Petition for Writ of Certiorari — Rivera v. Pfizer Pharmaceuticals LLC (No. 07-1598)

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“9 715.98 JUN 19 2008

| OFFICE OF THE CLERK

In Whe Whitlam K. Suter, Clerk

Supreme Court of the United States

DELIA RUIZ-RIVERA,

Petitioner,

PFIZER PHARMACEUTICAL LLC.,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

—¢@

PETITION FOR A WRIT OF CERTIORARI

SAMUEL R.. BAGENSTOS WILMA REVERON COLLAZO

Counsel of Record P.O. Box 9023317

625 South State Street Viejo San Juan, PR

Ann Arbor, MI 48109-1215 00902-3317

(734) 764-1358 (787) 277-0670

ALBERTO J. TORRADO DELGADO

P.O. Box 1329

Hatillo, PR 00659-1329

(787) 262-5138

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

This petition presents two questions on which the

courts of appeals are in conflict:

1. Whether an employer’s recognition of medical

restrictions imposed by an employee's personal physi-

cian must be disregarded, as a matter of law, in

determining whether the employer “regarded” the

employee as having a substantially limiting impair-

ment for purposes of the Americans with Disabilities

Act (ADA), 42 U.S.C. § 12101(2)(C).

2. Whether allegations that an employer “re-

garded” the plaintiff as having a substantially limit-

ing impairment for purposes of the ADA are subject to

a heightened pleading standard.

PARTIES TO THE PROCEEDING

Petitioner Delia Ruiz-Rivera and Respondent

Pfizer Pharmaceuticals, LLC., were the only parties

to the proceeding below.

lil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......................ceeeceees 1

PARTIES TO THE PROCEEDING ..................... li

TABLAS OF AU THORETIEG ........cccscssscssesseseseccnses Vv

Ce II ones icccncccsseccnsvecroescovesseesenneess 1

Fe IT 5s thi eae ions vocksandiabedsiennvaviveaianids 1

STATUTORY AND REGULATORY PROVISIONS

I iota intiaiies vik ch estitad on eieonavs 2

STATEMENT OF THE CASE.....................ccceeeeees 3

REASONS FOR GRANTING THE WRIT ........... 8

A. By Holding, as a Matter of Law, that an

Employer’s Recognition of Limitations

Imposed by an Employee’s Doctor Must

Be Disrerarded in a “Regarded As” Case,

the Court of Appeals Exacerbated a Cir-

cuit Conflict and Contravened the Plain

DE Se had ics esas escent aes 10

B. By Holding That “Regarded As” Allega-

tions Are Subject to a Heightened Plead-

ing Standard, the Court of Appeals

Contravened the Holdings of Other Cir-

Culite GHG Of THIS Coust...........csecciperesocceses 18

IN ic scviberantucnmunensies vance 24

TABLE OF CONTENTS - Continued

APPENDIX

Appendix A, First Circuit’s Opinion.................... App. 1

Appendix B, District Court’s Summary Judg-

I in cine sccectritercvnsigssbibiconasanainidtes App. 26

Appendix C, District Court’s Order Granting

INN 5 since ssnsenvavnaianesenecsssrnbicckinnchesn App. 54

TABLE OF AUTHORITIES

Page

CASES

Aktieskelsabet AF 21. November 2001 v. Fame

Jeans Inc., 525 F.3d 8, 2008 WL 1932768

Ge ee I BI oe seconessveseverteceuseasenseosess 21

Ashcroft v. Igbal, 128 S. Ct.__ (June 16, 2008)....... 22

Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955

Ne asta sc dckfnacencdcswenieveedareesen 20, 21, 22

Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388

iis cnigsetiauenienceumawwesen .22

Breitkreutz v. Cambrex Charles City, Inc., 450

F.3d 780 (8th Cir, 2006) ........c.cccccescsecssesssessseeee 11, 16

Conley v. Gibson, 355 U.S. 41 (1957) ........... ec ceeeeeeeees 24

Crawford-El v. Britton, 523 U.S. 574 (1998) ............. 22

Desert Palace v. Costa, 539 U.S. 90 (2003) ................ 14

EEOC v. J.H. Routh Packing Co., 246 F.3d 850

Nee cosuucsivedndaeesenceseness 19, 20

Erickson v. Pardus, 127 S. Ct. 2197 (2007) (per

RES ESS EER ORT a 23, 24

Gruener v. Ohio Casualty Insurance Co., 510

I I, I ncn scvwavaseniesccrecevensescces 12

Holihan v. Lucky Stores, Inc., 87 F.3d 362 (9th

Cir. 1996), cert. denied, 520 U.S. 1162 (1997)........ 13

TABLE OF AUTHORITIES - Continued

Page

Jones v. Bock, 127 S. Ct. 910 (2007) ..........c00cs.c0s00.000 21

Leatherman v. Tarrant County Narcotics Intelli-

gence and Coordination Unit, 507 U.S. 163

Ne sista somnnsgiciavsarcoevaees 21, 23

Lusk v. Ryder Integrated Logistics, 238 F.3d

BE NE PIED ccsccinsoncsisseassecsonbsovedors 11, 15, 16

Mattice v. Memorial Hosp., 249 F.3d 682 (7th

gr ieaisikey ce gcsnundaessssésievcoeseeaneceses 19, 20

Pennsylvania Dept. of Corrections v. Yeskey,

NE eo sess cicvuxencdesuscdinceviosescieseccisecsess 14

Phillips v. County of Allegheny, 515 F.3d 224

I irs icacsavecesesanseievadsh séveerseiseses 20, 21

Riemer uv. Illinois Dept. of Transportation, 148

BE Are BE) coreniveesssvscenecicccsoyercevcsescasenes 13

Scott v. Harris, 127 5. Ct. 1769 (2007) ................0..0000 3

Siegert v. Gilley, 500 U.S. 226 (1991)... ee 22

Skaff v. Meridien North America Beverly Hills

LLC, 506 F.3d 832 (9th Cir. 2007)..............0.cceeeee 19

Sprint/United Management Co. v. Mendelsohn,

es I CID rises vevencvisssseveosesiensissccevesssceese 15

Sutton v. United Air Lines, Inc., 527 U.S. 471

a icles aisli gakuddadecnnerignindidnisdwssesberdeses passim

Swierkiewicz v. Sorema N.A., 534 U.S. 506

i eve chssbaieundsennsuwsoses 21

Vii

TABLE OF AUTHORITIES ~ Continued

Page

Taylor v. Pathmark Stores, Inc., 177 F.3d 180

COPE iat atcha aint dil edinsnscdsccasigasdiincicdeiienaeesreaucnees 12

Vande Zande v. Wisconsin Dept. of Admin., 44

Fe Ge Ue SAE BOE iisircssdeasajashcscncdessinicoesvsccndcianse 8

STATUTES AND RULES

se I die cdttdasichnccresstciusceceneeornanaennnaponnaas 1

Oe A ID icici ss dasievesicsssssescsiacscscecesacess 14, 15

Americans with Disabilities Act, 42 U.S.C.

§ 12101 et seg.:

a i cia ces aa:cs cuca csdcehcsn 4eeheh Wdedadainlnlcana arenmecaongaiaan 16

MIL dc since cnicicpiopbnsinetenaeedipheavciaiachiane passim

II Dict as crcikes paves Naewtciesaiiasiiciaassaeciatavasseen amon 17

asics sat asalh all lasdgaindagubauusansatucdas 2,3, 17

Federal Rules of Civil Procedure:

Ne tiiadasiccsssnn cad tindinonccdd <ationcipancacainnenanciasionatena 21

ITT int isa rgd Lusheccuianioce cacud va bwesiceanwuanisnia eae aaaa al 23

INE Bi iin cents secsivteud ccnkeccaradcssaxeentismacimnabnan 23

OTHER MATERIALS

i MB, SPARRO vinndcsnnsepescsneniedinantsciecseisvedbones 8

Fi. Rep. No. 101-465, Pt. 3.(1990)..................0.c.s0000 17

EEOC Compliance Manual § 902.8 ............0.......0.0000 17

PETITION FOR A WRIT OF CERTIORARI

Delia Ruiz-Rivera respectfully petitions for a writ

of certiorari to the United States Court of Appeals for

the First Circuit in the above-entitled case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

at 1-25) is reported at 521 F.3d 76. The opinion of the

_ district court denying defendants’ motion for sum-

mary judgment (App., infra, at 26-53) is reported at

463 F. Supp.2d 163. The district court’s order grant-

ing reconsideration and issuing final judgment

against the plaintiffs (App., infra, at 54-55) is unre-

ported.

JURISDICTION

The court of appeals entered its judgment on

March 27, 2008. App., infra, at 1. This petition is filed

within 90 days of that date. This Court’s jurisdiction

is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Title 42 U.S.C. § 12102(2) provides:

§ 12102. Definitions

As used in this chapter:

* kK *

(2) Disability

The term “disability” means, with respect to

an individual —

(A) a physical or mental impairment

that substantially limits one or more of the

major life activities of such individual;

(B) arecord of such an impairment; or

impairment.

Title 42 U.S.C. § 12112(a) provides:

§ 12112. Discrimination

(a) General rule

No covered entity shall discriminate

against a qualified individual with a disabil-

ity because of the disability of such individ-

ual in regard to job application procedures,

the hiring, advancement, or discharge of em-

ployees, employee compensation, job train-

ing, and other terms, conditions, and

privileges of employment.

STATEMENT OF THE CASE

This case involves Petitioner Delia Ruiz-Rivera’s

claim that Respondent Pfizer Pharmaceuticals termi-

nated her on the basis of disability in violation of the

Americans with Disabilities Act. See 42 U.S.C.

§ 12112(a) (prohibiting disability-based employment

discrimination). Because the case arises from the

grant of summary judgment to Pfizer, the record must

be considered in the light most favorable to Ms. Ruiz.

See Scott v. Harris, 127 S. Ct. 1769, 1774-1775 (2007).

1. Ms. Ruiz began working for Pfizer as a

packing operator in 1997. App., infra, at 27. In the

last half of 1999, while she was pregnant with her

second child, she developed a herniated disc and

began to experience numbness in her extremities; the

company granted her disability leave for those condi-

tions. Id. at 28-29. Ms. Ruiz went on maternity leave

after she gave birth on December 31, 1999, and she

was scheduled to return to work on February 25. Id.

at 29. But her rehabilitation physician, Dr. Oscar

Ramos, submitted a certificate that stated that Ms.

Ruiz had been diagnosed with carpal tunnel syn-

drome and a herniated disc. Jd. Dr. Ramos stated that

Ms. Ruiz could return to work only if she adhered to

certain restrictions on her activities. Jd. Based on Dr.

Ramos’s report and the report of another doctor who

diagnosed Ms. Ruiz with depression secondary to her

physical conditions, the company sent her home for

another month. /d.

At a return-to-work examination on March 27,

Ms. Ruiz insisted to the company doctor, a Dr. Félix,

that Pfizer “implement[ ] the restrictions specified

by” her physician. Jd. at 30. But the company doctor

responded “that there was no opportunity for her to

remain working at the plant with these limitations.”

Id. He sent Ms. Ruiz home pending a further report

from her doctor. Jd. Three days later, Ms. Ruiz re-

turned with Dr. Ramos’s additional report. Jd. In that

report, Dr. Ramos stated that he had diagnosed Ms.

Ruiz with carpal tunnel syndrome, tendonitis, and

herniated discs, ard that “[sJhe should have some

restrictions at her work area so she can do her job

with minimal deterioration of her condition.” Jd. at 30-

31. Those restrictions included avoiding repetitive

motions and the “hands-over-the-shoulders position,”

not lifting more than 25 pounds at a time, and limiting

“lifting-carrying-pushing-pulling-holding-bending.” Jd.

Reviewing. those restrictions with Ms. Ruiz’s

supervisor, the company doctor concluded that Ms.

Ruiz could no longer do her job and should not return

to work. Jd. at 31. And Frances Guzman, who worked

as the company’s Assistant Personnel Manager,

“advised plaintiff that with the conditions imposed by

her physicians she had no chance of working either at

Pfizer or at any other pharmaceutical company in the

industry.” Id. Ms. Ruiz refused to return to work

unless the company heeded the restrictions her

physician had imposed, and the company terminated

her. Id. at 31-32.

2. Ms. Ruiz filed this lawsuit in the United

States District Court for the District of Puerto Rico on

June 5, 2001. C.A. Dkt. #1. As relevant here, Ms. Ruiz

claimed that the company had discriminated against

her on the basis of an actual or perceived disability in

violation of the ADA. C.A.J.A. 7-8 (Amd. Cplt. 79 41-

51). Among other things, the complaint specifically

alleged that “Pfizer terminated plaintiff because of

her perceived disability.” Id. at 7 (Amd. Cplt. { 45)

(emphasis added). The complaint included a number

of allegations that touched on the company’s knowl-

edge of and perceptions about the extent of Ms. Ruiz’s

impairments. See id. at 4 (Amd. Cplt. 423) (Ms.

Ruiz’s obstetrician “informed her that someone from

Pfizer had called making inquiries as to her leg{[ ]

conditions”); id. at 5 (Amd. Cplt. ¥ 26) (the company

required Ms. Ruiz “to report on a weekly basis for

medical evaluation with the company’s physician”);

id. at 6 (Amd. Cpit. 935) (company doctor “con-

firm[ed] the work restrictions that Ms. Ruiz-Rivera

had” and then “told her that with those restrictions

she could not stay there because there was no posi-

tion available to her”).

On January 31, 2003, Pfizer filed a motion for

summary judgment. C.A.J.A. 20-56. The company

argued that Ms. Ruiz did not have a “disability” as

defined in the ADA and therefore could not invoke the

protection of the statute. /d. at 28-30. The district

court granted that motion in part and demied it in

part. App., infra, at 52. In particular, the court con-

cluded that Ms. Ruiz’s impairments did not actually

substantially limit any of her major life activities, id.

at 47-48, but that Ms. Ruiz had created a triable

issue as to whether the company “regarded” her

impairment as so limiting, id. at 48-51. See 42 U.S.C.

§ 12102(2) (defining “disability” as “a physical or

mental impairment that substantially limits one or

more of the major life activities,” a “record of such an

impairment,” or “being regarded as having such an

impairment”).

The court concluded that “[a]ccording to the

evidence presented, Pfizer mistakenly believed that

plaintiff’s impairment substantially limited her

ability to work in the entire pharmaceutical indus-

try.” App., infra, at 50. The court pointed to the

company doctor’s statement that “with these limita-

tions [plaintiff] cannot stay in the plant” as well as

the company Assistant Personnel Manager’s state-

ment that Ms. Ruiz’s restrictions prevented her from

“working either at Pfizer or at any other pharmaceu-

tical company.” Jd. at 50-51. Accordingly, the district

court permitted Ms. Ruiz’s ADA claim to proceed on

the basis that the company perceived her impairment

as substantially limiting. Jd. at 51.

Pfizer filed a motion for reconsideration. C.A.J.A.

376-386. The company argued, for the fist time in this

litigation, that an employer’s response to the recom-

mendations of an employee’s treating physician

cannot establish a perceived disability. Jd. at 383. Ina

one-page order without any explanation, the district

court granted the motion to reconsider on January 8,

2007, and entered final judgment for the company.

App., infra, at 54-55.

3. The First Circuit affirmed, App., infra, at 25.

In an opinion hy Judge Smith (sitting by designation

from the District of Rhode Island), joined by Judges

Lipez and Howard, the court offered two reasons for

affirming the grant of summary judgment.

First, the court concluded that “regarded as

claims under the ADA require an even greater level of

specificity [in pleading] than other claims.” Jd. at 16.

“In order to allege an actionable regarded as claim,”

the court continued, “a plaintiff must select and

identify the major life activity that she will attempt

to prove the employer regarded as being substantially

limited by her impairment.” Jd. Applying those prin-

ciples, the court found Ms. Ruiz’s complaint to have

been deficient because the complaint did not allege

specific facts “to explain any false perception on

Pfizer’s part” or to identify “any non-limiting impair-

ment which Pfizer mistakenly believed to be substan-

tially limiting.” Jd. at 15-16. The compiaint’s allegation

that the company “terminated plaintiff because of her

perceived disability,” C.A.J.A. 7 (Amd. Cplt. 4 45)

(emphasis added), and the factual allegations describ-

ing Pfizer’s knowledge of and response to Ms. Ruiz’s

impairments, id. at 4-6 (Amd. Cplt. 7] 23, 26, 36),

were apparently insufficient. See App., infra, at 17

(“It simply will not do for a plaintiff to fail to plead

with adequate specificity facts to support a regarded

as claim, all-the-while hoping to play that card if her

initial hand is a dud.”).

Second, and turning to the summary judgment

record, the court concluded that all of the evidence

supporting the perceived-disability allegations in-

volved the company’s implementation of the recom-

mendations of Ms. Ruiz’s own doctors. Id. at 18-22.

But the court held, as a matter of law, that a plaintiff

“may not rely exclusively on her employer’s recogni-

tion or implementation of the restrictions imposed by

her own physician to establish a regarded as claim.”

Id. at 20. Applying that rule, the court held that

neither the statements of the company doctor nor the

statements of the company’s Assistant Personnel

Manager could support Ms. Ruiz’s claim, because

those statements were “based entirely on Ruiz

Rivera’s own doctor’s recommendations.” Jd. at 21.

_ REASONS FOR GRANTING THE WRIT

The First Circuit’s decision in this case exacer-

bated one conflict in the circuits and created another.

And it did so by imposing limitations on ADA per-

ceived-disability claims that appear nowhere in the

statutory text (or, for that matter, the legislative

history). That result is especially troubling, because

the “regarded as” prong of the ADA’s disability defini-

tion is “particularly important for individuals with

stigmatic conditions.” S. Rep. No. 101-116 at 24 (1989).

See also Vande Zande v. Wisconsin Dept. of Admin., 44

F.3d 538, 541 (7th Cir. 1995) (explaining that the ADA’s

coverage of people with perceived disabilities, “although

at first glance peculiar, actually makes a better fit

with the elaborate preamble to the Act, in which

people who have physical or mental impairments are

compared to victims of racial and other invidious

discrimination”).

There is a longstanding conflict in the circuits

regarding whether a plaintiff may rely on her em-

ployer’s recognition of the restrictions imposed by her

doctor to show that the employer “regarded” her as

having a substantially limiting impairment under 42

U.S.C. § 12102(2)(C). In its decision here, the First

Circuit joined the Sixth, Eighth, and Tenth Circuits

in holding that, as a matter of law, the employer’s

recognition of such restrictions may not establish a

perceived disability. But the Third and Ninth Circuits

have ruled directly to the contrary. Because the

reports of and restrictions imposed by an employee's

personal physician will often be crucial in informing

the perceptions of ‘xe employer, and because the

statutory text draws absolutely no distinction among

the various sources of information on which an em-

ployer’s perception of an employee’s impairment may

be based, the First Circuit’s holding calls out for this

Court’s review.

Moreover, by holding that plaintiffs must plead

ADA “regarded as” claims with unusual specificity,

the First Circuit created a conflict with decisions of

the Sixth, Seventh, and Ninth Circuits — all of which

have held that courts have no power to impose a

heightened pleading standard on ADA plaintiffs. On

this issue, as well, the First Circuit’s holding has

absolutely no basis in the statute, and it is flatly

inconsistent with this Court’s cases. This Court’s

review is necessary to resolve the conflict the First

Circuit created and to clarify that ADA claims are not

subject to a heightened pleading standard.

A. By Holding, as a Matter of Law, that an

Employer’s Recognition of Limitations Im-

posed by an Employee’s Doctor Must Be Dis-

regarded in a “Regarded As” Case, the Court

of Appeals Exacerbated a Circuit Conflict

and Contravened the Plain Text of the ADA

1. It is undisputed that Pfizer’s company doctor

determined that Ms. Ruiz’s impairments barred her

from returning to her position at the bottling plaint.

See p. 4, supra. And Ms. Ruiz testified that the com-

pany’s Assistant Personnel Manager “told her that

because of the conditions imposed by her physicians,

there was no opportunity for her to work at Pfizer or

at anv other pharmaceutical company.” App., infra, at

6. Under the standards this Court set forth in Sutton

v. United Air Lines, Inc., 527 U.S. 471 (1999), that

evidence should suffice to create a genuine issue of

material fact on the question whether the company

regarded Ms. Ruiz’s impairments as substantially

limiting the major life activity of working. See id. at

491-493 (individual is regarded as substantially

limited ‘. working if employer perceives her impair-

ment as disqualifying her from “a broad “iass of

jobs”).

But the court of appeals affirmed the grant of

summary judgment to the company while explicitly

refusing to consider either the company doctor’s

determinations or the Assistant Personnel Manager’s

statements. The court did so because it held, as a

matter of law, that an employee “may not rely exclu-

sively on her employer’s recognition or implementa-

tion of the restrictions imposed by her own physician

to establish a regarded as claim.” App., infra, at 20.

See also id. at 21 (“Any reliance on Dr. Felix’s state-

ments or opinion, based entirely on Ruiz Rivera’s own

doctor’s recommendations, cannot support a regarded

as claim.”). In so holding, the First Circuit relied on

the Eighth Circuit’s decision in Breitkreutz v. Cam-

brex Charles City, Inc., 450 F.3d 780 (8th Cir. 2006),

and the Tenth Circuit’s decision in Lusk v. Ryder

Integrated Logistics, 238 F.3d 1237 (10th Cir. 2001).

In Breitkreutz, 450 F.3d at 783, the Kighth Cir-

cuit held that the plaintiff had not presented suffi-

cient evidence to overcome summary judgment on the

“regarded as” question, because his employer merely

implemented the restrictions imposed by the plain-

tiff’s own physician: “If a restriction is based upon

the recommendations of physicians, then it is not

based upon myths or stereotypes about the disabled

‘and does not establish a perception of disability.” In

Lusk, 238 F.3d 1242, the Tenth Circuit similarly held

that the plaintiff could not overcome summary judg-

ment on the “regarded as” question, because “Defen-

dant’s perception of Plaintiff was not based on

speculation, stereotype or myth, but on the doctor’s

written evaluations of Plaintiff’s condition.” See also

id. at 1241 (“Where the recognition of Plaintiff’s

limitations is not an erroneous perception, but is

instead a recognition of fact, a finding that Plaintiff

was regarded as disabled is inappropriate.”). Al-

though the First Circuit did not cite the case, the

Sixth Circuit adopted the same rule in Gruener v.

Ohio Casualty Insurance Co., 510 F.3d 661, 665 (6th

Cir. 2008) (because defendant’s “understanding of

[plaintiff’s] impairments and how they limited her

simply tracked the specific and valid restrictions

prescribed by her own doctor,” the plaintiff’s “evi-

dence failed to warrant a regarded-as-disabled in-

struction”).

But the holdings of the Sixth, Eighth, and Tenth

Circuits, along with that of the First Circuit here,

conflict with holdings of the Third and Ninth Circuits

_on the same question. Judge Becker’s opinion for the

Third Circuit in Taylor v. Pathmark Stores, Inc., 177

F.3d 180 (3d Cir. 1999), is particularly close to this

case. There, as here, the defendant employer con-

cluded that the restrictions imposed by the plaintiff’s

physician would disqualify the plaintiff from perform-

ing a wide range of positions. Holding that the plain-

tiff had presented sufficient evidence that his

employer regarded him as disabled, the court ob-

served that “the statement in Pathmark’s May 1996

letter that he was unable to perform any Pathmark

job, even with accommodation, suggests a perception

of limits that would likely constitute substantial

limitation in many major life activities” — including

the major life activity of working. Jd. at 188. The

court specifically rejected the argument that, because

the defendant relied on the report of the plaintiff’s

own doctor, it could not be held to have regarded the

plaintiff as having a disability. See id. at 190-191. In

Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th

Cir. 1996), cert. denied, 520 U.S. 1162 (1997), the

Ninth Circuit reversed a grant of summary judgment

and held that the plaintiff employee had submitted

sufficient evidence from which a jury could conclude

that his employer regarded him “as suffering from a

disabling mental condition that substantially limited

his ability to work.” In support of that ruling, the

court noted that the employer had “received several

doctors’ reports diagnosing Holihan with depression,

including the reports of Drs. Strickler and Cramer” —

two of the plaintiff’s treating professionals. Jd.’

These decisions squarely conflict with the court

of appeals’ holding here. This Court’s intervention is

necessary to resolve the conflict.

2. The court of appeals did not just exacerbate a

conflict in the circuits. It also contravened the plain

text of the ADA. The statute provides no support for

the First Circuit’s rule that an “employer’s recogni-

tion or implementation of the restrictions imposed by

[the plaintiff’s] own physician” must be ignored

in determining whether an employer regarded an

' See also Riemer v. Illinois Dept. of Transportation, 148

F.3d 800, 807 (7th Cir. 1998) (sufficient evidence that employer

regarded employee as disabled where, based on an examining

doctor’s recommendation, supervisor concluded that employee

could not safely work around dust and fumes).

employee as having a disability. The statute defines

“disability” as “having a physical or mental impair-

ment that substantially limits one or more of the

major life activities,” “a record of such an impair-

ment,” or “being regarded as having such an impair-

ment.” 42 U.S.C. §12102(2). When an employer

perceives an individual as having an impairment that

substantially limits major life activities, the “re-

garded as” language is, by its plain terms, satisfied —

regardless of the facts on which the employer’s per-

ception is based. Nothing in the statute excludes

cases in which the employer relies on a report of the

plaintiff’s physician from the “regarded as” provision,

and the court of appeals therefore had no power to

read such an exception into the statute. See Pennsyl-

vania Dept. of Corrections v. Yeskey, 524 U.S. 206,

211-212 (1998) (refusing to read unexpressed excep-

tions into the ADA’s plain text).

Absent a basis in the text, a court has no power

to erect per se rules barring particular classes of

evidence from, or requiring particular classes of

evidence in, a statutory cause of action. This Court

made that point clear in Desert Palace v. Costa, 539

U.S. 90 (2003). Desert Palace held that courts could

not require plaintiffs to provide direct evidence of

discrimination to obtain a “mixed-motive” instruction

under 42 U.S.C. § 2000e-2(m), a provision of the Civil

Rights Act of 1991. The Court explained that “Section

2000e-2(m) unambiguously states that a plaintiff

need only ‘demonstrat[e]’ that an employer used a

forbidden consideration with respect to ‘any employ-

ment practice,” and that “[oJn its face, the statute

does not mention, much less require, that a plaintiff

make a heightened showing through direct evidence.”

Id. at 98-99 (quoting 42 U.S.C. § 2000e-2(m)). And the

Court held that “where, as here, the words of the

statute are unambiguous, the judicial inquiry is

complete.” Jd. at 98 (internal quotation marks omit-

ted).’ The same analysis applies here. The ADA’s

“regarded as” language, on its face, applies to any

case in which the plaintiff is “regarded as having

such an impairment,” 42 U.S.C. § 12102(2)(C), with-

out mentioning — much less excluding — cases in

which the employer’s perception is based un a report

of the plaintiff’s physician. The court of appeals erred

by going beyond the words of the statute.

The First Circuit offered absolutely no justification

for its rule that a plaintiff “may not rely exclusively on

her employer’s recognition or implementation of the

restrictions imposed by her own physician to establish

a regarded as claim.” App., infra, at 20. And the cases

on which the court relied offered only the slimmest of

justifications at best. In Lusk, for example, the Tenth

Circuit suggested that an employer’s perception of an

* See also Sprint/United Management Co. v. Mendelsohn,

128 S. Ct. 1140, 1147 (2008) (explaining that it would be an

abuse of discretion for a district court to “applly] a per se rule

excluding” evidence of alleged acts of discrimination by defen-

dant’s supervisors who played no part in the alleged discrimina-

tion against plaintiff).

employee’s disability can satisfy the “regarded as”

language only in cases where that perception is

“based on speculation, stereotype, or myth.” Lusk, 238

F.3d at 1242. A perception that rests “on the doctor’s

written evaluations of Plaintiff’s condition,” the court

seemed to conclude, cannot meet that requirement.

Id. The Eighth Circuit in Breitkreutz was more ex-

plicit on the point. That court asserted that the

“provision addressing perceived disabilities is in-

tended to combat the effects of archaic attitudes,

erroneous perceptions, and myths that work to the

disadvantage of persons with or regarded as having

disabilities,” and it concluded that “[iJf a restriction is

based upon the recommendations of physicians, then

it is not based upon myths or stereotypes about the

disabled.” Breitkreutz, 450 F.3d at 784 (internal

quotation marks omitted).

These courts may well be correct that the goal of

the “regarded as” provision is to “combat the effects of

archaic attitudes, erroneous perceptions, and myths.”

Id. See also Sutton, 527 U.S. at 489 (stating that,

where individuals are covered by the “regarded as”

prong “it is necessary that a covered entity entertain

misperceptions about the individual — it must believe

either that one has a substantially limiting impair-

ment that one does not have or that one has a sub-

stantially limiting impairment when, in fact, the

impairment is not so limiting,” and that these “mis-

perceptions often ‘resul[t] from stereotypic assump-

tions not truly indicative of ... individual ability.’”)

(quoting 42 U.S.C. § 12101(7)). But nothing in the

statute requires a plaintiff to prove that the employer

misperceived the limitations imposed by her condi-

tion to establish coverage under the “regarded as”

prong. All a plaintiff must show to establish coverage

under that prong is that the employer “regarded” her

as having a substantially limiting impairment. 42

U.S.C. § 12102(2)(C). Nothing in the “regarded as”

provision turns on whether the employer’s perception

of the plaintiff’s impairment was correct.’ Rather, the

statute addresses the correctness or incorrectness of

the employer’s perception in a separate provision that

requires the plaintiff to show that she was a “quali-

fied individual with a disability,” id. § 12112(a) — that

is, that “with or without reasonable accommodation,”

she “can perform the essential functions of the em-

ployment position,” id. § 12111(8).

* In Sutton, the Court turned to the “regarded as” prong

only after it held that the plaintiffs did not in fact have impair-

ments that substantially limited major life activities; it is

therefore unsurprising that the language of the Court’s opinion

presumes that an individual seeking coverage under the “re-

garded as” prong does not actually have a substantially limiting

impairment. But nothing in Sutton or the statutory language

makes the ADA’s present- and perceived-disability prongs

mutually exclusive, or requires resort to one only if the other is

disproved. Indeed, both the legislative history and the EEOC’s

enforcement guidance are directly to the contrary. See H.R. Rep.

No. 101-485, Pt. 3, at 31 (1990) (stating that a “person who is

covered because of being regarded as having an impairment is

not required to show that the employer’s perception is inaccu-

rate”); EEOC Compliance Manual § 902.8(a) (“The legislative

history to the Act makes clear that the individual does not have

to demonstrate that the employer’s perception is wrong.”).

The reports of an employee’s doctor will often be

the key source of information on which an employer

relies in developing its perception about an em-

ployee’s impairment. Although an employer’s reaction

to those reports will not always demonstrate that the

employer “regarded” the employee as having a dis-

ability, the court of appeals utterly disregarded the

statutory text in concluding that the employer’s

reaction may never be considered as a matter of law.

This Court’s intervention is necessary to vindicate the

supremacy of the text Congress adopted.

B. By Holding That “Regarded As” Allegations

Are Subject to a Heightened Pleading Stan-

dard, the Court of Appeals Contravened the

Holdings of Other Circuits and of This Court

1. A-second aspect of the First Circuit’s decision

calls out for this Court’s review. The court of appeals

read this Court’s opinion in Sutton for the proposition

“that regarded as claims under the ADA require an

even greater level of specificity [in pleading] than

other claims.” App., infra, at 16. “In order to allege an

actionable regarded as claim,” the court of appeals

held, “a plaintiff must select and identify the major

life activity that she will attempt to prove the em-

ployer regarded as being substantially limited by her

impairment.” Jd. The court did not deny that the

complaint contained a number of specific allegations

concerning Ms. Ruiz’s interactions with Pfizer offi-

cials and their response to her diagnoses. See p. 5,

supra. And the court acknowledged that Ms. Ruiz’s

complaint specifically alleged that “‘Pfizer termi-

nated plaintiff because of her perceived disability.’”

Id. at 15 (quoting Amd. Cplt. 4 45, emphasis in court

of appeals’ opinion). Although the court recognized

that “this paragraph could signal to a defendant that

plaintiff is asserting a regarded as claim,” it con-

cluded that the complaint did not allege sufficiently

specific facts to support such a claim: “with no facts

alleged to explain any false perception on Pfizer’s

part, and no facts alluding to any non-limiting im-

pairment which Pfizer mistakenly believed to be

substantially limiting, this allusion falls far short of

the mark.” Jd. at 15-16. Because Ms. Ruiz “fail[ed] to

plead with adequate specificity” the “facts [that]

support(ed]” her allegation that Pfizer regarded her

as having a disability, the court of appeals concluded

that her complaint should have been dismissed. App.,

infra, at 17.

By adopting a heightened pleading standard for a

plaintiff’s allegations that she is covered by the ADA,

the First Circuit created a conflict with decisions of

the Sixth, Seventh, and Ninth Circuits. See EEOC v.

J.H. Routh Packing Co., 246 F.3d 850, 854 (6th Cir.

2001) (holding that ordinary notice pleading princi-

ples apply to the “disability” question under the

ADA); Mattice v. Memorial Hosp., 249 F.3d 682, 685

n.3 (7th Cir. 2001) (rejecting “heightened pleading

standard for ADA claims”); Skaff v. Meridien North

America Beverly Hills LLC, 506 F.3d 832, 841-842

(9th Cir. 2007). Indeed, the Sixth Circuit in J.H.

Routh expressly rejected the notion, adopted by the

First Circuit here, that the plaintiff’s complaint must

specifically “identify the major life activity that she

will attempt to prove the employer regarded as being

substantially limited by her impairment.” App., infra,

at 16. To the contrary, the Sixth Circuit held, “so long

as the complaint notifies the defendant of the claimed

impairment, the substantially limited major life

activity need not be specifically identified in the

pleadings.” J.H. Routh Packing, 246 F.3d at 854. The

court reasoned that “[a]n accusation of discrimination

on the basis of a particular impairment provides the

defendant with sufficient notice to begin its defense

against the claim.” Jd. And the Seventh Circuit in

Mattice expressly rejected the notion, adopted by the

First Circuit here, that this Court’s decision in Sutton

adopted a heightened pleading standard. See Mattice,

249 F.3d at 685 n.3 (“agree[ing] with the EEOC that

Sutton did not create a heightened pleading stan-

dard”). This Court’s intervention is necessary to

resclve these conflicts.

The decision of the court of appeals also impli-

cates the significant confusion in the lower courts

regarding the scope of this Court’s decision in Bell

Atlantic Corp. v. Twombly, i127 S. Ct. 1955 (2007). As

one leading court of appeals decision has explained,

“(t]he issues raised by Twombly are not easily re-

solved, and likely will be a source of controversy for

years to come.” Phillips v. County of Allegheny, 515

F.3d 224, 234 (3d Cir. 2008). In particular, the lower

courts have expressed uncertainty about the contin-

ued vitality of this Court’s previously consistent

rejection of heightened pleading requirements outside

of the specific contexts in which Fed. R. Civ. P. 9(b) or a

federal statute imposes such a requirement. See Jones

v. Bock, 127 S. Ct. 910, 919-920 (2007); Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 515 (2002); Leatherman v.

Tarrant County Narcotics Intelligence and Coordination

Unit, 507 U.S. 163, 168 (1993).

The First Circuit here appeared to read Twombly

as dictating a heightened pleading standard. App.,

infra at 16. But the Third, Ninth, and District of

Columbia Circuits have specifically refused to read

Twombly as departing from this Court’s consistent

rejection of judicially imposed heightened pleading

requirements. See Phillips, 515 F.3d at 233 (Third

Circuit: “The Court emphasized throughout its opin-

ion that it was neither demanding a heightened

pleading of specifics nor imposing a probability re-

quirement. Indeed, the Court cited Twombly just days

later as authority for traditional Rule 8 and 12(b\X6)

principles.”); Skaff, 506 F.3d at 841-842 (Ninth Cir-

cuit: citing Twombly, among other cases, for the

proposition that “the Supreme Court has repeatedly

instructed us not to impose such heightened stan-

dards in the absence of an explicit requirement in a

statute or federal rule”); Aktieskelsabet AF 21. No-

vember 2001 v. Fame Jeans Inc., 525 F.3d 8, 2008 WL

1932768 at *5 (D.C. Cir., Apr. 29, 2008) (holding that

“lajfter decades of such consistency, we will not

lightly assume the Supreme Court intended to

tighten pleading standards” and that Twombly “indi-

cated quite clearly that it meant no such thing”). This

Court’s intervention is necessary to resolve that

disagreement.*

2. The First Circuit’s imposition of a heightened

pleading standard is flatly inconsistent with this

Court’s cases. To support its holding, the Court of

Appeals relied on this Court’s rulings in Sution,

supra, and Twombly, supra. Neither case supports

imposing a heightened pleading standard on com-

plaints alleging that the defendant “regarded” the

plaintiff as having a disability under the ADA.

Nothing in Sutton even purports to address the

proper standard for pleading claims under the ADA.

In upholding dismissal of the complaint there, the

‘ This Court recently granted certiorari to address the

application of Twombly to suits under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971). See Ashcroft v. Iqbal, 128 S. Ct. ___ (June 16, 2008). But

this Court’s decision in that case will not resolve the pleading

question presented here. As this Court has recognized, pleading

standards in suits against public officials must take account of

the qualified immunity defense. See Crawford-El v. Britton, 523

U.S. 574, 597-598 (1998) (stating that district courts could

“protect| |] the substance of the qualified immunity defense” in

cases against public officials by “insist[ing] that the plaintiff ‘put

forward specific, nonconclusory factual allegations’ that estab-

lish improper motive causing cognizable injury in order to

survive a prediscovery motion for dismissal or summary judg-

ment”) (quoting Siegert v. Gilley, 500 U.S. 226, 236 (1991)

(Kennedy, J., concurring in the judgment)). But this case raises

no qualified immunity issue; it raises the question whether

Twombly authorizes a heightened pleading standard outside of

the context of cases against public officials — a question on which

the courts of appeals have also divided.

Court did not reason that the complaint failed to

allege sufficiently specific facts or to meet a height-

ened pleading standard. The Court simply held,

accepting the plaintiffs’ allegations as true and apply-

ing the ordinary analysis under Fed. R. Civ. P.

12(b)\(6), that the plaintiffs’ complaint failed to state a

claim. See Sutton, 527 U.S. at 491 (“Considering the

allegations of the amended complaint in tandem,

petitioners have not stated a claim that respondent

regards their impairment as substantially limiting

their ability to work.”).

Unlike Sutton, this Court’s decision in Twombly

plainly does address pleading standards. But con-

trary to the First Circuit's apparent interpretation,

the Twombly Court made clear that it did “not require

heightened fact pleading of specifics.” Twombly, 127

S.Ct. at 1974. The Court specifically reaffirmed

its earlier decisions in Leatherman, supra, and

Swierkiewicz, supra, which rejected any heightened

pleading standard outside of the contexts specified in

Rule 9(b) or federal statutes. See Twombly, 127 S. Ct.

1973-1974. And the Court specifically stated that “we

do not apply any heightened pleading standard, nor

do we seek to broaden the scope of Federal Rule of

Civil Procedure 9, which san only be accomplished by

the process of amending the Federal Rules, and not

by judicial interpretation.” Id. at 1973 n.14 (internal

quotation marks omitted). And two weeks later, in

Erickson v. Pardus, 127 S. Ct. 2197 (2007) (per cu-

riam), the Court summarily reversed a lower court

decision that had applied a heightened pleading

standard. The Erickson Court cited Twombly for the

proposition that “[s]pecific facts are not necessary; the

statement need only ‘“give the defendant fair notice

of what the ... claim is and the grounds upon which

it rests.”’” Id. at 2200 (quoting Twombly, 127 S. Ct. at

1964, in turn quoting Conley v. Gibson, 355 U.S. 41,

47 (1957)). Especially in light of Erickson, the First

Circuit’s holding can find no support in this Court’s

cases. This Court’s intervention is necessary.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

SAMUEL R. BAGENSTOS WILMA REVERON COLLAZO

Counsel of Record P.O. Box 9023317

625 South State Street Viejo San Juan, PR

Ann Arbor, MI 48109-1215 00902-3317

(734) 764-1358 (787) 277-0670

ALBERTO J. TORRADO DELGADO

P.O. Box 1329

Hatillo, PR.00659-1329

(787) 262-5138

App. 1

APPENDIX A

United States Court of Appeals

For the First Circuit

No. 07-1595

DELIA RUIZ RIVERA,

Plaintiff-Appellant,

PFIZER PHARMACEUTICALS, LLC

Defendant-Appellee.

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge]

Before

Lipez and Howard, Circuit Judges.

and Smith,* District Judge.

Wilma Reveron Collazo, with whom Alberto J.

Torrado Delgado was on brief, for appellant.

Mariela Rexach, with whom Carl Schuster and

Schuster Aguilo LLP were on brief, for appellee.

March 27, 2008

* Of the District of Rhode Island, sitting by designation.

App. 2

SMITH, District Judge. This case presents as a

so-called “regarded as” disability claim under the

Americans with Disabilities Act (“ADA”). However, as

the discussion below reveals, once the layers of argu-

ment are stripped away, the regarded as claim is

revealed to be a chimera. Thus, the District Court’s

grant of summary judgment, on reconsideration, as to

the regarded as claim was appropriate, and the

judgment is affirmed.

I. Facts and Background

In late 1997, appellant Delia Ruiz Rivera (“Ruiz

Rivera”) began working, on a temporary basis, as a

packaging operator in appellee Pfizer Pharmaceutical

LLC’s (“Pfizer”) Puerto Rico facility. Nearly one year

later, Ruiz Rivera achieved regular employee status

when she was assigned to Pfizer’s bottling depart-

ment. Ruiz Rivera’s position as a packaging operator

in the bottling department involved pouring pills,

bottles, and caps, monitoring the conveyor, packing

and inspecting the product, and cleaning machinery.

Ruiz Rivera became pregnant several months

after becoming a regular employee. As her pregnancy

progressed, she submitted several notes from her

doctor to Pfizer informing it of certain medical-related

limitations, including a recommendation that she

avoid walking long distances, that her shifts be

limited, and that she work only in a seated position.

App. 3

In August 1999, Ruiz Rivera informed Pfizer of

several medical problems, including edema, numb-

ness, and continued effects of a potentially herniated

disc. Based on her doctor’s recommendations, Pfizer,

through its in-house physician, Dr. Felix, authorized

a short leave of absence. Soon after Ruiz Rivera

returned from leave, she submitted to Dr. Felix

another medical certificate from Dr. Ramos, her

physiatrist, asking that she be excused from work

from August 30, 1999 through November 1, 1999,

citing her herniated disc-related medical problems.

Accordingly, Pfizer granted her temporary non-

occupational disability leave until November. Come

November, Ruiz Rivera sought and was provided

another medical leave until January 1, 2000. She

gave birth in late December, at which time her eight-

week maternity leave commenced.

At the completion of her maternity leave, Ruiz

Rivera submitted to Dr. Felix at Pfizer a medical

certificate from Dr. Ramos indicating that she was

being treated for carpal tunnel syndrome and lumbo

sacral disc herniation. Dr. Ramos indicated that Ruiz

Rivera was fit to return to work, with specific limita-

tions, recommended that she avoid repetitive hand

motions, placing her hands over her shoulders, lift-

ing, pushing, holding, and bending, and placed a

twenty-five pound limitation on how much she could

lift. At the same time, Ruiz Rivera presented to Dr.

Felix a medical certificate from a different doctor

diagnosing her with major depression. Based on these

two submissions, Pfizer granted an additional month

App. 4

of leave benefits to Ruiz Rivera. On March 27, 2000,

after Ruiz Rivera had been on authorized leave for

nearly seven straight months, she returned to work

and insisted that Pfizer implement her doctor’s

earlier recommendations and restrictions. Dr. Felix

informed Ruiz Rivera that there were no opportuni-

ties available where she could work with such strin-

gent limitations; however, Dr. Felix agreed to confer

with Dr. Ramos, and prepared for him a consultation

form regarding Ruiz Rivera’s condition, treatment

options, and rehabilitation opportunities.

After an additional week of leave, Ruiz Rivera

reported back to work at Pfizer. At that time, she

provided to Dr. Felix a consultation report which

provided, in pertinent part:

Diagnosis

Left Carpal Tunnel Syndrome

Both Wrists Tendinitis

L(subscript 5)S(subscript 1)Discs

Herniation

These are progressive diseases and may de-

teriorate her condition. She uses wrists

splints at night and gets anti-inflammatory

and muscle relaxants, and needs to proteci

the affected areas from damage.... She

should have some restrictions at her work

area, so she can do her job with minimal de-

terioration of her condition. These restric-

tions should last at least six months, but

may be longer.

App. 5

— Avoid repetitive motions of hands

~ Avoid hands-over-the shoulders position

— Do not lift over 25 lbs.

— Limit lifting — carrying — pushing — pulling

— holding — bending.

Based on the information provided and the restric-

tions imposed by Dr. Ramos, Dr. Felix concluded that,

“filIn view of this [sic] recommendations and after

conversation with [plaintiff’s] work area supervisor

where she can not perform the essential tasks of her

job and needs her hands I do not recommend a RTW

[return to work] to prevent further aggravation or

lesion. Case discussed [with] HR [Human Resources]

for plan of action.”

Ruiz Rivera later spoke to Frances Guzman,

Pfizer’s Assistant Personnel Manager, who advised

her that Pfizer did not have to accommodate the

restrictions imposed by her doctor because, in

Guzman’s view, Ruiz Rivera was not disabled under

the ADA.' Guzman testified at her deposition that she

explained to Ruiz Rivera that because she wasn’t

entitled to accommodation, she should pursue medi-

cal leave and again seek temporary non-occupational

’ At her deposition, Guzman testified as follows:

[Because there is no permanent disability, and this is

exactly how I explained it to her, and it’s based on

what her physician is saying, 1 don’t have to make an

accommodation under the ADA.... And then I ex-

plained that what her doctor is writing, in fact she

cannot perform the duties of a packaging operator ...

but that this is not a qualified condition.

App. 6

disability insurance. Ruiz Rivera asserts. that

Guzman also told her that because of the conditions

imposed by her physicians, there was no opportunity

for her to work at Pfizer or at any other pharmaceuti-

cal company. While Pfizer took no action to terminate

her at this point, Ruiz Rivera did not return to work

after these conversations.

Approximately three months later, in a letter

dated June 21, 2000, Pfizer requested that Ruiz

Rivera return for a meeting to discuss her health and

status. Ruiz Rivera responded by letter shortly there-

after, but did not accept Pfizer’s request for a meet-

ing. Approximately six months later, Pfizer again

wrote to Ruiz Rivera requesting that she return to

work. Ruiz Rivera did not respond. After Ruiz Rivera

rebuffed this request, Pfizer officially terminated her

employment.’

The Amended Complaint (the “Complaint”) in

this matter alleged numerous violations of federal

and Puerto Rico law, including the Americans With

Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213;

the Puerto Rico law counterpart to the ADA, Law

No. 44 of July 2, 1985 (“Law 44”); Title VII of the

Civil Rights Act, 42 U.S.C. § 2000 et seq.; the Preg-

nancy Discrimination Act; the Puerto Rico Pregnant

* By this point, Ruiz Rivera already had begun to pursue

her discrimination claims against Pfizer. She filed a formal

administrative complaint before the Puerto Rico Labor Depart-

ment Anti-Discrimination Unit and the Equal Employment

Opportunity Commission in May, 2000.

App. 7

Mothers Protection Act (Act No. 3 of March 13, 1942);

the Puerto Rico Sex Discrimination in Employment

Act (Act No. 69 of July 6, 1985); the Puerto Rico

Discrimination in Employment Act (Act No. 100 of

June 30, 1959); and Puerto Rico’s Law 80 of May 30,

1976. Through summary judgment, Pfizer moved for

dismissal of the Complaint. Soon after, the parties

stipulated to dismissal with prejudice of all but the

ADA and Law 44 claims. In support of its motion for

summary judgment, Pfizer argued that Ruiz Rivera

was not disabled within the meaning of the ADA, that

she thus could not establish a prima facie case of

disability discrimination, and as a result, she was not

entitled to any accommodations. In response, Ruiz

Rivera asserted that she was disabled under the ADA

insomuch as she was “substantially limited in the

major life activity of sitting and standing,” and that

Pfizer’s failure to accommodate her disability violated

the ADA. In the alternative, she argued in her sum-

mary judgment opposition papers that she was not

disabled in the sense that she was not “substantially

limited on the major life activity of working” but that

Pfizer regarded her as such when it refused to ac-

commodate the restrictions imposed by her doctors.

Notably, as we discuss in more detail below, this was

the first time that Ruiz Rivera raised the regarded as

claim with any degree of specificity.”

* The claims we discuss herein — failure to accommodate a

disability, termination because of one’s disability, and termina-

tion of employment based on a perceived disability — are all

(Continued on following page)

App. 8

The District Court conducted a thorough analysis

of Ruiz Rivera’s failure to accommodate claim. See

generally Ruiz Rivera v. Pfizer Pharm. LLC, 463

F. Supp. 2d 163 (D.P.R. 2006). The District Court

determined that the record was devoid of evidence

showing that Ruiz Rivera was disabled in any major

life activity, and, accordingly, found that she was not

entitled to accommodation. See id. at 172-75. The

District Court then went on to assess Ruiz Rivera’s

purported parallel claim that she was not disabled,

but that Pfizer terminated her because it mistakenly

regarded her as disabled. Based on statements alleg-

edly made by Dr. Felix and Ms. Guzman, the District

Court denied summary judgment, stating that Ruiz

Rivera had “proffered sufficient evidence to establish

a prima facie case that Pfizer regarded her as having

an ADA-covered impairment which prevented her

from going back to work and which led to her even-

tual termination.” Jd. at 176-77."

Pfizer filed a Motion for Reconsideration on

December 14, 2006, arguing that Ruiz Rivera’s re-

garded as claim was legally insufficient if based solely

on statements made in connection with her request

cognizable causes of action under the ADA. For simplicity, we

will refer collectively to the claims dismissed by the District

Court as the failure to accommodate claim and to the remaining

claim as the regarded as claim.

‘ The District Court simultaneously granted in part and

denied in part Pfizer’s motions for summary judgment on Ruiz

Rivera’s Law 44 claims, as Law 44 mirrors the ADA and re-

quired no separate analysis.

App. 9

for reasonable accommodation. Rather than rebut

Pfizer’s legal argument, in her opposition Ruiz Rivera

asserted only that reconsideration was inappropriate.

The District Court, in response, reversed course and

issued an Order granting Pfizer’s Motion for Recon-

sideration and dismissing the regarded as claim.”

Ruiz Rivera timely appealed that ruling to this Court,

though she did not appeal the District Court’s grant

of summary judgment on the failure to accommodate

claim.

II. Standard of Review

We review a district court’s decision to grant or

deny a motion for reconsideration under Rules 59(e)

and 60(b) of the Federal Rules of Civil Procedure for

manifest abuse of discretion. See Kansky v. Coca-Cola

Bottling Co. of New England, 492 F.3d 54, 60 (1st Cir.

2007); DiMaio Family Pizza & Luncheonette, Inc. v.

Charter Oak Fire Ins. Co., 448 F.3d 460, 462 (1st Cir.

2006). This is the case because the district court has

substantial discretion and broad authority to grant or

deny such a motion. United States v. 5 Bell Rock Rd.,

* The January 8, 2007 Order stated, in full:

Defendant’s Motion for Reconsideration (docket No.

67) is GRANTED. Accordingly, the claims for termina-

tion due to Plaintiff’s perceived disability under the

Americans with Disabilities Act and Puerto Rico Law

No. 44 of July 2, 1985, as amended, are hereby DIS-

MISSED based on the arguments presented by defen-

dant in its request for reconsideration.

App. 16

896 F.2d 605, 611 (1st Cir. 1990). A court appropri-

ately may grant a motion for reconsideration “where

the movant shows a manifest error of law or newly

discovered evidence.” Kansky, 492 F.3d at 60. Like-

wise, a motion for reconsideration should be granted

if the court “has patently misunderstood a party...

or has made an error not of reasoning but apprehen-

sion.” Sandoval Diaz v. Sandoval Orozco, No. 01-

1022, 2005 WL 1501672, at *2 (D.P.R. June 24, 2005)

(quoting Bank of Waunakee v. Rochester Cheese Sales,

Inc., 906 F.2d 1185, 1191 (7th Cir. 1990)).°

We review the district court’s entry of summary

judgment de novo. Desrosiers v. Hartford Life &

Accident Co., 515 F.3d 87, 92 (1st Cir. 2008). Sum-

mary judgment is proper where there is no genuine

issue of material fact and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(c).

As was the case in the District Court, we must take

the facts of record in the light most flattering to the’

* In her appellate brief, Ruiz Rivera explicitly sets forth as

issues on appeal only the propriety of the district court’s decision

to reconsider its denial of summary judgment on the regarded as

claims under the ADA and Law 44. Her argument in support,

however, addresses primarily the substantive issue of whether

summary judgment on these claims was appropriate. We

consider the appeal to be both a challenge to the reconsideration

and the entry of summary judgment. As to Ruiz Rivera’s appeal

of the district court’s granting of Pfizer’s motion for reconsidera-

’ tion, we find no manifest abuse of discretion. As to Ruiz Rivera’s

appeal of the district court’s decision, on reconsideration, to

grant Pfizer’s motion for summary judgment on the regarded as

claims, our discussion follows herein.

App. 11

nonmovant (here, Ruiz Rivera) and draw all reason-

able inferences in her favor. See Iverson v. City of

Boston, 452 F.3d 94, 98 (1st Cir. 2006); Davila v.

Corporacién De Puerto Rico Para La _ Difusién

Publica, 498 F.3d 9, 12 (1st Cir. 2007). “Once the

moving party avers the absence of genuine issues of

material fact, the nonmovant must show that a

factual dispute does exist.” Veldzquez-Ferndndez uv.

NCE Foods, Inc., 476 F.3d 6, 10 (1st Cir. 2007). Sum-

mary judgment cannot be defeated, however, “by

relying on improbable inferences, conclusory allega-

tions, or rank speculation.” Jd.

III. The Regarded As Claim

The ADA provides “a clear and comprehensive

national mandate for the elimination of discrimina-

tion against individuals with disabilities.” Katz uv.

City Metal Co., 87 F.3d 26, 30 (1st Cir. 1996) (quoting

42 U.S.C. § 12101(b)(1)). To establish a prima facie

case of disability discrimination under the ADA, a

plaintiff must prove: (1) that she was “disabled”

within the meaning of the ADA; (2) that she was able

to perform the essential functions of her job with or

without accommodation; and (3) that she was dis-

charged or adversely affected, in whole or in part,

because of her disability. Id.; see also Orta-Castro v.

Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d

105, 1.7 (1st Cir. 2006). For purposes of the ADA, one

is considered disabled if she (a) has a physical or

mental impairment that substantially limits one or

more of her major life activities; (b) has a record of

App. 12

such an impairment; or (c) is regarded as having such

an impairment. Bailey v. Georgia-Pacific Corp., 306

F.3d 1162, 1166 (1st Cir. 2002); see also 42 U.S.C.

§ 12102(2). The regarded as prong of the ADA exists

to cover those cases “in which ‘myths, fears and

stereotypes’ affect the employer’s treatment of an

individual,” Plant v. Morton Int'l, Inc., 212 F.3d 929,

938 (6th Cir. 2000) (quoting 29 C.F.R. § 1630.2(/),

because Congress has recognized that “society’s

accumulated myths and fears about disability and

disease are as handicapping as are the physical

limitations that flow from actual impairment.” Sullz-

van v. Neimar. Marcus Group, Inc., 358 F.3d 110, 117

(1st Cir. 2004) (citations omitted).

Regarded as claims primarily fall into one of two

categories: “(1) a covered entity mistakenly beiieves

that a persun has a puysical impairment that sub-

stantially limits one or more major life activities, or

(2) a covered entity mistakenly believes tha: an

actual, nonlimiting impairment substantially limits

one or more major life activities.” Sullivan, 358 F.3d

at 117 (citing Sutton v. United Air Lines, Inc., 527

U.S. 471, 489 (1999)).

“A plaintiff claiming that he is ‘regarded’ as

disabled cannot merely show that his employer

perceived him as somehow disabled; rather, he must

prove that the employer regarded him as disabled

within the meaning of the ADA.” Bailey, 306 F.3d at

1169. When “working” is the major life activity at

issue, a plaintiff “must demonstrate not only that the

employer thought that he was impaired in his ability

App. 13

to do the job that he held, but also that the employer

regarded him as substantially impaired in ‘either a

class of jobs or a broad range of jobs in various classes

as compared with the average person having compa-

rable training, skills, and abilities.” Sullivan, 358

F.3d at 117 (quoting Murphy v. United Parcel Serv.,

Inc., 527 U.S. 516, 523 (1999)).

Because Ruiz Rivera did not appeal the District

Court’s dismissal of her failure to accommodate claim,

that issue is not before us. Ruiz Rivera, 463

F. Supp. 2d at 177. Therefore, it is the law of the case

that for the periods of time relevant to this inquiry

Ruiz Rivera was not disabled within the meaning of

the ADA, did not have an impairment that substan-

tially limited a major life activity, and Pfizer was not

obligated to accommodate her. On appeal, however,

Rwiz Rivera appears to continue to press her argu-

ment that her impairment renders her disabled and

entitles her to accommodation, while simultaneously

arguing that Pfizer mistakenly believed her to be

substantially limited in a major life activity, regarded

her as disabled, and terminated her as a result of this

perception of disability.

From our review of Ruiz Rivera’s submissions,

from the Complaint to her papers on appeal, it is

apparent that her regarded as claim is really nothing

more than a poorly disguised version of her failure to

accommodate claim. In fact, the initial pleading of her

regarded as claim was so indistinct that Pfizer did

not even move for summary judgment on that claim,

apparently because it was unaware it had even been

App. 14

raised.’ Indeed, the first time Ruiz Rivera spells out

her regarded as theory is in her Opposition to Pfizer’s

Motion for Summary Judgment, something that

Pfizer strenuously, but unsuccessfully objected to as

being an “llth Hour” claim. On appeal, with the

failure to accommodate claim not on review, the only

issue is whether the District Court erred in granting

summary judgment on the regarded as claim, on a

motion for reconsideration, after initially finding

material facts n dispute and denying the motion. We

can understand how the District Court may have

been tripped up over this issue given the way in

which Ruiz Rivera has plead and argued the case.

But in the end, we think the District Court got to the

right result, as we will explain.

" The Complaint states, in pertinent part:

41. Plaintiff alleges that the employer’s termination

because of plaintiff’s disability was in violation of 42

USCA sec. 12112(a).

43. Plaintiff is “disabled” as defined by ADA, 42

USCA sec. 12102(2), in that she has a record of a

physical and mental impairment that substantially

limits one or more of her major life activities in that

plaintiff’s disability, to wit: a herniated disc and car-

pal tunnel syndrome. ...

45. On March 27, 1999, Pfizer intentionally dis-

criminated against plaintiff because of her disability

as described above in that Pfizer terminated plaintiff

because of her perceived disability.

App. 15

We begin with the Complaint itself. As noted

above, Ruiz Rivera’s Complaint does not separate her

failure to accommodate claim and her regarded as

claim into distinct causes of action. The “First Cause

of Action,” which alleges that Pfizer’s “termination

because of plaintiff’s disability was in violation of”

the ADA, contains nothing that would signal to a

reader that it intended to raise a regarded as claim.

Instead, it affirmatively declares that Ruiz Rivera is

“disabled,” because “she has a record of a physical

and mental impairment that substantially limits one

or more of her major life activities.” There is no

factual allegation that Ruiz Rivera had any non-

limiting impairment which Pfizer wrongly regarded

as limiting a major life activity; any allegation that

Pfizer had “stereotyped” her; or anything in fact that

could remotely be characterized as a description of an

impairment being mischaracterized or misperceived.

Rather, the only indication that a regarded as claim

might have been lurking in the shadows of the Com-

plaint was the inclusion of the word “perceived” in

one paragraph of her eleven paragraph First Cause of

Action.

Paragraph 45 of the Complaint alleges: “On

March 27, 1999, Pfizer intentionally discriminated

against plaintiff because of her disability as described

above in that Pfizer terminated plaintiff because of

her perceived disability.” (Emphasis added). While

this paragraph could signal to a defendant that

plaintiff is asserting a regarded as ciaim, with no

facts alleged to explain any false perception on

App. 16

Pfizer’s part, and no facts alluding to any non-

limiting impairment which Pfizer mistakenly be-

lieved to be substantially limiting, this allusion falls

far short of the mark. As recently clarified by the

Supreme Court, “a plaintiff’s obligation to provide

the ‘grounds’ of his ‘entitle[ment] to relief’ requires

more than labels and conclusions,” Bell Atl. Corp. v.

Twombly, 127 S. Ct. 1955, 1965-66 (2007) (citations

omitted), and “[t]o survive Rule 12(b)(6) dismissal, [a

plaintiff’s] well-pleaded facts must ‘possess enough

heft to sho[w] that [plaintiff is] entitled to relief.’”

Clark v. Boscher, 514 F.3d 107, 112 (1st Cir. 2008)

(quoting Twombly, 127 S.Ct. at 1959). The funda-

mental purpose of our pleadings rules is to protect a

defendant’s “inalienable right to know in advance the

nature of the cause of action being asserted against

him.” Rodriguez v. Doral Morigage Corp., 57 F.3d

1168, 1171 (1st Cir. 1995). We do not think that the

mere inclusion in the Complaint of the word “per-

ceived” was enough to put Pfizer on notice that Ruiz

Rivera was making a regarded as claim against it. On

this basis alone, the regarded as claim was subject to

dismissal.

Moreover, the Supreme Court has implied that

regarded as claims under the ADA require an even

greater level of specificity than other claims. Sutton,

527 U.S. at 489-91. In order to allege an actionable

regarded as claim, a plaintiff must select and identify

the major life activity that she will attempt to prove

the employer regarded as being substantially limited

by her impairment. See Sutton, 527 U.S. at 491

App. 17

(dismissing ADA regarded as claim in part for inade-

quacy of its pleading, wherein the petitioners failed to

state “a claim that respondent regard[ed] their im-

pairment as substantially limiting their ability to

work”); see also Amadio v. Ford Motor Co., 238 F.3d

919, 925 (7th Cir. 2001); Kaiser v. Banc of Am. Inv.

Serus., Inc., 296 F. Supp. 2d 1219, 1221 (D. Nev.

2003).

It is apparent from our review that at the time

Ruiz Rivera filed her Complaint, regarded as disabil-

ity discrimination was barely an afterthought - a

throwaway line in one paragraph of a lengthy com-

plaint. Faced with a well-reasoned and convincing

motion for summary judgment on her ADA claim,

however, Ruiz Rivera shifted legal theories and

sought to re-characterize her Complaint in a way that

might parry Pfizer’s blow. It simply will not do for a

plaintiff to fail to plead with adequate specificity facts

to support a regarded as claim, all-the-while hoping

to play that card if her initial hand is a dud. See

Fleming v. Lind-Waldock & Co., 922 F.2d 20, 24 (1st

Cir. 1990) (“([S]ummary judgment is not a procedural

second chance to flesh out inadequate pleadings.”).

Ruiz Rivera’s regarded as claim also fails on

substantive grounds. The undisputed facts” reveal

* From our review of the record, it appears that both Pfizer

and Ruiz Rivera submitted, without translation, Spanish

language documents as exhibits to their briefs at the summary

judgment stage. Documents may not be submitted in a foreign

language without translations. See L.R.P.R. 10, 43; First Circuit

(Continued on following page)

App. 18

that, in late March 2007, Ruiz Rivera presented to Dr.

Felix at Pfizer a list of workplace restrictions imposed

by her doctor based on her various ailments. Her

doctor’s note indicated that the restrictions should

remain in place for at least six months, perhaps

longer. Based on these restrictions — and these re-

strictions alone — Pfizer determined that Ruiz Rivera

could not perform the essential tasks of her job as a

packaging operator in the bottling department. Ruiz

Rivera maintains that she then sought accommoda-

tion for her limitations and in doing so requested that

she be given a different job at the facility.’ Pfizer

denied Ruiz Rivera’s request, and, according to the

testimony of Frances Guzman, Assistant Personnel

Manager, informed Ruiz Rivera that Pfizer did not

L.R. 30(d) (“The court will not receive documents not in the

English language unless translations are furnished.”). As is our

policy, we cannot consider materials, or facts adduced solely in

reliance on those materials, that have not been translated. Along

with its appellate briefing, Pfizer provided translations of

relevant exhibits and those portions of Ruiz Rivera’s deposition

upon which it has relied. However, the record may not be

supplemented on appeal in order to cure a defect below. See

Estades-Negroni v. Assocs. Corp. of N. Am., 359 F.3d 1, 2 (1st

Cir. 2004) (“Depositions that have not been translated into

English are not — and cannot on appeal become — part of the

record.”).

* Ruiz Rivera requested a move from the position of packag-

ing operator to one of the following: inspecting blisters, filling

out documentation, or entering a lot with a finger machine. She

provides no support for her contention that these jobs were

available at the plant, or that the restrictions imposed by her

doctor would not impact the work performed in these positions.

App. 19

consider her to be disabled within the meaning of the

ADA and Pfizer was under no obligation to accommo-

date her.

These undisputed facts, of course, were the basis

for Ruiz Rivera’s now-dismissed claims for termina-

tion and failure to accommodate. She asserted that

the impairments upon which her doctor’s restrictions

were based constituted a disability under the ADA

which Pfizer was required to reasonably accommo-

date. Pfizer disagreed, concluding that Ruiz Rivera

was not disabled within the meaning of the ADA, and

thus not entitled to any accommodation, and the

District Court concurred.” Now, Ruiz Rivera uses

Pfizer’s lawful refusal to provide her with the sought-

after accommodation as the primary basis for_her.

regarded as claim. Ruiz Rivera does not maintain

that she could perform her job as packaging operator

in the bottling department with the restrictions

imposed by her doctor, but that Pfizer mistakenly

believed her unable to do so; rather, she maintains

that she could perform her job if granted the accom-

modations to which the District Court found she was

not entitled. This, coupled with Pfizer’s refusal to

° The District Court determined that the impairment upon

which Ruiz Rivera’s workplace restrictions were based did not

substantially limit her in any major life activity, including

performance of manual tasks, working, and sitting and stand-

ing. See Ruiz Rivera v. Pfizer Pharm. LLC, 463 F. Supp. 2d 163,

172-75 (D.P.R. 2006).

App. 20

accommodate Ruiz Rivera’s request for a different job,

is what forms the basis for her regarded as claim.

Specifically, Ruiz Rivera insists that Pfizer

mistakenly regarded her as being substantially

limited in the life activity of “working.” For her

support, she cites to two events: first, she cites Dr.

Felix’s response to the restrictions imposed by her

personal physician, wherein Dr. Felix determined she

could not return to and work at her position in the

bottling department at the Pfizer plant; and second,

she points to the comment allegedly made to her by

Guzman to the effect that with the conditions im-

posed by her doctors, she could not perform any work

at the Pfizer plant or anywhere else in the pharma-

ceutical industry. As correctly argued by Pfizer in its

Motion for Reconsideration, Ruiz Rivera may not rely

exclusively on her employer’s recognition or imple-

mentation of the restrictions imposed by her own

physician to establish a regarded as claim. See Lusk

v. Ryder Integrated Logistics, 238 F.3d 1237, 1241

(10th Cir. 2001) (“Where the recognition of Plaintiff’s

limitations is not an erroneous perception, but is

instead a recognition of fact, a finding that Plaintiff

was regarded as disabled is inappropriate.”);

Breitkreutz v. Cambrex Charles City, Inc., 450 F.3d

780, 783 (8th Cir. 2006) (“If a restriction is based

upon the recommendations of physicians, then it

is not based upon myths or stereotypes about the

disabled and does not establish a perception of dis-

ability.”); see also Wooten v. Farmland Foods, 58 F.3d

382, 386 (8th Cir. 1995) (employer who terminated

App. 21

employee because of the restrictions associated with

employee’s impairment did not regard employee as

disabled in the major life activity of working where

its perception of employee’s impairment was based

not on speculation, stereotype, or myth, but on a

doctor’s written restrictions). Thus, Pfizer’s recogni-

tion of Ruiz Rivera’s impairment, and unwillingness

to provide the accommodation that Ruiz Rivera

sought, but to which she was not entitled, simply does

not transform its actions into regarded as discrimina-

tion. Moreover, to allow this regarded as claim to

stand would be tantamount to allowing her dismissed

failure to accommodate claim in through the back

door. See Nuzum v. Ozark Auto. Distrib., Inc., 432

F.3d 839, 848-49 (8th Cir. 2005).

Although the District Court’s reconsideration of

its original decision to deny summary judgment on

the regarded as claim lacked written justification, it

is clear to us that dismissal on reconsideration was

both appropriate and warranted. Any reliance on Dr.

Felix’s statements or opinion, based entirely on Ruiz

Rivera’s own doctor’s recommendations, cannot

support a regarded as claim. Furthermore, the allega-

tion that Pfizer mistakenly regarded Ruiz Rivera

to be substantially limited in the life activity of

working makes little sense in the face of the undis-

puted record that Pfizer told Ruiz Rivera that it did

not consider her impairment to constitute an ADA

covered disability. Moreover, Pfizer did not terminate

Ruiz Rivera’s employment when it refused to accom-

modate the restrictions imposed by her doctor; rather,

App. 22

it terminated her over nine months later, after nu-

merous unsuccessful attempts to seek updates on her

medical status. Finally, the isolated comment alleg-

edly made by Guzman as to the impact of the restric-

tions on Ruiz Rivera’s ability to find work in the

pharmaceutical industry is of no help to Ruiz Rivera.

At the time that Guzman allegedly made this com-

ment, Pfizer had determined, in reliance upon Ruiz

Rivera’s own doctor’s recommendations, that Ruiz

Rivera could not perform the essential functions of

her job; her impairment did not constitute a disability

under the ADA; and it had no obligation to accommo-

date her. Thus, while Guzman may have considered

the restrictions imposed by Ruiz Rivera’s doctors as

limiting her chances of finding work elsewhere in the

pharmaceutical industry, there simply is no evidence

that Ruiz Rivera was refused accommodation or

terminated because of this generalization. In light of

the record, Guzman’s statement at worst amounts to

little more than a stray remark, one which standing

alone is insufficient to defeat summary judgment. See

Patten v. Wal-Mart Stores E., Inc., 300 F.3d 21, 25 (1st

Cir. 2002) (direct evidence of discrimination excludes

“mere background noise” and “stray remarks”);

Laurin v. Providence Hosp., 150 F.3d 52, 58 (1st Cir.

1998) (stray remarks, including “statements by

decisionmakers unrelated to the decisional process

itself normally are insufficient to establish discrimi-

natory animus”) (citations omitted).

App. 23

IV. Law 44

On _ reconsideration, the District Court also

dismissed Ruiz Rivera’s parallel regarded as claim

under Law 44 of July 2, 1995, P.R. Laws Ann. tit. 1,

§§ 501 et seq., the Puerto Rico analogue to the ADA.

Because Law 44 and the ADA are coterminous, we

affirm the District Court’s dismissal of both regarded

as claims. See Gonzalez v. El Dia, Inc., 304 F.3d 63, 74

n.8 (1st Cir. 2002).

V. Law 80

Ruis Rivera asserts on appeal that the District

Court erred when it failed to address and state

whether it was going to exercise supplemental juris-

diction over Ruiz Rivera’s purported Law 80 claim.

While the issue of whether to retain supplemental

jurisdiction over any remaining state law claim, and

the viability of any such claim, is generally for the

District Court in the first instance, we believe the

Law 80 claim, on its face, is so inadequately plead

that the District Court acted appropriately and

committed no error by not addressing the issue.”

‘' We note that Ruiz Rivera’s appellate brief marks her first

substantive mention of the Law 80 claim. Pfizer did not move

specifically for its dismissal, Ruiz Rivera did not assert its

viability in her Opposition to Pfizer’s Motion for Summary

Judgment, and the District Court did not address the issue in

either of its Orders.

App. 24

“Puerto Rico Law 80 prohibits dismissal of em-

ployees without just cause.” Hoyos v. Telecorp

Comm’ns, Inc., 488 F.3d 1, 6 (1st Cir. 2007). Nowhere

in the Complaint does Ruiz Rivera allege termination

for lack of just cause. Likewise, Ruiz Rivera does not

raise Law 80 as one of her several causes of action.

Instead, the sole reference to Law 80 in the Com-

plaint is in the first paragraph, titled “Introduction,”

which lists Law 80 as one of many statutes under

which the action was brought. There are no facts

plead in support of this claim, and it is not raised in

her Third Cause of Action, which alleges violation of

various laws of Puerto Rico, specifically “Art. II

section 7 of the Constitution of Puerto Rico; Act 100 of

June 30, 1959, Act 3 of March 13, 1942, Act 69 of July

6, 1985 and Act 60 of May 30, 1976.”

Thus, it appears on the face of the Complaint

that the Law 80 claim fails to meet the most basic of

pleading requirements, as it consists of nothing more

than a solitary statutory reference, with nothing to

support it. A plaintiff may not simply throw a statu-

tory reference into a complaint hoping to later flesh

out its claim with facts in support. “[A] simple re-

quest for relief without stating any grounds therefor

is inadequate.” Pujol v. Shearson/Am. Express, Inc.,

829 F.2d 1201, 1207 (1st Cir. 1987). Because the

reference to Law 80 was so fleeting and inadequate,

there was nothing for the District Court to review.

There was no error in its non-review of this non-issue.

App. 25

VI. Conclusion

For the reasons stated above, the District Court’s

January 8, 2007 Order is AFFIRMED.

App. 26

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT CF PUERTO RICO

DELIA RUIZ RIVERA, )

Plaintiff,

‘ ) CIVIL NO.

01-1757 (RLA)

PFIZER PHARMACEUTICAL LLC, ?

)

Defendant. )

ORDER IN THE MATTER OF

PLAINTIFF’S DISABILITY CLAIMS

Plaintiff instituted these proceedings alleging

discrimination based on her disability as well as her

sex. Only the claims asserted under the Americans

with Disabilities Act (“ADA”)' and Law No. 44 of July

2, 1985, as amended, (“Law 44”)’ remain pending’

which defendant has moved to dismiss by way of

summary judgment. The court having reviewed the

arguments presented by the parties as well as the

documents in the court’s record, FINDS as follows:

" 42 U.S.C. § 12101-12213.

* P.&. Laws Ann. tit. 1, §§ 501-511 (supp.2006).

* See, Partial Judgment Dismissing Sexual Harassment and

Pregnancy Discrimination Claims (docket No. 44).

App. 27

I. BACKGROUND

According to plaintiff, defendant refused to

provide her with the necessary accommodation at

work and subsequently terminated her from employ-

ment due to her disability. In the alternative, plaintiff

argues that she was terminated “because of her

perceived disability.” Defendant, on the other hand,

contends that plaintiff is not disabled within the

meaning of ADA nor was she perceived as disabled.

Il. THE FACTS

The following uncontested relevant facts appear

from the evidence submitted in this case:

1. Plaintiff commenced working with the defen-

dant on a temporary basis as a packaging opera-

tor in defendant’s Bottling Department at the

end of 1997.

2. In November 1998, plaintiff became a regular

employee continuing in the same position. On

June 1, 1999, plaintiff submitted a medical cer-

tificate from her gynecologist, Dr. Gonzalez

Camacho, indicating that plaintiff was 8 weeks

pregnant and recommending that she avoid

walking long distances.

3. No adjustments to her work demands were

provided in response thereto.

* Amended Complaint (docket No. 13) 4 45.

App. 28

4. On August 14, 1999, plaintiff tendered an-

other medical certificate from Dr. Gonzalez

Camacho informing that plaintiff was now 18

weeks pregnant and was suffering from edema in

her legs and feeling numbness in her extremities.

He recommended that she should only work day

shifts and in a seated position. On August 16,

1999, Dr. Gonzalez Camacho specified that this

recommendation should extend until January 3,

2000.

5. The request for a seated accommodation was

prompted by plaintiff’s herniated disc.

6. No accommodation was provided at this time.

Rather, Dr. Felix, Pfizer’s in-house physician, au-

thorized plaintiff a one-week leave of absence

from August 16, 1999, until August 22, 1999.

7. On August 23, 1999, plaintiff was evaluated

by Dr. Felix, who allowed her to return to her

regular work without restrictions “pending coor-

dination to work sitting down.”

8. One week later, on August 30, 1999, plaintiff

submitted a medical certificate signed by Dr.

Oscar Ramos, a physiatrist. Dr. Ramos indicated

that he had evaluated plaintiff on that day due to

a left lumbo-sacral radiculopathy probably due to

a herniated disc and that she would start medical

treatment. The physician advised that plaintiff

should be excused from work from August 30,

1999, to November 1, 1999.

App. 29

9. Accordingly, plaintiff was authorized medical

leave under the temporary non-occupational dis-

ability leave (SINOD) for these conditions from

September 1, 1999, to November 1, 1999.

10. On November 2, 1999, plaintiff was again

authorized a SINOD leave through January 1,

2000, for her back condition.

11. Plaintiff gave birth to her second child on

December 31, 1999, and was authorized an eight-

week maternity leave through February 24, 2000.

12. On February 25, 2000, the day plaintiff was

due to return to work, she submitted a medical

certificate signed by Dr. Ramos indicating that

plaintiff was being treated for left Carpal Tunnel

Syndrome and Lumbo Sacral Disc Herniation.

The physician indicated that although plaintiff

was fit to return to work there were some restric-

tions that should be implemented at her work.

These restrictions were:

— Avoid repetitive motions of hands.

— Avoid hand-over-shoulders position.

— Limit lifting-pushing-holding-bending.

— Do not lift over 25 lbs.

13. On February 25, 2000, plaintiff also submit-

ted a certificate from Dr. Norberto Pellot Moran

who diagnosed her with a major depression

caused by the herniated disc. Accordingly, on that

day plaintiff was granted SINOD benefits

through March 25, 2000.

App. 30

14. Plaintiff returned to work on March 27,

2000, whereupon she was evaluated by Dr. Felix

to ensure she was fit to return to work. At that

time plaintiff insisted on defendant implement-

ing the restrictions specified by her physiatrist.

However, Dr. Felix indicated that there was no

opportunity for her to remain working at the

plant with these limitations. Dr. Felix telephoned

Dr. Ramos to evaluate plaintiff and subsequently

discuss her therapeutic options.

15. Dr. Felix prepared a consultation form for

Dr. Ramos for evaluation and recommendations

regarding plaintiff’s treatment options and reha-

bilitation to perform her tasks at work.

16. Plaintiff was sent home until further notice

and until receiving her physiatrist’s opinion.

17. On March 30, 2000, plaintiff reported back

to work. She was seen by Dr. Felix for her fit for

duty evaluation at which time she provided him

the consultation report from Dr. Ramos which, in

pertinent part, reads:

Diagnosis

Left Carpal Tunnel Syndrome

Both Wrists Tendinitis

L5S1 Discs Herniation

These are progressive diseases and may

deteriorate her condition. She uses writs splin-

ters at night and gets anti-inflammatory and

muscle relaxants, and needs to protect the af-

fected areas from damage.

ae ae

App. 31

Actually she is not a surgical candidate

for CTS or HNP.

She should have some restrictions at her

work area, so she can do her job with mini-

mal deterioration of her condition. These re-

strictions should last at least six months, but

may be longer.

— Avoid repetitive motions of hands

— Avoid hands-over-the shoulders position

—- Do not lift over 25 lbs.

— Limit lifting-carrying-pushing-pulling-

holding-bending.

18. Dr. Felix concluded that, “[i]n view of this

[sic] recommendations and after conversation

with [plaintiff’s] work area supervisor where she

can not perform the essential tasks of her job and

needs her hands I do not recommend a RTW [re-

turn to work] to prevent further aggravation or

lesion. Case discussed [with] HR [Human Re-

sources] for plan of action.”

19. Frances Guzman, Pfizer’s Assistant Person-

nel Manager, advised plaintiff that with the con-

ditions imposed by her physicians she had no

chance of working either at Pfizer or at any other

pharmaceutical company in the industry.

20. Plaintiff did not return to work.

21. On December 22, 2000 Pfizer sent plaintiff a

letter requesting her to report to work on Decem-

ber 28, 2000. Plaintiff did not appear nor did she

excuse her absence.

App. 32

22. On January 16, 2001 plaintiff was given an

ultimatum. Either she reported to work by Janu-

ary 22, 2001 or she would be terminated.

Ill. SUMMARY JUDGMENT STANDARD

Rule 56(c) Fed. R. Civ. P, which sets forth the

standard for ruling on summary judgment motions,

in pertinent part provides that they shall be granted

“if the pleadings, depositions, answers to interrogato-

ries, and admissions on file, together with the affida-

vits, if any, show that there is no genuine issue as to

any material fact and that the moving party is enti-

tled to a judgment as a matter of law.” Sands v.

Ridefilm Corp., 212 F.3d 657, 660-61 (1st Cir.2000);

Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (Ast

Cir.1999). The party seeking summary judgment

must first demonstrate the absence of a genuine issue

of material fact in the record. DeNovellis v. Shalala,

124 F.3d 298, 306 (1st Cir.1997). A genuine issue

exists if there is sufficient evidence supporting the

claimed factual disputes to require a trial. Morris v.

Govt Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st

Cir. 994); LeBlanc v. Great Am. Ins. Co., 6 F.3d 836,

841 (Ist Cir.1993), cert. denied, 511 U.S. 1018, 114

S.Ct. 1398, 128 L.Ed.2d 72 (1994). A fact is material if

it might affect the outcome of a lawsuit under the

governing law. Morrissey v. Boston Five Cents Sav.

Bank, 54 F.3d 27, 31 (1st Cir. 1995).

“In ruling on a motion for summary judgment,

the court must view ‘the facts in the light most favor-

able to the non-moving party, drawing all reasonable

App. 33

inferences in that party’s favor.’” Poulis-Minott v.

Smith, 388 F.3d 354, 361 (1st Cir. 2004) (citing Barbour

v. Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir.

1995)).

Credibility issues fall outside the scope of sum-

mary judgment. “‘Credibility determinations, the

weighing of the evidence, and the drawing of legiti-

mate inferences from the facts are jury functions, not

those of a judge.’” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 183, 150, 120 S.Ct. 2097, 147

L.Ed.2d 105 (2000) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d

202 (1986)). See also, Dominguez-Cruz v. Suttle

Caribe, Inc., 202 F.3d 424, 432 (1st Cir. 2000) (“court

should not engage in credibility assessments.”);

Simas v. First Citizens’ Fed. Credit Union, 170 F.3d

37, 49 (1st Cir. 1999) (“credibility determinations are

for the factfinder at trial, not for the court at sum-

mary judgment.”); Perez-Trujillo v. Volvo Car Corp.,

137 F.3d 50, 54 (1st Cir. 1998) (credibility issues not

proper on summary judgment); Molina Quintero v.

Caribe G.E. Power Breakers, Inc., 234 F.Supp.2d 108,

113 (D.P.R. 2002). “There is no room for credibility

determinations, no room for the measured weighing

of conflicting evidence such as the trial process en-

tails, and no room for the judge to superimpose his

own ideas of probability and likelihood. In fact, only if

the record, viewed in this manner and without regard

to credibility determinations, reveals no genuine

issue as to any material fact may the court enter

summary judgment.” Cruz-Baez v. Negron-Irizarry,

App. 34

360 F.Supp.2d 326, 332 (D.P.R. 2005) (internal cita-

tions, brackets and quotation marks omitted).

In cases where the non-movant party bears the

ultimate burden of proof, he must present definite

and competent evidence to rebut a motion for sum-

mary judgment, Anderson v. Liberty Lobby, Inc., 477

U.S. at 256-257, 106 S.Ct. 2505, 91 L.Ed.2d 202;

Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir.

2001); Grant’s Dairy v. Comm’r of Maine Dep't of

Agric., 232 F.3d 8, 14 (1st Cir. 2000), and cannot rely

upon “conclusory allegations, improbable inferences,

and unsupported speculation”. Lopez-Carrasquillo v.

Rubianes, 230 F.3d 409, 412 (1st Cir. 2000);

Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576,

581 (lst Cir. 1994); Medina-Murioz v. R.J. Reynolds

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

IV. ADA

The ADA prescribes that no employer “shall

discriminate against a qualified individual with a

disability because of the disability of such individual

in regard to... discharge of employees ... and other

terms, conditions, and privileges of employment.” 42

U.S.C. § 12112(a). The term “discriminate” includes

the employer’s failure to make “reasonable accommo-

dations to the known physical or mental limitations

of an otherwise qualified individual with a disability”.

42 U.S.C. § 12112(b)(5)(A).

Although the evidentiary paradigm for establish-

ing a prima facie discrimination claim in termination

App. 35

actions is different from that applicable to a failure to

accommodate claim, both causes of action require

that the plaintiff be disabled within the meaning of

the ADA.

In cases where a plaintiff alleges that an adverse

employment action was taken due to a disability the

“burden-shifting framework outlined by the Supreme

Court in McDonnell-Douglas” is used. Tobin v. Liberty

Mut. Ins. Co., 433 F.3d 100, 104 (1st Cir. 2005).

Accordingly, in order to qualify for the ADA’s

protection in this case, plaintiff has the initial burden

of establishing that: (1) she suffers from a “disability”

within the meaning of the ADA; (2) she was able to

perform the essential functions of her position with or

without reasonable accommodation; and (3) the

employer’s adverse employment actions were based in

whole or in part on her disability. Orta-Castro v.

Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d —

105, 111 (1st Cir. 2006); Tobin, 433 F.3d at 104; Bailey

v. Georgia-Pacific Corp., 306 F.3d 1162, 1166 (1st Cir.

2002); Carroll v. Xerox Corp., 294 F.3d 231, 238 (1st

Cir. 2002); Gillen v. Fallon Ambulance Serv., Inc., 283

F.3d 11, 18 (1st Cir. 2002); Quint v. A.E. Staley Mfg.

Co., 172 F.3d 1, 9n. 3 (ist Cir. 1999); Tardie v. Rehab.

Hosp. of Rhode Island, 168 F.3d 538, 541 (1st Cir.

1999).

A failure-to-accommodate claim, on the other

hand, has a different set of requirements, all of which

must be met if plaintiff is to survive a motion for sum-

mary judgment. The First Circuit Court of Appeals has

App. 36

listed these as: (a) plaintiff must furnish sufficient

admissible evidence that she is a qualified individual

with a disability within the meaning of the ADA; (b)

that she worked for an employer covered by the ADA;

employee’s physical limitations, did not accommodate

those limitations; (d) that the employer’s failure to

accommodate the known physical limitations affected

the terms, conditions, or privileges of the plaintiff’s

employment. Orta-Castro, 447 F.3d at 112; Tobin, 433

F.3d at 107; Higgins v. New Balance Athletic Shoe,

194 F.3d 252, 264 (1st Cir. 1999).

The term “disability” as defined in the statute is

“a physical or mental impairment that substantially

limits one or more of the major life activities of such

individual.” 42 U.S.C. § 12102(2)(A). Hence, plain-

tiff’s initial step in establishing a disability claim

under the ADA is to present evidence of a physical or

mental impairment. Toyota Motor Mfg., Kentucky,

Inc. v. Williams, 534 U.S. 184, 194, 122 S.Ct. 681,

691, 151 L.Ed.2d 615 (2002).

In making our determination under the ADA, the

particular circumstances attendant to plaintiff’s

condition must be examined. “(T]he existence of a

disability [must] be determined in ... a case-by-case

manner.” Toyota, 534 U.S. at 198, 122 S.Ct. 681.

“Whether a person has a disability under the ADA is

an ‘individualized inquiry.’” Bailey, 306 F.3d at 1167

(citing Sutton v. United Air Lines, Inc., 527 U.S. 471,

483, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999)); Carroll,

294 F.3d at 238.[)]

App. 37

However, having an impairment in and of itself is

not sufficient to be entitled to ADA’s protection. It is

imperative that the impairment also have a substan-

tial effect on a major life activity. Toyota, 534 U.S. at

195; Sullivan v. Neiman Marcus Gp., Inc., 358 F.3d

110, 115 (1st Cir. 2004); Whitlock v. Mac-Gray, Inc.,

345 F.3d 44, 46 (1st Cir. 2003); Bailey, 306 F.3d at

1167; Carroll, 294 F.3d at 238.

Hence, evidence of an impairment supported only

by a medical diagnosis is inadequate to prove a

disability within the provisions of the ADA. “It is

insufficient for individuals attempting to prove dis-

ability status under this test to merely submit evi-

dence of a medical diagnosis of an impairment.”

Toyota, 534 U.S. at 198; Whitlock, 345 F.3d at 46;

Calef v. Gillette Co., 322 F.3d 75, 83 (1st Cir. 2003);

Bailey, 306 F.3d at 1167.

In this regard, a physician’s “conclusory assertion

of total disability — an assertion lacking elaboration

and support in the record — [is not] sufficient to make

the individualized showing of [plaintiff’s] particular

limitations”. Whitlock, 345 F.3d at 46. See also, Gon-

zalez v. El Dia, Inc., 304 F.3d 63, 74 (1st Cir. 2002)

(“testimony presented by the treating physician [was]

highly conclusory.”)

“Instead, the ADA requires [that claimants

submit] ... evidence that the extent of the limitation

caused by their impairment in terms of their own

experience is substantial.” Toyota, 534 U.S. at 198

(citation and internal marks omitted.) That is, “[a]n

App. 38

ADA plaintiff must offer evidence demonstrating that

the limitation caused by the impairment is substan-

tial in terms of his or her own experience.” Bailey, 306

F.3d at 1167.

The ADA does not define the term “substantially

limits.” The Supreme Court has stated that “‘sub-

stantially’ in the phrase ‘substantially limits’ suggests

‘considerable’ or ‘to a large degree’.” Toyota, 534 U.S.

at 196. “A substantial limitation cannot include any

impairment which interferes in only a minor way

with the performance of manual tasks, and the

phrase ‘major life activities’ refers to only those

activities which are of central importance to daily

life.” Benoit, 331 F.3d at 176 (citations and internal

quotation marks omitted).

On the other hand, “‘{mJajor’ in the phrase ‘major

life activities’ means important ...’ Major life activi-

ties’ thus refers to those activities that are of central

importance to daily life.” Toyota, 5384 U.S. at 198;

Bailey, 306 F.3d at 1167. See also, Benoit, 331 F.3d at

176 Gf no major life activity is affected the impair-

ment is not considered a “disability” under ADA);

Guzman-Rosario v. United Parcel Service, Inc., 397

F.3d 6, 10 (1st Cir. 2005) (whether plaintiff’s “condi-

tion impinged sufficiently on a ‘major life activity’ to

be treated as disabling.”[).]

Temporary conditions are not covered by ADA.

“The impairment’s impact must also be permanent or

long term.” Toyota, 534 U.S. at 198; Guzman-Rosario,

397 F.3d at 10; Sullivan, 358 F.3d at 116; Benoit v.

App. 39

Technical Mfg. Corp., 331 F.3d 166, 176 (1st Cir.

2003); Carroll, 294 F.3d at 238.

A. DISABLED

We find no evidence in the record showing that

plaintiff specifically identified the major life activities

that were being purportedly limited by her condi-

tions, either at the time she requested accommoda-

tion or when she was allegedly terminated from

employment. Faced with this scenario, defendant’s

arguments address alternate theories of liability

under the ADA, premised on either plaintiff’s disabil-

ity based on substantial limitations in performing

manual tasks, or substantial limitation in the major

life activity of working. The motion is centered on the

evidence available to the employer at the relevant

period of time which, as previously noted, only made

reference to plaintiff’s carpal tunnel syndrome,

tendinitis, lumbo sacral disc herniation and restric-

tions regarding: repetitive hand motions; hand-over-

shoulders position; lifting-pushing-holding-bending,

and lifting over 25 pounds.”

(1) Manual Tasks

We agree with the defendant that the record does

not support a finding of a substantial impairment to

* There is no evidence as to how a weight-lifting restriction

of 25 pounds constitutes a significant impairment in plaintiff’s

particular case.

App. 40

plaintiff’s ability to carry out manual tasks. See, i.e.,

Toyota, 534 U.S. at 196 (plaintiff must “establish a

substantial limitation in the specific major life activ-

ity of performing manual tasks.”) “In order for per-

forming manual asks to fit into this category — a

category that includes such basic abilities as walking,

seeing, and hearing — the manual tasks in question

must be central to daily life. If each of the tasks

included in the major life activity of performing

manual tasks does not independently qualify as

major life activity, then together they must do so.” Jd.

at 197.

“[T]o be substantially limited in performing

manual! tasks, an individual must have an impair-

ment that prevents or severely restricts the individ-

ual from doing activities that are of central

importance to most people’s daily lives.” Id. at 198.

In making its analysis, the court must consider

claimant’s ability to tend to his own personal hygiene

and to carry out personal and household chores. See,

Id. at 201-202 (“household chores, bathing, and

brushing one’s teeth are among the types of manual

tasks of central importance to people’s daily lives, and

should have been part of the assessment of whether

[claimant] was substantially limited in performing

manual tasks.”)

The limitations imposed must be substantial. For

instance, the Supreme Court has ruled that “changes

in (claimant’s] life [i.e., avoid sweeping, quit dancing,

occasionally seek help dressing and reducing how

App. 41

often played with children, tended her garden and

drove long distances] did not amount to such severe

restrictions in the activities that are of central impor-

tance to most people’s daily lives that they establish

a manual task disability as a matter of law.” Toyota,

534 U.S. at 202.

Further, the inquiry must focus on the daily

restrictions actually being imposed by the impair-

ment, not the possible interference with work-related

duties. “When addressing the major life activity of

performing manual tasks, the central inquiry must be

whether the claimant is unable to perform the variety

of tasks central to most people’s daily lives, not

whether the claimant is unable to perform the tasks

associated with her specific job.” Jd. at 200. Thus, it is

inappropriate for the court to “consider [J [claim-

ant’s] inability to do such manual work in her special-

ized assembly line job as sufficient proof that she was

substantially limited in performing manual tasks.”

Id. in other words, there is “no support ... for...

idea that the question of whether an impairment

constitutes a disability is to be answered only by

analyzing the effect of the impairment in the work-

place.” /d. at 201.

In her deposition, plaintiff indicated that she was

able to spend time and take care of her children;

attend church services; read; prepare food at home;

change her baby’s diapers; drive; sweep and clean her

house; wash dishes; move merchandise in her current

job; make and receive phone calls, and type.

App. 42

As defendant points out, plaintiff did have physi-

cal limitations which were documented by her physi-

cians, i.e., carpal tunnel syndrome, herniated disc

and tendinitis. She failed, however, in demonstrating

how these particular conditions substantially limited

a major life activity, specifically, her ability to perform

manual tasks. The limitations imposed by her condi-

tion are circumscribed to a confined type of activities

which by no means prevent her from carrying out

substantial life activities as mandated by the statute.

(2) Working

As we continue our analysis, we must note the

Supreme Court’s skepticism to rule that “working” is

a major life activity. Sutton, 527 U.S. at 492. See,

Guzman-Rosario, 397 F.3d at 11. (“Awaiting a definite

ruling from the Supreme Court otherwise, we have

assumed that ‘working’ is a major life activity and

applied the EEOC’s framework in [disposing] plain-

tiffs’ ADA claims.”{);] Sullivan, 358 F.3d at 115 (“We

will, as we have done in the past, assume without

deciding that work may constitute a major life activ-

ity.”); Whitlock, 345 F.3d at 46 u.1 (“We assume,

without deciding, that working may constitute a

major life activity for purposes of the ADA.”) Bailey,

306 F.3d at 1168 n.5 (“We note that there is some

doubt als] to whether the Supreme Court will ulti-

mately accept ‘working’ as a major life activity under

the ADA.”)[.] See also, Carroll, 294 F.3d at 239 n.7

(although Supreme Court not yet addressed the issue

court has assumed so).

App. 43

The EEOC regulations,’ however, define the

major life activity of “working” and provide that the

term “‘substantially limits’ means _ significantly

restricted in the ability to perform either a class of

jobs or a broad range of jobs in various classes

as compared to the average person having comparable

training, skills and abilities.” 29 C.F.R. § 1630.2G)3)(1)

(emphasis ours).

The EEOC Interpretative Guidance to the regu-

lations provide how an individual’s substantial limi-

tation for work under the ADA should be construed:

An individual is substantially limited in

working if the individual is significantly re-

stricted in the ability to perform a class or

jobs or a broad range of jobs in various

classes, when compared with the ability of

the average person with comparable qualifi-

cations to perform those same jobs. For ex-

ample, an individual who has a_ back

condition that prevents the individual from

performing any heavy labor job would be

substantially limited in the major life activ-

ity of working because the individual’s im-

pairment eliminates his or her ability to

perform a class of jobs. This would be even so

° Although the EEOC regulations are commonly consulted

by the courts in ADA cases, “no agency has been granted author-

ity to issue binding regulations interpreting the term ‘disabil-

ity.’” Guzman-Rosario, 397 F.3d at 9 (citing Toyota, 534 U.S. at

194). See also, Calef, 322 F.3d at 85 (“Like the Supreme Court in

Toyota, we do not pass on the validity of these regulations.”)[.]

App. 44

if the individual were able to perform jobs in

any other class, e.g., the class of semi-skilled

jobs. Similarly, suppose an individual has an

allergy to a substance found in most high

rise office buildings, but seldom found else-

where, that makes breathing extremely diffi-

cult. Since this individual would be

substantially limited in the ability to per-

form the broad range of jobs in various

’ classes that are conducted in high rise office

buildings within the geographical area to

which he or she has reasonable access, he or

she would be substantially limited in work-

ing.

Hence, being unable to carry out a particular

type of job does not qualify as a substantial limitation

to the major life activity of working. Sullivan, 358

F.3d at 116. Plaintiffs must “show that they are

precluded from more than the performance of a

particular job.” Guzman-Rosario, 397 F.3d at 11.

“(T]he inability to perform a single, particular job

does not constitute the required substantial limita-

tion.” See, Toyota, 534 U.S. at 201 (“claimant ...

required to show an inability to work in a broad

range of jobs, rather than a specific job.”) (citation

and internal quotation marks omitted); Whitlock, 345

F.3d at 46. See also, Benoit, 331 F.3d at 176 (plaintiff

only instructed to avoid “heavy lifting” and failed to

show “that this precluded him from working in a

substantial class or broad range of jobs.”)

Based on the foregoing, even assuming that

plaintiff had alleged that she was substantially

App. 45

limited in the major life activity of working, her claim

would still not survive. There is no evidence that

plaintiff was not able to work in a substantial class of

jobs or a broad range of jobs. Subsequent to her

tenure at Pfizer, plaintiff was employed as an assis-

tant at a physician’s office manning the telephone

and doing general secretarial/clerical work. She was

also employed at a sandwich shop carrying out vari-

ous duties such as cooking, cleaning and tending the

cash register.

(3) Sitting and Standing

Rather than addressing defendant’s arguments

regarding her failure to establish substantial limita-

tions to her major life activities of performing manual

tasks and working, in her opposition to the summary

judgment petition plaintiff argues instead that she “is

substantially limited in her ability to sit and stand,

both of which are major life activities.”” The only

evidence submitted by plaintiff in support of this

position is a May 21, 2002 medical report prepared

by Dr. Oscar Arroyo Nieves, specialized in physical

and rehabilitation medicine, who diagnosed plain-

tiff’s condition as:

1. Chronic Low Back Pain

2. Lumbar Disc Disease L5 S1 (Herniation)

3. Lumbar Radiculopathy

’ Plaintiff’s Opposition (docket No. 38) 7] 10 and 28.

App. 46

4. Fibriomiositis

5. Left CTS (Carpal Tunnel Syndrome)

In his assessment, Dr. Arroyo Nieves concluded

that plaintiff had back pain as a result of a L5-S1 disc

lesion. The physician further noted that plaintiff was

receiving rehabilitation treatment. Dr. Arroyo Nieves

recommended that plaintiff should not remain

seated or standing for long periods of time and

should alternate between these positions. Further,

when lifting objects from the floor, plaintiff should

bend her knees. Lastly, the physician indicated that

plaintiff could continue carrying out her job duties.

As pointed out by defendant, the expert report

submitted with plaintiff’s opposition to the summary

judgment request fails on various grounds.

No mention is made in the report of plaintiff’s

prior hand conditions specifically, carpal tunnel and

tendinitis or her limitations as a result thereof as

certified by Dr. Oscar Ramos, her physiatrist, in early

2000.

Further, the physician’s recommendations do not

meet the definition of substantial limitation set forth

in the regulations which require that plaintiff either

be “[uJnable to perform a major life activity that the

average person in the general population can per-

form; or ... [slignificantly restricted as to the condi-

tion, manner or duration under which an individual

can perform a major life activity as compared to the

condition, manner or duration under which the

average person in the general population can perform

App. 47

that same major life activity.” 29 C.F.R. § 1630.2(j)(1)

(2006).

There is no reference in the report as to how long

plaintiff could sit or stand nor how her limitations

compare to the sitting and standing tolerance of the

average population.

It is also important to note that plaintiff’s coun-

sel’s argument in support of a disability based on her

alleged substantial limitations in her ability to sit

and stand are premised on the notion that plaintiff

has “little tolerance to remain sitting or standing

even for shorts (sic) periods of time”.* However,

this is not what the report says. Dr. Arroyo Nieves

noted that plaintiff “should not remain seated or

standing for long periods of time” which is a

different assessment altogether.

Lastly, even assuming the report’s conclusions

are adequate, the report is dated May 21, 2002 and

there is no indication that these alleged limitations

were present and to the same degree “at the time that

[plaintiff] sought an accommodation from [defen-

dant].” Toyota, 534 U.S. at 196.

(4) Conclusion

Based on the foregoing we conclude that plaintiff

has failed to adduce sufficient evidence to establish

* Plaintiff’s Opposition (docket No. 38) 4 30. See also,

Plaintiff’s Sur-reply (docket No. 40) 4 23 (emphasis ours).

App. 48

that she had an ADA covered disability which in turn

triggered the protection afforded by the statute.

B. REGARDED AS DISABLED

Plaintiff further contends that defendant violated

the ADA in that she was “perceived as” disabled by

her employer.

In its definition of the term “disability” the ADA

includes not only those individuals with impairments

that substantially limit their major life activities, but

also those persons who “are regarded as having such

an impairment.” 42 U.S.C § 12102(2).

According to the Supreme Court “(t]here are two

apparent ways in which individuals may fall within

this statutory definition: (1) a covered entity mistak-

enly believes that a person has a physical impairment

that substantially limits one or more major life activi-

ties, or (2) a covered entity mistakenly believes that

an actual, nonlimiting impairment substantially

limits one or more major life activities. In both cases,

it is necessary that a covered entity entertain misper-

ceptions about the individual — it must believe either

that one has a substantially limiting impairment that

one does not have or that one has a substantially

limiting impairment when in fact, the impairment is

not so limiting.” Sutton, 527 U.S. at 489. See also,

Bailey, 306 F.3d at 1169; Carroli, 294 F.3d at 238 n.4;

Rodriguez-Garcia v. Junta de Directores, 415

F.Supp.(2d] 42, 45 (D.P.R. 2006). See also, Katz v. City

App. 49

Metal Co., Inc., 87 F.3d 26 (1st Cir. 1996) (accommo-

dation due under perception of disability claim under

ADA).

The purpose behind this provision is to avoid

situations where an individual is “rejected from a job

because of the ‘myths, fears and stereotypes’ associ-

ated with disabilities”. 29 C.F.R. § 1630.2(/) EEOC

Interpretative Guidance citing Sch. Bd. of Nassau

County v. Arline, 480 U.S. 273, 287, 107 S.Ct. 1123,

94 L.Ed.2d 307 (1987). See also, Sutton, 527 U.S. at

489-90; Calef, 322 F.3d at 87 n.9.

“An employer runs afoul of the ADA when it

makes an employment decision based on a physical or

mental impairment, real or imagined, that is re-

garded as substantially limiting a major life activity.”

Sutton, 527 U.S. at 490.

“‘A plaintiff claiming that he is ‘regarded’ as

disabled cannot merely show that his employer

perceived him as somehow disabled; rather, he must

prove that the employer regarded him as disabled

within the meaning of the ADA.” Benoit, 331 F.3d at

176 (citing Bailey, 306 F.3d at 1169) (emphasis in

original); Sullivan, 358 F.3d at 117.

In this particular case, plaintiff contends that her

employer mistakenly believed that her physical

conditions substantially limited her ability to work.

App. 50

That is, her employer perceived her as substantially

limited in the major life activity of working.”

Hence, we must ascertain whether plaintiff’s

termination was prompted by Pfizer’s inaccurate

perception that she was disabled within the meaning

of the ADA. “Since [claimant] contends that [her

employer] perceived [her] to be substantially limited

in the major life activity of working, [she] must show

that [she] was perceived as being unable to work in

either a class of jobs or a broad range of jobs in vari-

ous classes as compared with the average person

having comparable training, skills, and abilities.”

Bailey, 306 F.3d at 1169-70. Being unable to carry out

a particular type of job does not qualify as a substan-

tial limitation to the major life activity of working.

See also, Toyota, 534 U.S. at 186; Guzman-Rosario,

397 F.3d at 11[;] Sullivan, 358 F.3d at 116; Whitlock,

345 F.3d at 46; Benoit, 331 F.3d at 176.

We find that, based on the record, plaintiff has

proffered sufficient evidence to establish a prima facie

case that Pfizer regarded her as having an ADA-

covered impairment which prevented her from going

back to work and which led to her eventual termina-

tion. According to the evidence presented, Pfizer

mistakenly believed that plaintiff’s impairment

substantially limited her ability to work in the entire

pharmaceutical industry. Dr. Felix, the plant’s in-

house physician, noted that “with these limitations

* Plaintiff’s Sur-reply (docket No. 40) 16.

App. 51

[plaintiff] cannot stay in the plant.” Both in her

deposition” as well as in her sworn statement,”

plaintiff related that Frances Guzman, Pfizer’s Assis-

tant Personnel Manager, had informed plaintiff that

with the restrictions recommended by her physician

plaintiff had no chance of working either at Pfizer or

at any other pharmaceutical company.

Because we are at a summary judgment stage we

are not permitted to make credibility determinations.

Hence, our ruling must be based on the evidence

submitted by plaintiff regarding defendant’s percep-

tion of her condition. Accordingly, we must deny the

summary disposition of this particular claim at this

time.

Vv. LAW 44

In addition, plaintiff seeks relief under Law 44,

the local disability provisions. Defendant has sought

to dismiss these state-based claims and plaintiff has

failed to oppose the request. Inasmuch as Law 44

mirrors the ADA, because we have concluded that

plaintiff is not disabled within the meaning of the

ADA, except for the “regarded as” cause of action, her

other Law 44 disability claims must also fail. Garcia

Diaz v. Darex, 148 D.P.R. 364, 385 (1999); Roman

Plaintiff's Opposition (docket No. 38) Exh. VII.

" Plaintiff’s Opposition (docket No. 38) Exh. II Tr. pp. 166-

67.

* Plaintiff's Opposition (docket No. 38) Exh. III.

App. 52

Martinez v. Delta Maintenance Serv. Inc., 229

F.Supp.2d 79, 86 (D.P.R. 2002).

VI. CONCLUSION

Based on the foregoing, defendant’s Motion for

Summary Judgment (docket No. 37)” is GRANTED

in part.

We find that plaintiff was not disabled within the

meaning of the ADA. Accordingly, the ADA discrimi-

nation claims for failure to accommodate and termi-

nation due to her disability are hereby DISMISSED.

Accordingly, the Law 44 discrimination claims for

failure to accommodate and termination due to her

disability are hereby DISMISSED.

Judgment shall be entered accordingly.

The request to dismiss the ADA claim and Law

44 claim for termination due to plaintiff’s perceived

disability is DENIED.

Defendant’s Motion to Strike (docket No. 41) is

DENIED.“

IT IS SO ORDERED.

'? See, Plaintiff’s Opposition (docket No. 38); Pfizer’s Reply

(docket No. 39) and Plaintiff’s Sur-reply (docket No. 40).

'* See, Motion Objecting the Filing of Motion to Strike

(docket No. 42).

App. 53

San Juan, Puerto Rico, this 30th day of Novem-

ber, 2006.

S/ Raymond L. Acosta

RAYMOND L. ACOSTA

United States District Judge

App. 54

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

DELIA RUIZ RIVERA,

Plaintiff,

CIVIL NO.

01-1757 (RLA)

¥.

PFIZER PHARMACEUTICAL LLC,

Defendant.

Nee eee eee ee”

ORDER GRANTING DEFENDANT’S

MOTION FOR RECONSIDERATION AND

DISMISSING PLAINTIFF’S PERCEIVED

DISABILITY CLAIMS

Defendant’s Motion for Reconsideration (docket

No. 67) is GRANTED.

Accordingly, the claims for termination due to

plaintiff’s perceived disability under the Americans

with Disabilities Act and Puerto Rico Law No. 44 of

July 2, 1985, as amended, are hereby DISMISSED

based on the arguments presented by defendant in its

request for reconsideration.

Judgment shall be entered accordingly.

IT IS SO ORDERED.

App. 55

San Juan, Puerto Rico, this 8th day of January,

2007.

S/ Raymond L. Acosta

RAYMOND L. ACOSTA

United States District Judge

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