Ruiz
Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 82 (1st Cir. 2008).
For the first prong, Ms. López argued that she was "being regarded
as having . . . an impairment [that substantially limited one or
more major life activities]" under 42 U.S.C. § 12102(1)(C). 3
because Ms. López did not offer direct evidence of discriminatory
animus. Mancini v. City of Providence, 909 F.3d 32, 38 (1st Cir.
2018).
3
Section 12102(1)(C) is subject to paragraph (3), which
states:
(A) An individual meets the requirement of
"being regarded as having such an
impairment" if the individual establishes
that he or she has been subjected to an
action prohibited under this chapter
because of an actual or perceived physical
or mental impairment whether or not the
- 11 -
Ms. López appears to argue that the school perceived her nervous
breakdown to be such an impairment. The school does not contend
otherwise and instead asserts that Ms. López was not subject to an
adverse employment action. The district court agreed, holding
that Robinson's taking of Ms. López to Capestrano did not adversely
affect her employment because her salary and duties did not change.
López argues that Robinson's conditioning her employment on
receiving a medical examination and treatment at a hospital was an
adverse employment action and that she established a prima face
case of ADA discrimination.
Even assuming (without deciding) that Ms. López
established a prima facie case, we conclude that the district
court's summary judgment against her was proper because Robinson
gave a legitimate, non-discriminatory reason for conditioning
Ms. López's employment on receiving a medical examination and
treatment and Ms. López failed to provide evidence from which a
reasonable juror could conclude that Robinson's articulated
reasons were pretextual. In reaching this conclusion, we consider
impairment limits or is perceived to limit
a major life activity.
(B) Paragraph (1)(C) shall not apply to
impairments that are transitory and minor.
A transitory impairment is an impairment
with an actual or expected duration of 6
months or less.
42 U.S.C. § 12102(3).
- 12 -
Ms. Lopez's contentions relating to examination and treatment
separately.
B.
We first turn to the issue of whether Robinson gave a
legitimate, non-discriminatory reason for requiring Ms. López to
undergo a medical examination. Robinson asserts that the actions
it took were a business necessity.
The ADA statute sets forth a business necessity test for
a medical examination request. An employer may require an
examination if it "is shown to be job-related and consistent with
business necessity." 42 U.S.C. § 12112(d)(4)(A).4 We understand
this to be similar, if not identical, to a justification under the
general test for evaluating legitimate, non-discriminatory reasons
under the McDonnell Douglas framework. See Sensing v. Outback
Steakhouse of Fla., LLC, 575 F.3d 145, 162 (1st Cir. 2009).
Ms. López alleges that "Hildebrand conditioned López'[s]
continued employment at Robinson on her visiting a crisis center."
In this case, it is apparent that requiring a medical examination
4 Section 12112(d)(4)(A) provides:
A covered entity shall not require a medical
examination and shall not make inquiries of an
employee as to whether such employee is an
individual with a disability or as to the
nature or severity of the disability, unless
such examination or inquiry is shown to be
job-related and consistent with business
necessity.
- 13 -
was a business necessity. Ms. López's undisputed nervous
breakdown and statement of suicidal intent indicated that
Ms. López could not perform her job as a schoolteacher at that
time. When Ms. López was informed of her suspension, she became
distraught, fell to the floor, and cried, stating that she wanted
to kill herself. In her own words, Ms. López was "in so much
stress and so much pain." She told Hildebrand that she "w[as]n't
okay."
Ms. López herself seemed to recognize the need for an
evaluation. Before leaving for her realtor appointment, Ms. López
wrote a note to the school administrators that she would "go with
[Larrieu] to Capestrano[] [t]o seek help with a . . . (personal)
crisis" and that "[t]hings were getting in the way of good
intension [sic] with [her] students." The school's psychologist,
Dr. Tamargo, recommended seeking help and reaching out to
Capestrano, and Dr. Pérez likewise suggested that Ms. López needed
an evaluation by a mental health professional to ensure that she
was safe. Capestrano recommended that Ms. López be brought in for
an examination. The school followed those recommendations.
Cases from this circuit and other circuits have
addressed similar circumstances. This court has held that an
employer may be justified in requiring a medical examination of a
current employee so long as it is shown to be "job-related and
consistent with business necessity." Grenier v. Cyanamid
- 14 -
Plastics, Inc., 70 F.3d 667, 672 (1st Cir. 1995) (quoting 42 U.S.C.
§ 12112(d)(4)(A)); see also Sensing, 575 F.3d at 162 (holding that
a medical examination requirement may constitute a "permissible
non-discriminatory justification" in the context of anti-
discrimination laws). 5 Our sister circuits have similarly
recognized that requiring medical examinations may be justified
based on business necessity where there is a basis to believe that
the employee's ability to perform her job may be impaired or the
employee presents a troubling behavior that would impact the work
environment. See, e.g., Sullivan v. River Valley Sch. Dist., 197
F.3d 804, 811–13 (6th Cir. 1999) (holding that the school properly
required its teacher to submit to a mental examination); Brownfield
v. City of Yakima, 612 F.3d 1140, 1145–46 (9th Cir. 2010) (holding
that the employer could require an examination where there was a
legitimate basis to doubt the employee's ability to perform the
duties as a police officer); Coffman v. Indianapolis Fire Dep't,
578 F.3d 559, 565–66 (7th Cir. 2009) (holding that the Fire
Department could require employee to submit to a psychological
evaluation when she exhibited concerns about her own condition).6
5 Sensing involved a claim under the Massachusetts Commission
Against Discrimination statute, which generally applies the same
analysis as under the ADA. 575 F.3d at 153–54.
6 See also McNelis v. Pa. Power & Light Co., 867 F.3d 411,
414–15, 417 n.4 (3d Cir. 2017) (government employer was justified
in requiring an alcohol assessment); Pesterfield v. Tenn. Valley
Auth., 941 F.2d 437, 438 (6th Cir. 1991) (employer could require
- 15 -
We conclude that the evidence was undisputed that
Robinson had a reasonable basis for thinking that Ms. López needed
to undergo a medical examination at Capestrano.
C.
Ms. López also argues that the school "conditioned her
continued employment upon receiving psychiatric treatment." She
asserts that Hildebrand "without her consent" signed an "Informed
Consent for Pyscho-Active Medication" form that caused her to be
involuntarily admitted at Capestrano despite her "constitutional
right to refuse medical treatment."
But Robinson has provided a legitimate, non-
discriminatory reason for requiring that Ms. López receive
treatment. Courts have held that an employer may require an
employee to undertake medical treatment as a condition of
employee to provide medical certification on his ability to return
to work); Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d
595, 597–99 (8th Cir. 1998) (employer could require employee to
undergo a psychiatric evaluation); id. at 599 ("An employer's
request for a mental evaluation is not inappropriate if it is not
obvious that an employee suffers from a disability. . . . .
Employers need to be able to use reasonable means to ascertain the
cause of troubling behavior without exposing themselves to ADA
claims." (internal citation omitted)); Williams v. Motorola, Inc.,
303 F.3d 1284, 1291 (11th Cir. 2002) ("[The employer] could have
properly required a medical examination given [the plaintiff's]
recent behavior and threats."); Krocka v. City of Chi., 203 F.3d
507, 515 (7th Cir. 2000) ("[T]he employer may, depending on the
circumstances of the particular case [where there is a legitimate
concern], require specific medical information from the employee
and may require that the employee undergo a physical examination
designed to determine his ability to work.").
- 16 -
employment if the employer had a legitimate reason for imposing
such a requirement. See Kozisek v. Cty. of Seward, Neb., 539 F.3d
930, 933, 935 (8th Cir. 2008) (employer was justified in
conditioning employment on completion of an inpatient alcohol
treatment); Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 666,
671–72 (7th Cir. 2000) (employer was justified in requiring its
employee doctor to undergo alcohol addiction treatment and had a
"legitimate nondiscriminatory reason" for discharging her when she
was reported to be still under the influence of alcohol while
seeing patients); McNelis v. Penn., 867 F.3d 411, 414–15 (3d Cir.
2017) (government employer was justified in declaring that its
employee was not fit for duty until he received possible substance
abuse treatment).
In light of Ms. López's nervous breakdown and suicidal
statements, no juror could reasonably find on this record that the
school lacked a sufficient basis for reaching the conclusion that
Ms. López was unable to be a teacher at the time and that she was
a risk to her own safety. Here, the school had a legitimate
interest in requiring that Ms. López receive treatment when she
went to Capestrano because she was a schoolteacher who taught young
children. It is well recognized that the mental fitness of a
teacher who is responsible for the well-being of young children is
a legitimate business concern of the school at which she is
employed. Brownfield, 612 F.3d at 1145 (reviewing cases sustaining
- 17 -
requirement for a psychiatric examination of school employees
because of daily interactions with school-aged children); see also
Pamela J. Kneisel & Gail P. Richards, Crisis Intervention After
the Suicide of a Teacher, Professional Psychology: Research and
Practice, Vol 19(2), 165–69 (Apr. 1988). The school had a
particular interest in ensuring that Ms. López did not commit
suicide. A suicide would have adversely affected both the young
children and school staff.
The actions of Capestrano's doctor in involuntarily
admitting Ms. López, and the action of the Puerto Rico Municipal
Court in ordering her to be involuntarily admitted at Capestrano
further show that no reasonable juror could find that the school
lacked a basis for finding that the treatment was necessary. See
Kozisek, 539 F.3d at 935 ("[I]f a [job] restriction is based upon
the recommendations of physicians, then it is not based upon myths
or stereotypes about the disabled . . . .") (quoting Breitkreutz
v. Cambrex Charles City, Inc., 450 F.3d 780, 784 (8th Cir. 2006)).
We thus conclude that Robinson gave a legitimate non-
discriminatory reason to require that she receive medical
treatment.
To be clear, we do not here hold that an employer has a
right to require an employee to receive a medical examination or
treatment whenever the employer is concerned about the employee's
mental state. "Section 12112(d)(4)(A) prohibits employers from
- 18 -
using medical exams as a pretext to harass employees or to fish
for nonwork-related medical issues and the attendant 'unwanted
exposure of the employee's disability and the stigma it may
carry.'" Brownfield, 612 F.3d at 1146 (quoting EEOC v. Prevo's
Family Mkt., Inc., 135 F.3d 1089, 1094 n.8 (6th Cir. 1998)). Also,
"the ADA does not require that a particular treatment be foisted
on an unwilling participant." Buchanan v. Maine, 469 F.3d 158,
174 (1st Cir. 2006). Here, the employer's stated concerns were
reasonable, well documented, supported by recommendations of its
own psychologists and Capestrano medical staff, and an independent
judgment of the Commonwealth court. And the school did not require
that Ms. López receive a particular treatment.
D.
Ms. López failed to provide any evidence that Robinson's
articulated reasons were pretextual. See Azimi v. Jordan's Meats,
Inc., 456 F.3d 228, 246 (1st Cir. 2006) ("In assessing pretext, a
court's 'focus must be on the perception of the decisionmaker.'"
(quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir.
1991))). Ms. López's sole theory is that the school would not
have allowed her to meet with her realtor if it perceived that she
required immediate psychiatric evaluation and treatment. But
before Ms. López left the school campus, Hildebrand made sure that
Ms. López agreed to come back from her appointment and Ms. López
agreed to this in writing. The fact that the school allowed
- 19 -
Ms. López to first make her appointment to sign a lease for an
apartment, before visiting the hospital, does not suffice to
provide a reasonable juror to find that the school's actions were
pretextual.
E.
Ms. López's other arguments are equally unavailing. She
argues that the district court erred by failing to address
Robinson's "direct threat" defense that was pleaded as an
affirmative defense. The statute generally provides a "direct
threat" defense for the employer's action where the employee
"pose[d] a direct threat to the health or safety of other
individuals in the workplace."7 42 U.S.C. § 12113(b). Ms. López
contends that the fact that she was allowed to leave the school
campus and meet her realtor "negates any direct threat." The
district court properly determined that the school articulated a
"legitimate, nondiscriminatory reason," which is generally
distinct from a "direct threat" defense. See, e.g., Curley v.
City of N. Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014); Bodenstab
v. Cty. of Cook, 569 F.3d 651, 659 (7th Cir. 2009). The school
did not need to rely on a "direct threat" defense to prevail on
summary judgment, and thus the district court did not need to
7 "The term 'direct threat' means a significant risk to the
health or safety of others that cannot be eliminated by reasonable
accommodation" under the ADA. 42 U.S.C § 12111(3).
- 20 -
address that defense.
Accordingly, we conclude that the district court did not
err in granting summary judgment against Ms. López with respect to
her ADA discrimination claim.
III.
We next turn to Ms. López's ADA retaliation claim. "To
make out a prima facie retaliation claim, the plaintiff must show
that: '(1) she engaged in protected conduct; (2) she experienced
an adverse employment action; and (3) there was a causal connection
between the protected conduct and the adverse employment action.'"
Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108, 115 (1st Cir.
2013) (quoting Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6,
25 (1st Cir. 2004)).
Ms. López argues that she engaged in a protective
activity when she filed an ADA charge with the EEOC and ADU on
September 18, 2015, and that she suffered retaliatory actions when
the school issued the TIP dated September 21, 2015, and the later
follow-up TIPs in November 2015 and May 2016. Ms. López also
claims that Robinson's "papering" of her personnel file — by
including the parent complaint, a "Disciplinary Report" noting her
September 2, 2015 suspension, and the Municipal Court order
requiring her to be admitted at Capestrano — was retaliatory
conduct. The district court held that the TIPs were not adverse
employment actions but did not address the alleged "papering."
- 21 -
We agree with the district court that the TIPs received
by Ms. López were not materially adverse actions. The TIPs that
Ms. López received after she returned to the school from Capestrano
were performance evaluations summarizing areas that Ms. López had
improved and those which she needed further improvement. This
type of evaluation, which was not even a reprimand, is normally
expected in a course of employment. Indeed, Ms. López received
similar performance improvement plans prior to 2015, which she
does not complain to be improper. We thus conclude that the TIPs
did not constitute adverse employment actions. Bhatti v. Trs. of
Bos. Univ., 659 F.3d 64, 73 (1st Cir. 2011) (holding that
reprimands with no tangible consequences were not "material").
Accordingly, Ms. López's ADA retaliation claim based on her
placement on the TIP fails.
Ms. López's reliance on Robinson's "papering" of her
personnel file with the parent complaint, Disciplinary Report, and
the Municipal Court order is also without merit.8 "Papering" may
give rise to an actionable "adverse employment action" by causing
materially significant disadvantages such as when an employee is
subject to "systematic[] retaliat[ion]." Kim v. Nash Finch Co.,
123 F.3d 1046, 1060 (8th Cir. 1997). But here there is no evidence
that placing those documents into her file caused Ms. López
8
The Municipal Court order was in fact placed in Ms. López's
medical file rather than her personnel file.
- 22 -
"material harm" or was part of a larger pattern of retaliation.
Colón-Fontánez v. Municipality of San Juan, 660 F.3d 17, 40 (1st
Cir. 2011).
We thus determine that the district court properly
granted summary judgment on the ADA retaliation claim against her.
IV.
Ms. López asserts that the district court also erred in
granting summary judgment on her ADEA discrimination claims. Under
the McDonnell Douglas test, an ADEA plaintiff must first make out
a prima facie case for age discrimination by showing that "she was
at least 40; (ii) her work was sufficient to meet the employer's
legitimate expectations; (iii) her employer took adverse action
against her; and (iv) . . . the employer did not treat age
neutrally in taking the adverse action." Del Valle-Santana v.
Servicios Legales de P.R., Inc., 804 F.3d 127, 129–30 (1st Cir.
2015).
Ms. López claims that she suffered adverse employment
actions based on her age (61) because unlike younger teachers she
was denied training outside Puerto Rico and was required to
manually post grades and turn in her lesson plans during her class.
The district court concluded that Ms. López failed to show that
she suffered an adverse employment action because "never
receiv[ing] trainings outside of Puerto Rico, by itself, d[id] not
constitute an adverse employment action." The district court did
- 23 -
not specifically reference Ms. López's allegations regarding
grading and lesson plans.
We agree with the district court that Ms. López did not
establish that she suffered events that "materially change[d] the
conditions of [her] employ" so as to constitute adverse employment
actions. Cherkaoui v. City of Quincy, 877 F.3d 14, 25 (1st Cir.
2017) (first alteration in original) (quoting Gu v. Bos. Police
Dep't, 312 F.3d 6, 14 (1st Cir. 2002)). There is no dispute that
Robinson allowed Ms. López to attend training workshops in Puerto
Rico to afford her training opportunities. The fact that Ms. López
was not allowed to attend workshops outside Puerto Rico cannot
constitute an adverse employment action. Colón-Fontánez, 660 F.3d
at 40–41 (conclusory allegation that lack of training would affect
the plaintiff's career was insufficient to establish "significant,
not trivial, harm"). Ms. López also complains that the school
required her to post grades manually and turn in her lesson plans
during her class, a requirement not applicable to younger
employees. But she did not show that those requests were "more
disruptive than a mere inconvenience or an alteration of job
responsibilities." Cherkaoui, 877 F.3d at 25 (quoting Burns v.
Johnson, 829 F.3d 1, 10 (1st Cir. 2016)); see also Marrero v. Goya
of P.R., Inc., 304 F.3d 7, 24 (1st Cir. 2002) (holding that a minor
increase in work responsibility was not materially adverse).
Ms. López may raise a third claim that she had a heavier
- 24 -
workload because of her age. The district court held that
Ms. López's allegation of "having a heavier workload than younger
teachers [was] speculative and unsupported by evidence."
Ms. López does not clearly challenge this holding on appeal. Even
if she had, Ms. López's claim would fail. During her deposition,
Ms. López admitted her workload allegation was based on
speculation and she "d[id]n't know what [her] other co-workers'
schedules [we]re." Conclusory allegations and unsupported
speculation cannot defeat summary judgment. See, e.g., J. Geils
Band Emp. Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d
1245, 1251 (1st Cir. 1996). Ms. López also testified that she
believed a certain group of teachers were "treated special because
they [we]re related and [Larrieu's] best friends." However,
cronyism, while perhaps unsavory, is not an age-based
discrimination. See Barry v. Moran, 661 F.3d 696, 708 (1st Cir.
2011).
We therefore conclude that, because Ms. López fails to
make out a prima facie case of age discrimination, the district
court properly granted summary judgment against Ms. López as to
her ADEA discrimination claims.
V.
Finally, we address Ms. López's ADEA retaliation claim,
which we also analyze under the McDonnell Douglas framework.
Mesnick v. Gen. Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991).
- 25 -
Ms. López asserts that she suffered retaliation because
she complained to Larrieu during the September 1, 2015, classroom
visit that she felt discriminated against based on her age due to
her workload, and because she filed her administrative ADEA charge
with the EEOC and ADU. Ms. López argues that the school took
retaliatory actions by (1) suspending her on September 2, 2015,
(2) issuing TIPs after she returned to the school from Capestrano,
and (3) "papering" her personnel file with the parent complaint,
disciplinary report, and the Municipal Court order. Ms. López's
contentions based on the TIPs and "papering" are without merit for
the same reasons discussed for her ADA retaliation claims.
As for the suspension, the district court held that,
while the September 2 suspension was an adverse employment action
and Ms. López had engaged in protected conduct, the school had
legitimate reasons to take action based on Ms. López's "responses
during the criticism made at the September 2, 2015 meeting" and
Larrieu's "observations during [the] classroom visit on September
1, 2015," and that Ms. López produced no evidence that rebutted
those reasons. We agree that, even if Ms. López established a
prima face case of ADEA retaliation, the school provided a
legitimate, nondiscriminatory reason for suspending Ms. López due
to Larrieu's observation during the September 1, 2015, classroom
visit and Ms. López's responses during the September 2, 2015,
meeting. The decision was consistent with the school's concern
- 26 -
with the need for Ms. López's improvement in her communication
skills. Moreover, Ms. López did not provide any evidence that the
school's reason was pretextual. Kelley, 707 F.3d at 115 ("If the
defendant meets this burden [of articulating a legitimate, non-
retaliatory reason], the plaintiff must show that the proffered
legitimate reason is pretextual. . . .").
The district court therefore properly granted summary
judgment against Ms. López on the ADEA retaliation claims.
VI.
We conclude that the district court did not err in
granting summary judgment of the ADA and ADEA discrimination and
retaliation claims against Ms. López as well as in dismissing the
claims under analogous Puerto Rico laws.
Affirmed.
- 27 -