Ortiz-Martinez v. Fresenius Health Partners PR, LLC

Filing 59

OPINION and ORDER denying 27 Motion for Partial Summary Judgment; granting 34 Motion for Summary Judgment. The complaint is dismissed with prejudice. Final judgment to be entered. Signed by US Magistrate Judge Bruce J. McGiverin on March 15, 2016. (McGiverin, Bruce)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
GLORIA ORTIZ-MARTINEZ,
Plaintiff,
v.

Civil No. 14-1335 (BJM)

FRESENIUS HEALTH PARTNERS, PR,
LLC, et al.,
Defendants.
OPINION AND ORDER
Gloria Ortiz-Martinez (“Ortiz”) brought this disability discrimination action
against Fresenius Health Partners, PR, LLC (“Fresenius”) and Fresenius Medical Care
Extracorporeal Alliance of Puerto Rico, Inc.,1 alleging a violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; the Americans with Disabilities
Amendments Act of 2008 (“ADAA”); the Rehabilitation Act of 1973, 29 U.S.C. § 705 et
seq.; and Puerto Rico Law 44, P.R. Laws Ann. tit. 1, § 504. Docket No. 1. Ortiz and
Fresenius have cross-moved for summary judgment. Docket Nos. 27, 34, 41. Fresenius
also moved to strike Ortiz’s statement of uncontested material facts, Docket Nos. 36, 48,
and Ortiz opposed, Docket No. 38. The parties consented to proceed before a magistrate
judge. Docket No. 15.
For the following reasons, Fresenius’s summary judgment motion is GRANTED,
and Ortiz’s motion is DENIED.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the movant shows “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A dispute is “genuine” only if it “is one that could be resolved in
1

The parties agree the proper defendant is Bio-Medical Applications of Arecibo, Inc.,
which is referred to by the parties as “Fresenius.” Docket No. 33 at 1; Docket No. 38 at 5.

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favor of either party.” Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.
2004). A fact is “material” only if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving
party bears the initial burden of “informing the district court of the basis for its motion,
and identifying those portions” of the record materials “which it believes demonstrate the
absence” of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).
The court does not act as trier of fact when reviewing the parties’ submissions and
so cannot “superimpose [its] own ideas of probability and likelihood (no matter how
reasonable those ideas may be) upon” conflicting evidence. Greenburg v. P.R. Mar.
Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987). Rather, it must “view the entire record
in the light most hospitable to the party opposing summary judgment, indulging all
reasonable inferences in that party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st
Cir. 1990). The court may not grant summary judgment “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248. But the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986), and may not rest upon “conclusory allegations,
improbable inferences, and unsupported speculation,” Medina-Muñoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
BACKGROUND
Except where otherwise noted, the following facts are drawn from the parties’
Local Rule 562 submissions.3
Local Rule 56 is designed to “relieve the district court of any responsibility to ferret
through the record to discern whether any material fact is genuinely in dispute.” CMI Capital
Market Inv. v. Gonzalez-Toro, 520 F.3d 58, 62 (1st Cir. 2008). It requires a party moving for
summary judgment to accompany its motion with a brief statement of facts, set forth in numbered
paragraphs and supported by citations to the record that the movant contends are uncontested and
2

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Fresenius is a healthcare provider that administers dialysis treatment to patients
with, among other things, kidney disease. FSUMF ¶ 1. Ortiz began working as a social
worker at Fresenius in 2010. FSUMF ¶ 3. When she first started, Ortiz received a job
description for the position. FSUMF ¶ 5. Among other things, her duties include
preparing substantial handwritten and electronic documentation of the services rendered
to patients, including a monthly report for each patient. FSUMF ¶¶ 6–8.
On July 24, 2012, Ortiz suffered a work-related accident while preparing
handwritten notes in patient files. FSUMF ¶ 14. Suffering from unbearable pain in her
left shoulder, forearm, and hand––the hand she uses to write––Ortiz sought emergency
services at a hospital. FSUMF ¶ 12. After she was discharged, Ortiz requested that
Fresenius complete a State Insurance Fund (“SIF”) form so that she could receive
workers’ compensation benefits. FSUMF ¶ 13. About a week later, Ortiz attended an SIFrequired medical examination and was asked not to return to work. FSUMF ¶¶ 15–16.
Over the course of approximately one year, Ortiz attended around 40 additional medical
examinations, and each time was ordered to continue resting and not return to work.
FSUMF ¶ 17.
On July 12, 2013, she was examined by a doctor and again ordered to rest until
July 22, 2013. FSUMF ¶ 18. Notwithstanding that order, Ortiz returned to the SIF on July
17, 2013, requesting that the doctor conduct another examination with an eye toward
determining whether she could return to work while undergoing continuing treatment.
material. D.P.R. Civ. R. 56(b), (e). The opposing party must admit, deny, or qualify those facts,
with record support, paragraph by paragraph. Id. 56(c), (e). The opposing party may also present,
in a separate section, additional facts, set forth in separate numbered paragraphs. Id. 56(c).
Litigants ignore the Local Rule “at their peril.” Mariani-Colón v. Dep’t of Homeland Sec. ex rel.
Chertoff, 511 F.3d 216, 219 (1st Cir. 2007). Ortiz’s statement of uncontested material facts
(“OSUMF’) failed to comply with Local Rule 56(e) because the statements therein have no
record citations. For this reason, the OSUMF is stricken from the record and will not be
considered. See, e.g., Toledo-Colon v. Puerto Rico, 941 F. Supp. 2d 234, 240 (D.P.R. 2013)
(statement of uncontested material facts disregarded where it lacked proper record citations).
3
OSUMF, Docket No. 27-1, and Fresenius’s statement of uncontested material facts
(“FSUMF”), Docket Nos. 33, 48.

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FSUMF ¶¶ 18–21. The SIF doctor allowed her to do so, and Ortiz received a form stating
the same. FSUMF ¶¶ 23–24.
On July 18, 2013, Ortiz returned to Fresenius and submitted the SIF form to
Priscilla Ortiz (“Priscilla”). FSUMF ¶ 24. Priscilla inquired about her medical restrictions
while undergoing continuing treatment, and asked her to specify the accommodations she
needed. FSUMF ¶ 25. Without this information, Priscilla told Ortiz that Fresenius could
not reinstate her. FSUMF ¶ 26. Seeking to satisfy Priscilla’s request, Ortiz went to the
SIF that same day and got a letter. FSUMF ¶ 27. That letter indicated that Ortiz had
difficulty doing repetitive tasks; that she had difficulty grabbing, pulling, and squeezing;
and that she exhibited problems that restricted the movement of her left hand, as well as
the strength of that hand. FSUMF ¶ 29; Docket No. 42-5. In light of this, the letter stated
that Ortiz was a candidate to have surgery on her hand, asked Fresenius to make the
“necessary adjustments,” and stated that there “could be” additional recommendations.
FSUMF ¶ 30; Docket No. 42-5.
Ortiz returned to Fresenius that same day and submitted the SIF letter to Priscilla,
who read the letter and said it “didn’t tell her anything.” Ortiz Dep. 76:18–23, Docket No.
42-1. Nonetheless, Priscilla told her the letter would be analyzed and that she would be
contacted the following week. Id. at 77:1–16. At that time, Ortiz told Priscilla that she did
not want Fresenius to terminate her because of a belief that she intended to abandon her
job. Id. at 82:8–25. Priscilla assured her that she was not going to lose her job. Id.
Having received no response from Fresenius, and without first contacting
Fresenius to get one, Ortiz filed an EEOC complaint on July 26, 2013. Id. at 85–86. Four
days later, she also filed a complaint with the Anti-Discrimination Unit of the Puerto Rico
Department of Labor (“ADU”). Id. at 109:21–24. And sometime around August 2, 2013,
she discussed the matter with her union delegate, Marcos Soto (“Soto”). Id. Meanwhile,
however, Fresenius had made multiple attempts to contact Ortiz. FSUMF ¶35. Indeed,
from July 18, 2013 to August 6, 2013, Fresenius’s representative, Awilda Rodriguez

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(“Rodriguez”), attempted to contact Ortiz on approximately ten occasions via the
telephone number she provided in her employment application. FSUMF ¶ 35; Docket No.
33-8 at 12–14. Fresenius also sent her a letter on July 26, 2013, which noted Fresenius’s
unsuccessful attempts to contact her via telephone––the first of which occurred on July
23, 2013. FSUMF ¶ 44; Docket No. 42-6. Ortiz, on the other hand, admitted that she
made no attempt to contact Fresenius before August 6, 2013. FSUMF ¶ 42. This was so
even though Soto informed her sometime around August 2, 2013, about Fresenius’s
unsuccessful attempts to contact her. FSUMF ¶¶ 47–48.
On August 6, 2013, Ortiz and Soto met with Priscilla and Rodriguez. FSUMF ¶
49. At that meeting, Ortiz was told that Fresenius would be willing to reinstate her if her
medical restrictions could be clarified. FSUMF ¶ 50. Soto recommended that Fresenius
contact the SIF to obtain the additional information, and Fresenius did so the next day.
FSUMF ¶ 51; Docket No. 33-11 at 2. Ortiz amended her ADU complaint after this
meeting, and later filed a union grievance. FSUMF ¶¶ 53–54.
Having received no response from the SIF, Fresenius sent Ortiz a letter on
September 6, 2013. FSUMF ¶ 55; Docket No. 42-8. The letter noted that Fresenius
unsuccessfully attempted to contact the SIF, and that it needed the following information
to engage in the interactive process: the maximum weight she could lift; the frequency of
the rest periods she required; the types of repetitive movements she needed to avoid; the
types of limitations for grabbing, squeezing, and pulling that she had; and the ability to
use her left hand to perform the essential duties of her job as a social worker. Docket No.
42-8. Ortiz never responded to that letter. FSUMF ¶ 56. And although she never received
a termination letter, she secured another job and sued Fresenius, alleging it failed to
provide her a reasonable accommodation by stonewalling her during the interactive
process. FSUMF ¶¶ 60–61.

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DISCUSSION
Fresenius contends it is entitled to summary judgment because Ortiz has not
established that she is a disabled individual under the ADA, and because Ortiz was
primarily responsible for the breakdown in the interactive process. Suggesting Fresenius
was required to reinstate her on July 18, 2013––the date the SIF permitted her to return to
work while undergoing continuing treatment––Ortiz contends she is entitled to summary
judgment because Fresenius refused to do so.
I.

Failure to Accommodate
The ADA provides that “[n]o covered entity shall discriminate against a qualified

individual with a disability because of the disability of such individual 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.”
42 U.S.C. § 12112(a). Under the statute, discrimination includes “not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee, unless such covered entity
can demonstrate that the accommodation would impose an undue hardship on the
operation of the business of such entity.” Id. § 12112(b)(5)(A); Reed v. LePage Bakeries,
Inc., 244 F.3d 254, 259 (1st Cir. 2001) (“the plaintiff fully bears [the burden of showing
reasonable accommodation], and the defendant fully bears the [burden of showing undue
hardship]”).
To assert a failure to provide a reasonable accommodation claim under the ADA
and the Rehabilitation Act, a plaintiff must establish that: (1) she suffered from a
“disability” within the meaning of the statute; (2) she was a qualified individual in that
she was able to perform the essential functions of her job, either with or without a
reasonable accommodation; and (3) despite her employer’s knowledge of her disability,
the employer did not offer a reasonable accommodation for the disability. Calero-Cerezo,
355 F.3d at 19–20 (“the case law construing the ADA generally pertains equally to claims

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under the Rehabilitation Act”). Fresenius contends Ortiz is not entitled to protection
under the ADA because she has failed to explain why she qualifies as a disabled
individual. Both parties then skip the second element of a reasonable accommodation
claim and home in on the parties’ behavior during the interactive process, which is
sometimes a component of the third element of a reasonable accommodation claim. See
EEOC v. Kohl’s Dep’t Stores, Inc., 774 F.3d 127, 132 (1st Cir. 2014) (Kohl’s).
II.

Disabled Individual
Fresenius contends Ortiz has failed to establish that she is disabled within the

meaning of the ADA. To determine whether an impairment qualifies as a disability under
the ADA, a three-part analysis is applied: the plaintiff must establish that (1) she suffers
from a physical or mental impairment; (2) that the impairment affects life activities that
are “major,” i.e., “of central importance to daily life”; 4 and (3) that the impairment
“substantially limits” the identified major life activity. Ramos-Echevarria v. Pichis, Inc.,
659 F.3d 182, 187 (1st Cir. 2011) (internal citations omitted). Because of this multipronged analysis, “[e]vidence of a medical diagnosis of impairment, standing alone, is
insufficient to prove a disability.” Id.
Ortiz failed to address Fresenius’s contention, mischaracterizing its argument as
disputing whether Ortiz was qualified to perform the essential functions of the job with a
reasonable accommodation. Compare Def.’s Mot. Summ. J. at 12, with Pl.’s Opp’n at 5.
To be sure, Ortiz does point to evidence of the medical diagnoses of her bilateral carpal
tunnel syndrome and sprained shoulder, arm, and hand. Pl.’s Opp’n at 5. But that
evidence, without more, is insufficient to establish that she is a disabled individual within
the meaning of the ADA. See, e.g., Ramos-Echevarria, 659 F.3d at 187. Thus, summary
judgment for Fresenius is granted. See, e.g., Lang v. Wal-Mart Stores E., L.P., No. 15“Major life activities are basic activities of daily life that an average person in the
general population can perform with little or no difficulty—‘functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.’”
Ramos-Echevarria, 659 F.3d at 187 (quoting 29 C.F.R. § 1630.2(i)).
4

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1543, 2016 WL 821038, at *5 (1st Cir. Mar. 2, 2016) (“to survive an adverse summary
judgment on a failure-to-accommodate claim, a plaintiff must point to sufficient evidence
showing that . . . she is disabled within the ADA’s definition”).
III.

Interactive Process
Even if Ortiz had established that she is a qualified, disabled individual under the

ADA,5 Fresenius is entitled to summary judgment because the record evidence indicates
she was primarily responsible for the breakdown in the interactive process. Under the
third element of a failure-to-accommodate claim, “an employee’s request for
accommodation sometimes6 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)).7 The interactive process requires bilateral, good-faith cooperation
between the employer and employee, and “involves an informal dialogue” between the
two in which both parties “discuss the issues affecting the employee and potential
reasonable accommodations that might address those issues.” Kohl’s, 774 F.3d at 132
(citations omitted). For this reason, “[i]f an employer engages in an interactive process
with the employee, in good faith, for the purpose of discussing alternative reasonable
accommodations, but the 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.

5

Because both parties skipped the second element of a reasonable accommodation claim,
they apparently agree that––had the interactive process not broken down––Ortiz would have been
qualified to perform the essential functions of the job with a reasonable accommodation. I note,
however, that even if a reasonable accommodation was available, Ortiz does not state what that
accommodation would have been.
6
The First Circuit “does not regard an employer’s participation in the interactive process
as an absolute requirement under the ADA,” opting instead to “resolve the issue on a case-bycase basis.” Kohl’s, 774 F.3d at 132 n.8 (quoting Kvorjak v. Maine, 259 F.3d 48, 52 (1st Cir.
2001)).

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Reasonable accommodation cases “turn heavily upon their facts and an appraisal
of the reasonableness of the parties’ behavior,” Jacques v. Clean-Up Grp., Inc., 96 F.3d
506, 515 (1st Cir. 1996), and Kohl’s aptly illustrates how an employee’s unreasonable
failure to cooperate in the interactive process precludes employer liability. 774 F.3d at
132. In that case, Kohl’s restructured its staffing system, which affected Manning’s
employment schedule. Id. at 129. Manning suffered from diabetes and the new schedule,
which included unpredictable hours, affected her ability to manage her stress, glucose
level, and insulin therapy. Id. Manning’s doctor wrote a letter to Kohl’s store manager,
Tricia Carr (“Carr”), requesting that she be allowed to work a more predictable schedule.
Id. Carr sent the letter to the human resources department, and was subsequently asked to
meet with Manning to propose a schedule in which she would not work any night shift
immediately followed by a day shift. Id. Carr and Manning’s immediate supervisor met
with Manning to do so. Id.
Manning was not pleased, requesting instead that she be permitted to work a
“steady schedule.” Id. After being told that her counterproposal was not an option,
Manning became upset and left the meeting, telling Carr she had no choice but to quit. Id.
Carr attempted to calm her down, followed her, and requested that she consider
alternative accommodations. Id. at 131. Ten days later, Carr called Manning, asking
again that she reconsider her decision to quit. Id. Manning never responded, and Kohl’s
terminated her one week after Carr’s call. Id. Under these circumstances, the trial court
granted summary judgment in the employer’s favor, and the First Circuit affirmed. Id. at
133–34; see also Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 225 (5th Cir. 2011)
(“It is difficult to judge the reasonableness of accommodations when the employee
withdraws before we can say with any authority what these accommodations would have
been.”).
As in Kohl’s, Fresenius attempted to engage in the interactive process with Ortiz,
but that process broke down when Ortiz unreasonably stonewalled her employer. 774

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F.3d at 133–34. The record evidence indicates so because on July 18, 2013, Ortiz made
Fresenius aware of her intent to return to work while undergoing continuing treatment.
Entertaining Ortiz’s request, Priscilla asked her to inform Fresenius of her medical
restrictions and to specify the accommodations she would need to perform her essential
job duties. Although Ortiz initially cooperated with the interactive process by obtaining
the July 18 SIF letter, she refused to cooperate anymore thereafter. Indeed, she did not
respond to Fresenius’s multiple attempts to contact her via phone and mail from July 23
to August 6, 2013.
And because Soto, her union representative, informed her of Fresenius’s failed
efforts to reach her, Ortiz was aware of those unsuccessful attempts––at the very latest as
of August 2, 2013. What is more, Fresenius informed Ortiz on August 6, 2013 that it was
willing to reinstate her so long as she engaged in the interactive process. After this
meeting, Fresenius attempted to get from the SIF the information it requested from Ortiz,
though that effort was unsuccessful. Because it was unsuccessful, Fresenius sent a letter
to Ortiz on September 6, 2013, detailing the specific information it wanted to know. For
her part, Ortiz amended her ADU complaint, filed a union grievance, and ultimately did
not respond to Fresenius’s request. Because Ortiz refused to cooperate in the interactive
process after July 18, 2013––despite Fresenius’s multiple attempts to have her do so––
Fresenius “cannot be held liable under the ADA for a failure to provide reasonable
accommodations.” Kohl’s, 774 F.3d at 132. Thus, Fresenius is entitled to summary
judgment on Ortiz’s reasonable accommodation claim.
IV.

Law 44 Claim
Fresenius contends it is also entitled to summary judgment on Ortiz’s Puerto Rico

Law 44 claim. P.R. Laws Ann. tit. 1, § 501 et. seq. Law 44 is “Puerto Rico’s counterpart
to the ADA,” and “creates an obligation for any employer to provide reasonable
accommodations.” Salgado-Candelario v. Ericsson Caribbean, Inc., 614 F. Supp. 2d 151,
175 (D.P.R. 2008). Because “the elements of proof for a claim under Law 44 are

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essentially the same as those for establishing a claim under the ADA,” and because
summary judgment is appropriate as to Ortiz’s ADA failure-to-accommodate claim,
Fresenius is entitled to summary judgment on Ortiz’s Puerto Rico Law 44 claim. See
Salgado–Candelario, 614 F. Supp. 2d at 175.
CONCLUSION
For the foregoing reasons, Fresenius’s summary judgment motion is GRANTED,
and Ortiz’s summary judgment motion is DENIED. All claims are DISMISSED WITH
PREJUDICE.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 15th day of March 2016.
S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge