Ortiz-Martinez v. Fresenius Health Partners PR,, et al

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Kermit V. Lipez, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [16-1453]

Case: 16-1453

Document: 00117139725

Page: 1

Date Filed: 04/07/2017

Entry ID: 6082519

United States Court of Appeals
For the First Circuit
No. 16-1453
GLORIA M. ORTIZ-MARTÍNEZ,
Plaintiff, Appellant,
v.
FRESENIUS HEALTH PARTNERS, PR, LLC; FRESENIUS MEDICAL CARE
EXTRACORPOREAL ALLIANCE OF PUERTO RICO, INC.,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Bruce J. McGiverin, U.S. Magistrate Judge]

Before
Torruella, Lipez, and Thompson,
Circuit Judges.

Isis Aimée Roldán Márquez for appellant.
Alfredo M. Hopgood-Jovet, Patricia M. Marvez-Valiente, and
McConnell Valdés LLC for appellees.

April 7, 2017

Case: 16-1453

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THOMPSON,

Page: 2

Circuit

Judge.

Date Filed: 04/07/2017

Appellant

Entry ID: 6082519

Gloria

Ortiz-

Martínez worked as a social worker for appellees Fresenius Health
Partners,

PR,

LLC

and

Fresenius

Medical

Care

Extracorporeal

Alliance of Puerto Rico, Inc. (together, "Fresenius").1

After

suffering a work-related injury, Ortiz-Martínez sued Fresenius for
failing to accommodate her disability in violation of the American
with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213.
district

court

granted

summary

judgment

finding,

first,

The
that

Ortiz-Martínez did not qualify as a "disabled" individual under
the ADA and, second, that she was the cause of the breakdown in
communications

concerning

her

accommodations.

After

careful

consideration, we affirm the district court's ruling.

1

In her complaint, Ortiz-Martínez stated that Fresenius
Medical Care Extracorporeal Alliance of Puerto Rico, Inc. was her
employer and that the company's name was later changed to Fresenius
Health Partners Puerto Rico, LLC. In its answer to her complaint,
Bio-Medical Applications of Arecibo, Inc. stated that it was served
by Ortiz-Martínez in the underlying action, that Ortiz-Martínez
erroneously named the company as Fresenius Health Partners Puerto
Rico, LLC, and that Bio-Medical Applications of Arecibo, Inc. had
been Ortiz-Martínez's sole employer during all relevant times to
the underlying action. Ortiz-Martínez did not dispute this fact
below, nor on appeal, and the parties agreed that her proper
employer was Bio-Medical Applications of Arecibo, Inc. Although
Bio-Medical Applications of Arecibo, Inc. stated that it would
correct the caption of the case by separate motion, no such motion
was ever filed.
Instead, Bio-Medical Applications of Arecibo,
Inc. continued to refer to itself as "Fresenius" before the
magistrate judge and once again on appeal. To avoid any confusion
we continue to refer to Bio-Medical Applications of Arecibo, Inc.
as "Fresenius."

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Background
The case facts are largely undisputed and we summarize
them in the light most favorable to the appellant.

See Gillen v.

Fallon Ambulance Serv., 283 F.3d 11, 17 (1st Cir. 2002).
On January 25, 2010, Ortiz-Martínez was hired as a social
worker

at

Fresenius,

a

health

care

services

provider

that

administers dialysis treatment to patients with kidney disease or
impaired renal function.

As part of her duties, Ortiz-Martínez

was required to regularly write and document various aspects of
her work, including documenting all interventions and services she
rendered to patients, and completing a monthly report for each
patient under her care.

During the course of her employment,

Ortiz-Martínez suffered a hand injury while preparing written
notes in her patients' files.
Ortiz-Martínez subsequently went to see a doctor with
the State Insurance Fund ("SIF") on July 30, 2012 regarding her
work-related injury and was placed on rest until August 9, 2012.
Ortiz-Martínez

went

back

to

the

SIF

for

several

follow-up

appointments over the course of the next year, and each time she
was placed on additional rest and not permitted to return to work.
Following a doctor's appointment on July 12, 2013 where the doctor
once again extended Ortiz-Martínez's order of rest until July 22,
2013, Ortiz-Martínez returned to the SIF five days later (on July
17, 2013) to inquire about returning to work while she continued

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treatment for her injury. Her doctors agreed that she could return
to work while continuing her treatments and, with the blessing of
her doctors, she reported in on July 18, 2013.
Upon her return, Ortiz-Martínez provided her supervisor
and Clinical Manager, Priscilla Ortiz ("Priscilla"),2 with a copy
of the SIF form which indicated that Ortiz-Martínez had been
diagnosed with a sprained left shoulder, arm, forearm, and hand,
as well as bilateral carpal tunnel syndrome.

The SIF form also

indicated that after her medical examination on July 17, 2013,
Ortiz-Martínez was cleared to return to work while she continued
to receive medical treatment for her injuries.

The SIF form did

not indicate what specific accommodations were necessary to assist
Ortiz-Martínez

in

the

completion

of

her

daily

tasks

while

continuing treatments for her injury.
Accordingly,
without

more

Priscilla

information

informed

regarding

Ortiz-Martínez

Ortiz-Martínez's

that

medical

restrictions and what specific accommodations she was requesting,
Fresenius would not be able to reinstate her.

That same day (July

18, 2013), Ortiz-Martínez returned to the SIF in an effort to
obtain the additional information requested by Priscilla.

The SIF

provided Ortiz-Martínez with a letter that, in pertinent part,
stated the following:

2

In order to avoid confusion, we refer to Priscilla Ortiz by
her first name -- no disrespect is intended.

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The following diagnosis was made at our
agency: Sprained Left Shoulder and Arm.
Sprained Left Forearm.
Sprained Left Hand,
Bilateral Carpal Tunnel Syndrome.
These
conditions produce constant pain, numbness in
[Ortiz-Martínez's] upper extremities, and
difficulty in performing the activities that
require exercising force or pressure in the
affect [sic] area.
Dr.
Miguel
Rivera-González,
Occupational
Physician who is in charge of the case,
recommends that this employee be provided with
an occupational adjustment.
The medical
evidence shows that Mrs. Ortiz[-Martínez] has
difficulty in performing repetitive tasks,
lifting, holding and manipulating heavy and
large objects for a prolonged length of time.
She also has difficulty in holding, pulling,
gripping and she shows problems related to
restriction of movement and strength in her
left hand. Because of this condition, she is
a candidate for surgery in the left hand,
which is pending.
According to the medical recommendations, we
suggest that the possibility of providing this
employee with the necessary adjustments be
considered, so that she may be able to perform
her duties without worsening her health
condition while she continues to receive
treatment through the State Insurance Fund
Corporation. Furthermore, we recommend giving
her short rest periods during her workday.
Ortiz-Martínez returned to Fresenius that same day and
provided the SIF letter to Priscilla.

Priscilla told Ortiz-

Martínez that the letter "didn't tell her anything," but that
Fresenius would evaluate the letter and get back to her.

This

would prove to be the second to last time that Ortiz-Martínez and
Fresenius

had

a

meaningful

engagement

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to

discuss

her

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accommodation.

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One final meeting occurred in early August, which

we discuss below.
While Ortiz-Martínez disputes the exact number of calls
attempted by Fresenius in the aftermath of the July 18, 2013
meeting, she concedes that Fresenius did, in fact, attempt to get
in touch with her on numerous occasions after that date to discuss
her accommodation needs.
multiple

failed

Indeed, the record indicates that after

attempts

to

reach

Ortiz-Martínez

by

phone,

Fresenius tried to reach her by letter.

In a July 26, 2013 mailing

Fresenius

that

informed

Ortiz-Martínez

the

company

had

unsuccessfully attempted to contact her via phone as early as July
23, 2013, that they were unable to leave her a message because her
voicemail

was

not

activated,

and

they

requested

that

Ortiz-

Martínez contact Fresenius within the next five business days to
discuss how the company could best accommodate her injury.
Martínez

claims

that

she

did

not

receive

the

July

Ortiz-

26,

2013

correspondence until August 6, 2013 and she could not remember
whether she had made any effort to communicate with Fresenius
between July 22, 2013 and August 6, 2013.
On July 26, 2013, however, despite Fresenius's attempts
to contact her and despite her failure to communicate any further
with the company, Ortiz-Martínez filed a complaint with the Equal
Employment Opportunity Commission and on July 30, 2013 she filed

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a complaint with the Anti-Discrimination Unit of the Puerto Rico
Department of Labor.
On August 2, 2013, Ortiz-Martínez's union representative
at Fresenius, Marcos Soto ("Soto"), telephoned Ortiz-Martínez to
inform

her

that

a

Fresenius

representative,

Awilda

Rodriguez

("Rodriguez"), had been trying to reach her via phone and mail.
After the call, Ortiz-Martínez sent Soto a follow-up letter that
confirmed that they had spoken that day, contended that she had no
missed calls from Fresenius, and indicated that she had not yet
located or received the July 26, 2013 letter from Fresenius.

Even

after learning from Soto that Fresenius was attempting to reach
her to discuss her return to work, Ortiz-Martínez did not contact
the company or attempt to further communicate her accommodation
needs until August 6, 2013.
On that day, Ortiz-Martínez met with Soto, Rodriguez,
and Priscilla to discuss her needed accommodations.

The Fresenius

representatives again informed Ortiz-Martínez that they needed
more information concerning her medical restrictions in order to
accommodate her injuries.

Soto recommended that Fresenius contact

the SIF in order to clarify Ortiz-Martínez's medical restrictions
and the company agreed to do so.
True to their word, the very next day, Fresenius wrote
to the SIF seeking clarification of the medical restrictions and

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accommodations needed for Ortiz-Martínez.

Entry ID: 6082519

The letter, addressed

to Ortiz-Martínez's doctor, read in relevant part:
In the document you submitted for our
consideration, you told us in general terms,
that the employee has difficulty in performing
certain tasks and movements. Consequently, we
are having difficulty evaluating what type of
accommodations would be most appropriate for
the employee. To this end, we would ask that
you provide us with more specific information
regarding the recommended restrictions, such
as the weight or amount in pounds that the
employee may lift, the frequency and duration
of the rest periods, the repetitive movements
she must avoid, the specific limitations for
grabbing, pulling or squeezing, among others
that you may point out.
The letter also included a job description3 for OrtizMartínez's role and noted that her duties typically included
writing and documenting her work.

Fresenius never received a

response from the SIF or Ortiz-Martínez's doctors to the August 7,
2013 request and a month later, Fresenius sent Ortiz-Martínez yet
another letter detailing the additional information needed to
accommodate her injuries.

Specifically, the letter indicated that

Fresenius was "interested in continuing to have an interactive
process with [Ortiz-Martínez]," that Fresenius was unsuccessful in

3

The job description detailed, in relevant part, that as a
social worker, Ortiz-Martínez was responsible for patient
assessments, care planning, and counseling.
Ortiz-Martínez was
responsible for "assess[ing] patients' psychosocial status,
strengths and areas of need that may affect rehabilitation." And
her "day to day work include[d] desk and personal computer work
and interaction with patients, facility staff and physicians."

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its attempts to reach her doctors at the SIF, and that they needed
additional information including: the maximum weight she could
lift; the frequency and duration of rest periods required; the
kind of repetitive movements to be avoided; the kind of limitation
for holding, pulling, and gripping; her capacity for using her
left hand at the level required to perform her essential duties as
a social worker; and any other specific recommendations that could
be made.
letter,

Ortiz-Martínez claims that she never received this final
but

admits

she

never

again

initiated

any

further

communication with Fresenius concerning her accommodation requests
after the August 6, 2013 meeting.

Ortiz-Martínez never returned

to work at Fresenius and in April 2014 she filed suit alleging
that Fresenius failed to accommodate her disability in violation
of the ADA.
Discussion
Having extensively laid out the undisputed facts in this
case, Ortiz-Martínez's appeal can be easily dispatched.

We review

the district court's grant of summary judgment de novo.

Carreras

v. Sajo, García & Partners, 596 F.3d 25, 32 (1st Cir. 2010) (citing
Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st
Cir. 2007)).
"The ADA provides 'a clear and comprehensive national
mandate for the elimination of discrimination against individuals
with disabilities.'"

Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d

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76, 82 (1st Cir. 2008) (quoting Katz v. City Metal Co., 87 F.3d
26, 30 (1st Cir. 1996)).

Indeed, "[t]he ADA was enacted for 'the

elimination or reduction of physical and social structures that
impede people with some present, past, or perceived impairments
from contributing, according to their talents, to our Nation's
social, economic and civil life . . . .'"

Ramos-Echevarría v.

Pichis, Inc., 659 F.3d 182, 186 (1st Cir. 2011) (quoting Tennessee
v. Lane, 541 U.S. 509, 536 (2004) (Ginsburg, J., concurring)).

To

that end, the ADA "prohibits an employer from discriminating
against a qualified person with a disability in regard to 'job
application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms,
conditions, and privileges of employment' because of his or her
disability or perceived disability."

Id. (quoting 42 U.S.C.

§ 12112(a) (1990)).
Under the ADA an employer is required to make "reasonable
accommodations to the known physical or mental limitations of an
otherwise

qualified

individual

with

a

disability

who

is

an

applicant or employee, unless [the employer] can demonstrate that
the accommodation would impose an undue hardship on [its] operation
of the business."

42 U.S.C. § 12112(b)(5)(A); see also Rocafort

v. IBM Corp., 334 F.3d 115, 119 (1st Cir. 2003) ("Under the ADA,
'an employer who knows of a disability yet fails to make reasonable
accommodations violates the statute.'" (quoting Higgins v. New

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Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999))).
To survive summary judgment on a failure-to-accommodate claim, a
plaintiff must prove that: "(1) he [or she] is disabled within the
meaning of the ADA, (2) he [or she] was able to perform the
essential functions of the job with or without a reasonable
accommodation, and (3) [his or her employer], despite knowing of
[his or her] disability, did not reasonably accommodate it."
Rocafort, 334 F.3d at 119; see also EEOC v. Kohl's Dep't Stores,
Inc., 774 F.3d 127, 131 (1st Cir. 2014).
The district court found that Ortiz-Martínez failed to
establish the first and third prongs: namely, that (1) she is
disabled within the meaning of the statute; and (2) that her
employer failed to reasonably accommodate her when she was the one
responsible for the breakdown in the interactive process.

On

appeal, Ortiz-Martínez argues that the district court erred in its
findings. Even if we assume the district court erred in concluding
that Ortiz-Martínez was not a disabled person, because we find
that Ortiz-Martínez was in fact responsible for the breakdown of
the interactive process, we affirm the district court's holding.
"[A]n employee's request for accommodation sometimes
creates 'a duty on the part of the employer to engage in an
interactive process.'"

Kohl's, 774 F.3d at 132 (quoting Enica v.

Principi, 544 F.3d 328, 338 (1st Cir. 2008)).

The interactive

process, which varies depending on the circumstances of each case

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nevertheless requires both the employer and employee to engage in
a meaningful dialogue, in good faith, for the purpose of discussing
alternative reasonable accommodations.

Id.

Once "a breakdown in

the process has been identified, 'courts should look for signs of
failure to participate in good faith or failure by one of the
parties

to

make

reasonable

efforts

to

help

the

other

determine what specific accommodations are necessary.'"

party
Enica,

544 F.3d at 339 (quoting Beck v. Univ. of Wis. Bd. of Regents, 75
F.3d 1130, 1137 (7th Cir. 1996))).

If an "employee fails to

cooperate in the process, then the employer cannot be held liable
under the ADA for a failure to provide reasonable accommodations."
Id.
Ortiz-Martínez argues on appeal that Fresenius's request
for additional information was excessive and unrelated to her work
requirements as a social worker.
responsible

for

the

breakdown

She also argues that she was not
in

communication

because

she

"manifested her desire to be reinstated after her disabilityrelated leave of absence," Fresenius never offered her any sort of
reasonable accommodation, and Fresenius never provided evidence
that the letters it sent to the SIF were actually sent.

We

disagree.
The burden is on Ortiz-Martínez to demonstrate in the
first instance what specific accommodations she needed and how
those accommodations were connected to her ability to work.

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See

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Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 89 (1st Cir. 2012)
("The

obligation

information

to

is

put

accommodation.

on
the

the

employee

employer

on

to

provide

notice

of

sufficient

the

need

for

This means not only notice of a condition, but of

a 'causal connection between the major life activity that is
limited and the accommodation sought.'" (citations omitted)).
Notwithstanding
uncontested

this

facts

burden,

here

demonstrating

the
that

record

is

Fresenius

rife

with

continually

attempted to engage in the interactive process in good faith, while
Ortiz-Martínez refused to meaningfully engage after submitting an
initial letter from her doctors on July 18, 2013 and attending a
meeting on August 6, 2013.
First, Fresenius's request for more specific information
was

reasonable

and

important

to

determine

accommodations Ortiz-Martínez required.

the

type

of

How much weight Ortiz-

Martínez could support with her hands, the kind of movements that
she was to avoid due to her injury, and how long or frequently she
needed breaks throughout the day were directly relevant to the
accommodations she would need and her duties of daily desk and
personal computer work, while performing and documenting patient
assessments, care planning, and counseling.

"An accommodation

request must be sufficiently direct and specific, and it must
explain

how

disability."

the

accommodation

is

linked

to

plaintiff's

Id. (citing Freadman v. Metro. Prop. & Cas. Ins.

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Co., 484 F.3d 91, 102 (1st Cir. 2007); Tobin v. Liberty Mut. Ins.
Co., 553 F.3d 121, 129 (1st Cir. 2009)).

Fresenius's attempts to

further clarify Ortiz-Martínez's requests and to seek specific
information

regarding

her

accommodation

needs

were

not

unreasonable, especially in light of her burden to explain how her
specific accommodation requests were related to her disability and
duties at work.
Ortiz-Martínez's remaining complaints are also without
merit.
does

The mere fact that she expressed a desire to be reinstated

not

demonstrate

that

she

meaningfully

interactive process in good faith.

engaged

with

the

A declaration of a desire to

return did not assist Fresenius in probing the contours of her
physical

limitations

in

order

to

fashion

an

appropriate

accommodation and Fresenius's failure to offer her any type of
accommodation due to a lack of sufficient information cannot be
the

basis

of

liability

attempting

to

clarify

accommodate her.

--

her

Fresenius
needs

so

committed
that

it

no

could

error

in

properly

We therefore conclude that Ortiz-Martínez's

failure "to make reasonable efforts to help [Fresenius] determine
what specific accommodations are necessary" caused the breakdown
in the interactive process. Enica, 544 F.3d at 339. Consequently,
her failure to cooperate in Fresenius's attempts to identify the
proper accommodations precludes a finding that the company is
liable for the failure to accommodate.

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See Phelps v. Optima

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Health, Inc., 251 F.3d 21, 27-28 (1st Cir. 2001) (where appellant
failed to cooperate or actively engage in interactive process,
employer could not be held liable for failure to accommodate).
Lastly, with regard to Ortiz-Martínez's argument that
Fresenius never submitted proof that its letter to the SIF on
August 7, 2013 or its final letter to Ortiz-Martínez on September
6, 2013 were actually sent, these arguments are deemed forfeited
because Ortiz-Martínez failed to raise them before the district
court. See Davila v. Corporacion De P.R. Para La Difusion Publica,
498 F.3d 9, 14 (1st Cir. 2007) (Finding that an argument was
forfeited because "[t]he appellant did not present it to the
district court.")

In any event, even if these two letters were

not considered, the record is jam-packed with other instances of
Fresenius's attempts to communicate and engage in the interactive
process with Ortiz-Martínez.
Conclusion
The

district

court

correctly

found

Ortiz-Martínez

responsible for the breakdown in communications and thus Fresenius
cannot

be

held

liable

for

its

failure

to

accommodate.

We,

therefore, affirm the district court's dismissal of her ADA claims.

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