Vitlloch Roque v. Metrohealth, Inc. ( 2023 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 21-1415
SARA VITLLOCH ROQUE,
Plaintiff, Appellant,
v.
METROHEALTH, INC. d/b/a HOSPITAL METROPOLITANO,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Gelpí, Thompson, and Montecalvo,
Circuit Judges.
Jorge L. Marchand Heredia for appellant.
Lloyd Isgut-Rivera, with whom Nannette Rodríguez Rodríguez
and Pizarro & González were on brief, for appellee.
June 7, 2023
THOMPSON, Circuit Judge. We write this nonpublished
opinion just for the parties (their names appear in the caption,
as one would expect). They know the facts, procedural history,
and appellate issues. So we share only what is needed to explain
why we must affirm the district judge's grant of summary judgment
against Plaintiff — after reviewing the decision de novo,
confirming that the record (read in the light most agreeable to
Plaintiff) reveals no genuine dispute of material fact and reflects
Defendant's right to judgment as a matter of law. See, e.g., Lang
v. Wal-Mart Stores E., L.P., 813 F.3d 447, 454 (1st Cir. 2016).
I
The short version of a longer story is this (we will
mention more details later in discussing Plaintiff's specific
claims).
A
Plaintiff worked as an information management clerk in
an information management department at a hospital run by
Defendant. She had to handle lots of paper records. Because of
the devastation wrought by Hurricane María — which struck Puerto
Rico in September 2017 — medical records got wet. And that caused
them to become moldy.
In October 2017 — when she was over 40 years old —
Plaintiff gave Defendant a medical certificate from her doctor
explaining that because of "a respiratory condition" she "should
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not be exposed to vapors, odors, smoke and/or areas of high
humidity" and "must have a reasonable accommodation." Over the
next several weeks in October and November 2017, Defendant did
some things of note:
• Defendant had Plaintiff's doctor complete a form to help
assess her request, as part of "the interactive process of a
reasonable accommodation" — on it, the doctor wrote that
"[s]he must avoid smoke, vapors, reluctant odors, humid areas
which can unleash the worsening of her pulmonary condition."
• Defendant then informed Plaintiff by letter that because of
the problems caused by the hurricane, it could not "comply
with" her physician's "specifications" — "the medical records
are not exempt from humidity," Defendant added, and her "tasks
inevitably impl[ied] contact[] with humidity."
• Defendant's letter also told Plaintiff that she was placed on
unpaid leave for three months, though she could return sooner
if her health changed.
Also in November 2017, Plaintiff for her part filed administrative
charges with federal and commonwealth employment agencies,
basically alleging that Defendant unlawfully suspended her because
of her disability and age.
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We skip ahead to February 2018, when Plaintiff showed up
for work again.1 Defendant said that she needed a medical
certificate from her doctor before she could return. She got that
certificate four days later. The certificate stated that she
"could perform her work in a reasonably clean environment, free of
smoke and of vapors, all according to the normal Federal and/or
state laws." She gave the certificate to Defendant. And according
to her deposition testimony, she "went straight to work that day"
or the next.
B
Unhappy with Defendant's actions, Plaintiff filed the
lawsuit now before us. She alleged various claims, none of which
survived summary judgment below (as we said above). The only
claims relevant here are those charging disability discrimination
under the federal Americans with Disabilities Act ("ADA"), age
discrimination under the federal Age Discrimination and Employment
The parties spar over whether Plaintiff is correct in saying
1
that Defendant agreed to reinstate her following discussions at a
January 2018 administrative hearing. But because their dispute
does not matter to the result in this appeal anyway, we need not
resolve it.
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Act ("ADEA"), and unlawful retaliation under the commonwealth Law
115.2
II
Time for our take on the situation (and because we
believe Plaintiff's arguments lack a supportable basis in law or
fact, we respond somewhat summarily — without a full-blown
explication of the accepted legal principles in this area, which
already fill many pages of the federal reporter series).
A
Plaintiff insists that Defendant failed to reasonably
accommodate her disability, as required by the ADA. Put aside
that a leave of absence — even an unpaid one — may be a reasonable
accommodation in some scenarios. See García-Ayala v. Lederle
Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000). Put aside
as well 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). Instead focus on how Plaintiff — not Defendant (as
Plaintiff also briefs an unjust-dismissal claim under the
2
commonwealth Law 80, "Puerto Rico's Unjust Discharge Act." See
Zampierollo-Rheinfeldt v. Ingersoll-Rand de P.R., Inc., 999 F.3d
37, 59 (1st Cir. 2021). But her complaint did not allege a Law 80
claim, though her summary-judgment opposition tried to. And
because a plaintiff is "not entitled to raise new and unadvertised
theories of liability for the first time in opposition to a motion
for summary judgment," see Calvi v. Knox County, 470 F.3d 422, 431
(1st Cir. 2006), we have nothing more to say about Law 80.
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she suggests) — had to show that a reasonable accommodation existed
that would let her do her job within her restrictions, which again
(according to her doctor) were that she "avoid smoke, vapors,
reluctant odors, humid areas which can unleash the worsening of
her pulmonary condition." See, e.g., Echevarría v. AstraZeneca
Pharm. LP, 856 F.3d 119, 127-28 (1st Cir. 2017); Phelps v. Optima
Health, Inc., 251 F.3d 21, 26 (1st Cir. 2001). A big problem for
her is that she identified no accommodation that fit the bill
(Defendant made this point in its brief, and Plaintiff did not
even file a reply brief trying to rebut the point) — an omission
that dashes her reversal hopes for this claim. See, e.g., Jones
v. Walgreen Co., 679 F.3d 9, 19 n.6 (1st Cir. 2012).
Plaintiff implies that if only Defendant had engaged
with her in the "interactive process" that federal disability law
"sometimes" requires, see Lang, 813 F.3d at 456 (quotation marks
omitted), the two could have explored options other than unpaid
leave — which (she continues) Defendant imposed "unilaterally" by
letter, "without having any discussion" (thus depriving her of an
interactive process). She fails to appreciate that the interactive
process (when required) is an "informal," "flexible" one, intended
to "identify the precise limitations resulting from the disability
and potential reasonable accommodations that could overcome those
limitations," see Freadman v. Metro. Prop. & Cas. Ins. Co., 484
F.3d 91, 104 (1st Cir. 2007) (quotation marks omitted) — with the
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"degree of interaction" differing "accord[ing] to the
circumstances of each case," see Enica v. Principi, 544 F.3d 328,
339 (1st Cir. 2008). And not only does she fail to offer a
convincing reason why Defendant's actions were not sufficient
under the case-specific circumstances. See Franchina v. City of
Providence, 881 F.3d 32, 51 n.15 (1st Cir. 2018) (deeming waived
an argument "made in conclusory terms," with no "persuasive
reasoning"). But she ignores that "[w]here, as here, the employee
fails to satisfy her burden of showing that a reasonable
accommodation existed, [she] cannot maintain a claim for failure
to engage in an interactive process." See Echevarría, 856 F.3d at
133.3
B
Plaintiff's ADEA claim fares no better. Her theory is
that Defendant treated her (a person within the ADEA's protected
age group) adversely while treating a "younger employee" or
"younger employees" "more favorably" or "better and preferably."
But her brief does not identify the employee or employees, let
alone explain whether he, she, or they was or were similarly
To the extent Plaintiff's brief could be read as suggesting
3
a hostile-work-environment theory under the ADA, we consider it
waived for lack of development. See, e.g., Rodríguez v.
Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011). The
parties also debate whether the leave was really a "termination"
and so constituted an "adverse employment action" under the
statute. But given how we have decided her ADA claim, we have no
need to weigh in.
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situated to her, see Alvarez-Fonseca v. Pepsi Cola of P.R. Bottling
Co., 152 F.3d 17, 24 (1st Cir. 1998) (discussing how an ADEA
plaintiff must show that her comparator was "similarly situated in
all relevant respects") — a defect (highlighted by Defendant but
left unchallenged by Plaintiff, because she filed no reply brief)
that makes her ADEA claim a nonstarter, see generally Soc'y of
Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 52
(1st Cir. 2012) (stating our oft-repeated "admonish[ment]" that
"it is not the job of this court to do [appellant's] work for
[her]" (quotation marks omitted, and first and third alterations
added)).4
4 Plaintiff's summary-judgment opposition named "Karelys
Hernández" as the "much younger" employee who got to move her work
area. But Plaintiff's counsel candidly admitted at oral argument
that Hernández was not a similarly situated employee, which makes
sense: Plaintiff and Hernández had different jobs and duties, and
their accommodation requests were also different (Hernández
requested and received an accommodation that let her move her
office from the second to the first floor, because her doctor
wanted her to avoid the stairs during her pregnancy). Plaintiff
also suggests that Defendant subjected her to a hostile work
environment because of her age. Such a claim is "factually
complicated and legally intricate." See Rodríguez-Machado v.
Shinseki, 700 F.3d 48, 49 (1st Cir. 2012) (per curiam) (explaining
that the law "distinguish[es] between the ordinary, if
occasionally unpleasant, vicissitudes of the workplace and actual
harassment" (quotation marks omitted)). But she "provides neither
the necessary caselaw nor reasoned analysis to show" that her
suggestion is correct. See Rodríguez, 659 F.3d at 176. So we
consider her suggestion waived. See id.- 8 -
C
That leaves Plaintiff's claim based on Law 115, which is
"Puerto Rico's general anti-retaliation statute." See Rodríguez-
Cardi v. MMM Holdings, Inc., 936 F.3d 40, 45 (1st Cir. 2019).
According to Plaintiff, Defendant retaliated against her for
administratively filing discrimination charges by "unjustifiably
delay[ing] her reinstatement by 4 days," and then "not assign[ing]
her any duties to do" when she returned and telling her supervisor
to "mistreat her." Again, this area of the law is "complex" (to
say the least). See Rodríguez-Machado, 700 F.3d at 49. And again,
her briefing is unhelpful. On the unjustifiably-delaying-her-
reinstatement front, Plaintiff leaves uncontested Defendant's
justification that she herself caused the delay by not having a
doctor's certificate (clearing her to resume work) at the ready
(remember she filed no reply brief). And on the not-assigning-
her-duties and mistreating-her fronts, Plaintiff neither compares
her workload before and after reinstatement, nor explains what her
mistreatment involved (despite the fact that the district judge
flagged those problems in his summary-judgment decision). So
again, "[w]hat she has done is not the type of serious effort that
allows us to decide difficult questions." See id. Which means
her reversal bid on this claim fails too.
III
We affirm, awarding Defendant its costs on appeal.
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