Velez-Ramirez v. Commonwealth of Puerto Rico, et al

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Juan R. Torruella, Appellate Judge and Sandra L. Lynch, Appellate Judge. Published. [15-1607]

Case: 15-1607

Document: 00117020950

Page: 1

Date Filed: 06/27/2016

Entry ID: 6012419

United States Court of Appeals
For the First Circuit
No. 15-1607
GISELA VÉLEZ-RAMÍREZ,
Plaintiff, Appellant,
v.
COMMONWEALTH OF PUERTO RICO, through its Secretary of Justice on
behalf of the Correction and Rehabilitation Department;
CORRECTIONAL HEALTH SERVICES CORPORATION (CHSC); JOSÉ U. ZAYASCINTRÓN,* in his official capacity as Acting Secretary of the
Department of Corrections and Rehabilitation of Puerto Rico;
DEPARTMENT OF CORRECTIONS AND REHABILITATION; LIBERTY MUTUAL
INSURANCE COMPANY,
Defendants, Appellees,
JOHN DOE,
Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before
Howard, Chief Judge,
Torruella and Lynch, Circuit Judges.

Manuel Porro-Vizcarra, with whom Yesenia M. Varela-Colón and
*

Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
we substitute José U. Zayas-Cintrón for the prior Secretary, Jesús
González-Cruz.

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Manuel Porro Vizcarra Law Offices were on brief, for appellant.
Carmen Lucía Rodríguez Vélez, with whom Néstor J. Navas
D'Acosta, Navas & Rodríguez, P.S.C., Mariel Y. Haack, and Adsuar
Muñiz Goyco Seda & Pérez-Ochoa, P.S.C. were on brief, for appellees
Correctional Health Services Corporation (CHSC) and Liberty Mutual
Insurance Company.
Margarita Mercado-Echegaray, Solicitor General, with whom
Andrés González-Berdecía, Assistant Solicitor General, Department
of Justice, Commonwealth of Puerto Rico, was on brief, for appellee
Commonwealth Of Puerto Rico.

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HOWARD, Chief Judge.

Date Filed: 06/27/2016

Entry ID: 6012419

The Americans with Disabilities

Act ("ADA"), 42 U.S.C. § 12001, et seq., provides persons with
disabilities equal opportunities under law.

Plaintiff-appellant

Gisela Vélez-Ramírez ("Vélez") alleges that her employers violated
the ADA by discharging her and not rehiring her because of her
vision

disability.

Because

the

record

establishes

that

the

defendants acted for a legitimate, non-discriminatory reason, we
affirm the district court's entry of summary judgment in their
favor.
I.
We take the record in the light most favorable to the
non-moving party, Vélez.

Collazo-Rosado v. Univ. of Puerto Rico,

765 F.3d 86, 89 (1st Cir. 2014).

Vélez worked as a contract health

educator for the Puerto Rico Department of Corrections ("the
Department") and the Correctional Health Services Corporation
("the

Corporation").

The

correctional facilities.

Department

operates

Puerto

Rico's

The Corporation provides health care for

the Department's inmates.
In

2007,

Vélez

diabetic retinopathy.

was

diagnosed

the

eye

disease

In February 2010, she asked the defendants

to reasonably accommodate her vision loss.
underwent laser eye surgery.
work.

with

That same month, she

Afterward, she did not return to

In April, the Corporation denied her request for reasonable

accommodations on the basis that she was an independent contractor.

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Later that month, the defendants considered whether to
renew

their

professional

services

contracts,

and

affirmatively recommended the renewal of Vélez's contract.

they
They

also notified the contractors about the renewal process via an
automatically-generated

email.

The

email

was

sent

over

the

Department intranet, a private computer network accessible only
from the Department's premises.
Vélez says that because she had stopped going to work,
she

did

not

sign

on

to

the

intranet

or

read

the

notice.

Nevertheless, she acknowledges that she understood the contract
renewal

procedures,

including

whom

she

paperwork required, and the deadline.

had

to

contact,

the

Despite this undisputed

evidence, she did not submit the required paperwork or contact the
defendants about the renewal.

Her contract subsequently expired

in June 2010 and was not renewed.
During the time that the contract renewal process was
unfolding,

Vélez

applied

Vocational

for

Rehabilitation

government

Program.

On

benefits
her

through

the

application,

she

claimed that she had left her job with the defendants because her
"[c]ondition prevented [her] from doing job."

In May 2010, she

was deemed eligible to receive benefits under the Program.
The following February, Vélez filed an administrative
complaint

with

the

Equal

Employment

Opportunity

Commission

("EEOC"), claiming that the defendants had discriminated against

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her because of her disability.

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Entry ID: 6012419

She later formalized this charge,

see 29 C.F.R. §§ 1626.3, 1626.6, 1626.8, and the EEOC notified her
of her right to sue. Vélez then brought this action in the District
of Puerto Rico, alleging that the defendants violated the ADA.1
She

alleged

discrimination

on

two

grounds:

first,

that

the

defendants actually or constructively discharged her by denying
her

request

for

reasonable

accommodations;

and

second,

after

Vélez's contract expired in June 2010, that the defendants refused
to rehire her because of her disability.

Vélez also alleged that

the defendants refused to rehire her in retaliation against her
request for reasonable accommodations.
The
defendants.
than

an

district

court

awarded

summary

judgment

to

the

The court assumed that Vélez was an employee rather

independent

administrative

contractor,

remedies.

It

and

that

nevertheless

she

had

exhausted

dismissed

Vélez's

discrimination claims for three reasons: (1) Vélez was not an ADA
"qualified individual" because she admitted to the Vocational
Rehabilitation Program that she could not work; (2) the defendants'
denial of Vélez's request for reasonable accommodations did not

1

Vélez also brought a Rehabilitation Act claim, 29 U.S.C.
§ 701, et seq. The district court dismissed this claim for the
same reasons as the ADA claim. In addition, Vélez brought state
anti-discrimination claims, over which the district court declined
to exercise supplemental jurisdiction because the federal claims
were dismissed.
Except insofar as these conclusions are
intertwined with her ADA claim, Vélez does not challenge them on
appeal.

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constitute discharge; and (3) the defendants' decision not to
rehire Vélez was for a non-discriminatory reason: because she did
not submit her renewal paperwork.

The court also relied on this

last ground to dismiss the retaliation claim.
II.
We review summary judgment decisions de novo.

Colón-

Fontánez v. Municipality of San Juan, 660 F.3d 17, 27 (1st Cir.
2011).

Summary judgment is proper where the movant shows that

there is no genuine dispute as to any material fact, and that it
is entitled to judgment as a matter of law.

Id.

We may affirm a

grant of summary judgment on any ground supported by the record.
Id.
We proceed arguendo on the assumption that Vélez is an
employee.

See Dykes v. DePuy, Inc., 140 F.3d 31, 37 n.6 (1st Cir.

1998) (noting other circuits that have required employee status).
To succeed on an ADA discrimination claim, a plaintiff must show
that "(1) she was disabled within the meaning of the ADA; (2) she
was qualified to perform the essential functions of the job, either
with or without reasonable accommodation; and (3) the employer
took an adverse employment action against her because of the
alleged disability."

Colón-Fontánez, 660 F.3d at 32.

Once a

plaintiff makes a prima facie showing on each of these elements,
a presumption of discrimination arises.

See Marcano-Rivera v.

Pueblo Int'l, Inc., 232 F.3d 245, 251 (1st Cir. 2000) (citing

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Dichner v. Liberty Travel, 141 F.3d 24, 29-30 (1st Cir. 1998)).
The burden of production then shifts to the defendant.

See id.

If

a

the

defendant

produces

admissible

evidence

of

non-

discriminatory reason for its actions, then the presumption drops
out.

See id.

In any event, the ultimate burden of persuasion

remains on the plaintiff.

See id.

We conclude that Vélez has failed to establish a triable
issue on the third element of her ADA claim: that the defendants
took an adverse employment action because of her disability.

To

establish this element, Vélez claims that the defendants took two
unlawful actions due to her disability: they discharged her, and
they refused to renew her contract.2
First, she says that the defendants either actually or
constructively discharged her when they sent a letter denying her
request for reasonable accommodations.

On its face, however, the

letter only denies the request for reasonable accommodations;
nowhere

does

it

state

or

imply

2

discharge.

To

close

this

Although the district court also addressed a claim for
denial of reasonable accommodations, Vélez appears to have
abandoned this claim on appeal, and neglects even to even cite the
relevant statutory provision, 42 U.S.C. § 12112(b)(5)(A). Rather,
she only argues that the defendants' denial of reasonable
accommodations constituted a discharge.
In addition, both on
appeal and in the district court, she has made only passing
reference to the defendants' failure to engage in an interactive
process. See 29 C.F.R. § 1630.2(o)(3). Thus, we deem Vélez to
have waived any reasonable accommodation or interactive process
claim for lack of adequate development. See Perfect Puppy, Inc.
v. City of E. Providence, R.I., 807 F.3d 415, 418 (1st Cir. 2015).

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evidentiary

gap,

Vélez

Page: 8

argues

that

Date Filed: 06/27/2016

the

denial

of

Entry ID: 6012419

reasonable

accommodations necessarily constituted an actual discharge.
disagree.

We

Practically speaking, an employer may deny a request

for reasonable accommodations but nevertheless allow an employee
to continue working. The statute also views a denial of reasonable
accommodations and a discharge as two distinct acts.

Compare 42

U.S.C.

reasonable

§

12112(b)(5)(A)

(prohibiting

denial

of

accommodations), with id. § 12112 (b)(5)(B) (prohibiting denial of
"employment opportunities . . . based on the need . . . to make
reasonable accommodation").

Vélez's proposed construction, that

the failure to accommodate necessarily constitutes a discharge,
would render section (b)(5)(A) superfluous.
to adopt her construction.

We therefore decline

Cf. Milner v. Dep't of Navy, 562 U.S.

562, 575 (2011) ("statutes should be read to avoid making any
provision superfluous" (internal quotation mark omitted)).
Vélez argues that Sensing v. Outback Steakhouse of Fla.,
LLC, 575 F.3d 145 (1st Cir. 2009), supports her reading, but it
does not. Nowhere in Sensing did we say that a denial of reasonable
accommodations

necessarily

constitutes

an

actual

discharge.

There, the employer had, among other things, repeatedly refused
the employee's requests to return to work, id. at 149-50, and we
held that those repeated refusals constituted actual discharge,
id. at 158-60.

But Vélez never sought to return to work.

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Vélez's constructive discharge argument also fails.

To

prevail on this argument, she must show that (1) "a reasonable
person in [her] position would have felt compelled to resign" and
(2) "[she] actually resigned."

Green v. Brennan, 136 S. Ct. 1769,

1777 (2016) (citing Pa. State Police v. Suders, 542 U.S. 129, 148
(2004)); accord Sensing, 575 F.3d at 160 n.18.

Vélez, however,

concedes that she did not resign.
We turn to Vélez's claim that the defendants refused to
rehire her after her contract expired.

This claim fails because

the record establishes that the defendants acted for a legitimate,
non-discriminatory reason: Vélez failed to submit the required
paperwork.

Vélez replies that this purported reason was pre-

textual, a cover-up for discrimination.

She claims that, because

the defendants did not want to rehire her, they chose not to inform
her effectively of the renewal procedures, causing her to not
submit her paperwork.

But the record shows that the defendants

specifically recommended Vélez's contract for renewal and provided
the same intranet email notice directed to Vélez as to every other
professional services contractor.

In any event, Vélez concedes

that she knew the renewal procedures, including whom she had to
contact, the documents required, and the deadline.
Even so, Vélez insists that the defendants should have
taken an extra step and also contacted her via telephone or mail.
Surely the defendants could have tried harder to reach Vélez, and

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perhaps it would have been wise for them to do so.

Entry ID: 6012419

But the ADA

does not regulate merely unwise employment decisions, and federal
courts

are

not

"super-personnel

American economy.

departments"

overseeing

Collazo-Rosado, 765 F.3d at 92.

Rather the ADA

prohibits disparate treatment based on disability.
v. Hernandez, 540 U.S. 44, 52 (2003).

the

Raytheon Co.

We fail to see how the

employer's application of a neutral, generally applicable policy
-- notifying all of its contractors of the renewal procedure via
the same intranet email -- constitutes disparate treatment.

See

id. at 55.
In addition, to the extent that Vélez argues that the
defendants' choice to send an intranet email, despite their being
aware of her absence from work, suggests discriminatory intent,
that claim is belied by the record.

The intranet email was not

the product of an intentional decision to discriminate; rather, as
Vélez acknowledges, it was automatically generated.
Vélez's retaliation claim fails for similar reasons.

To

succeed on an ADA retaliation claim, a plaintiff must show that
the

employer

retaliated

protected conduct.
U.S.C. § 12203(a)).

against

her

because

she

engaged

in

Collazo-Rosado, 765 F.3d at 92 (citing 42
Vélez says that the defendants refused to

rehire her in retaliation against her request for reasonable
accommodations.

But she has put forth no competent evidence of

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her own to rebut the defendants' evidence that they decided not to
rehire her because she did not submit the required paperwork.3
III.
The judgment of the district court is AFFIRMED.

3

The defendants also assert that the retaliation claim is
barred because Vélez failed to timely exhaust administrative
remedies. See Rivera-Díaz v. Humana Ins. of Puerto Rico, Inc.,
748 F.3d 387, 390 (1st Cir. 2014) (citing 42 U.S.C. § 2000e–
5(e)(1)). Vélez responds that Rivera-Díaz, as a predicate to its
ADA exhaustion holding, erroneously construed Puerto Rico state
law, conflicting with the Puerto Rico Court of Appeals' decision
in García López v. Amgen Mfg. Ltd., No. E2CI007, 2012 WL 3235804,
at *4 (P.R. Cir. June 29, 2012). Whatever the merit of Vélez's
argument, we are bound by Rivera-Díaz.
See United States v.
Rodríguez-Vélez, 597 F.3d 32, 46 (1st Cir. 2010). In any event,
we choose to bypass this non-jurisdictional issue, see Bonilla v.
Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999), and
to dispose of the claim on another ground.

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