Valle-Arce v. Puerto Rico Ports Authority

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Kermit V. Lipez, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Published. [10-1102]

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Document: 00116230407

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Date Filed: 07/08/2011

Entry ID: 5563626

United States Court of Appeals
For the First Circuit

No. 10-1102
MARITZA VALLE-ARCE,
Plaintiff, Appellant,
v.
PUERTO RICO PORTS AUTHORITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
José F. Quetglas Jordán for appellant.
José Vázquez García, with whom Maza & Green, PSC was on
brief, for appellee.

July 8, 2011

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LYNCH, Chief Judge. Plaintiff Maritza Valle-Arce claimed
that her employer, the Puerto Rico Ports Authority, violated the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et
seq., when it failed to provide her with reasonable accommodations
for her disabilities and retaliated against her, including by
terminating her employment, for engaging in protected activities.
A jury spent seven days hearing the plaintiff's evidence, including
hearing testimony from the plaintiff, a co-worker, and an expert
witness, a psychiatrist. But the jury never had the opportunity to
decide Valle's claims.

In a short oral ruling, based on an oral

motion, the district court granted the Ports Authority's motion for
judgment as a matter of law at the close of Valle's case-in-chief.
Valle appeals.

We vacate the judgment of the district court and

remand.
I. Standard of Review
We review the district court's grant of judgment as a
matter of law de novo. Collazo-Santiago v. Toyota Motor Corp., 149
F.3d 23, 27 (1st Cir. 1998).
most

favorable

to

Valle,

We view the evidence in the light

the

non-moving

party,

drawing

all

reasonable inferences in her favor, without evaluating witness
credibility, conflicting testimony, or the weight of the evidence.
Andrade v. Jamestown Hous. Auth., 82 F.3d 1179, 1186 (1st Cir.
1996).

We will affirm the judgment "only if the evidence, viewed

from this perspective, 'would not permit a reasonable jury to find

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in favor of the plaintiff[] on any permissible claim or theory.'"
Id. (quoting Murray v. Ross-Dove Co., 5 F.3d 573, 576 (1st Cir.
1993)) (alteration in original).

"A reviewing court must thus ask

whether the plaintiff[] ha[s] offered enough evidence to permit
findings in [her] favor on each of the elements necessary to prove
at least one cause of action."

Murray, 5 F.3d at 576.

II. Background
A reasonable jury could have found the following from the
evidence presented during Valle's case-in-chief.
Valle worked at the Puerto Rico Ports Authority from June
1990 until her termination on July 24, 2007.

Valle testified that

her wages plus fringe benefits during the year before she was
terminated amounted to $78,000.

Valle was first diagnosed with

Chronic

in

Fatigue

Syndrome

(CFS)

2000,

and

first

requested

workplace accommodations that year.1 She submitted a report from
her physician that described her symptoms as typical of CFS,
including insomnia that usually kept her from sleeping more than
four hours a night, joint and muscle pain and weakness, and
headaches, varying in severity over time.

The physician suggested

Valle's work schedule be adjusted to begin at 9:00 a.m., instead of
the Ports Authority's standard 7:30 a.m. start time to accommodate
the difficulty Valle's insomnia caused her in arriving at work on

1

Valle was later also diagnosed with fibromyalgia, which
her expert witness, a psychiatrist, testified is a common comorbid
disorder with CFS and involves many of the same core symptoms.
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The internal evaluation process for Valle's request dead-

ended after Valle objected to the specific psychiatrist the Ports
Authority had suggested to evaluate her.
From May 1, 2003, to January 19, 2005, Valle occupied
trust positions within the agency's Human Resources Department,
first as Special Assistant to the Director of the Ports Authority,
Miguel Soto Lacourt, and then as Chief of the Human Resources
Department

(while

she

also

maintained

her

Special

Assistant

position).

When she first became Soto's assistant in 2003, Soto

allowed her to work on a flexible schedule as to her arrival and
departure times each day, as long as she completed the requisite
37.5 hours of work per week or accounted for any shortfall with
vacation or sick leave.

This arrangement, however, was never

reduced to writing.
On January 19, 2005, Valle returned to her previous
career position, Auxiliary Chief of the Human Resources Department.
For the first few months after her return, her new supervisor
accepted her flexible schedule.
On May 9, 2005, however, Sara Gregory was named the new
Chief

of

the

supervisor.

Human

Resources

Department,

and

became

Valle's

Valle testified that Gregory first questioned Valle's

flexible schedule two days later, on May 11, and Valle responded by
explaining

her

condition

and

that

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the

Ports

Authority

had

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documentation of it dating to Valle's 2000 reasonable accommodation
request.
Shortly

thereafter,

Valle

testified,

Gregory

began

monitoring Valle's entry and exit times, and, even when Valle had
worked 37.5 hours total in a week, Gregory deducted from Valle's
leave time any shortfall from 7.5 hours on a given day.

Gregory

had also sometimes deducted from Valle's accrued leave daily
shortfalls that Valle testified she had made up for by working
through her lunch hour on the same day.

Gregory questioned or

harassed Valle about her work schedule "[p]ractically every week,"
including by asking Valle why she had arrived late on particular
days long after Valle had told Gregory about the medical conditions
that led to Valle's difficulties arriving at work by 7:30 a.m.
Gregory

sometimes

required

Valle

to

obtain

doctors'

notes

documenting Valle's need for one or two sick days, even though
agency policy required such notes only for absences of three days
or more.

Gregory also sent Valle memoranda reprimanding her for

some of her her late arrivals, and stating that insomnia is not a
justified reason for absence.

Valle testified that during the

fifteen years she worked at the Ports Authority before Gregory
became her supervisor, she had never once been reprimanded for any
reason.
Valle also testified that Gregory had taken away from
Valle several individual workspace features that had helped Valle

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work around her CFS symptoms.

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Unlike other employees, Valle had a

printer in her office so that she would not have to walk to
retrieve printed documents.

Gregory had the printer removed from

Valle's office on May 14, five days after she became Valle's
supervisor.

Also

unlike

other

employees,

Valle

had

an

air

conditioner in her office so that she could control her climate,
since temperature sensitivity was another of her CFS symptoms.

In

June 2005, Gregory made Valle switch offices with her, so that
Gregory could better supervise the Human Resources Department
staff, according to Gregory.
conditioner

until

December

Valle's new office had no air

2005,

because

Gregory

delayed

the

requisition, insisting that Valle get medical certification of its
necessity.

The new office was farther from the restroom and

photocopier than her previous office was, leading to relatively
long walks that exhausted her.
According to Valle's testimony, her relationship with
Gregory

dramatically

worsened

over

time,

contributed to a decline in Valle's health.

and

that

worsening

Valle testified that

Gregory was skeptical that Valle had a real medical condition and
harassed Valle about her attendance and accommodation requests in
many ways, including by repeatedly insisting on receiving more
documentation

of

Valle's

health

conditions,

forcing

Valle

to

duplicate the Ports Authority's electronic timekeeping system with
manual

timekeeping,

and

sending

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Valle

written

reprimands

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criticizing her handling of her own workday schedule and workload.
Valle testified that the persistent and increasing stress
and

anxiety

caused

by

this

negative

working

relationship

exacerbated her medical conditions, leading her doctor to prescribe
periods of rest, which she took as two periods of extended medical
leave from June 24 to July 11 and from October 6 to November 2,
2005. She testified that the stressful work environment persisted:
"It's as if there is no way to satisfy [Gregory's] interrogations
or her questionings . . . no matter how much one would sit down and
talk with her.

She would go back to the same theme again.

would bring it up again."

She

Valle wrote to the Director of the Ports

Authority more than once describing Gregory's treatment of her, but
felt that he was not responsive to her concerns.
Upon her return to work on November 3, 2005, Valle
submitted a new formal request for reasonable accommodation and
another medical report by her treating physician, hoping that a new
report would satisfy Gregory's demands for documentation and lead
to formal accommodations.

The report, by the same physician as in

2000, stated that Valle had first been diagnosed with CFS in March
2000, and that she also suffered from associated depression and
Chronic Mononucleosis. The report described her symptoms, in terms
consistent with the 2000 report, and recommended several workplace
accommodations,
flexibly

including

between

8:30

and

adjusting
9:00

-7-

Valle's

a.m.,

workday

instead

of

to

begin

the

Ports

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Authority's usual 7:30 a.m. start time, as an accommodation for her
insomnia.2
The agency responded by requesting that Valle submit
information

from

her

physician

explaining

how

her

medical

conditions substantially limited her ability to work, which Valle
testified was contrary to the Ports Authority's normal procedure of
either granting a documented request or sending the employee for an
independent examination.

Valle, part of whose job as Auxiliary

Chief of Human Resources was to manage the reasonable accommodation
process for other employees, testified that no other employee had
been required

to

provide the

level

of

documentation

she

was

required to provide before being granted a flexible work schedule.
After several letters were exchanged between Valle and a member of
the Director's staff related to Valle's insistence that she had
provided sufficient documentation, a new Acting Director of the
Ports Authority deferred to the staff member's determination that
more documentation should be required.
On January 30, 2006, Gregory formally recommended that
the

Director

of

the

Ports

Authority

2

discipline

Valle

for

Other suggested accommodations included shortening
Valle's lunch break so that she could use the remainder to rest at
another time during the day, allowing her to control her
workspace's temperature, providing her with a nearby parking space,
shortening the distances she needed to walk during the workday,
allowing her rest periods when needed, allowing her to take work
home when she was too tired to complete it at work, and providing
clear written instructions for assignments.
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mishandling

the

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reasonable

employee, Gladys Orengo.

Date Filed: 07/08/2011

accommodation

request

of

Entry ID: 5563626

another

Valle was formally reprimanded on March

28 for this incident.
Valle appealed the reprimand, attaching parts of Orengo's
file

in

employee,

an

effort
not

to

show

Valle,

had

accommodation request.

that

Gregory

been

herself

responsible

and

for

another
Orengo's

Valle and Orengo both testified at trial

that before she used the documents from Orengo's file for this
purpose, she obtained Orengo's oral authorization to do so.
also

testified

following

that

the agency

in

obtaining

rule

for

use

this

authorization

of employee

Valle

she

was

medical files

contained in a November 2005 memo from the agency's legal advisor
to Gregory, which Valle produced as an exhibit.
Nearly a year after the reprimand, Valle received a
letter dated March 8, 2007 informing her of the agency's intent to
dismiss her for using Orengo's confidential information in her
internal appeal.
Valle was out on medical leave in 2006 from February 7 to
21 and again from July 7 to October 20.

Shortly after her return

in October, on October 23, she submitted another formal reasonable
accommodation request in which her physician stated that she
suffered from fibromyalgia and anxiety in addition to depression

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and CFS.3

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The physician noted that the stress Valle complained of

in her work environment had exacerbated her symptoms, including her
sleep disorder.

Valle again requested flexibility in her daily

start time, this time asking that she be allowed to arrive between
7:30 and 9:30 a.m.

She also asked for flexibility in her schedule

to permit her to attend medical appointments, and for the other
adjustments she had requested in her 2005 submission.
Valle testified at length about other employees who asked
for and were granted flexible schedules, including four in order to
accommodate their children's school drop-off and pick-up times.
Admittedly, each of their adjusted schedules set a specific entry
time, rather than a range of times.

Valle also testified that one

employee with a disability was granted a flexible schedule without
having to go through the reasonable accommodation procedure, with
entry between 9:00 and 9:30 a.m., which Valle viewed as similar to
what she had requested.

Valle presented documentation of the

approval of each of these requests from other employees.
Five months passed with the agency taking no action on
Valle's

October

2006

request

for

reasonable

accommodation.

Eventually, on March 19, 2007, after she had received the March 8,
2007 letter of intent to terminate, Valle filed charges with the

3

Both this 2006 request and the 2005 request were
addressed directly to the Director of the Ports Authority. Valle
testified that agency policy permitted a reasonable accommodations
request to be given in the form of "any verbal or written statement
from an employee."
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Employment

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Opportunity

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Commission

Entry ID: 5563626

(EEOC),

alleging

discrimination and retaliation by the Ports Authority.

The very

next day, with no additional medical examination or administrative
procedure, the Director of the Ports Authority partly granted her
accommodation request, fixing her work schedule from 9:00 a.m. to
5:00 p.m.

She was granted her request for a shorter lunch period,

accompanied by two fifteen-minute rest breaks during the day, as
well as the requests she had made for temperature control and
reduced

walking

distances.

She

was

not

granted

any

of

the

flexibility she had requested as to a range of entry times or the
ability to work fewer hours one day by making the hours up during
other days of the same week.
On April 4, Valle received a second letter of intent to
terminate, updated to charge Valle with using an agency computer
and

agency

supplies

during

work

hours

to

write

a

letter

to

colleagues who had offered to "donate" to her a day of their
accrued vacation to cover a garnishment of Valle's wages to pay a
debt she owed to the agency.

The letter informed the colleagues

that the agency director would not allow the donation to take
effect and so no leave had been deducted.

Valle testified that she

wrote the letter because a colleague asked her whether the leave
donation had been completed, though the agency's April 4 letter to
Valle said a letter had been sent to the employees just after the
decision had been made.

Valle testified that other employees had

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used the same leave donation procedure in order to help charity
drives for disaster relief and for a colleague whose house had
burned down, and that the organizing employees had used Ports
Authority computers and time to do so.

She also testified that

other employees had used agency computers during work time to send
emails on personal matters such as a baby shower, an invitation to
a

political

activity,

holiday

greetings,

restaurant

menus,

religion, jokes, and parties, and she provided copies of such
emails as exhibits.

On cross-examination, Valle acknowledged that

sending physical letters used more agency resources, but she
emphasized

that

she

had

considered

matters

relating

to

her

relationship with the agency as agency, not personal, matters.
Three months later, on July 24, 2007, after an informal
administrative hearing, Valle was dismissed for using Orengo's
personnel file in her 2005 administrative appeal and for using
agency resources on what the agency characterized as a personal
matter, the rejected leave donation.
At the close of Valle's case-in-chief at trial, in an
oral ruling, the district court granted the Ports Authority's Rule
50(a) motion for judgment as a matter of law on all of Valle's
claims. The court held that Valle was not a "qualified individual"
under the ADA, because work attendance is an "essential function"
of any job, see 42 U.S.C. § 12111(8), and so Valle's extensive
absences from work prevented her from fulfilling the essential

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functions of her job as required to qualify for protection under
the ADA.

The court also held that since the accommodation Valle

requested was eventually granted, and "[t]here's nothing in the
statute that says the accommodation has to be granted . . . within
a particular time period," there was no violation of the ADA's
reasonable accommodation requirement. Finally, the court also held
that as a matter of law Gregory's questioning of Valle's time cards
and memoranda to Valle stating agency policy did not constitute
"harassment."4
III. Analysis
A.

The ADA Framework
The standards under the ADA are by now familiar. The ADA

prohibits discrimination against a "qualified individual" because
of the individual's disability, 42 U.S.C. § 12112(a), a prohibition
which includes any failure to make "reasonable accommodations to
the known physical or mental limitations of an otherwise qualified
individual with a disability," id. § 12112(b)(5)(A).5
Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002).

See also
To make

4

The district court also dismissed Valle's retaliation and
Law 80 claims with prejudice; her remaining claims under Puerto
Rico law were dismissed without prejudice.
5

The ADA Amendments Act of 2008, Pub. L. No. 110-325,
which broadened the scope and protections of the ADA, does not
apply to this case.
That act does not apply retroactively to
conduct that occurred before its effective date of January 1, 2009,
and all of the conduct at issue in this case occurred in 2007 or
earlier. See Thornton v. United Parcel Serv., Inc., 587 F.3d 27,
34 n.3 (1st Cir. 2009).
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out a reasonable accommodation claim, Valle must show (1) that she
suffers from a disability, as defined by the ADA, (2) that she is
an

otherwise

qualified

individual,

meaning

that

she

is

"nevertheless able to perform the essential functions of [her] job,
either with or without reasonable accommodation," and (3) that the
Ports Authority knew of her disability and did not reasonably
accommodate it.6

Carroll, 294 F.3d at 237; see also 42 U.S.C.

§ 12111(8) (defining "qualified individual"); Lessard v. Osram
Sylvania, Inc., 175 F.3d 193, 197 (1st Cir. 1999) (describing
"qualified").
On appeal, the Ports Authority does not dispute that a
reasonable

jury

could

conclude

that

Valle

suffers

from

a

disability, but argues vigorously that no reasonable jury could, on
Valle's evidence, have found that Valle was a qualified individual
or that she was denied reasonable accommodation.7

6

Because Valle must affirmatively prove as an element of
her prima facie case that she is an "otherwise qualified
individual," 42 U.S.C. § 12112(b)(5)(A), it was not error for the
district court to consider whether she had met that burden in its
evaluation of the defendant's motion for judgment as a matter of
law. We reject Valle's arguments that the Ports Authority waived
any objection to her status as a qualified individual by not
specifically raising it as an issue prior to its Rule 50(a) motion,
and that the issue consequently could not be addressed by the
district court.
7

Ordinarily, once the plaintiff establishes the elements
of her reasonable accommodation claim, "the defendant then has the
opportunity to show that the proposed accommodation would impose an
undue hardship." Freadman v. Metro. Prop. & Cas. Ins. Co., 484
F.3d 91, 103 (1st Cir. 2007). Because judgment was granted as a
matter of law based only on Valle's case-in-chief, there is no
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The

ADA

also

Page: 15

prohibits

Date Filed: 07/08/2011

retaliation

Entry ID: 5563626

against

"any

individual because such individual has opposed any act or practice
made unlawful" by the ADA.

42 U.S.C. § 12203(a).

"Requesting an

accommodation is protected conduct for purposes of the ADA's
retaliation provision," Freadman, 484 F.3d at 106, as, of course,
is complaining of discrimination on the basis of disability.
A plaintiff's retaliation claim may succeed even where
her disability claim fails.
retaliation,

a

plaintiff

Id.

must

show

"To establish a claim of
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."
employment

obviously

is

an

Id.

adverse

While termination of

employment

action,

an

environment of hostility and harassment may also suffice if it
"well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination."

Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v.
Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)); see also Billings
v. Town of Grafton, 515 F.3d 39, 54 n.13 (1st Cir. 2008) ("Of
course, retaliatory actions that are not materially adverse when

evidence or argument on whether the Ports Authority was entitled to
deny Valle's requests for accommodation because of undue hardship.
We note that the Ports Authority put on two witnesses on
the sixth day of trial, before the plaintiff finished presenting
her case on the seventh day. The parties and the district court
nonetheless clearly treated the Rule 50(a) motion as taking into
account only the plaintiff's evidence.
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considered individually may collectively amount to a retaliatory
hostile work environment.").

And very close temporal proximity

between the protected action by the employee and the adverse
employment action by the employer may give rise to an inference of
causation.

Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25

(1st Cir. 2004).
B.

Evaluating Valle's ADA Claims
On appeal, Valle argues that the district court erred in

holding as a matter of law that she had not met her burden of
proving that

she

was qualified

to

perform her

essential job

functions with or without reasonable accommodation.

Valle also

argues that the district court erred in concluding that (1) the
agency had granted her reasonable accommodations, (2) Gregory's
treatment of Valle did not constitute "harassment," in the district
court's usage, (3) there was no retaliation, and (4) Valle failed
to present evidence as to her salary as required to support her Law
80 claims.
We agree with Valle that the district court erred in
granting judgment as a matter of law to the Ports Authority at the
close of Valle's case-in-chief.

It was not the role of the

district court to "consider the credibility of witnesses, resolve
conflicts in testimony, or evaluate the weight of the evidence."
Andrade, 82 F.3d at 1186 (quoting Wagenmann v. Adams, 829 F.2d 196,
200 (1st Cir. 1987)) (internal quotation mark omitted).

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Valle

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presented evidence that would allow a reasonable jury to find each
element of her claims in her favor, and so she was entitled to
submit her case to the jury.

We do not engage in a long discussion

of the evidence, in light of the district court's bare-bones
ruling, but we briefly address each of Valle's claims of error in
turn.

We do not suggest that a jury could not reach the same

conclusion on the evidence that the district court did.

We hold

only that the decision belonged to the jury, not the judge.8
We examine the second element Valle must show to prove
her reasonable accommodations case: that despite her disability she
"was nevertheless able to perform the essential functions of [her]
job, either with or without reasonable accommodation."
F.3d at 104.

Tobin, 433

The district court held that Valle "is not a

8

"[I]n most cases a trial court will be better advised to
reserve decision on such a motion, passing on the legal question
only after submitting the case to the jury. Mid-trial directed
verdicts should be the exception, not the rule. We concluded long
ago that refraining from granting a judgment as a matter of law
until the jury has had a chance to deal with the merits is
frequently a 'wise and time-saving precaution.' By following that
course, the judge minimizes the risk that the trial will have to be
replayed yet retains the power to pass on the sufficiency of the
evidence in a timely manner." Gibson v. City of Cranston, 37 F.3d
731, 735 n.4 (1st Cir. 1994) (quoting Talbot-Windsor Corp. v.
Miller, 309 F.2d 68, 69 (1st Cir. 1962)). "[I]f the jury had been
permitted to consider [Valle's] claim[s] against [the Ports
Authority], found for [Valle], and the district court then entered
a judgment notwithstanding the verdict, we would have the option of
reinstating the jury's verdict.
McLane, Graf, Raulerson &
Middleton, P.A. v. Rechberger, 280 F.3d 26, 40 (1st Cir. 2002).
"Under the present circumstances, we must vacate the court's
judgment as a matter of law for [the Ports Authority] at trial, and
remand for a possible retrial of [the case]. . . . [W]e do not
relish that prospect." Id.
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qualified individual" under the ADA because she "was absent six
months in a 16-month period from June, 2005, to October, 2006" and
"[a]n employee who does not come to work cannot perform any
function[,] not just the essential functions of her job."

The

district court relied on our opinion in Rios-Jimenez v. Principi,
520 F.3d 31 (1st Cir. 2008), for support.
In Rios-Jimenez, we held that, "[a]t the risk of stating
the obvious, attendance is an essential function of any job."

Id.

at 42; see also Waggoner v. Olin Corp., 169 F.3d 481, 485 (7th Cir.
1999) ("[A]n employee who does not come to work cannot perform the
essential functions of his job.") (quoting Nowak v. St. Rita High
Sch., 142 F.3d 999, 1003 (7th Cir. 1998)) (internal quotation marks
omitted).

This is a true statement of law.

But it is not

dispositive here, where the district court failed to consider the
evidence Valle had presented that the flexible work schedule she
had requested as an accommodation would have enabled her to fulfill
this essential function of attendance.
Valle testified that she had never been reprimanded in
relation to her attendance during the period from 2003-2005 in
which

her

supervisors

had

informally

granted

her

a

flexible

schedule. She also testified that the stress of Gregory's repeated
haranguing about Valle's attendance contributed to Valle's acute
need to take extended medical leave, which in turn resulted in the
long absences on which the district court based its ruling.

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Significantly,
contention.

there

was

Page: 19

expert

Date Filed: 07/08/2011

testimony

to

Entry ID: 5563626

support

this

Valle's expert witness, a psychiatrist, testified

similarly, and also testified that it caused Valle a great deal of
stress to go to work realizing that she was going to be late, which
led to many of her absences.
testimony

could

conclude

A reasonable jury crediting this

that

Valle

had

produced

sufficient

evidence that she was able to attend work regularly when granted
the reasonable accommodation of a flexible schedule.
The Ports Authority claims that, starting in August 2005,
Gregory informally allowed Valle to enter work as late as 8:30
a.m., and that this accommodation continued until Valle's request
was formally granted in March 2007, in the form of a 9:00 a.m.
start time. This, the Ports Authority argues, means that there was
never a time during which Valle was not accommodated, rendering her
reasonable accommodations claim moot.

However, whether there was

any such informal arrangement between Gregory and Valle is a
disputed question of fact for the jury, as Valle denied any such
informal arrangement on cross-examination.

Further, the letter

from Gregory to Valle memorializing the purported arrangement was
dated

April

5,

2007,

after

the

agency

had

begun

efforts

to

terminate Valle, after Valle filed an administrative complaint
against the agency, and seventeen months after Valle's first formal
accommodations request.

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The district court also concluded that Valle had failed
to prove that the Ports Authority knew of her disability and did
not reasonably accommodate it.

See Carroll, 294 F.3d at 237.

The

district court reasoned, without reference to any of the evidence
Valle had presented, that because the Ports Authority eventually
granted Valle a flexible schedule, and because the ADA does not
specify

a

time

period

within

which

employers

must

grant

accommodations, the Ports Authority had not denied Valle reasonable
accommodations.
As Valle argues, unreasonable delay may amount to a
failure to provide reasonable accommodations.

See, e.g., Astralis

Condo. Ass'n v. Sec'y, U.S. Dep't of Hous. & Urban Dev., 620 F.3d
62, 68-69 (1st Cir. 2010) (holding on petition for review of agency
enforcement order for discrimination on the basis of disability
that condominium

association's

delay of

more

than

a

year

in

deciding on request for designated handicapped parking spaces
constituted a denial of accommodation request); Calero-Cerezo, 355
F.3d at 25 ("[A] factfinder might well conclude that . . . the
defendants simply stonewalled--going so far as to deny, in the face
of

substantial

medical

disability at all.").
in

an

informal

request.

evidence,

that

plaintiff

suffered

a

So too may an employer's "failure to engage

interactive

process"

following

an

employee's

Soto-Ocasio v. Fed. Express Corp., 150 F.3d 14, 19 (1st

Cir. 1998) (quoting Jacques v. Clean-Up Grp., Inc., 96 F.3d 506,

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515 (1st Cir. 1996)); see also 29 C.F.R. § 1630.2(o)(3) (ADA
interpretive regulations).

Here, where Valle testified to ways in

which the Ports Authority did not follow its normal reasonable
accommodations procedure in her case, where the agency delayed
months after even the 2006 request, and where the rigid 9:00 a.m.
to 5:00 p.m. schedule eventually granted was not what she sought
and arguably did not reasonably accommodate Valle's condition,
Valle was entitled to present to a jury the question of whether the
agency failed to grant her a reasonable accommodation.9
The district court entered judgment dismissing Valle's
retaliation claim as well.

There were no written motions or

memoranda on the Ports Authority's oral motion for judgment as a
matter of law, only oral argument on the morning of the eighth day
of the jury trial, which reveals little discussion about the
retaliation

claim

and

its

relation

to

Valle's

substantive

discrimination claim. The district court's two-page oral ruling on
the defendant's oral motion merely stated that the retaliation
claim was dismissed, without explaining the grounds on which the
Ports Authority was entitled to judgment on it as a matter of law.
The events of harassment to which Valle testified could
be considered by a reasonable jury to be either discrimination on

9

Because of the procedural posture of the case, we do not
have before us any evidence from the Ports Authority as to whether
the accommodations Valle requested would create an undue burden on
the agency, and so we do not opine on this issue.
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the basis of Valle's disability or retaliation for her reasonable
accommodations requests.

A jury could at least, on the record so

far, conclude that the termination of Valle's employment was an act
of retaliation.

A jury crediting Valle's evidence that she was

singled out for punishment despite other employees' use of agency
resources for personal matters, and her evidence that she did not
violate any agency policy in her handling of the files from Gladys
Orengo's reasonable accommodation case, could reasonably find that
the

reasons

retaliation

the

Ports

against

Authority
Valle

accommodations requests.
such an inference.10

for

gave

for

pursuing

firing
her

Valle

were

reasonable

The timing of the events also supports

The district court erred in granting judgment

as a matter of law on the retaliation claim.

10

Valle testified that Gregory began to treat her poorly
almost immediately upon becoming Valle's supervisor and learning
about her previous informal accommodations, including by removing
her printer, changing her office, and beginning to scrutinize her
entry times. There are also close temporal associations between
Valle's renewed efforts to resolve her pending 2006 reasonable
accommodations request and the agency's efforts to terminate her.
On January 27, 2006, Valle wrote to the Executive Director of the
Ports Authority alleging that the Assistant Executive Director,
Ivonne
Laborde,
was
unreasonably
delaying
the
agency's
consideration of Valle's request by questioning her physician's
competence. Three days later, Gregory and Laborde together wrote
a letter to the Director blaming Valle, allegedly falsely, for the
mishandling of Orengo's reasonable accommodation file, the matter
which led to the initial intent-to-dismiss letter. And the amended
intent-to-dismiss letter, adding the charges about personal use of
agency resources that Valle argues unfairly singled her out for
conduct common among Ports Authority employees, was issued on April
4, 2007, sixteen days after Valle filed charges against the agency
with the EEOC.
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Finally, we also vacate and remand the district court's
judgment on Valle's Law 80 claim.
Puerto

Rico

law

that

mandates

Law 80, a remedial measure in
severance

pay

for

terminated

employees under certain circumstances, bases the amount an entitled
employee receives on that employee's pre-termination compensation.
See Otero-Burgos v. Inter Am. Univ., 558 F.3d 1, 7-9 (1st Cir.
2009) (discussing Law 80's history and purpose).

The district

court held, without any discussion, that "there was no evidence as
to the amount of the Law 80 claim," even though Valle had testified
that her compensation for Law 80 purposes was "close to $78,000."
Valle

argues

this

was

sufficient

evidence,

while

the

Ports

Authority argues that damages under Law 80 must be proven with a
certain level of specificity that Valle's testimony does not
satisfy.

Neither side cites any authority for its position.

Absent any helpful briefing on the facts or the law, we decline to
decide the issue on this record and vacate the entry of judgment on
the Law 80 claim for further proceedings along with Valle's other
claims.
The order of the district court granting judgment as a
matter of law to the Ports Authority is vacated in its entirety and
the case is remanded for further proceedings consistent with this
opinion.

Costs are awarded to Valle pursuant to Fed. R. App. P.

39(a)(4).

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