Modelo SS Judgment (ADA and Title VII)

Case 3:05-cv-01244-ADC-BJM Document 10-18
Filed 03/03/06 Page 1 of 33
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO NANCY OLIVIERI, CARLOS J. MIRANDA, THEIR CONYUGAL PARTNERSHIP, MINORS CARLOS, CALEB, ISAI, LEMUEL, KEMUEL MIRANDA OLIVIERI Plaintiffs
v.
Civil No. 05-1244 (CCC)
ABBOTT LABORATORIES AND ITS SUBSIDIARY ABBOTT JAYUYA OPERATIONS; JOHN DOE AND RICHARD ROE; ABC INSURANCE AND XYZ INSURANCE Defendants
BRIEF IN SUPPPORT OF MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE COURT: COMES NOW Defendant Abbott Laboratories(hereinafter Abbott, the Company and/or Defendant) through counsel, and respectfully states and prays as follows: I. INTRODUCTION Plaintiff Nancy Olivieri (hereinafter plaintiff and/or
Olivieri) claims that she was discriminated and harassed because of her disability and religious beliefs and was unjustly terminated from her employment with Abbott. Plaintiffs invoke this Court=s jurisdiction under allegations that the case arises pursuant to the Americans with Disabilities Act (ADA) of 1990, as amended, 42 USC 12101 et seq.; Title VII of the Civil Rights Act, 42 U.S.C. ' 2000e et seq.; Puerto Rico Law 44 of July 2, 1985, as amended, P.R. Laws Annot. T.2 501 et seq.;
BRIEF IN SUPPPORT OF MOTION FOR SUMMARY JUDGMENT Civil No. 05-1244 (CCC) Page 2
Puerto Rico Law 100, P.R. Laws Annot. t.29 146 et seq.; Puerto Rico Law 80 of May 30, 1976, as amended, 29 L.P.R.A. 185a et seq.; and under Articles 1802 and 1803 of the Puerto Rico Civil Code P.R. Laws Annot. t. 31 5141, 5142. There exists no other basis for the
exercise of federal jurisdiction over plaintiffs claim. Abbott moves for brevis disposition of the complaint on the following grounds: Olivieri fails to establish a prima facie case of disability discrimination or harassment. Statement of Uncontested Material Facts
(hereinafter Statement), 9-13. Olivieri admitted that she was accorded an accommodation. Statement, 23.
The conduct alleged by Olivieri does not rise to severe and pervasive conduct to constitute harassment on the basis of religions belief. Statement, 52-59.
Abbott
has
proffered
legitimate
and
nondiscriminatory reason for its action that cannot be proven to be a mere pretext for illegal discrimination. Statement, 71-76. As discussed in detail below, Olivieri failed to establish a cause of action under the invoked statutes. Consequently, Oliviers causes of actions must be dismissed with prejudiced.
II.
DISCUSSION A. The Americans with Disability Act (ADA) of 1990 Claim
The Americans with Disabilities Act of 1990 (ADA) prohibits discrimination against a qualified individual with a disability by reason of the individuals disability in all employment practices such as job application procedures, hiring, advancement, firing, compensation, job training, and other terms, conditions, and
privileges of employment.
42 U.S.C. 12112(a).
Sutton v. United The ADA
Air Lines, Inc., 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999).
also requires that an employer make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual. 42 U.S.C. 1212(b)(3)-(4).
ADA defines a qualified individual with a disability as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires 42 U.S.C. . 12111(8); White v. York Intl Corp., 45 F. 3d 357, 360 (10th Cir. 1995). The ADA lists three alternative definitions for "disability", of which a plaintiff must, at least, satisfy one to be accorded any protection under the statute: (a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment. 42 U.S.C. 12102(2).
(Emphasis added). L.Ed.2d 450 (1999).
Sutton v. United Air Lines, 527 U.S. 471, 144
In order to meet the first prong of the ADAs disability definition, Olivieri must prove three elements: (a) (b) (c) that she has a physical or mental impairment; that this impairment adversely affects a major life activity; and, that it does so to a significant extent or that the impairment substantially limits her ability to engage in the particular major life activity. Santiago v. Executive Airlines, 7 F. Supp.2d 114 (D.P.R. 1998).
Not all physical impairments rise to the level of a disability under the ADA. Santiago Clemente v. Executive Airlines, Inc., 213
F.3d 25, 30 (1st Cir. 2000); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir. 1995). It is necessary that the individual can perform the essential functions of the employment position that she holds or desires, with or without reasonable accommodation, and that she has the required skills, experience, education, and other job-related requirements for such employment. 42 U.S.C. 12111(8). In determining whether an impairment constitutes a disability, the question should not be answered only by analyzing the effect of the impairment in the workplace. Rather, what is central to this
inquiry is the effect of the impairment on the plaintiffs daily life. Toyota Motors Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184; 122 S.Ct. 681, 693 (2002).
The
Equal
Employment
Opportunity
Commissions
("EEOC")
regulations include among "major life activity" functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. 1630.2(i). With regards to the term substantially limits, the
EEOC regulations define this term as the (1) inability to perform a major life activity, or (2) a severe restriction on the ability to perform a major life activity as compared to the general population. 29 C.F.R. ' 1630.2(j)(1). The plaintiff has the burden to establish a cause of action under the ADA. E.E.O.C. v. Amego, Inc., 110 F.3d 135, 142 (1st Cir. 1997); Jacques v. Clean-Up Group, Inc., 96 F.3d at 511. To establish a prima facie case of discrimination in absence of direct evidence Olivieri must prove: a. b. that she was "disabled" within the meaning of the Act; that she was able to perform, with or without reasonable accommodation, the essential functions of her job; and that she was discharged or adversely affected, in whole or in part, because of her disability.
c.
See, Dichner v. Liberty Travel, 141 F.3d 24, 29-30 (1st Cir. 1998); Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 882-883 (6th Cir. 1996); Vallejo Serrano v. Cigna Ins. Co., 970 F.Supp. 78 (D.P.R. 1996).
This burden is not onerous, pursuant to the familiar burden shifting scheme used in discrimination cases, once plaintiff establishes a prima facie case, a presumption arises that the employer unlawfully discriminated against plaintiff. Then defendant has the burden of production to articulate some legitimate, Once
non-discriminatory reason for the adverse employment action.
this is done, the presumption of discrimination established by the plaintiffs prima facie showing drops out of the picture. See Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (June 12, 2000); St. Marys Honor Ctr. v. Hicks, 509 U.S. 502, 506-507 (1993); Texas Dept. of Community Affairs, v. Burdine, 450 U.S. 248, 253 (1981); Udo v. Tomes, 54 F.3d 9 (1st Cir. 1995) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Hicks, supra)); Mohammadian v. Ciba Vision of Puerto Rico, Inc., 378 F.Supp.2d 25, 32 (D.P.R. 2005); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999). In the present case, Olivieri fails to establish a single element of the prima facie case for disability discrimination. a. As Olivieri is not "disabled" within the meaning of the Act; evident from Defendants Uncontested Material Facts,
Olivieri is not disabled within the meaning of the Act. 9-13. i.
Statement
Olivieri is not "an individual with a disability"
First, Olivieri testified that she has a condition known as
recurrent
laringotraqueobronquitis.
The
condition
is
characterized by irritation of the respiratory system and difficulty breathing. Olivieri admitted that the condition and its symptoms Statement, 9, 10.
are not permanent.
Merely having an impairment does not make Olivieri disabled for purposes of the ADA. Olivieri needs to demonstrate that the
impairment limits a major life activity. 42 U.S.C. 12102(2); see, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 195 (2002); EEOC v. J.H. Routh Packing, Co., 246 F.3d 850 (6th Cir. 2001); Poindexter v. Atchinson, Topeka and Santa Fe Railway, Co. 168 F.3d 1228 (10th Cir. 1999). A major life activity is
substantially limited if an individual is unable to perform a basic function that the average person in the general population can perform or is significantly restricted in the condition, manner, or duration under which [he or she] can perform a particular major life activity as compared to an average person in the general population. Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1206 (8th Cir. 1997)(Emphasis added), see, 29 C.F.R. 1630.2(j)(1). The United States Supreme Court held that major life activities refers to those activities that are of central importance to daily life. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, supra at 197(Emphasis added). The applicable regulations and case law have established that major life activities include caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, working, sitting, standing, lifting, reaching, sleeping, mental and emotional processes such as thinking, concentrating, and
interacting, eating, and the ability to control basic bodily functions. See 29 C.F.R. 1630.2(i), See also, Toyota Motor
Manufacturing, Kentucky, Inc., supra at 197; Bragdon v. Sydney Abbot, 524 U.S. 624 (1998); EEOC Compliance Manual 902.3(b) at p. 15; EEOC Enforcement Guidance on the ADA and Psychiatric Disabilities, No. 915.002 (3/25/97), at p. 4. Olivieri admitted that despite her condition, her daily home life continued as normal, she performs the typical and common household tasks such as taking care of the children; driving; taking children to school; house cleaning such as sweeping, mopping, dishwashing, and cleaning clothes. Statement, 13. Olivieri only
identified cleaning the bathrooms and the likes as the only activity that she cannot perform because of her condition. Statement, 13.
With regards to that, the United States Supreme Court held that although household chores, bathing, and brushing ones teeth are among the types of manual tasks of central importance to peoples daily lives, chores as sweeping were not a major life activity. Toyota Motor Manufacturing, Kentucky, Inc., supra. at 202.
Particularly, the courts have generally held that cleaning, or more generally, doing housework, does not qualify as a major life activity. See Marinelli v. City of Erie, 216 F.3d 354, 362 (3rd. Cir.
2000) (where the court held that cleaning the floors was not a major life activity); See also, Colwell v. Suffolk County Police
Department, supra at 643(performing housework other than basic chores cannot reasonably be deemed as a major life activity); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995); Bear v. Exxon Mobil Corporation, 2004 WL 2603727 at * 5 (E.D.La. Nov. 15, 2004) (the inability to complete the single task of cleaning the bathtub is not a limitation on a major life activity); Miller v. Wells Dairy, Inc., 252 F.Supp.2d 799, 808 (N.D.Iowa, 2003); Lockett v. Wal-Mart Stores, Inc., No. 99 0247-CB-C, 2000 WL 284295, at *8 (S.D.Ala. Mar. 8, 2000); Richards v. American Axle & Man., Inc., 84 F.Supp.2d 862, 870 (E.D. Mich. 2000). Accordingly, Olivieri is not an individual with a disability, for her condition does not limit a major life activity. Moreover, it is important to note that Olivieri specifically stated that her condition is not permanent. Intermittent, episodic, temporary non-chronic impairments of short duration, with or no long term or permanent impact are not disabilities within the meaning of the ADA, 29 C.F.R. 1630, app. at 339 (1996), even if those conditions required extended leaves of absence from work. Pollard
v. Highs of Baltimore, Inc., 281 F.3d 462, 467-468 (4th Cir. 2002); Halperin v. Abacus Technology Corporation, 128 F.3d 191, 199 (4th Cir. 1997); Vande Zande v. State of Wis.Dept. of Administration, 44 F.3d 538,544 (7th Cir. 1995). The United States Supreme Court
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has held that, an impairment must be permanent or long-term in order to be covered by the ADA. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 195 (2002); Sutton v. United Air Lines, Inc., 527 U.S. 47 (1999); Morales v. Morovis Community Health Center, 310 F. Supp.2d 411, 416 (D.P.R. 2004)(An essential aspect of a claim under the Act requires that a plaintiffs disability or handicap be permanent or long-term in nature.). Olivieris own admission under oath clearly shows that her condition is only temporary and contingent on her contact with any chemical that produces the reaction. Statement, 10, 12.
Accordingly, her condition is not covered under the ADA.
Pursuant
to the above, Olivieri does not meet the first element of the ADA prima facie case. This, in and of itself, warrants the dismissal
of Olivieri's ADA claims. b. Olivieri was not able to perform, with or without reasonable accommodation, the essential functions of her job Olivieri worked as Laboratory Technician in Abbotts Chemistry Laboratory. chemistry Statement, 7. laboratory In addition to a supervisor, the with laboratory technicians.
operates
Statement, 3, 7. The essential duties of a laboratory technician consist of performing chemical analyses, including potency analysis, dissolution analysis, raw material analysis, and T3 analysis. Statement, 4. These essential duties were equally important and had to be performed by all laboratory technicians in rotations.
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Statement, 4, 6. Laboratory.
All these analysis were performed inside the
Statement, 5.
Olivieri testified that during 2003 she worked in the first shift and that her condition allowed her to perform 50% of the essential duties of a laboratory technician, T3 analysis and document review. Statement, 7, 20, 25. Olivieri testified that her
inability to perform the remaining essential duties of her job was because she could not be directly exposed to certain chemicals that were sometimes present in the laboratory and used for some of the essential analyses. 71. Statement, 9, 14, 16, 18, 22, 24, 36, 38,
However, Olivieri never received a list of the chemicals that
allegedly caused her condition. Olivieri knew that the raw materials produced the condition because she noticed changes in her health. Statement, 10. Because of her condition, Olivieri allegedly could not perform potency, dissolution and raw material analyses because they contained solvents that triggered the symptoms of her condition. Statement
14, 21. As previously stated, all of these analyses were essential duties of the Laboratory Technician position. Statement 4.
Moreover, the doctors that evaluated Olivieri specifically stated that she could not work near or close or in contact with chemicals, fumes, gases or any irritant of the airways, because she could potentially develop occupational asthma. 36, 38. Statement 9, 16, 24,
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Pursuant to the above and as admitted by Olivieri, she could not perform three of her positions essential functions regarding analyses and the pneumologist that evaluated recommended that she not work in the laboratory. Statement, 14, 21. Accordingly,
Olivieri fails to comply with the second element of the prima facie case, for she was not able to perform, with or without reasonable accommodation, the essential functions of her position as laboratory technician. c. Olivieri was not discharged or adversely affected, in whole or in part, because of her disability Following Olivieris leave in 2003, she did not return to work because she could not work near, close, or in contact with chemicals, fumes, gases or any other irritant. The reason for this limitation was that she could develop occupational asthma. Statement 36.
Despite the fact that Olivieri's condition did not rise to the level of a protected disability, Abbott engaged in an interactive process to evaluate the possible accommodations alternatives for Olivieris condition. Statement 30, 33-36, 38-40, 42-50. As part of this process, Abbott offered Olivieri two positions which she refused. Statement 46, 47. In addition, Abbott, through its Human Resources Director Miriam Bayron, instructed Olivieri to visit the company weekly to inquire about available positions. Statement 48. Besides a single visit for this purpose, Abbott never saw nor heard from Olivieri again. Statement 49.
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During this time, despite the fact that Olivieri refused to fill out the documents required for statutory leaves, Abbott granted her an unpaid leave for one year. Statement 73, 74.
As of September 2, 2004 Olivieri had been absent for over one (1) year from her employment with Abbott and had failed to contact her employer since March. Statement 49, 73, 75, 76. Accordingly, Abbott notified Olivieri that effective September 2, 2004 her employment with the Company ended. Statement 76. Abbotts decision to terminate Olivieris employment was strictly due to her failure to return to work after the statutory one (1) year employment reserve ended. Statement 71-76. Abbotts decision, as evident from the
record, had nothing to do with Olivieris purported condition. Pursuant to the above, Olivieri also failed to establish the third element of the ADA prima facie case. Failure to Accommodate Allegation Moreover, as previously indicated, it is important to note that under the ADA, the term Adiscriminate@ includes the employers failure to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability. 42 U.S.C. '12112(b)(5)(A). Higgins v. New Balance Athletic Shoe,
Inc., 194 F.3d 252, 264 (1st Cir. 1999). A failure-to-accommodate claim has a different set of
requirements. As listed by the First Circuit, a plaintiff in a failure to accommodate case must:
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(a) furnish sufficient admissible evidence that she is a qualified individual with a disability within the meaning of the ADA; (b) establish that covered by the ADA; she worked for an employer
(C) that the employer, despite its knowledge of the employees physical limitations, did not accommodate those limitations; (d) That the employers failure to accommodate the known physical limitations affected the terms, conditions, or privileges of the plaintiffs employment. Id. Olivieri is also unable to establish a cause of action for failure to accommodate. Pursuant to the previous discussion and to Defendants Statement of Uncontested Material Facts, except for the second element, Olivieri fails to meet all the remaining elements of her failure to accommodate cause of action. Statement, 9-13, 23. Even in the unlikely event that Olivieri is deemed a "qualified individual" for the ADA purposes, which we deny, Olivieri admitted that, prior to 2003 Abbott granted all her requests for accommodations. After the 2003 leave, Statement, 23. Olivieri requested, as an
accommodation, to return to her position in the Laboratory but to perform part of the essential duties of the position. She
only wanted to perform T3 analysis and Document Review.
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Statement, 50.
At that time the pneumologist that evaluated
Olivieri specifically recommended that she not work near or close or in contact with chemicals, fumes, gases or any irritant of the airways. Statement, 36. The pneumologists
recommendations clearly showed that Olivieris return to the chemical laboratory was not an option for it put her at risk of developing occupational asthma. Statement, 36, 38.
Moreover, Olivieri did not accept the positions offered to her as accommodation, except for one visit in a year, she failed to heed Bayron's advice that she visit Abbott to verify any available position that she might be interested in occupying as accommodation. Statement, 43-49.
The record shows that what Olivieri only wanted as an accommodation was to perform less that 50%of the essential duties of laboratory technician. Statement, 50. The duty to
provide reasonable accommodation does not require an employer to provide every accommodation that a disabled employee request; but only to a reasonable accommodation pursuant to the ADA and its Regulations standards. Vande Zande v. Stae of Wis.Dept.
of Administration, 851 F.Supp.353, 362 (W.D. Wis. 1994), affd 44 F.3d 538 (7th Cir. 1995). Even despite the fact that Olivieri was not a qualified individual for the ADA purposes, Abbott at all times did everything reasonably possible to accommodate her condition
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and
requests.
Statement,
9-13,
23.
Notwithstanding,
Olivieris requests following her 2003 leave were clearly unreasonable given her doctors recommendations and her refusal to consider the alternative options that Abbott offered. Statement, 20, 21, 24, 25, 33, 34, 36, 38, 39, 43-49. To that effect and as previously discussed, Olivieri is also unable to establish a cause of action under the ADA for failure to accommodate. dismissed. Harassment Allegation In addition, Olivieri also alleges that she was harassed because of her alleged condition. With regards to harassment allegations Consequently, Olivieris claim under ADA must be
under the ADA, the Courts evaluate these allegations pursuant to the same standard established for harassment claims under Title VII. Accordingly, harassment is actionable under the ADA, pursuant to Title VIIs standards only if it is so severe or pervasive as to alter the conditions of [the victims] employment and create an abusive working environment. Faragher v. Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (internal quotation marks omitted)); See,
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (Only harassing conduct that is "severe or pervasive" can produce a constructive alteratio[n] in the terms
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or conditions of employment), Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct.367, 370-371, 126 L.Ed.2d 295 (1993); Arrieta-Coln v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75 (1st Cir.2006)(Court found harassment conduct under the ADA after
plaintiffs supervisors and co-workers constantly mocked him for years due to a condition that he developed after a surgery); See also, Figueroa Reyes v. Hospital San Pablo del Este, 389 F.Supp.2d 205 (D.P.R. 2005)(Plaintiff failed to establish a hostile work environment allegation based on a single alleged harassment episode); Mohammadian v. Ciba Vision of P.R., Inc., 378 F.Supp.2d 25, 31 (D.P.R. 2005); Rodrguez v. Loctite Puerto Rico, Inc., 967 F.Supp. 653, 663 (D.P.R. 1997. The nature of the workplace conduct is not measured in isolation; instead, whether an environment is sufficiently hostile or abusive" must be analyzed by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Faragher v. Boca Raton, supra., at 787,788,
118 S.Ct. 2275 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) and Marrero v. Goya of Puerto Rico, 304 F.3d 7. 18 19 (1st Cir 2002); See Rodrguez, 967 F.Supp. at 663. Thus, simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to
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discriminatory changes in the terms and conditions of employment. Faragher v. Boca Raton, supra., at 788, 118 S.Ct. 2275 (citation and internal quotation marks omitted). Courts should filter out
complaints on the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender related jokes, and occasional teasing. Faragher, supra., 524 U.S. at 788, (internal citations omitted). After all, [t]he workplace is not a cocoon, and those who labor in it are expected to have reasonably thick skins. Marrero, 304 F.3d at 19 (quoting Suarez v. Pueblo Intl,
Inc., 229 F.3d 49, 54 (1st Cir.2000)). The alleged harassment must be extreme in nature for it to constitute a change in the terms and conditions of employment. Faragher, supra., 524 U.S. at 788. Olivieri failed to make a concrete a allegation of harassment because of her condition. As per her Complaint, Abbott allegedly
harassed her by constantly referring her to different physicians for evaluation even when they knew her condition. Complaint (Docket No.1), 51. The basis for Olivieris allegation clearly does not
constitute harassment under the ADAs standards for it clearly does not reach the severe, pervasive or extreme level required to establish a hostile work environment cause of action. Abbotts referrals of Olivieri to the Companys Occupational Physician and to a pneumologist clearly show its intents and efforts to evaluate Olivieris condition and the alternatives available to accommodate the same and its participation in an interactive process
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to evaluate her request.
Statement, 33, 34, 36, 38, 39.
Under
no circumstances, this sole allegation of the efforts on Abbotts behalf constitutes harassment under the ADA. 389 F.Supp.2d at 212-214. B. Religion Discrimination Allegation under Title VII See Figueroa Reyes,
Olivieri also alleges that she was discriminated and harassed because of her religious beliefs in violation to Title VII of the Civil Rights Act, 42 U.S.C. ' 2000e et seq. Title VII proscribes
discrimination because of religion in relation to an employees terms and conditions of employment. 42 U.S.C. ' 2000e-2. Under Title
VII, an employer is liable if the proscribed category C in this case religionC was the motivating factor in the employer=s decision. That is, the plaintiff=s religion must have actually played a role in [the employer=s decision making] process and had a determinative influence on the outcome. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). Under Title VII, Olivieri has the burden of establishing that her religion was a determinative factor in her discharge and other employment actions, and that Abbott intentionally discriminated against her on account of her religion. Reeves, 530 U.S. at 143;
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Where, as in this case, the plaintiff lacks direct evidence of discrimination, the Afamiliar burden-shifting framework established
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in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), comes into play.@ Goldman v. First National Bank of Boston, 985 F.2d 1113 (1st Cir. 1993) (citations omitted). In order for Olivieri to establish a prima facie case of alleged religion discrimination she must prove that: (a) she was a member of a protected class; (b) she met her employers legitimate job expectations; (c) she was discharged; and, (d) her employer recruited someone outside the protected class. Olivieris religion discrimination allegation is also subject to the familiar burden shifting scheme discussed in Section II.A., pages 5-6, above with regards to plaintiffs ADA claim. In the present case, even if solely for discussion purposes we assume that Olivieri met the prima facie case under Title VII; a review of the uncontested material facts clearly shows that religion had nothing to do with Abbotts decisions regarding Olivieris employment. Statement 71-76.
As evident from the discussion contained above, the reason for the termination of Olivieris employment with Abbott was based exclusively on the fact that Olivieri failed to return to work after the one year leave Abbott granted her ended. Statement, 71-76.
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The record is devoid of any evidence that Abbott took any action against Olivieri because of her religion. nondiscriminatory reason for its Abbotts legitimate and clearly shows that
actions
Olivieris religion had nothing to do with Abbott actions. Statement, 71-76. Abbott's reasons are legitimate and non-discriminatory
that cannot be proven to be a mere pretext of alleged discrimination. As such, Olivieris prima facie showing, if any, vanishes from the picture. at 511. Olivieri further alleges that she was also harassed because of her religion. Olivieris religion harassment allegations are See Reeves, 530 U.S. at 143; St. Mary=s Honor, 509 U.S.
based on her assertion that a case was fabricated against her because she was religious; that a co-worker, Lymaris Rodrguez, approached and asked her if Catholics prayed and Olivieri, who admittedly was not bothered by the question, replied that she could not answer her question, that someone who practice that religion [Catholicism] could answer it and Rodrguez allegedly became altered with Olivieris answer. Statement 52-59. Olivieri further alleged that her co-workers made jokes about her religion. Statement 54-55. For instance, that her co-workers, mainly Melvin Romn and Lumarie Garca, commented between them, not to Olivieri, Come, lets go to pray; that they put their hand in a persons forehead and spoke in "angelical" languages; and that many times they changed the lyrics of a song that said There is
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no God as big as you to There is no better rum than Don Q. Statement 54-55. Olivieri was bothered by these comments. Statement 57.
Olivieri also alleged at one point that her samples had allegedly been altered. Statement 59.
Although she complained to her supervisors, she never complained to the Human Resources Department. Statement 57, 59. As discussed in the previous section with regards to Olivieris harassment allegation under the ADA, it is well settled that harassment is actionable under Title VII only if it is so severe or pervasive as to alter the conditions of [the victims] employment and create an abusive working environment. Faragher v. Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (internal quotation marks omitted)); see, Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (Only harassing conduct that is "severe or pervasive" can produce a constructive alteratio[n] in the terms or conditions of employment). In Rosario Rivera v. Puerto Rico Aqueduct and Sewers Authority, 331 F.3d 183 (1st Cir. 2003) the First Circuit considered a religious harassment claim. After considering the basis for plaintiffs
religion harassment allegation, the Court held that while the conduct depicted by plaintiff was deplorable, it did not amount to violation of Title VII. Id. at page 191.
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A comparison of the allegations raised by plaintiff as basis for her religion harassment allegation in Rosario Rivera, supra., and the allegations made by Olivieri clearly show that if no religion harassment was found in Rosario Rivera, supra., there is not even an iota of evidence in the case at bar to constitute harassment because of her religion. In Rosario Rivera, plaintiff, a Catholic, alleged that she was subjected to a hostile work environment because of her religion, that her supervisor treated her unfairly, that he failed to assign her work, criticized her performance, denied her vacation time, did not offer her computer training, and changed the office lock without giving her a new key. 185-186. Rosario Rivera, 331 F.3d at
Plaintiff further alleged that she was called Mother
Theresa; that her co-workers discussed religion interminably, criticizing the Catholic Church, and, in turn, Rosarios ardent religlosity; that she was subject to co-workers expletives
regularly; that her co-workers repeatedly made allusions to her religion and their portrayal of her as self-righteous; that a co-worker sang to her a bawdy Christmas carol mentioning her name and that, given her deep religious convictions, the lyrics of the song were offensive to her; and that on her birthday plaintiff received in the office a card with a pig wearing a rosary with her birth date emblazoned at the top. Id. at pages 185-191.
Taking these facts to consideration, the First Circuit analyzed
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whether the rude and unprofessional conduct to which the plaintiff in Rosario was subjected to was because of her religion. Rosario
Rivera, 331 F.3d at 189-191. The Court held on that score, regardless of the evidentiary course the plaintiff charts, she must show that alleged discriminatory conduct was not merely tinged with remarks abhorrent to her religion but actually was, in either character or substance, discrimination because of her religion. 189 (Emphasis added). Id. at page
The First Circuit further held that there
is a conceptual gap between an environment that is offensive to a person of strong religious sensibilities and an environment that is offensive because of hostility to the religion guiding those sensibilities. Rosario has not provided us with evidence or argument sufficient to bridge the gap. As previously stated Id. at page 190. established, like Rosarios,
and
Olivieris religion harassment allegation does not amount as required by the Court to evidence that these alleged acts occurred because of hostility towards her religion. Rivera, 331 F.3d at 190. Moreover, as established in Abbotts Statement of Uncontested Material Facts, upon the investigation conducted by Miriam Bayron, Human Resources Director, regarding Olivieris allegations, what did exist in the work place was an environment were Olivieri, as well as her co-workers, engaged in discussions of religion and politics nature. Statement, 60-63, 65-68. As per Bayrons Statement 52-58; see Rosario
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investigation, all employees received a memorandum reminding them to prevent discussion of religious and political topics, because they affected the normal and well proceedings of the department. Statement, 65-68. As to Olivieris allegation that someone altered her sample, pursuant to the investigation conducted, Olivieri could not even identify the person who allegedly altered the samples, much less what were his or her intentions. Statement 64, 69, 70.
As previously stated, a review of the allegations made by plaintiff as to the basis for her claim of harassment shows they are merely a series of isolated events that fail to demonstrate any type of discrimination because of her religion. Moreover, it
important to note that Olivieri has made no connection whatsoever, because it is impossible to do so, with the alleged incidents of religion discrimination and the adverse employment action taken against her, that is the termination of her employment with Abbott for her failure to return to work after the one year leave ended. The record shows that plaintiff is simply making an assumption that the incidents were discrimination because of her religion because she has no other explanation. Pursuant establish a to the of previous action discussion, for religion Olivieri failed to and
cause
discrimination
harassment under Title VII. Therefore, her claim must be dismissed with prejudice.
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C.
The claim under Puerto Rico Law 44
Olivieri further alleges that Abbott discriminated against her due to her disability and failed to accommodate in violation to Puerto Ricos Law No. 44 of July 2, 1985. The local discrimination statute -PR Law No. 44 of July 2, 1985- was enacted to prohibit discrimination against individuals with physical or mental disabilities in public institutions or private entities that received funds from the Commonwealth of Puerto Rico. See, Statement of Motives of Law No. 44 of July 22, 1985. Following the enactment of the ADA, Puerto
Rico=s Legislature enacted Law No. 105 of December 20, 1991, with the express purpose of extending Act No. 44s protection to persons employed by private institutions in Puerto Rico and to strictly conform Law No. 44 to the Americans with Disabilities Act of 1990. See Statement of Motives of Act 105 of December 20, 1991; Garca Daz v. Darex, 148 D.P.R. 364 (T.S. 1999); Ros Jaimn v. Cidra Manufacturing, 145 D.P.R. 746 (T.S. 1998). In order to conform Law No. 44 to the ADA, Law 105 amended the definition of Aindividual with physical disability@ to include all persons that have a disability that substantially limits one or more of the major life activities; that the person have a history of such a condition; or that the person be regarded as having such a disability. See 1 L.P.R.A. '501(d).
Plainly, the definition of disability in Law No. 44 is the same as the one contained in the ADA. Accordingly, and since it was the
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Legislature=s express intent of conforming the statute to the ADA, it follows that ADAs precedent regarding the definition of
disability is applicable to cases arising from the local statute. UPR v. Asoc. Profesores Universitarios, 136 D.P.R. 335 (1994); Bruno Lpez v. Motorplan, 134 D.P.R. 111 (1993); Prez Maldonado v. J.R.T., 132 D.P.R. 972 (1993). As previously discussed in Section A, plaintiff is unable to establish a cause of action of discrimination due to disability under the ADA. Accordingly, plaintiff is also unable to establish a cause of action for discrimination under P.R. Law 44. D. The religion discrimination claim under P.R. Law 100
Puerto Rico's Law 100 of June 30, 1959, provides for civil liability in religion discrimination actions. 29 L.P.R.A. '146 et
seq. Garca Pagn v. Shiley Caribbean, 122 D.P.R. 193, 198-199 (1988); Odriozola v. Superior Cosmetic Dist. Corp., 116 D.P.R. 485, 489 (1985). For a plaintiff to establish a cause of action for religion discrimination pursuant to Law 100, it is crucial to follow the procedural scheme specified in Article 3 of the Law. 29 L.P.R.A.
'148; Hernndez, Galo Beltrn y la Sociedad Legal de Gananciales v. Trans Oceanic Life Insurance Company, 2000 T.S.P.R. 115 (P.R. 2000). Article 3 of Law 100 creates a presumption of unlawful discrimination in those cases when an employee is terminated or adversely affected without just cause by an employers decision. P.R. Laws Ann. tit. 29, ' 148. Garca Pagn v. Shiley Caribbean,
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122 D.P.R. 193, 198-199 (1988); Odriozola v. Superior Cosmetic Dist. Corp., 116 D.P.R. 485, 489 (1985). In order to establish a claim for religion discrimination pursuant to Law 100, it is the employees duty to establish the burden of proof of her claim and, in that manner, activate the presumption of discrimination. Id. For a plaintiff to activate the presumption of discrimination, she must establish three elements: a. that there was dismissal or adverse action;
b. that this action was carried out without just cause; and c. must show evidence which demonstrates the form or basis of the discrimination in relation to the dismissal or adverse action. Hernndez, Galo Beltrn, supra; Alberty Marrero v. Lcdo. Rodrguez Emma, 99 T.S.P.R. 166 (P.R. 2000); Belk Arce v. Martnez, 98 T.S.P.R. 109 (P.R. 1998). After plaintiff establishes these three elements, the burden of proof is shifted to the employer, who must then establish that no discriminatory action was taken. In Hernndez, Galo Beltrn v. Trans Oceanic Life Insurance Company, the Puerto Rico Supreme Court held that Law 100s presumption of discrimination can only be activated during an evidentiary hearing celebrated, not during pretrial procedures such as dispositive motions. 2000 T.S.P.R. 115. Moreover, in Hernndez, Galo Beltrn, the Puerto Rico Supreme Court indicated that Article 3s intention and the presumption established there is to make it easier for an
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employee to prove her case, not to relieve or exonerate her from the necessity of presenting evidence to prove his allegations. Supra. In the instant case there are no facts justifying the activation of any presumption. First, although plaintiff=s employment was As previously
terminated, such termination was for just cause.
indicated, Abbotts decision to terminate Olivieri=s employment was solely based on Plaintiff=s failure to return to work after her one (1) year leave ended. Statement, 71-76.
For the reasons previously stated Olivieri is barred from demonstrating and/or even alleging that defendants= legitimate, non-discriminatory reasons for her dismissal were false and without just cause. As previously discussed, plaintiff cannot establish that the basis for her termination was because of her religion. Consequently, plaintiff cannot establish a cause of action for religion
discrimination under Puerto Rico Law 100. E. Unjustified dismissal under P.R. Law 80 of March 30, 1976.
Pursuant to Puerto Ricos Law No. 80 of March 30, 1976, as amended, P.R. Laws Ann. t. 29, sec.185a et seq., an employer cannot terminate a person from his employment, except for just cause, or else, a rebuttable presumption of discrimination arises and the employer has to refute the same. Delgado Zayas v. Hosp. Inter. Med. Avanzada, 137 D.P.R. 643 (T.S. 1994); Beauchamp v. Holsum Bakery of P.R., 116 D.P.R. 522 (T.S. 1985); Rivera v. National Life, 106
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D.P.R. 512 (T.S. 1977). commercial business,
Law 80 sets forth that any employee in or other business or place of
industry
employment that is terminated from his employment without just cause, has a right to receive from the employer an indemnization as set forth by the law. P.R. Laws Ann. t. 29, sec. 185a. Delgado Zayas
v. Hosp. Inter. Med. Avanzada, 137 D.P.R. 643 (T.S. 1994); Secretario del Trabajo v. ITT, 108 D.P.R. 536 (T.S. 1979). However, the obligation to indemnify an employee under Law 80 arises only when the termination is capriciously made, or without just cause. Mercedes Bus Line v. Tribunal, 70 D.P.R. 690 (T.S. 1949). That is, in those cases in which there is just cause for the termination, the employee has no remedy against the employer. Law 80 contains certain guidelines to indicate what could constitute just cause for dismissal. Almodvar v. G.P. Industries, 2001 T.S.P.R. 4; see Figueroa v. Walgreens of San Patricio, Inc., 2001 T.S.P.R. 150. Accordingly, just cause for the discharge of
an employee from an establishment shall be understood to be: a) That the worker indulges in a pattern of improper or disorderly conduct; (b) The attitude of the employee of not performing his work in an efficient manner, or of doing it belatedly and negligently or in violation of the standards of quality of the product produced or handled by the establishment; (c) The employee's repeated violations of the reasonable rules and regulations established for the operation of the establishment, provided a written copy
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thereof has been opportunely furnished to the employee. (d) Total, temporary or partial closing of the establishment operations. (e) Technological changes or from reorganization, as well as for style, design or nature of the product that is produced or managed by the establishment and changes in the services provided to the public. (f) Reductions in employment which are necessary due to a reduction in volume of production, sales or earnings, anticipated or that prevail at the moment of the dismissal. A discharge made by the mere whim of the employer or without cause relative to the proper and normal operation of the establishment shall not be considered as a discharge for good cause. P.R. Laws Annot. t. 29, 185b. (Emphasis added). As previously established, Olivieris employment with Abbott ended after she failed to return to work after her one year leave ended. Statement, 71-76. According to the above, Olivieris
employment termination was for just cause and pursuant to Law 80 requirements. As such, her unjustified dismissal claim must be dismissed. F. Co-plaintiffs Carlos J. Miranda, Carlos Miranda Olivieri, Caleb Miranda Olivieri, Isai Miranda Olivieri, Lemuel Miranda Olivieri, Kemuel Miranda Olivieri cause of action under Articles 1802 and 1803 of the Puerto Rico Civil Code. On September 1994, the Supreme Court of Puerto Rico ruled that a spouse of an employee subjected to discrimination has a general
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tort cause of action based on Puerto Ricos Civil Code. Accordingly, under Article 1802 of the Puerto Rico Civil Code an employees spouse has a tort claim against an employer if (1) the relatives have allegedly suffered a compensable moral (emotional) harm; (2) the harm was caused by the employers discriminatory treatment of his employee, with whom the plaintiffs are related through blood ties and ties of love and affection, in such a way that the impact of the discriminatory treatment received by the employee affects them and causes them harm; and (3) the employer committed a tortuous act pursuant to the all-embracing definition given to tortuous acts in our jurisdiction. Santini Rivera v. Serv. Air, Inc., 137 D.P.R. 1 (1994). Nevertheless, the husband cause of action is subordinated Thus, if
to the employees success on her discrimination claims.
an employee cannot suffice the requirements of the purported cause of action, her husband cannot sustain any tort claim under Article 1802. Pursuant to the previous discussion, Olivieri is unable to establish a cause of action for discrimination. Accordingly,
co-plaintiffs would not be entitled to damages under Puerto Ricos general tort statute. III. CONCLUSION WHEREFORE, it is respectfully requested from this Court that it grant the present Defendants Motion for Summary Judgment and
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that plaintiffs claims be dismissed with prejudice and that cost be awarded to Defendant. WE HEREBY CERTIFY that on March 3rd, 2006 we electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following: Juan R. Requena Dvila, Esq. P.O. Box 192259 San Juan, P.R. 00919-2259 and Juan Carlos Cancio Reichard, Esq. 2008 Pedro Albizu Campos Ave. Carr. 107 Km. 0.8 Aguadilla, PR 00604 Apartado 250263 Aguadilla, Puerto Rico 00604. At San Juan, Puerto Rico, this 3rd day of March of 2006. S/CARMEN LUCIA RODRIGUEZ VELEZ S/PEDRO J. MANZANO YATES Carmen Luca Rodrguez Vlez Pedro J. Manzano Yates USDC-PR No. 216703 USDC-PR No. 207005 Attorney for Defendant Attorneys for Defendant FIDDLER, GONZALEZ & RODRIGUEZ,PSC FIDDLER, GONZALEZ & RODRIGUEZ,PSC P.O. Box 363507 P.O. Box 363507 San Juan, Puerto Rico 00936-3507 San Juan, Puerto Rico 00936-3507 Tel: (787) 759-3127 Tel: (787) 759-3240 Fax: (787) 250-7565 Fax: (787) 250-7565 clrodrig@fgrlaw.com pmanzano@fgrlaw.com
599229 N/E 1166 017

Modelo SS Judgment (ADA and Title VII)

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Case 3:05-cv-01244-ADC-BJM Document 10-18

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Civil No. 05-1244 (CCC)

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DISCUSSION A. The Americans with Disability Act (ADA) of 1990 Claim

Sutton v. United The ADA

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(Emphasis added). L.Ed.2d 450 (1999).

Sutton v. United Air Lines, 527 U.S. 471, 144

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non-discriminatory reason for the adverse employment action.

Olivieri is not disabled within the meaning of the Act. 9-13. i.

Olivieri is not "an individual with a disability"

First, Olivieri testified that she has a condition known as

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are not permanent.

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Accordingly, her condition is not covered under the ADA.

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All these analysis were performed inside the

However, Olivieri never received a list of the chemicals that

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only wanted to perform T3 analysis and Document Review.

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At that time the pneumologist that evaluated

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to evaluate her request.

Statement, 33, 34, 36, 38, 39.

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