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 argument 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 department. 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.
In August 1999, Ruiz Rivera informed Pfizer of several medical problems, including edema, numbness, 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 limitations, recommended that she avoid repetitive hand motions, placing her hands over her shoulders, lifting, 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 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 opportunities available where she could work with such stringent 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:
Based on the information provided and the restrictions imposed by Dr. Ramos, Dr. Felix concluded that, "[i]n view of this [sic]
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.
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 thereafter, but did not accept Pfizer's request for a meeting. 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 Pregnancy Discrimination Act; the Puerto Rico Pregnant 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 summary judgment opposition
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 allegedly 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 eventual termination." Id. at 176-77.
Pfizer filed a Motion for Reconsideration on December 14, 2006, arguing that Ruiz Rivera's regarded as claim was legally insufficient if based solely on statements made in connection with her request 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 Reconsideration and dismissing the regarded as 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., 896 F.2d 605, 611 (1st Cir. 1990). A court appropriately may grant a motion for reconsideration "where the
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). Summary 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 nonmovant (here, Ruiz Rivera) and draw all reasonable inferences in her favor. See Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006); Dávila v. Corporación De Puerto Rico Para La Difusión Público, 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." Velázquez-Fernández v. NCE Foods, Inc., 476 F.3d 6, 10 (1st Cir.2007). Summary judgment cannot be defeated, however, "by relying on improbable inferences, conclusory allegations, or rank speculation." Id.
III. The Regarded As Claim
The ADA provides "a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." Katz v. 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 discharged or adversely affected, in whole or in part, because of her disability. Id.; see also Orta-Castro v. Merck, Sharp & Dohme Química P.R., Inc., 447 F.3d 105, 111 (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 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(l)), 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
Regarded as claims primarily fall into one of two categories: "(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that 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, 119 S.Ct. 2139, 144 L.Ed.2d 450 (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 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 comparable training, skills, and abilities.'" Sullivan, 358 F.3d at 117 (quoting Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 523, 119 S.Ct. 2133, 144 L.Ed.2d 484 (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 substantially limited a major life activity, and Pfizer was not obligated to accommodate her. On appeal, however, Ruiz Rivera appears to continue to press her argument 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 raised.
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 plaintiffs 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 Complaint 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 claim, with no facts alleged to explain any false perception on Pfizer's part, and no facts alluding to any nonlimiting impairment which Pfizer mistakenly believed to be substantially limiting, this allusion falls far short of the mark. As recently clarified by the Supreme Court, "a plaintiffs obligation to provide the `grounds' of his entitle[ment] to relief requires more than labels and conclusions," Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965-66, 167 L.Ed.2d 929 (2007) (citations omitted), and "[t]o survive Rule 12(b)(6) dismissal, [a plaintiffs] 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 fundamental 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 Mortgage Corp., 57 F.3d 1168, 1171 (1st Cir.1995). We do not think that the mere inclusion in the Complaint of the word "perceived" 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, 119 S.Ct. 2139. 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, 119 S.Ct. 2139 (dismissing ADA regarded as claim in part for inadequacy of its pleading, wherein the petitioners failed to state "a claim that respondent regard[ed] their impairment as
It is apparent from our review that at the time Ruiz Rivera filed her Complaint, regarded as disability discrimination was barely an afterthought — a throwaway line in one paragraph of a lengthy complaint. 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
These undisputed facts, of course, were the basis for Ruiz Rivera's now-dismissed claims for termination 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 accommodate. 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.
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 imposed by her doctors, she could not perform any work at the Pfizer plant or anywhere else in the pharmaceutical industry. As correctly argued by Pfizer in its Motion for Reconsideration, Ruiz Rivera 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. See Lusk v. Ryder Integrated Logistics, 238 F.3d 1237, 1241 (10th Cir.2001) ("Where the recognition of Plaintiffs 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 disability."); see also Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir.1995) (employer who terminated 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 recognition 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 discrimination. 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 allegation that Pfizer mistakenly regarded Ruiz Rivera to be substantially limited in the life activity of working makes little sense in the face of the undisputed record that Pfizer told Ruiz Rivera that it did not
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
Ruiz Rivera asserts on appeal that the District Court erred when it failed to address and state whether it was going to exercise supplemental jurisdiction 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.
"Puerto Rico Law 80 prohibits dismissal of employees 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 Complaint 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
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 statutory reference into a complaint hoping to later flesh out its claim with facts in support. "[A] simple request 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 nonreview of this non-issue.
For the reasons stated above, the District Court's January 8, 2007 Order is