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
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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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