Velez v. GlaxoSmithKline Puerto Rico, Inc.

Filing 48

OPINION AND ORDER granting 38 Motion for Summary Judgment. Judgment shall follow. Signed by US Magistrate Judge Silvia Carreno-Coll on 7/15/2015.(NBB)

IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO

RUBÉN VÉLEZ-SEPÚLVEDA,
Plaintiff,
v.

CIV. NO.: 13-1909(SCC)

GLAXOSMITHKLINE P.R.,
INC.,
Defendant.

OPINION AND ORDER
In this employment discrimination case, the defendant
GlaxoSmithKline Puerto Rico, Inc., has filed a motion for
summary judgment seeking to have the complaint against it
dismissed. Docket No. 38. I grant the motion.
1. Background
1.1 Preliminary Matters
Before delving into the facts, I want to comment on two
general failings of the defendant’s motion and the plaintiff’s
opposition that have affected the manner in which I consider

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the facts below. First, Plaintiff Rubén Vélez-Sepúlveda has, as
a general matter, neglected to follow the strictures of Local
Civil Rule 56, which requires a party opposing a motion for
summary judgment to “admit, deny or qualify the facts
supporting the motion for summary judgment,” and, in doing
so, to “support each denial or qualification by a record citation.” LOC. CIV. R. 56(c). Rather than follow this simple instruction, Vélez repeatedly states that the facts in a given paragraph
“are disputed,” e.g., Docket No. 40-17, ¶ 26, without citing any
basis whatsoever for that position. Inevitably, Vélez’s unsupported denials fail, and the facts to which they respond are
deemed admitted to the extent that they are supported by
record evidence.
The local rules also permit a party opposing summary
judgment to offer, “in a separate section” of their opposing
statement of facts, “additional facts” which it supports by
reference to the record. LOC. CIV. R. 56(c). Rather than include
such additional facts as part of its opposing statement, however, Vélez chose to file a separate document—a self-signed
sworn statement—that substitutes for an additional statement
of facts. See Docket No. 40-1. Because the defendant managed
to competently respond to this document, I will not strike it,

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but I do note that it has caused the Court confusion and is an
unnecessary complication of the standard summary judgment
practice. Moreover, in many cases it proposes facts that could
not possibly be within Vélez’s personal knowledge, but which
are not otherwise supported by record citations. See, e.g., id. ¶ 6
(referring to the defendant’s outsourcing of certain matters to
a third-party). I cannot credit such proposed facts. Likewise, I
will not credit facts that purport to contradict facts that Vélez
admitted by failing to properly oppose the defendant’s
statement.
Finally, although it responds to Vélez’s sworn statement as
if it were a counter-statement of material facts, the defendant
does so by repeated reference to a meritless objection that
deserves comment. As noted, Vélez filed a statement swearing
to certain facts. The defendant purports to deny many of these
facts on the grounds that Vélez’s “statement is a self-serving,
conclusory allegation totally unsupported by any corroborating evidence,” e.g., Docket No. 43-2, ¶ 2, as if this alone were
reason to reject the facts proposed. Lest there be any doubt, it
is not: witnesses associated with parties may—and routinely
do—swear to affidavits for use during summary judgment.
These affidavits are, almost by definition, self-serving; nonethe-

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less, they are competent so long as they swear to facts in the
affiant's personal knowledge. Cadle Co. v. Hayes, 116 F.3d 957,
961 n.5 (1st Cir. 1997) ("A party's own affidavit, containing
relevant information of which he has first-hand knowledge,
may be self-serving, but it is nonetheless competent to support
or defeat summary judgment."). Of course, a different rule
pertains when the affidavit contradicts previous testimony,
Colburn v. Parker, 529 F.3d 325, 332 (1st Cir. 2005), but the
defendant at no point accuses Vélez of having done this.
Accordingly, any denials on these grounds are rejected, and
the sworn facts shall be deemed admitted to the extent they are
made on the basis of personal knowledge, are not otherwise
objected-to, and do not contradict other admitted facts.
1.2 Factual Background
Plaintiff Rubén Vélez-Sepúlveda began working for
Defendant GlaxoSmithKline Puerto Rico (“GSK”) on August
15, 1991, and over the next two decades he occupied a number
of different positions. Vélez acknowledges receiving various
employee handbooks over the years. Docket No. 40-17, ¶ 2.
Beginning in 2005, Vélez began to show signs of hypertension and cardiac problems, which continue into the present. On
January 11, 2011, Vélez suffered a major heart attack, and on

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January 17, 2011, he underwent a quadruple bypass surgery.
Due to this condition, Vélez was on medical leave from
January 12, 2011, until April 12, 2011. During this time, he
received short-term disability benefits. When Vélez returned,
he satisfactorily performed all of his job duties until, on June
10, 2011, he again went on medical leave. Around this time,
Vélez informed his supervisor that he had certain unspecified
limitations.1 Between January 12 and June 10, Vélez “never
received a briefing from [GSK] regarding [his] options to
perform [his] employment position.” Docket No. 40-1, ¶ 5. This
second period of leave lasted until June 20, 2011, and was a
further result of Vélez’s heart condition, which required him to
have two angioplasties. After the worsening of Vélez’s condition on June 10, 2011, he submitted SINOT2 paperwork to
Bonnie Branch, a GSK case manager.3 During these periods of

1.

Vélez asserts that his supervisor never relayed this fact to human
resources, but the basis for this knowledge is never stated. The fact is
deemed denied.

2.

Puerto Rico’s Non-Occupational Temporary Disability Insurance,
commonly referred to by its Spanish-language acronym, SINOT. P.R.
LAWS ANN. tit. 11, §§ 201–12.

3.

Vélez asserts that this paperwork was not processed by Triple S Vida,
but he fails to support that fact by reference to the record. Accordingly,

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absence, Vélez suffered stress because of delays in the payment
of his benefits. When Vélez returned to work on June 20, 2011,
it was “without restrictions.” Docket No. 40-1, ¶ 9. On June 14,
2012, Vélez was informed that his Family and Medical Leave
Act (“FMLA”) leave had been exhausted.4
At some point in August 2011, while working in the field in
Camuy with Rodríguez, Vélez became dizzy and unable to
work. Rodríguez told him to go home. Two weeks later,
Rodríguez mentioned the possibility of moving Vélez into a

it is deemed denied.
4.

GSK proposes three facts regarding a work performance evaluation that
Vélez purportedly underwent on June 21, 2011. The first fact is,
confusingly, phrased as proving that Vélez “alleged” something about
that evaluation. Docket No. 38-2, ¶ 13. This fact is deemed denied
because it is ambiguous whether GSK wishes to prove the underlying
fact or just that Vélez alleged the underlying fact; if it’s the latter, it has
little value at summary judgment. The other two facts concerns the
evaluation itself and are supported by a purported copy of the
evaluation. Id. ¶¶ 14–15. But Vélez objects to the authenticity of this
document, Docket No. 40-17, ¶¶ 14–15, and GSK has indeed failed to
authenticate the document via affidavit or certification. Accordingly,
the facts must be deemed denied. See Carmona v. Toledo, 215 F.3d 124,
131 (1st Cir. 2000) (holding that a “failure to authenticate” a document
at summary judgment “precludes consideration of” that document);
FED. R. EVID. 902(11) (requiring “a certification of the custodian or
another qualified person” as a predicate to the authentication of
business records).

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less demanding position, but nothing ever came of it. That
same month, Vélez’s cardiologist, Dr. Edgardo Bermúdez,
recommended that Vélez rest until November 2011, after which
he could work half-days until February 2012.5 Accordingly,
Vélez requested further short-term disability (“STD”) leave on
August 24, 2011, after having requested medical leave on
August 18. Vélez’s STD request was forwarded to Branch. On
August 31, 2011, Vélez was diagnosed with major depression,
of which fact he informed Branch.
On September 30, 2011, Vélez met with Orlando Anglero
and Jorge Rodríguez to discuss his options. Vélez asked
Anglero about the possibility of receiving a severance package,
and Anglero told Vélez that he did not see severance as an
alternative. Vélez was thus told he should apply for long-term
disability (“LTD”) benefits, which, Anglero said, would
represent more benefits in the long-run. Vélez requested such
benefits on October 5, 2011. As part of Vélez’s application, his

5.

Vélez purports to deny these facts on the grounds that the “dates do not
correspond to reality.” Docket No. 40-17, ¶ 17. And in fact, Vélez’s
deposition, on which GSK partially relies, does state somewhat
different dates. See Docket No. 38-4, at 19. Due to this discrepancy, I
deem the facts admitted as to the months, but not as to the particular
days.

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doctors certified that he was disabled and unable to work.6 A
few days later, he had a conversation with Branch about his
options; she informed him that his STD benefits would exhaust
soon and that he should send documentation regarding his
LTD benefits quickly so that it could be processed. During the
conversation, Vélez told Branch that he would be unable to
return to work when his STD benefits elapsed, and that his
physician had said he’d likely continue to be disabled.
As Branch had warned, Vélez’s STD benefits ran out on
November 9, 2011. Then, on January 4, 2012, the Hartford
Company denied his request for LTD benefits. That month,
Vélez communicated with GSK’s human resources department
regarding his dissatisfaction with the Hartford Company’s
decision. On January 23, 2012, for instance, Vélez sent a letter
to Claire Thomas, GSK’s director of human resources, requesting assistance on the grounds that the Hartford Company’s

6.

In his application, Vélez claimed a disability beginning January 12,
2011, but noted that his last day of work had been August 17, 2011.
Docket No. 38-10, at 3. Crucially, Dr. José Pérez-Cardona, a cardiologist
who treated Vélez when his condition flared up in August and who
completed a statement of functionality as part of Vélez’s initial
application, stated that Vélez’s expected return-to-work date was
“undetermined.” Id. at 7; see also id. at 8 (finding that the “[e]xpected
duration” of Vélez’s restrictions was “undetermined”).

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decision had been incorrect.
On January 31, 2012, Vélez was informed that his employment reserve under SINOT had ended, and he was terminated.
On February 1, 2012, Vélez’s cardiologist, Dr. José PérezCardona, sent a letter to the Hartford Company certifying that
Vélez lacked the ability to work as a pharmaceutical sales
representative.7 Eventually, Vélez successfully appealed the
denial of his LTD benefits, which he has been receiving since
March 2012, retroactive to November 2011. These benefits
amount to $5,595 per month, which works out to 60% of his
salary, plus medical insurance paid by GSK.
Since his termination by GSK, Vélez has not sought other
employment, as he is unable to work and cannot perform the
essential functions of his former position.

7.

Dr. Pérez’s letter states that Vélez left work on August 17, 2011, because
of an “inability to complete working duties,” as well as “to prevent
further progression of his extensive coronary artery diseases, and in
view of [the] high risk of re-infarction.” Docket No. 38-14, at 1. Dr.
Pérez wrote that after Vélez was referred to his care in August 2011, he
suffered an “intractable” heart condition that “persist[ed]” while Vélez
was under his care. Id. Thus, despite showing mild improvement, Dr.
Pérez concluded that as of February 1, 2012, Vélez was “still” unable to
work. Id. at 1–2.

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2. Analysis
Vélez presses claims under the Americans with Disabilities
Act, the Age Discrimination in Employment Act, and various
Puerto Rico statutes. Below, I first resolve a dispute between
the parties regarding Vélez’s SINOT job reserve, and then I
take up Vélez’s claims.
2.1 SINOT Job Reserve
GSK’s putative reason for terminating Vélez was that his
SINOT job reserve—the period of time in which an employer
must reserve a temporarily-disabled employee’s job—had run
out. Vélez argues that, to the contrary, the reserve had not run
out when he was terminated. Although I see nothing in the
ADA that would make the propriety of Vélez’s termination
turn on the correct computation of the SINOT job reserve,8 I
address the issue because the parties have spent significant
time with it in their briefs.

8.

As I explain below, after leaving work for the last time in August 2011,
Vélez was never again healthy enough to work. His ADA claim fails for
this reason alone. Of course, terminating Vélez before his SINOT job
reserve expired would constitute wrongful termination under Puerto
Rico’s Law 80, P.R. LAWS ANN. tit. 29, §§ 185a–185m. See GonzalezVillanueva v. Warner Lambert, 339 F. Supp. 2d 351, 361 (D.P.R. 2004). But
Vélez’s complaint does not state a cause of action for violations of
SINOT or Law 80.

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Pursuant to SINOT, when an employer becomes temporarily disabled, the employer must “protect the employment
position held by” the employee “at the onset of the disability”
for a period of one year plus fifteen days from the onset date.
P.R. LAWS ANN. tit. 11, § 203(q)(1). Moreover, the employer’s
duty to reinstate the employee is not activated unless the
employee “petition[s] the employer to be reinstated.” Id. Of
course, the employee must also be “mentally and physically
capable” of performing his job duties at the time he requests
reinstatement. Id. § 203(q)(2).
The onset of Vélez’s condition was January 12, 2011, when
he first took medical leave as a result of his heart attack.
Laracuente Santiago v. Pfizer Pharm., 160 D.P.R. 195 (P.R. 2003)
(“Ordinarily, the employment reserve begins to run on the date
of the accident. This is based on the common experience that
the worker who suffers a serious accident is disabled by that
same accident.” (translation by the Court)). Using this onset
date, Vélez’s job reserve would have expired on January 27,
2012. He was terminated on January 31, 2012, outside of this
reserve period. Citing two Puerto Rico Supreme Court cases,
Vélez argues, that his re-hospitalization in June 2011, during
which time he had two angioplasties, constituted an “inter-

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current” condition entitling him “to a new job reserve under”
SINOT. Docket No. 40-16, at 7–8. Neither case Vélez cites come
close to supporting such a proposition.
Vélez first cites Vélez v. Comisión Industrial de P.R., 91 D.P.R.
480, 91 P.R.R. 466 (P.R. 1964). In that case, an employee
suffered a work place injury and, while in the hospital being
treated, suffered a second, fatal injury. 91 P.R.R. at 468–69. The
issue before the Court was whether Puerto Rico’s workers’
compensation statute—not SINOT—covered the employee’s
death. The Court held that it did, on the grounds that an injury
occurring in the course of treatment for a compensable injury
is itself compensable. Id. at 471. Given that the worker had died
as a result of injuries, the Court of course said nothing about
the employer’s obligation to hold open his position.
Vélez also cites Rivera Rivera v. Comisión Industrial de P.R.,
100 D.P.R. 363, 100 P.R.R. 362 (P.R. 1972), which is also a
workers’ compensation case. There, the employee, who had
been determined partially disabled, suffered another injury
which the Industrial Commission determined to be
“intercurrent.” 100 P.R.R. at 363. The Court explained that an
intercurrent accident “is” a “compensable sequel.” Id. at 364
(emphasis added). It went on to explain that to be compensa-

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ble, the second injury—whether it “be an aggravation of an
existing [injury] or a different one—must be “a natural or a
direct result of a primary compensable injury.” Id. Thus, an
intercurrent accident is a secondary injury that flows naturally
from a prior injury covered by the labor law.9 At no point does
Rivera Rivera discuss job reserves; much less does it suggest
that a worker suffering an intercurrent injury is entitled to a
new reserve beginning on the second injury’s date.
Indeed, Rivera Rivera’s logic would suggest to the contrary:
if an intercurrent injury is a natural result of the primary
injury, and compensable on that basis, why would it restart the
job-reserve clock? Unsurprising, then, that the Supreme Court
has held that employment reserve periods are not subject to
tolling or interruption. In Torres González v. Star Kist Caribe, Inc.,
the Supreme Court considered whether the workers’ compensation act’s job-reserve period was tolled during periods in
which the State Insurance Fund authorized the employee to
work despite being under continuing medical treatment. 134

9.

This is perhaps at odds with the natural definition of “intercurrent,”
which would seem to suggest an intervening injury, not a foreseeable
one. See, e.g., DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 848 (28th
ed. 1994) (“breaking into and modifying the course of an already
existing disease”).

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D.P.R. 1024, 1027–28 (P.R. 1994).10 The Court noted that the
plaintiff had not had an intercurrent condition;11 instead, she
had returned to work while healing from her initial injury. See
id. at 1033. The Court went on to state that the “temporary
return of an employee to his position does not interrupt the”
job-reserve period. Id. at 1035. Stronger still, the Court, writing
in italics (to which the English translation adds bold), stated
that the job-reserve period was one of caducity that “cannot be
interrupted in any way.”12 Id. at 1036.

10. An English-language translation of Torres González is available on
Westlaw at 1994 P.R.-Eng. 909,600.
11. Torres González is opaque as to what, if any, analytical force this
determination had, but nothing in Torres González—or any other case
that I can find—suggests that a different result would have obtained
had the plaintiff’s injury been intercurrent. To the contrary, the absolute
language used by the Court in describing the job-reserve period
suggests that it would not have. See Laracuente Santiago v. Pfizer Pharm.,
160 D.P.R. 195 n.12 (P.R. 2003) (reiterating that the workers’
compensation job-reserve period “is one of caducity that cannot be
interrupted in any way” (emphasis added; translation by the Court)).
12. The official English-language translation renders the Spanish phrase
“[e]ste período es uno de caducidad”—literally, “this period is one of
caducity”—as “[t]his period expires by the lapse of time.” In doing so,
it fails to capture the original’s forcefulness. Under Puerto Rico law, a
period of caducity—unlike a period of prescription—can never be
tolled. Ortega Candelaria v. Orthobiologics LLC, 661 F.3d 675, 678 n.4 (1st

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Torres González concerned the workers’ compensation
statute, but there is every reason to think that its holding
applies with equal force in the SINOT context. In fact, the
Torres González Court itself made this connection, noting that
SINOT’s job-reserve provision “is almost identical to” the
workers’ compensation law’s. Id. at 1035–36. Thus, given the
established fact that Vélez’s disability is related to heart
problems that go back to 2005, and which first required him to
leave work in January 2011, there can be no doubt that his
SINOT job reserve began to run when he first left work on
January 12, 2011, that it was never interrupted or renewed, and
that it expired prior to his January 31, 2012, termination.

Cir. 2011); R.P. Farnsworth & Co. v. P.R. Urban Renewal & Hous. Corp.,
289 F. Supp. 666, 669 (D.P.R. 1968) (“Caducity periods admit no
interruption.”). Once a caducity period expires, “all obligations are
completely extinguished.” Prime Retail, L.P. v. Caribbean Airport
Facilities, Inc., 975 F. Supp. 148, 153 (D.P.R. 1997); Ruiz v. Ambush, 25 F.
Supp. 2d 211, 213 (D.P.R. 2014) (“In other words, lapse of time
extinguishes the right to a cause of action precluding even judicial
tolling.”); R.P. Farnsworth, 289 F. Supp. at 669 (“Once the caducity
period has elapsed the cause of action is barred forever.”). Periods of
caducity are thus similar to the common law concept of statutes of
repose. See CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2183–84 (2014)
(“Statutes of repose . . . generally may not be tolled, even in cases of
extraordinary circumstances beyond a plaintiff’s control.”).

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2.2 The Americans with Disabilities Act
Vélez’s complaint alleges that GSK violated the ADA by
terminating him on account of his disability. To prevail on a
claim under the ADA, a plaintiff must prove: (1) that he was
disabled within the ADA’s meaning; (2) that he could perform
his job’s essential functions with or without reasonable
accommodation; and (3) that he was discharged on account of
his disability. Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d
638, 646 (1st Cir. 2000). GSK argues that Vélez’s claim must fail
because he cannot prove that he was able to perform the
essential functions of his job.
Vélez bears the burden of proving that, at the time he
sought to resume his job, he could perform its essential
functions. Id. at 646–47. Similarly, Vélez bears the burden of
proving that he made a “sufficiently direct and specific”
request for accommodation, explaining “how the accommodation requested is linked to some disability.” Wynne v. Tufts
Univ. Sch. of Med., 976 F.2d 791, 795 (1st Cir. 1992); see also
Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 102–03 (1st
Cir. 2007) (following Wynne).
Vélez left work for the last time in August 2011. He was
terminated in January 2012. Between these dates, the event that

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could be best construed as a reasonable accommodation
request is Vélez’s submission, in August, of a recommendation
from Dr. Bermúdez that Vélez take several months of leave
followed by a return to part-time work in November 2011. But
when November rolled around, Vélez did not request to return
to work. Instead, he had by that time applied for LTD benefits,
claiming total disability. As part of his application for LTD
benefits, Vélez’s doctors certified that he was unable to work.13
Vélez had moreover told Bonnie Branch, during a conversation
in October 2011, that he would most likely be unable to return

13. Vélez cites Cleveland v. Policy Management Systems Corp. for the
proposition that receipt of disability benefits does not automatically
preclude a person from making an ADA reasonable accommodation
claim. Docket No. 40-16, at 19 (citing 526 U.S. 795 (1999)). Cleveland
does so hold but clarifies that “to survive a defendant’s motion for
summary judgment, [the plaintiff] must explain why” his contention of
disability “is consistent with [his] ADA claim that [he] could ‘perform
the essential functions’ of [his] previous job.” 526 U.S. at 797–98. Vélez
fails to do this: he applied to LTD benefits in October 2011, and he was
eventually awarded benefits retroactive to November 2011.
Furthermore, the record reveals that after August 2011, he was never
healthy enough to return to work. More to the point, I have not applied
preclusion principles; rather, I have simply relied on evidence gleaned
from Vélez’s disability application. Statements of inability to work
included as part of an application for disability benefits can be used as
evidence that a person was not a qualified individual under the ADA.
August v. Office Unlimited, Inc., 981 F.2d 576, 581 (1st Cir. 1992).

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to work when his STD benefits elapsed in November, as his
doctor had said that he’d probably continue to be disabled.
Thus, to the extent that Vélez had made a direct and
specific request in August 2011, by the time his proposed
return-to-work date rolled around, the signals were decidedly
more mixed. If anything, intervening events had neutered the
request entirely: by November 2011, Vélez was claiming longterm disability, complete with medical certificates, and was not
seeking to return to his job. Given that Vélez never asked to
return to work—because he was never again (as he is not now)
healthy enough—GSK cannot be said to have violated the
ADA by not employing Vélez half-days starting in November;
there was simply no sufficiently clear and direct request for
accommodation on which GSK could act. See Gantt v. Wilson
Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998) (finding
no ADA violation where “during her leave of absence” the
plaintiff had “never made a request to return to work and
never requested any kind of accommodation”); Cash v. SiegelRobert, Inc., Civ. No. 10-2736, 2012 WL 3683466, at *13 (W.D.
Tenn. Aug. 24, 2012) (similar), aff’d, 548 F. App’x 330 (6th Cir.
2013); Roberson v. Cendant Travel Servs., Inc., 252 F. Supp. 2d
573, 582 (M.D. Tenn. 2002) (“If the employee never requests to

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return to work, for an extension of leave, or for some kind of
accommodation, the employer does not violate the ADA by
terminating her.”); Daddazio v. Katherine Gibbs Sch., Inc., Civ.
No. 98-6861, 2012 WL 228344, at *5–6 (S.D.N.Y. April 20, 1999)
(similar).
Eventually, of course, GSK terminated Vélez because he
had not returned to work in the time that Puerto Rico law
required GSK to hold his position. In some cases, it can violate
the ADA to terminate—rather than provide additional,
uncompensated leave to—an employee after statutory leave
expires. Garcia-Ayala, 212 F.3d at 649–50. This is not such a case,
however, because Vélez never requested additional, unpaid
leave; instead, he sought LTD benefits.
The bottom line is that Vélez’s ADA claim must fail because
there is nothing in the record to suggest that after he left work
for the last time in August 2011 he was ever again sufficiently
healthy to return to work, with or without an accommodation.
Cf. August v. Offices Unlimited, Inc., 981 F.2d 576, 580–81 (1st
Cir. 1992) (dismissing ADA claim where “the record [was] . . .
fatally bereft of indication that [the plaintiff] possessed the
ability to perform his job”). For this reason, Vélez cannot be
deemed a qualified person under the Act, and summary

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judgment must be granted in GSK’s favor.14 Summary judgment must also be granted as to Vélez’s claim under Law 44,
P.R. LAWS ANN. tit. 1, § 501, Puerto Rico’s state-law analogue
to the ADA. Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 87
(1st Cir. 2008) (“Because Law 44 and the ADA are coterminous,
we affirm the District Court’s dismissal of both regarded as
claims.”).15

14. The same result would obtain if the mention of moving GSK to a
different position were treated as a reasonable accommodation request.
Furthermore, an employer is “not required to find another job for an
employee who is not qualified for the job he or she was doing.” School
Bd. of Nassau Cnty. v. Arline, 480 U.S. 273, 289 n.19 (1987).
15. Vélez’s complaint does not state an ADA retaliation claim, but
opposition to the motion for summary judgment gestures towards such
a claim by calling certain activity protected. Docket No. 40-16, at 7. To
the extent such a claim has been stated, however, summary judgment
would be appropriate on account of Vélez’s failure to show pretext.
Vélez also spends significant time alleging that GSK failed to
properly engage in the ADA-required interactive process. To the extent
that an interactive process claim even exists under the ADA, it is
“subsidiary” to the plaintiff’s reasonable accommodation claim. Tobin
v. Liberty Mut. Ins. Co., 433 F.3d 100, 108 n.7 (1st Cir. 2005). Because
Vélez’s reasonable accommodation claim fails, “the interactive process
claim necessarily fails as well.” Negron-Marty v. Wal-Mart P.R., Inc., 862
F. Supp. 2d 48, 63–64 (D.P.R. 2012).

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The Age Discrimination in Employment Act

Vélez also brings a claim under the Age Discrimination in
Employment Act (“ADEA”), which prohibits employment
discrimination against workers over the age of 40 on account
of their age. 29 U.S.C. §§ 621–34. The ADEA borrows Title VII’s
burden-shifting framework where, as here, the plaintiff lacks
“smoking gun” evidence of age discrimination. Velez v. Thermo
King de P.R., Inc., 585 F.3d 441, 446–47 (1st Cir. 2009). To state
a prima facie case, the plaintiff must prove: (1) that he was 40
or older; (2) that he was qualified for his job; (3) that he was
terminated; and (4) “the employer subsequently filled the
position, demonstrating a continuing need for the plaintiff’s
services.” Id. at 447. If a plaintiff makes his prima facie case, the
“burden of production then shifts to the employer ‘to articulate
a legitimate, non-discriminatory reason for its decisions.’” Id.
(quoting Arroyo-Audifred v. Verizon Wireless, Inc., 527 F.3d 215,
219 (1st Cir. 2008)). And if the employer “articulates such a
reason,” the framework dissolves and the plaintiff must prove
pretext. Id. Moreover, the plaintiff must prove that age was the
“‘but-for’ cause of the employer’s adverse action.” Gross v. FBL
Fin Servs., Inc., 557 U.S. 167, 176 (2009); see also Valle-Santana v.
Servicios Legales de P.R., Inc., Civ. No. 12-1506(SCC), 2014 WL

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4215543, at *2 n.5 (D.P.R. Aug. 24, 2014) (explaining that Gross
imposes “a harder burden than exists under Title VII”).
Vélez fails to make a prima facie case of age discrimination.
First, he is not a qualified individual for the purposes of the
ADEA. As explained above, it is undisputed that after he left
work in August 2011, Vélez was never again healthy enough
to work. See Detz v. Greiner Indus., Inc., 346 F.3d 109, 119 (7th
Cir. 2003) (“To be ‘qualified’ [under the ADEA], a plaintiff
must have been performing his job at a level that met his
employer’s legitimate expectations at the time of his discharge.” (internal quotations omitted)). Accordingly, he could
not be qualified for his position for ADEA purposes. Cf. id.
(holding that a person cannot be simultaneously disabled for
the purposes of Social Security and qualified under the ADEA).
Moreover, Vélez has offered no evidence suggesting that his
position was filled after he left. Summary judgment in GSK’s
favor would be proper on these grounds alone.
But even if Vélez made his prima facie case, summary
judgment would be required because the record is devoid of
evidence of pretext. In its statement of uncontested facts, GSK
proposes that Vélez “allege[d] that during” a meeting with
Anglero, Anglero told Vélez that he “was coming to a new way

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of doing business, totally different and that all [Vélez’s
knowledge] was outdated and must forget all about it.” Docket
No. 38-2, ¶ 23. Of course, this statement, read literally, does not
propose that Anglero actually made that comment; it proposes
only that Vélez alleged it, which is a very different thing.16 And
Vélez’s own sworn statement mentions no age-discriminatory
comments whatsoever. Tellingly, Vélez’s opposition to GSK’s
motion for summary judgment does not even respond to
GSK’s ADEA arguments.
For these reasons, I grant GSK’s motion for summary
judgment with regard to Vélez’s ADEA claim.
2.4 Articles 1802 and 1803 of the Puerto Rico Civil Code
Vélez also brings claims pursuant to Puerto Rico’s general
negligence statutes, Articles 1802 and 1803 of the Civil Code, 31
P.R. Laws Ann. tit. §§ 5141–42. As a general matter, however,
resort may not be made to Articles 1802 and 1803 where a more

16. The result would not differ had such a comment been made. Nothing
in the record suggests that Anglero was a decisionmaker, and he made
a single, ambiguously discriminatory comment. This would not suffice
to establish pretext. Fernandez v. NCE Foods, Inc., 476 F.3d 6, 11 (1st Cir.
2007).

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specific statutes deals with the conduct complained of.17 Pagán
Colón v. Walgreens of San Patricio, Inc., 190 D.P.R. 251, 260 (P.R.
2014) (“[W]hen this Court has construed a special labor . . . law
in the context of the remedy sought, it has been consistent in
construing the statute restrictively. That is, we have refused to
accept the thesis that the lawmaker left the door open to any
other relief or cause of action provided by a general statute.”

17. Beginning with Judge Cerezo’s opinion in Rosario v. Valdes, the judges
of this district have tended to view the Puerto Rico Supreme Court’s
opinion in Santini Rivera as requiring this result. See Rosario v. Valdes,
Civ. No. 07-1508(CCC), 2008 WL 509204, at *2 (D.P.R. Feb. 21, 2008)
(citing Santini Rivera v. Serv. Air, Inc., 137 D.P.R. 1 (P.R. 1994)); see also
Morell v. HP Corp., Civ. No. 14-1123(PAD), 2015 WL 1022280, at *3
(D.P.R. Mar. 9, 2015) (Delgado-Hernández, J.); Irizarry-Santiago v. Essilor
Indus., 982 F. Supp. 2d 131, 140 (D.P.R. 2013) (Besosa, J.); Reyes-Orta v.
Highway & Transp. Auth., 843 F. Supp. 2d 216, 227 (D.P.R. 2012)
(Casellas, J.); Medina v. Adecco, 561 F. Supp. 2d 162, 176 (D.P.R. 2008)
(Gelpí, J.). However, in a 2012 opinion the First Circuit called Judge
Cerezo’s conclusion into question, implicitly holding that Santini Rivera
was not so clear that a holding contrary to Rosario’s constituted plain
error. Muñoz v. Sociedad Española de Auxilio Mutuo y Beneficiencia de P.R.,
671 F.3d 49, 58 (1st Cir. 2012); see also Campos v. Safety-Kleen Sys., Inc.,
Civ. No. 12-1529(PAD), 2015 WL 1608068, at *12 n.9 (D.P.R. Mar. 31,
2015) (noting that the First Circuit had “noted but declined to discuss”
the Rosario issue). Any doubts raised by Muñoz have been settled by the
Supreme Court’s recent decision in Pagán Colón.

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(emphasis omitted)).18 Articles 1802 and 1803 may be invoked,
however, when based on conduct “distinct from” that covered
by the specific statute that is “nonetheless tortious or negligent.” Santini Rivera v. Serv. Air, Inc., 137 D.P.R. 1, 16 (P.R.
1994) (Hernández-Denton, J., concurring).19
Here, Vélez, in his opposition to the motion for summary
judgment, fails to point to any allegedly-negligent conduct
separate from that covered by the specific labor laws. To the
contrary, Vélez argues that GSK “incurred in gross negligence
by the omission to entertain the reasonable accommodation
request.” This is precisely the type of claim covered by Puerto
Rico’s labor laws. I thus grant summary judgment dismissing
Vélez’s Articles 1802 and 1803 claims.

18. The Supreme Court’s opinion in Pagán Colón answered a certified
question posed by the First Circuit in Pagán-Colón v. Walgreens of San
Patricio, Inc., 697 F.3d 1, 19 (1st Cir. 2012). An official English-language
translation of the Supreme Court’s opinion can thus be found in the
First Circuit’s docket for that case. PUERTO RICO SUPREME COURT
OFFICIAL TRANSLATION OF ITS FEBRUARY 14, 2014 OPINION, Pagán-Colón,
No. 11-1089 (1st Cir. filed Oct. 20, 2014).
19. An English-language translation of Chief Justice Hernández-Denton’s
concurrence in Santini Rivera can be found on Westlaw at 1994 P.R.-Eng.
909,527.

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3. Conclusion
For the reasons discussed above, GSK’s motion for summary judgment, Docket No. 38, is GRANTED. Judgment will
be entered dismissing Vélez’s complaint with prejudice.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 15th day of July, 2015.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE