Oquendo v. Costco Wholesale Corporation ( 2021 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 20-1632
JOAN OQUENDO,
Plaintiff, Appellant,
v.
COSTCO WHOLESALE CORPORATION, d/b/a Costco Wholesale #365,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Marshal D. Morgan, U.S. Magistrate Judge]
Before
Howard, Chief Judge,
Lipez and Thompson, Circuit Judges.
Humberto Cobo-Estrella, with whom Cobo Estrella Law Office
was on brief, for appellant.
Vicente J. Antonetti, with whom Gabriel A. Quintero-O'Neil
and Goldman Antonetti & Córdova, LLC, were on brief, for appellee.
April 29, 2021
THOMPSON, Circuit Judge.
Overview
Joan Oquendo works for Costco Wholesale Corporation as
an administrative manager. A few years back, when she was a
receiving manager (a position on the same level as an
administrative manager), Costco higher-ups supposedly
discriminated against her by failing to reasonably accommodate her
pregnancy-related restrictions. So she sued Costco, asserting
various claims. The only ones now relevant are her claims of
pregnancy and gender discrimination under Title VII of the Civil
Rights Act of 1964 (as amended by the Pregnancy Discrimination
Act) and disability discrimination under the Americans with
Disabilities Act (we briefly discuss her other claims in a footnote
near the end of the opinion). Acting through a magistrate judge,
see 28 U.S.C. § 636(c), the district court dismissed her case on
summary judgment and later denied her motion for reconsideration.
She appeals both rulings. And we affirm. But because we basically
write only for the parties — who obviously know the facts, the
procedural history, and the issues presented — our discussion will
be limited.
Standards of Review
We give fresh-eyed review to the district court's
summary-judgment decision, seeing whether Costco "is entitled to
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judgment as a matter of law" because there is no "genuine dispute
as to any material fact" — even after reading all reasonable
inferences in the record in Oquendo's favor. See Fed. R. Civ. P.
56(a); see also, e.g., Lang v. Wal-Mart Stores East, L.P., 813
F.3d 447, 454 (1st Cir. 2016). And we give abuse-of-discretion
review to the court's reconsideration ruling. See, e.g., Ramos-
Santiago v. WHM Carib, LLC, 919 F.3d 66, 76 n.9 (1st Cir. 2019);
Harley-Davidson Credit Corp. v. Galvin, 807 F.3d 407, 411 (1st
Cir. 2015).
Arguments and Analysis
Summary Judgment
Some context is necessary to place Oquendo's relevant
discrimination theory into a workable perspective.
Costco's job description says that the essential
functions of Oquendo's receiving-manager position include
"[a]ssist[ing] in receiving duties and other areas of the
department as needed" (accounting for "25%" of her time). The job
description also says that the physical demands needed to perform
the essential functions include bending, squatting, kneeling,
reaching above and below the shoulders, and lifting and carrying
up to 50 pounds. Costco says that these physical demands are
essential to that position. Oquendo disagrees, at least when it
comes to lifting — though she provides no record cites, probably
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because she testified by deposition that "all the work is physical"
and that she "[o]f course" had to lift boxes weighing ten pounds
or more on "[o]ccasion[]." But no one disputes that the job
description says nothing about exempting day-shift receiving
managers from having to perform the job's essential functions.
The significance of all this will become clearer very soon.
Oquendo told her general manager, Patrick Bergeron, that
her current work schedule (involving some evening shifts) was too
hard on her given her pregnancy-related medical issues (she, for
example, was dealing with hyperemesis gravidarum — a condition
characterized by severe nausea and vomiting, among other
symptoms). So she asked him if she could work the day shift for
the rest of her pregnancy. And he agreed to do that while her
doctor filled out a work-restriction form.
The form Oquendo's doctor completed — which she gave to
Costco — okayed her to work 8 a.m. to 5 p.m., with the following
physical restrictions: no lifting or carrying over 10 pounds, no
reaching above the shoulder, no bending or stooping, no twisting
of the torso, no full or partial squatting, no kneeling, and no
climbing stairs or ladders. After evaluating the situation, a
leave specialist in the human resources department concluded that
given her doctor-imposed limitations, she could not presently
perform the essential functions of any job in the warehouse. So
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she ended up on a "pregnancy disability" leave of absence.1 And
during that leave, Costco temporarily assigned her receiving-
manager duties to Carlos Tolentino (who was a "[j]unior
[m]anager"). But when the leave ended, Costco restored her to the
position she held before — asked at her deposition whether she
"came back to work" with "the same salary[,] . . . working
conditions[,] and . . . benefits," she replied: "Yes."
Which brings us to Oquendo's discrimination theory. In
her view, Costco "unlawfully excluded [her] from work . . . because
of her diminished capacity during pregnancy" by placing her on a
"leave of absence" that "she did not want" and that her doctor
"[n]ever asked for." Noting Bergeron's deposition testimony that
he could modify a work schedule "on a temporary basis" and that
her pregnancy was "temporary," she contends that she could have
done her job's essential functions if only Costco had "reasonabl[y]
accommodat[ed]" her by putting her on days as she and her doctor
requested.2
1 The parties spar over whether Oquendo asked for the leave
(she says no; Costco says yes) and whether she got paid during
this time (she says no; Costco says yes). But because we decide
this case on other grounds (explained shortly), we need not address
those two issues.
2 This talk of reasonable accommodation and essential
functions comes in the context of Oquendo's argument concerning
the McDonnell Douglas burden-shifting scheme, which provides a
path for proving discrimination using circumstantial rather than
direct evidence. See generally Ramos-Echevarría v. Pichis, Inc.,
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Oquendo's thesis does not hold together, however. Put
aside that a leave of absence — even an unpaid one — may be a
reasonable accommodation in certain situations. See García-Ayala
v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000).
Put aside too that an employer need not give an employee her
preferred accommodation. See Ansonia Bd. of Educ. v. Philbrook,
479 U.S. 60, 68 (1986); Feliciano v. Rhode Island, 160 F.3d 780,
787 (1st Cir. 1998). And also put aside that an employer need not
create a new position tailored to the employee's abilities. See
Enica v. Principi, 544 F.3d 328, 342 (1st Cir. 2008). Instead
659 F.3d 182, 186-87 (1st Cir. 2011) (discussing the test); see
also Flaherty v. Entergy Nuclear Oper., Inc., 946 F.3d 41, 53-54
(1st Cir. 2019). Oquendo's brief suggests that the district court
need not have analyzed her discrimination claims under McDonnell
Douglas because (according to her) she presented direct evidence
of discrimination. And she says her direct evidence is Bergeron's
acknowledgement (and here we quote her brief) that Costco
"explicitly took [her] pregnancy into account in reaching an
employment decision." She provides no record cites for that
assertion, however — a violation of a rule of appellate procedure
that requires a party to cite "parts of the record on which [she]
relies." See Fed. R. App. P. 28(a)(8)(A). And while we have no
obligation to flip through the record for a party who has not done
as she should, see Rivera-Corraliza v. Morales, 794 F.3d 208, 226-
27 (1st Cir. 2015), we note that when her lawyer asked Bergeron at
his deposition whether "the disability . . . related to her
pregnancy . . . was taken into account when [c]orporate decided to
send her on leave," Bergeron answered: "I don't know what . . .
[c]orporate made the decision on" — though he did say in the same
deposition that the leave department told him "that the
restrictions that her doctor gave her . . . did not allow her to
work within the confines of any position at the warehouse at that
time." All of which undermines her direct-evidence suggestion.
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focus on Costco's written job description, which (to repeat) says
that the essential functions of Oquendo's post required her to
bend, squat, kneel, reach above and below the shoulders, and lift
and carry up to 50 pounds — without carving out an exception for
those working on the day shift.3 And focus on her doctor's
completed work-restriction form, which (to repeat again) barred
her from (among other things) bending or stooping, kneeling,
reaching above the shoulder, and lifting or carrying over 10 pounds
— restrictions squarely at odds with the essential physical duties
of the receiving-manager position. A big problem for Oquendo is
3 An employer's official job description is relevant — but
not dispositive — in determining what the essential functions of
a position are. See Gillen v. Fallon Ambulance Serv., Inc., 283
F.3d 11, 25-28 (1st Cir. 2002). Seeking to downplay the
significance of this document, Oquendo (as alluded to above) calls
the "occasional lifting" duties "marginal" and "nonessential."
But simply calling something "nonessential" does not make it so.
We require argument with legal authority and record citation. See
Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir.
2011). Oquendo provides neither, developing no credible claim for
why the lifting requirement is not essential. And don't forget
her deposition testimony about how "all" receiving-manager "work
is physical" and how she "[o]ccasionally" lifted boxes weighing
ten pounds or more. To the extent her lawyer suggested at oral
argument that her deposition testimony casts sufficient doubt on
how Costco defined the receiving manager's role, the suggestion is
"too little" and "too late": too little, because counsel offered
no record cites; and too late, because the general rule is that
claims made for the first time at oral argument are waived. See
Limone v. United States, 579 F.3d 79, 100 n.11 (1st Cir. 2009).
If more were needed, we echo a point made by Costco — that Oquendo
conceded at her deposition that the written job description
accurately reflected what her "functions" as a receiving manager
"were."
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that she never convincingly explains how working days — the only
accommodation she requested — would have enabled her to perform
the essential functions of her job with her doctor-imposed
restrictions in place, a point Costco made in its brief (Oquendo,
by the way, chose not to file a reply brief in the normal course
of appellate briefing).
None of Oquendo's other arguments for reversing summary
judgment moves the needle either. She, for instance, plays up
what she says are two "damning" deposition "admissions" by
Bergeron: his agreeing that before she turned in the work-
restriction form, she was doing her job and never complained about
lifting things. But the doctor-ordered restrictions — with the
lifting limitation being one of many, remember — created a new
reality for all involved, which she does not effectively confront.
To borrow a quote from a case of ours, her claim that "her apparent
past ability to perform the job without issue supports an inference
that she could effectively undertake the essential functions of
the [position]" is not a difference-maker — and that is because
Costco was "on firm ground" in saying "that whatever its
understanding of [her] physical restrictions was, that
understanding was altered . . . when it first gleaned the full
scope of [her] physical limitations" once her doctor weighed in.
See Jones v. Walgreen Co., 679 F.3d 9, 18 (1st Cir. 2012). She
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also makes much out of how Tolentino performed her tasks while on
a "day schedule." And without naming names, she insists that
Costco also "treated other employees" more "favorably by changing
work schedules" instead of putting them on leaves of absence. But
she makes no convincing showing that Costco acted towards any of
them under materially-similar circumstances — actually, she
admitted at her deposition that she did not know any employees who
had physical restrictions similar to hers, which leaves a gaping
hole in this aspect of her claim. See generally González-Bermúdez
v. Abbott Labs. P.R. Inc., 990 F.3d 37, 44 (1st Cir. 2021)
(explaining the materially-similar requirement); Ramos-Santiago,
919 F.3d at 74 (same). Pulling out all the stops, she accuses the
district court of not viewing the record in the light most
favorable to her and of making forbidden factfinding and
credibility appraisals. But after reviewing the court's work, we
are unmoved by this argument.
One last subject and we are done.
Reconsideration
The district court characterized Oquendo's
reconsideration motion as one under Fed. R. Civ. P. 59(e), a
characterization that she does not contest on appeal. The court
also labeled her motion just a "rehash[]" of arguments that took
their lumps at the summary-judgment stage, a label that she does
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not dispute here either. Our cases say that if "the district court
has not misapprehended some material fact or point of law, a motion
for reconsideration is rarely a promising vehicle for revisiting
a party's case and rearguing theories previously advanced and
rejected." Caribbean Mgmt. Group, Inc. v. Erikon LLC, 966 F.3d
35, 45 (1st Cir. 2020) (quotation marks omitted). And having
"already . . . explained" how the district court did not stumble
in granting Costco summary judgment, we find no abuse of discretion
in the court's "reject[ing] [Oquendo's] attempt to repastinate the
same ground."4 See id.; see also Ramos-Santiago, 919 F.3d at 76
n.9 (reaching a similar result in a similar situation).
4 As promised, we now say a few words about Oquendo's other
claims (this is as good a place as any to do that) — claims that
fall by the wayside, for one reason or another. She, for example,
asserted age discrimination under the Age Discrimination in
Employment Act and retaliation for engaging in activity protected
under Title VII. But, as relevant to our analysis, the district
court dismissed the age-discrimination claim because she failed to
exhaust administrative remedies and dismissed the retaliation
claim because the alleged misconduct was not unlawful. And she
presents no convincing argument that the court got either
conclusion wrong. She also asserted claims for violations of
Puerto Rico law — claims the court dismissed on the merits rather
than relinquishing supplemental jurisdiction. To her way of
thinking, once the court granted summary judgment on the federal
claims, it "should have" — emphasis hers — "declined to exercise
supplemental jurisdiction" over the Puerto Rico claims "and
dismissed those without prejudice." A court that dismisses federal
claims before trial normally should dismiss the supplemental
claims. See 28 U.S.C. § 1367(c)(3). But "[i]n an appropriate
situation," the court can "retain jurisdiction" over the
supplemental claims despite "the early demise of all foundational
federal claims." Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168,
1177 (1st Cir. 1995) (emphasizing that "the exercise of
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Final Words
For the reasons recorded above, we uphold the district
court's rulings and judgment.
Affirmed. The parties shall bear their own costs on
appeal.
supplemental jurisdiction in such circumstances is wholly
discretionary" and that "the district court, in reaching its
discretionary determination on the jurisdictional question, will
have to assess the totality of the attendant circumstances"); see
also Redondo Const. Corp. v. Izquierdo, 662 F.3d 42, 49 (1st Cir.
2011) (stressing that "[n]o categorical rule governs the analysis;
a court must weigh concerns of comity, judicial economy,
convenience, and fairness"). And she does not persuasively explain
how the court erred here. So no more need be said about any of
these claims. See, e.g., Reyes-Colón v. United States, 974 F.3d
56, 61 (1st Cir. 2020); Rodríguez, 659 F.3d at 175-76.
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