Full opinion text
OPINION & ORDER BESOSA, District Judge. On September 12, 2008, plaintiff Nitza I. Colon-Fontanez (“Plaintiff” or “ColonFontanez”) filed an amended complaint against defendant Municipality of San Juan (“Defendant” or “Municipality”) and other unknown defendants. (Docket No. 48) In her amended complaint Colon-Fontanez alleged: (1) that the defendants discriminated against her on the basis of her disability in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq and in violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq; (2) that the defendants retaliated against her in violation of the anti-retaliation statute under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq; and (3) that the defendants violated the equal protection clause of the United States Constitution. Colon-Fontanez also attached supplemental Commonwealth claims pursuant to Article 1802 of the Puerto Rico Civil Code, Law No. 115 of December 20, 1991 and Law No. 44 of July 2, 1985. On August 31, 2009 the Municipality filed a motion for summary judgment (Docket Nos. 158, 159, and 162). Colon-Fontanez opposed the Municipality’s motion on September 21, 2009 (Docket Nos. 180, 177, 187, 203, 204, and 207). The Municipality replied to Colon-Fontanez’s opposition on October 16, 2009 (Docket Nos. 213, 214, 215 and 216). For the reasons provided below, the Court GRANTS the Municipality’s motion for summary judgment. I. Rule 56 and Filing Procedures Local Rule 56 requires parties to support a motion for summary judgment with a statement of material facts. Loc.Civ.R. 56(b). Critically, it also requires a party opposing summary judgment to submit an opposing statement of facts that either admits, denies or qualifies the movant’s proposed facts “by reference to each numbered paragraph of the moving party’s statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation.” Loe.Civ.R. 56(c) (emphasis added). Both rules require the parties to submit “separate, short and concise” statements of fact in numbered paragraphs that are supported by pin cites to admissible evidence. Loc.Civ.R. 56(b), (c) & (e). As a general principle, parties may not include legal arguments or conclusions in their statement of facts. See MVM Inc. v. Rodriguez, 568 F.Supp.2d 158, 163 (D.P.R.2008); Juarbe-Velez v. Soto-Santiago, 558 F.Supp.2d 187, 192 (D.P.R.2008). Both parties failed to comply with this rule. In fact, there are so many instances of error related to Rule 56 or, better put, disregard for Rule 56, that the Court hardly knows where to start or how to articulate its discontent sufficiently to provoke counsel for both parties to make serious changes in their future approaches to filing and writing summary judgment pleadings. A. The Municipality’s Motion for Summary Judgment and Conventional Filing The Municipality filed electronically a “Notice of Filing Exhibits Conventionally” (Docket No. 160) and proceeded to provide this Court and opposing counsel with hard copies of all documents submitted as exhibits in support of the motion for summary judgment. Yet the Municipality failed to follow procedures required for conventional submission properly, according to the Manual for Civil and Criminal Cases of CM/ECF. See Id., Part IV(B) at 27. To comply with the filing requirements, the Municipality should have filed electronically its notice of conventional filing “as an attachment of the main document those exhibits supports.” Id. Further, the Municipality should have filed those exhibits with the Court, accompanied by the notice of conventional filing, so that the “Clerk’s Office will note on the docket its receipt of the documents(s) or exhibits(s) with a text-only entry.” Id. The Municipality failed to file the supporting exhibits with the Court, and hence there is no entry by the Clerk noting on the record of this case the substitution of conventional filing by the defendant. The Court had DIRECTED THE MUNICIPALITY’S COUNSEL TO FILE ITS EXHIBITS WITH THE COURT, ACCOMPANIED BY ITS NOTICE OF CONVENTIONAL FILING, so that the Clerk of the Court may enter on the docket its receipt of the documents with a text-only entry. The Court proceeds to adjudicate the motion for summary judgment, however, because the Court noted on the record the Municipality’s conventional filing of documents (Docket No. 164) and its receipt of the courtesy copies provided to it by the Municipality’s counsel. This instruction to file conventional documents properly with the Clerk for recording on the case docket, however, does not end the Court’s discussion of improper filing by the Municipality regarding its summary judgment motion. The Court must also address the problems inherent in the organization and presentation of the conventionally filed documents. The Municipality provided the Court with hard copies of the exhibits filed in support of its summary judgment motion in three large binders. The Statement of Uncontested Facts in Support of Defendant’s Motion for Summary Judgment (Docket No. 159) explains: Most documents produced by Defendant during discovery are bates-stamped as ‘MSJ’ followed by successive numbers 1 through 2326. Each fact asserted will be referenced to a letter exhibit number plus a bates stamp number, if there is one, and a deposition number, if there is one. A translation of each document will follow the original document. A list of exhibits is attached with lettered Exhibits from A through Z. Unfortunately, this clear explanation of the exhibit organization proves theoretical. In fact, the Court is unable to find many of the cited documents. The three large binders submitted to the Court are tabbed and separated by lettered exhibits (A, B, C), but the Statement of Uncontested Facts refers also to specific numbered exhibits, for example DI and D2, which are generally not separated or tabbed in any way. Instead, the Court must look through hundreds of pages within each lettered tab section to search for the numbered exhibits cited in the Statement of Uncontested Facts. Further, the Municipality explains that each cited fact may be located by reference to its “bates-stamp number” from 1-2326. The problem is that the bates-stamped documents in the binders are neither tabbed nor are they ordered from 1-2326 or any other detectable order. When the Court seeks to find, for example, “Exhibit H-l, MSJ 693” among many unseparated pages, the document with the bates-stamp of 693 follows a document with a bates-stamp of 461 (which, in turn, follows a document bates-stamped as 464) pursuant to a list which, itself, is difficult to find. The point is that while the documents may be bates-stamped with a number, the Municipality’s effort is meaningless because the documents are not ordered according to their bates-stamp, making the binders a mess of papers for the Court to sort through. That citation system is extremely difficult to follow, and demands that the Court waste much time searching through the record in search of cited materials. See generally, Calvi v. Knox County, 470 F.3d 422, 427 (1st Cir.2006) (“Such local rules are useful devices for focusing a district court’s attention on what is-and what is not-genuinely controverted.”); Morales v. A.C. Orssleff's EFTF, 246 F.3d 32, 33 (1st Cir.2001). B. Colon-Fontanez’s Opposition The Court turns next to Colon-Fontanez’s opposition to the summary judgment motion. In numerous instances, ColonFontanez admits a fact, then subsequently denies or qualifies that same fact. Worse, throughout its opposition to the Municipality’s Statement of Uncontested Facts, Colon-Fontanez denies or qualifies each single fact submitted by the Municipality improperly, in multiple paragraphs, often spanning multiple pages; in those paragraphs Colon-Fontanez raises new facts or addresses facts other than those submitted by the Municipality. All of these exemplify what not to do in facts submitted in opposition to a motion for summary judgment. See Rios-Jimenez v. Principi, 520 F.3d 31, 38 (1st Cir.2008). Rule 56 provides the party opposing summary judgment with an opportunity to submit additional facts, set forth in a separate section; it does not permit new facts to be raised in the section set aside for admitting, denying or qualifying the movant’s facts. In this case Colon-Fontanez’s opposition to each fact submitted by the Municipality exceeds proper length requirements implicated by Rule 56 and goes beyond the scope of the fact submitted by the Municipality, in effect submitting new facts not relevant to the fact being contested. The Court disregards entirely all of these improperly submitted new facts. C. The Municipality’s Reply Brief Approximately one third of the Municipality’s reply memorandum (Docket No. 216) consists of the exact same arguments — verbatim—that were made in its motion for summary judgment. A reply memorandum “shall be strictly confined to replying to a new matter raised in the objection or opposing memorandum.” Loc.Civ.R. 7.1(c). Accordingly, the Court disregards all sections of the reply memorandum which unabashedly lift and paste language previously used in the motion for summary judgment. Worse still, counsel for the Municipality asked for and was granted permission to exceed length requirements set forth by the local rules, only to inundate its reply memorandum with lengthy repetition of arguments previously made to the Court. (See Docket Nos. 219, 222, 223.) In doing so, counsel exploited the Court’s desire to accommodate all potentially new arguments and then wasted the Court’s time. D. Citation, Translation, Relevance, and Admissibility As for citation issues, the Municipality correctly notes in its reply to Colon-Fontanez’s statements of contested and uncontested material facts (Docket No. 177) that Colon-Fontanez often improperly supported her proposed facts by failing to include a page number. The Municipality, however, fails to cite to the record properly in its reply to the Colon-Fontanez’s Uncontested Material Facts. Many paragraphs of the Municipality’s Reply simply cite to “Reply Exhibit 1”, a multi-page exhibit with no page numbers to assist in its analysis. (Docket No. 213 at 101-104) As for translation issues, the Court will not admit to the record any facts supported by exhibits which consist of a partially translated document rendered incomprehensible or which cannot be verified by virtue of the lacking context. The Municipality submits various documents, such as business reports or records, without translations of key sections of the document, making it impossible for the Court to credit these documents for the purpose of admitting the facts those documents purport to support. Submitting sections of a document or deposition is proper only when the materials submitted are clear without the entire document or context. That is not the case here, where the partially translated materials were unclear without their context. Because the Court fears being mislead by the fragments submitted or misunderstanding the meaning of those fragments, it will only consider supporting exhibits whose meanings are clear without a context or on their face. The Court also notes that numerous exhibits were not translated whatsoever and will therefore not be considered. See Puerto Ricans for P.R. Party v. Dalmau, 544 F.3d 58, 67 (1st Cir.2008); Local Civil Rule 10(b). Colon-Fontanez, in particular, failed to translate numerous exhibits upon which significant facts alleged in Counter Statement of Facts are based. No translations were submitted for Exhibits 1, 17, 18, 20, 21, 23, 31, 33, 35, 37, 38, 39, 41, and 42. Any fact alleged by ColonFontanez that is based on an untranslated exhibit will be disregarded. As for admissibility issues, Colon-Fontanez and the Municipality both accuse the other of proposing facts that are not properly admissible due to hearsay issues, lack of authentication, relevance or otherwise. In fact, an outstanding motion on admissibility remains: the parties have submitted motions accusing the other of various kinds of improper filing. The Court finds both Colon-Fontanez’s Motion to Strike Exhibits Filed in Violation to Rule 56 (Docket No. 232) and the Municipality’s Motion to Strike the Plaintiffs Motion (Docket No. 233) as MOOT. Instead of cataloging and discussing each occurrence of improperly supported fact or each issue of admissibility, many of which are irrelevant to the Court’s analysis of the summary judgment motion, the Court chooses simply to include in the factual background of this opinion only facts that are relevant, properly supported, and admissible for the purposes of its review at this stage of the proceedings. Because the Court’s findings make many of the contested areas of fact irrelevant, numerous facts submitted by the parties are omitted. Nevertheless, the Court does include some facts not critical to its analysis where necessary to create a cogent presentation of the context in which the dispute arose. In sum, the Court urges both parties to read Rule 56 and case law pertaining to that Rule carefully. The length of pleadings submitted by both parties is absurd and results in a grave waste of judicial resources; the acrimonious language and histrionic tones contained in those pleadings makes all arguments appear less trustworthy in the eyes of the Court; and the replacement of quantity for quality causes the Court great consternation because it attempts to peel back all of the unnecessary muck seemingly thrown at the proverbial wall of this Court to see what sticks. II. Factual Background Colon-Fontanez has been employed by the Municipality since 1989. She was a temporary worker until March 16, 1992 when she was reclassified to a regular position. Colon-Fontanez’s position changed a number of times during her employment at the Municipality: on March 2, 1999 the Municipality reclassified Colon-Fontanez from “Office Clerk II” to “Office Systems Assistant I” which included a pay raise; On April 15, 2001, the Municipality reclassified Colon-Fontanez to “Administrative Officer I,” which included an increase in salary; on June 30, 2006, Colon-Fontanez was appointed “Auction Officer,” which became effective retroactively on May 1, 2005. Jose Alicea Rivera (“Alicea”) was, for many periods relevant to this case, the Municipal Secretary and the President of the Municipality’s Auction Board. Ivonne Rodriguez (“Rodriguez”) is the Director for the Purchases and Bids Department. She supervises Colon-Fontanez, who is an Auction Officer. Julia Lanzo was the manager of the Auction Department beginning approximately in 2000. Maria Marcano and Julia Lanzo both supervised Colon-Fontanez during periods relevant to this case. James Delgado holds the position of an auction official. According to the testimony of Julia Lanzo, Delgado was the second in command in the auction department, and would sign documents as the acting manager if Lanzo herself was away. Jose Rivera-Hernandez (“Rivera”) was the Special Assistant of the Municipal Secretary from August 2001 until July 2008. Rivera’s duties included making sure that the persons parked in the Municipal Tower’s parking lot were authorized to park there. The Municipal Tower building houses the Auction Department, where ColonFontanez worked. The building is accessible to a multi-floor parking building. The Municipality pays rent for 400 parking spaces used by its employees in the multifloor parking building adjacent to the Municipal Tower building. The Municipality pays $40.00 and the employee pays $20.00 for each rental. The Municipal Tower building has approximately seventy-five (75) parking spaces in the main building. Colon-Fontanez was diagnosed with fibromyalgia in 2005. Colon-Fontanez testified that she informed both supervisors Rodriguez and Lanzo of her diagnosis. Lanzo testified that Colon-Fontanez claimed to suffer from many ailments during the years that Lanzo supervised Colon-Fontanez, including fibromyalgia. Colon-Fontanez claims that her condition causes bodily pain that makes it difficult for her to walk from the multi-floor parking lot to the Municipal Tower building where she worked. Colon-Fontanez testified that she is generally scheduled to work from 8:00 a.m. to 4:00 p.m. On numerous occasions during her tenure at the Municipality, however, Colon-Fontanez’s supervisors would temporarily shift her work schedule to accommodate her absences. Colon-Fontanez’s Duties as Auction Officer As Auction Officer, Colon-Fontanez has the duties described in a “Position Description” document submitted for the record. Those duties include, inter alia, preparing requests for bid proposals, preparing bid notices, directing administrative work related to bids and proposals, submitting bid proposals for recommendations, evaluating recommendations and submitting them to the Bid Board, preparing award notices, and preparing contracts. To perform the described duties, the Auction Officer must be physically present in the auction department, located in the Municipal Tower building, particularly during the pre-auction period and the opening of an auction, and because the auction papers may not be removed from the auction office premises. Colon-Fontanez’s Attendance Record and Work Performance The Municipality’s policies state that all its employees must regularly and punctually attend work and comply with their established work schedules. The Municipality allows for certain kinds of leave related, among other things, to illness. During her tenure of employment at the Municipality, Plaintiff Colon-Fontanez’s attendance record has been irregular. Colon-Fontanez has been frequently absent from work or tardy, allegedly due to illness, medical appointments and other approved forms of leave. During some periods of her employment, the number of leave days taken by Colon-Fontanez exceeded the amount of leave allowed by the Municipality, resulting in the docking of pay or other losses. The Municipality’s attendance manual states that career employees are entitled to accrue sick leave “proportional to the number of hours comprised by the assigned work schedule.” Regarding excess sick days, the Municipality’s manual states that “sick leave can be accrued up to a maximum of ninety (90) working days by the end of any calendar year.” The Municipality’s Manual Regarding Work Schedule, Attendance Registry, Accrual and Use of Leave states that the Municipality will consider an employee’s illness or injury and a death or serious illness in an employee’s immediate family as a possible justification for absence or tardiness. The Manual also states that the Municipality may take disciplinary measures when an employee incurs in a violation of established attendance norms and use of leaves of absence such as being absent from work frequently and regularly on the days proceeding or following weekends or holidays or being absent for nine days during a period of three consecutive months. The Court reviews Colon-Fontanez’s attendance record according to the documents submitted by the parties. ■ 1992 On August 14, 1992, the Municipality approved Colon-Fontanez’s request for the advancement of eighteen (18) days of sick leave. The Municipality denied ColonFontanez’s request for advanced sick leave in a letter to her dated September 4, 1992, because “advanced leave is a privilege provided by the Municipality to an employee, provided that they meet with certain basic requirements, among which it is required that they regularly comply with their work schedule.” The letter further explained that Colon-Fontanez’s attendance record showed her to be “frequently absent” from her job, “presenting a pattern debt on account of sick leave.” ■ 1993 During the year 1993 Colon-Fontanez was absent from work approximately twenty percent (20%) of the hours she was scheduled to work that year. Approximately thirty percent of her absences were categorized as annual leave, and seventy percent of her absences were categorized as sick leave. ■ 1994 During 1994, Colon-Fontanez was absent from work fifty-nine percent (59%) of the total hours she was scheduled to work that year. Ten percent (10%) of those absences were categorized as leave without pay; twenty-three percent (23%) were categorized as sick leave; two percent (2%) were annual leave; and sixty-five (65%) percent were without pay under the Corporation for State Insurance Fund (“CSIF”). A letter from the Municipality’s Secretary for Administration, dated July 11, 1994 notified Colon-Fontanez that, as of June 30,1994, she had exhausted her regular vacation allotment and owed two days pay as a result. The letter informed Colon-Fontanez that the Municipality would discount her pay two days for the two days owed, and reminded her that, according to the Municipality’s Personnel Regulations, it is the employee’s duty and obligation to comply with regular and punctual attendance regulations in accordance with the established work schedule. From June 13, 1994 through January 18, 1995, Colon-Fontanez was absent, due either to compensatory time, sick leave (charged to annual leave) or leave without pay. Specifically, Colon-Fontanez was approved for leave without pay due to illness from July 19, 1994 through January 18, 1995. On August 2, 1994, Colon-Fontanez requested leave without pay starting on July 1, 1994, stating that she was under treatment by the CSIF. ■ 1995 From January 31, 1995 through April 25, 1995, Colon-Fontanez was on leave without pay because she exhausted all of her leave. On January 31, 1995, ColonFontanez requested an extension of her leave without pay for an additional six months alleging that she was still under treatment by the CSIF. On February 27, 1995, Colon-Fontanez’s application to be granted leave without pay while under CSIF treatment was approved for a duration of three months, from January 19, 1995 through April 18, 1995. On April 27, 1995, the Municipality granted Colon-Fontanez’s request for an extension of leave without pay because she was still reporting to the CSIF for health reasons. The extension was effective from April 19 through April 25, 1995. On December 18, 1995, Colon-Fontanez’s paycheck was adjusted downward due to her absences. On September 29, 1995, the Municipality sent a letter to Colon-Fontanez notifying her that, as of September 30, her leave would be exhausted and that continued absence would result in the docking of her next paycheck. The letter also reminded Colon-Fontanez that employees must comply with the established work schedule by “complying with punctuality and regularity with their work shift and work schedule.” In an evaluation of Colon-Fontanez’s performance from July 1, 1995 through June 30,1996, the reviewer for the Municipality’s Office of Personnel and Labor-Management Relations observed that Colon-Fontanez surpassed the performance levels, but noted that she must continue to make additional improvement in the area of attendance. It further stated that she did not achieve the expected level of attendance. ■ 1996 With regard to her attendance, ColonFontanez’s evaluation for the period July 1, 1995 through June 30, 1996 stated that: she did not reach the expected level of attendance; she needed to improve her pattern of attendance; she makes efforts to improve her attendance; and that she must continue to make additional efforts to improve her attendance. In all other areas of her evaluation (sociability, reliability, cooperation and integrity), Colon-Fontanez received the highest marks. From March 16, 1996, through August 15, 1996, Colon-Fontanez was either on leave without pay, annual leave, or leave pursuant to treatment under the CSIF. Colon-Fontanez requested and was granted leave without pay without leave from May 16, 1996 through August 16 of that year due to treatment under the CSIF for “injury in my left foot.” Colon-Fontanez was again on leave without pay from November 15, 1996 through February 18, 1997. ■ 1997 On January 27, 1997, Colon-Fontanez requested leave without pay because “since last November 15, 1996, I have been reporting to the State Insurance Fund to undergo a surgical intervention of the knee on my left foot [sic].” On March 13, 1997, the Municipality discounted ColonFontanez’s salary pursuant to a form titled “Salary Discount on Account of Unauthorized Absences and/or Tardiness.” In a section instructing the person filling out the form to “Explain in detail why you consider the absence(s) and/or late arrival(s) unjustified, it says “the employee was excluded on account of a leave without pay” and because Colon-Fontanez “improperly collected a check for the first bimonthly pay period of November, 1996.” ■ 2000 During the year 2000, Colon-Fontanez was absent approximately twenty-three percent (23%) of the time she was scheduled to work: forty percent (40%) of those absences were categorized as sick leave, and sixty percent (60%) were categorized as annual leave. On February 15, 2000, the Municipality issued Colon-Fontanez a warning letter informing her that: (1) as of January 31, 2000, her leave balance was very low; (2) because her leave balance was low, she would be removed from the direct deposit program; (3) should she be again absent from work, she would not receive the next paycheck and the difference would be claimed from her; (4) under the new attendance system, “ORACLE,” the days owed by an employee would be discounted from his or her salary instantly; and (5) the Personnel Regulations of the Municipality establish that job security is contingent upon regular and punctual attendance. On May 25, 2000, the Municipality informed Colon-Fontanez in a letter that: (1) the Municipality’s Personnel Regulations require regular and punctual attendance; and (2) as of April 31, 2000, ColonFontanez owed regular leave, such that any debt owned to the Municipality would be withheld from her salary. In order to take care of her ill mother, Colon-Fontanez applied, on July 21, 2000, for the transfer of five days of vacation leave from another employee because her own leave balance was already exhausted. The Municipality authorized the transfer. ■ 2001 In 2001, Colon-Fontanez was absent from work approximately twenty-five percent (25%) of the time she was scheduled to work that year. Of the time she was absent, Colon-Fontanez was on sick leave eighty-three percent (83%) of the time and on annual leave seventeen percent (17%) of the time. On June 25, 2001, Colon-Fontanez requested authorization to transfer leave from other employees to her account because her leave balance (both for sick leave and annual leave) was already exhausted. Colon-Fontanez claimed that she had undergone surgery on June 22, 2001, and that she had been told to rest until her follow-up visit on June 28, 2001. On July 5 and August 3, 2001, the Municipality’s Human Resources Director approved ColonFontanez’s request for credited annual leave from other employees for the period of July 6 through July 13, 2001 and from July 17 through July 24, 2001. On December 13, 2001, Colon-Fontanez again requested leave transferred to her from other employees because she was having health problems but had already exhausted her leave. ■ 2002 Plaintiff was absent from work approximately twenty-one percent (21%) of her scheduled work time in 2002; sixty-nine percent (69%) of those absences were categorized as sick leave, eleven percent (11%) were categorized as annual leave, eight percent (8%) were categorized as compensatory time, and twelve percent (12%) were categorized as time donated by other employees. On May 21, 2001, Colon-Fontanez requested that she be credited with leave time from other Municipality employees due to her health problems and because she had already exhausted her own annual leave and sick leave balances. The Municipality approved her request for a total of seven days, from May 21 through May 24, 2002 and from May 29 through May 31, 2002. ■ 2003 In 2003, Colon-Fontanez was absent approximately twenty-five (25%) percent of the time she was scheduled to work that year. Sick leave constituted twenty-percent (20%) of her absences; annual leave constituted seventeen percent of her absences; sick leave charged to compensatory leave constituted eight percent (8%) of her absences; and time donated by other Municipality employees constituted the remaining eighteen percent (18%) of her absences. Colon-Fontanez’s evaluation from March 15, 2002 through March 16, 2003 contains a comment regarding her punctuality and/or attendance that “due to her health condition” she is prevented from “attending with regularity.” On October 6, 2003, Colon-Fontanez requested that she be credited with leave time from other Municipality employees because of her health problems and because she had exhausted her own annual leave and sick leave balances already. ■ 2004 In 2004, Colon-Fontanez was absent for approximately nineteen percent (19%) of the time she was scheduled to work. Sick leave accounted for eighty-nine percent (89%) of those absences, and annual leave accounted for eleven percent (11%) of those absences. Colon-Fontanez’s evaluation from March 15, 2003 through March 14, 2004 contains a comment regarding her punctuality and/or attendance that “due to her health condition” she is prevented from “attending with regularity.” In other areas of performance, Colon-Fontanez received superior marks and positive comments. ■ 2005 In 2005, Colon-Fontanez was absent from work thirty percent (30%) of the time she was scheduled to work that year. Colon-Fontanez’s absences were categorized as leave without pay twenty-five percent (25%) of the time, sick leave twenty-one percent (21%) of the time, annual leave (with sick leave exhausted) twenty-two percent (22%) of the time, and annual leave thirty-two percent (32%) of the time. On June 10, 2005, the Municipality issued Colon-Fontanez a letter informing her that the Municipality’s Personnel Regulations establish that employees shall have job security provided that they fulfill certain criteria, including regular and punctual attendance and compliance with their regular work schedules. The letter further informed Colon-Fontanez that on May 31, 2005, her leave balance was getting low and further absences would result in a deduction from her paycheck to claim any debt from overpayment. On August 12, 2005, the Municipality issued a letter to Colon-Fontanez that: (1) cited an Executive Order requiring employees to comply with attendance rules and use of leave established by the Municipality; (2) informed her that her leave balance was low; and (3) stated that should she again be absent from work, “we will proceed to reimburse your check and claim the difference, if any.” Colon-Fontanez’s evaluation for the period of September 1, 2004 through August 31, 2005 contains an unsatisfactory mark for attendance. With regard to her attendance, the evaluation states that ColonFontanez “is not compliant, attendance is much below the established norms” and that her “Attendance record during the cycle is 13 absences or more in one year.” The evaluation also cites Colon-Fontanez for commendable performance in all other areas of the evaluation, and states that, due to her health condition, she is unable to attend work regularly but is improving. ■ 2006 In 2006, Colon-Fontanez was absent approximately fifty-nine percent (59%) of the time she was scheduled to work. She was on leave without pay for fifty-eight percent (58%) of the time she was absent; on sick leave for twenty-two percent (22%) of the time she was absent; on annual leave for eleven percent (11%) of the time she was absent; on annual leave with sick leave exhausted for seven percent (7%) of the time she was absent; and on advanced sick leave for two percent (2%) of the time she was absent. On January 19, 2006, Colon-Fontanez requested leave without pay from the Municipality from January 1 through January 16, 2006 due to health problems. On March 15, 2006, Colon-Fontanez requested three days of advanced sick leave from the Municipality because her leave balances were exhausted. On April 1, 2006, ColonFontanez requested leave without pay from April 1 through April 30, 2006 due to her health issues, hospitalization, and because her leave was exhausted. On October 2, 3006, Colon-Fontanez requested from the Municipality more periods of leave without pay from October 3 through 23, October 24 through 30 in 2006 and from November 2, 2006 through January 12, 2007 due to her health problems. The Municipality approved all requests. ■ 2007 In 2007, Colon-Fontanez was absent approximately fifty-six percent (56%) of the time she was scheduled to work: forty-one percent (41%) of the time absent was categorized as leave without pay; seventeen percent (17%) was categorized as sick leave; one percent (1%) was categorized as advanced sick leave; three percent (3%) was categorized as annual leave; and thirty-five percent (35%) was categorized as leave without pay due to treatment under CSIF. On May 24, 2007, Director of Purchases and Provisions Ivonne Rodriguez (“Rodriguez”) addressed a memorandum letter to the Municipal Secretary stating that Colon-Fontanez’s absence had affected the Health Department’s work, causing delays. The letter requested additional support in the Health Department until Colon-Fontanez was able to return. In a letter dated December 5, 2007, employee Yesiree Aleman O’Neill (“Aleman”) states that she had been asked by Rodriguez to assist with pending matters while Colon-Fontanez was absent due to health problems. In her letter, Aleman requested a transfer from the Auction Department to another division or department. ■ 2008 Colon-Fontanez was absent fifty-six percent (56%) of the time she was scheduled to work in 2008. Of those absences, seventy-percent (70%) were categorized as leave without pay; eighteen percent (18%) were categorized as sick leave; eight percent (8%) were categorized as annual leave with sick leave exhausted; and four percent (4%) were categorized as annual leave. On September 9, 2008, the Municipality’s Municipal Clerk, Jose A. Alicea Rivera, issued Colon-Fontanez a memorandum that cited the Municipality’s regulations pertaining to attendance and use of leaves of absence. The letter further informed Colon-Fontanez that, as of August 31, 2008, she had exhausted her balance of regular leave and owed the Municipality as a result of overpayment which would be deducted from her salary. On October 2, 2008, Colon-Fontanez requested a three month leave without pay due to her continuing health problems and because she had already exhausted her leave balances. On October 22, 2008, the Municipality notified Colon-Fontanez that she would receive leave without pay as requested, yet reminded her that her work requires regular attendance. From September 10 through September 24, 2008, following the filing of ColonFontanez’s complaint in this ease, a number of electronic messages were exchanged by various employees of the Municipality concerning the impact of Colon-Fontanez’s frequent absences from work on the auction processes for the Department of Health of the Municipality. ■ Testimony Regarding Colon-Fontanez’s Work Performance In addition to the above-relayed facts regarding some of Colon-Fontanez’s evaluations, the Court has assembled the following record related to Colon-Fontanez’s work performance. Julia Lanzo testified that Colon-Fontanez’s work performance was excellent. She testified that, in 2006, Colon-Fontanez’s absences became more and more frequent. Lanzo testified that Colon-Fontanez’s family members sometimes called to notify her that Colon-Fontanez did not feel well and would be absent. Lanzo said that when Colon-Fontanez returned to the office, she (Colon-Fontanez) continued doing the work as she did it prior to her absence. Lanzo also stated that, although Colon-Fontanez sometimes came to the office swollen or sick, she would perform her tasks. Lanzo said, “in that sense, I have no complaints about Nitza.” Ivonne Rodriguez, on the other hand, testified that Colon-Fontanez’s absences were often unannounced and that her attendance is totally unpredictable. Yesiree Aleman testified that, although Colon-Fontanez could not carry a file without difficulty, she was able to carry out the immediate functions in her work area. Colon-Fontanez maintains that her work was not delayed due to her absences. Request for a Reserved Parking Space On October 24, 2006, Colon-Fontanez wrote a letter to Special Assistant Jose Rivera Hernandez (“Rivera”) requesting that she be granted a reasonable accommodation for disabled persons pursuant to the Americans with Disabilities Act of 1990 in the form of a reserved parking spot close to the Municipal Tower building. The letter stated that medical evidence and information was attached. On or about November 1, 2006, ColonFontanez sent an electronic message to Rivera, on which Rodriguez, Lanzo and Colomer were copied, following up on her reasonable accommodation request. On November 2, 2006, Rivera sent Colon-Fontanez an electronic message informing her that a reserved parking spot could not be assigned. If plaintiff had the handicapped person identification, however, she was welcome to use any of the six parking spaces assigned for the use of handicapped persons close to the building’s entrance. At some point after November 2, 2006, Colon-Fontanez and Rivera had an informal conversation during which they discussed Colon-Fontanez’s request for an assigned parking space. Rivera testified in his deposition that, during his conversation with Colon-Fontanez, she informed him that she intended to file her case before the Office of the Advocate for the Disabled. Colon-Fontanez did not send Rivera any written response to his November 2, 2006 electronic message. Rivera stated in a deposition that he believed, because Colon-Fontanez did not respond to his November 2, 2006 message, that the matter had been resolved. According to Rivera, in October and November of 2006, all of the reserved parking spots were assigned to various Municipality employees. On March 28, 2007, Colon-Fontanez submitted a petition to the Office of the Advocate for the Disabled. The petition stated that, because of her health condition, Colon-Fontanez’s physician told her that she could not walk long distances. The petition went on to say that on October 24, 2006 Colon-Fontanez requested an assigned parking space as a reasonable accommodation for her health condition. The petition stated that on November 2, 2006, an aide to the Municipal Clerk told Colon-Fontanez that he could not reserve a parking space, but that he offered her an alternative: use of the reserved handicapped parking spots. Colon-Fontanez stated in the petition that the alternative offered was not viable for her, because by the time she arrived at work, all of the handicapped reserved spots were occupied. Her petition requested that she be given reasonable accommodation in the form of an assigned parking space near the building where she was working. The Equal Employment Opportunity Commission Charge On June 18, 2007, Colon-Fontanez filed a “Notice of Charge of Discrimination” with the Equal Employment Opportunity Commission (“EECC”) against the Mayor of the Municipality alleging discrimination pursuant to the ADA and retaliation for protected actions. In her EEOC charge, Colon-Fontanez alleged that the violation against her was continuing, and cited the last violation as having taken place on May 17, 2007. On August 31, 2007, the EEOC sent Colon-Fontanez notice of her right to sue. Facts Relevant to Colon-Fontanez’s Retaliation Claims ■ Hazardous Workplace Conditions On April 11, 2007, a letter was issued to Municipal Secretary Jose Alicea (“Alicea”) from the Commonwealth Department of Labor and Human Resources stating that a complaint had been filed concerning a possibly hazardous situation at the Municipal Tower. The Occupational Safety and Health Administration (OSHA) issued a “Notice of Alleged Safety or health hazards” which noted that a remodeling project with gypsum board was conducted while employees were present, exposing twenty (20) employees. On April 17, 2007, Alicea sent a letter to OSHA Area Director Lydia Sotomayor (“Sotomayor”) stating that the gypsum board construction ended on the same day that the original complaint of hazardous conditions was filed and that plastic covers were installed to contain any material granules. On September 11, 2007, Sotomayor sent Colon-Fontanez a letter to follow-up on her complaint regarding hazardous conditions at the Municipal Tower building. The letter stated that, with regard to the remodeling work with gypsum boards while employees were present at the site, OSHA issued no summons because the condition was not observed. ■ Statements Made to Colon-Fontanez Colon-Fontanez claims that three fellow employees told her to get on social security, and that her supervisor, Ivonne Rodriguez, told her numerous times, including one instance in June of 2007, to get on social security because then she would get an assured check. Colon-Fontanez testified that all of these statements were made either during telephone calls or while she and Rodriguez were alone in Rodriguez’s office. ■ Changes in Colon-Fontanez’s Work Schedule In her amended complaint, Colon-Fontanez alleged that she requested a change in her work schedule in order to go to medical appointments, and that her supervisor, Ivonne Rodriguez, never answered her request, causing Colon-Fontanez to lose the balances of her sick and vacation leaves. During a deposition, Colon-Fontanez testified that she did not recall whether or not Rodriguez followed up on ColonFontanez’s request for a change in her working schedule. Colon-Fontanez also testified during her deposition that her supervisor, Maria Marcano (“Marcano”), authorized a change in her schedule in March of 2008, accommodating Colon-Fontanez’s medical appointments and avoiding any loss to Colon-Fontanez’s leave balance. On March 13, 2008, the Municipality authorized a change to Colon-Fontanez’s work schedule. ■ Delayed Approval of Outlook Computer Training Colon-Fontanez testified in her deposition that she was not allowed to participate in a computer training workshop because her request to participate was not approved with sufficient time. In her deposition, Colon-Fontanez testified that she submitted her request to supervisor Rodriguez on August 23, 2007 for a workshop to be held on September 11, 2007, and that she did not follow up with Rodriguez. Although Colon-Fontanez stated that she did not follow-up with Rodriguez about the status of her request, she also stated that Rodriguez would not receive her for work consultations (implying that Rodriguez would not meet with Colon-Fontanez to follow up). ■ Negative Memorandum Against Colon-Fontanez In an undated sworn statement, Municipality employee Ruth Carmona claimed that she was asked by Ivonne Rodriguez “for my advise [sic] in order to issue a disciplinary memo against Nitza Colon but I refused.” (See Docket No. 59-2 at 2) ■ Withholding Checks The Municipality issued notices for the re-deposit or refund of Colon-Fontanez’s pay checks for the following pay periods during which her pay checks had been withheld because she either owed days and/or did not have sufficient sick or annual leave to cover the pay period: August 16 through 31, 2006; July 16 through 31, 2007; August 1 through 15, 2007; and August 16 through 31, 2007. It is unclear when, exactly, Colon-Fontanez’s re-deposited or refunded checks were issued, or when she actually received her reimbursed or refunded payments. On August 29, 2007, Colon-Fontanez sent an electronic message to Municipal Secretary Jose Alicea with the subject heading “Payroll Payment.” In her e-mail Colon-Fontanez asserted that she had not received any type of payroll payment since July 20, 2007. She stated that she was aware that adjustments to her payment would have to be made due to her absences. That same day, Alicea forwarded Colon-Fontanez’s electronic message to Human Resources Director Antonio Alvarez-Torres stating, “I request your help in processing this case promptly.” The Municipality issued a check to Colon-Fontanez on that same day, August 29, 2007, for $328.51. The Municipality issued ColonFontanez fourteen payroll checks between May 31, 2007 and December 21, 2007 which were signed and cashed. Employee Adela Otero, who works as an Administrative Officer II for the Municipality, testified that other employees were given refund checks by the Municipality while Colon-Fontanez was not given her check. ■ Elimination of Supervisory Duties Colon-Fontanez alleges that her supervisor, Ivonne Rodriguez, retaliated against her by eliminating supervisory duties and telling Colon-Fontanez that her duties were being eliminated because of her health condition. Yesiree Aleman (“Aleman”) testified that she began working for the Municipality in 1996, that she was assigned to the purchase unit until 2001, that in 2001 she was assigned to the Auction Department, and that her immediate supervisor was Julia Lanzo. Aleman testified that she worked as Colon-Fontanez’s assistant in 2004, and that she was assigned by Rodriguez and Lanzo to be Colon-Fontanez’s assistant because of Colon-Fontanez’s health condition. Colon-Fontanez testified that she supervised Aleman; she admitted, however, that she did not perform evaluations of Ale-man’s performance; evaluations of Aleman were done by the manager or director. Lanzo, who managed the Auction Area until 2006, testified in a deposition that she had directed Aleman to assist with work coverage when Colon-Fontanez was absent, ensuring that the work assigned to Colon-Fontanez would not be disrupted or cease during Colon-Fontanez’s absences. Lanzo testified that it was impossible to predict when Colon-Fontanez would be absent. Lanzo also stated that she did not like Colon-Fontanez getting sick and failing to report to work, but that she would assist Colon-Fontanez by doing ColonFontanez’s work to ensure that the work was done. ■ Reassignment of Colon-Fontanez’s Duties in the Women’s Affairs Department Colon-Fontanez also claims that Rodriguez eliminated some of her work duties for the Department of Women’s Affairs. Yesiree Aleman testified that a change took place in 2007 after a personnel meeting in Ivonne Rodriguez’s office. ColonFontanez said that she never complained that she was unable to carry the workload from the Department of Women’s Affairs, nor did she receive any complaints about her work for that Department. Rodriguez claims that the Department of Women’s Affairs work was not reassigned away from Colon-Fontanez because of her health condition; it was reassigned “to help Nitza Colon in meeting her work levels requirements ... to give Nitza Colon breathing space so that she could otherwise manage her absenteeism situation.” She said work in the Department of Women’s Affairs was generally reassigned as part of the regular reassignments she does in the Auction Department to “get things moving.” Rodriguez further explained that the reassignments are done from time to time to meet manpower gaps in the Auction Department, and to keep the Auction Department on track, preventing a backlog of work. Rodriguez also stated that the Department of Women’s Affairs rarely produces work for the Auction Department nor does it require significant attention. ■ Elimination of Advancement Opportunities Colon-Fontanez claims that she has not been evaluated since filing her request for reasonable accommodation, preventing her advancement in the Municipality structure. After her deposition in this case, ColonFontanez, along with a number of other employees, was evaluated by Ivonne Rodriguez, her supervisor. Colon-Fontanez claims that she has been unable to procure the results of the evaluation from Rodriguez. A form letter sent to Colon-Fontanez in May of 2008 rejected her application for a position as an administrative aide because she did not meet the necessary requirements. Hostile Environment Colon-Fontanez asserts that she was subjected to a hostile environment as a consequence of filing her request for reasonable accommodation. Colon-Fontanez claims that Rodriguez failed to meet with her and that she was isolated. Rodriguez denies all of these claims, stating that Colon-Fontanez has always been invited to participate in work meetings when she attends work, that Colon-Fontanez has never been isolated by the management in the Auction Department, and that she never refused to meet with Colon-Fontanez. Rodriguez also maintains that she has never discriminated against Colon-Fontanez in any way, and instead has always tried to help Colon-Fontanez with her attendance problem by being as flexible as possible and providing alternatives so that ColonFontanez could keep her job. The following facts relate to Colon-Fontanez’s hostile environment charge. ■ Yesiree Aleman testified in her deposition that after Colon-Fontanez requested a parking spot she was mistreated. Aleman claimed that, on one occasion, Rodriguez did not want to see Colon-Fontanez. Ale-man further stated that when Ale-man and Colon-Fontanez entered Rodriguez’s office, Rodriguez yelled at them, telling them she was busy, but that when other employees entered Rodriguez’s office, Rodriguez did not yell at them. ■ Colon-Fontanez claims that she was thrown out of Rodriguez’s office in front of another Municipality employee. ■ Colon-Fontanez claims that Rodriguez allows other employees to come and go from her office, but makes Colon-Fontanez wait, avoids ColonFontanez, restricts Colon-Fontanez’s access to her, and does not even say good morning to ColonFontanez. Colon-Fontanez claims that because Rodriguez did not take action to stop the hostility toward Colon-Fontanez, other employees stopped talking to Colon-Fontanez. ■ According to Colon-Fontanez, one employee said she was a hypochondriac and Rodriguez took no action. Colon-Fontanez claims she was surprised at the way Rodriguez was treating her. ■ Colon-Fontanez claims that in 2008 she was not invited to a contracts workshop she felt she should have been invited to attend. Rodriguez denies that Colon-Fontanez was purposefully not invited to a contract workshop and states that Colon-Fontanez often participates in these kinds of activities. ■ Colon-Fontanez claims that Rodriguez allows other employees to attend to personal matters during work hours, leaving work to do personal things, without deducting their hours, while always deducting Colon-Fontanez’s hours in compliance with the employment manual. Rodriguez denies this, stating that all employees are required to obey the same attendance and punctuality rules. ■ Adela Otero testified in her deposition that at some point after ColonFontanez had returned from an absence due to her health condition, Colon-Fontanez worked without a telephone for at least two months, was not provided with other tools to carry out her work, and, in 2008, had her computer taken away for several weeks to a month requiring Colon-Fontanez to do her work manually. Rodriguez denies this, stating that no tools were withdrawn unless it was for short periods of time when machines needed repair. ■ Otero claimed that in 2007 while Colon-Fontanez was out, Rodriguez offered Otero the position of Auction Officer, which Otero understood belonged to Colon-Fontanez. Rodriquez denies this, stating, “It is not true that I offered Adela Otero a position in order to bump or replace Nitza Colon.” ■ Yesiree Aleman testified that employee James Delgado would comment that Colon-Fontanez was “faking it.” She also claims that Rodriguez and Marcano would say, “If plaintiff is so sick than [sic] why doesn’t she apply for disability,” and that another employee, “Ineabelle,” said that Colon-Fontanez should apply for disability. ■ Otero also claims that she overheard Rodriguez in about 2008 and 2007 commenting that Colon-Fontanez did not have anything when ColonFontanez called in sick. ■ Colon-Fontanez claims she told Rodriguez that things were not pleasant for her, and that she felt depressed and discriminated against, but that Rodriguez took no action. ■ Colon-Fontanez claims that in November 2007 she asked Rodriguez to hold a meeting with her female coworkers to address the comments made against her, but that Rodriguez refused to hold a meeting for that purpose. ■ Colon-Fontanez claims that Rodriguez told her on three occasions to take social security because that would be a sure check. She claims these statements were made only after she requested reasonable accommodation, in 2006 or 2007. ■ Aleman claims that Rodriguez told her to go back to her desk whenever she went to speak with Colon-Fontanez. Aleman also claims that one of the reasons she asked to be transferred out of the Auction Department was because of the hostile environment there. Rodriguez claims that Aleman was overworked because of the continued absences of Colon-Fontanez and that Aleman was tired of working with ColonFontanez because she was overworked. Rodriguez states that Ale-man told her that she (Aleman) did not like the auction process, which was another reason Aleman asked to be transferred. ■ Otero claims that “they” would not allow Colon-Fontanez to go to the bathroom, and “they” would send someone to look for Colon-Fontanez when she went to the bathroom. Otero states that, “if I heard that someone was looking for Nitza, I would go to the bathroom, because she was always feeling sick.” Rodriguez maintains that it is not true that she or Marcano limited ColonFontanez’s movements or followed her. On January 25, 2008, ColonFontanez sent supervisor Maria Marcano an electronic message thanking Marcano. Colon-Fontanez thanked Mareano for taking action regarding Colon-Fontanez’s complaint that maintenance workers had made negative comments about Colon-Fontanez after Colon-Fontanez reported a maintenance problem. ■ With respect to all of the hostile environment claims, Rodriguez denies mistreating Colon-Fontanez or Aleman in any way. She maintains that she treated Colon-Fontanez at all times with consideration and respect; that she never saw anyone, employee or supervisor, humiliate Colon-Fontanez in any fashion; and that she never heard anyone make comments to Colon-Fontanez about social security benefits. III. Summary Judgment Standard The Court’s discretion to grant summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. The rule states, in pertinent part, that the court may grant summary judgment only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000). The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once a properly supported motion has been presented, the opposing party has the burden of demonstrating that a trial-worthy issue exists that would warrant the Court’s denial of the motion for summary judgment. For issues where the opposing party bears the ultimate burden of proof, that party cannot merely rely on the absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute. See Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 53 (1st Cir.2000). In order for a factual controversy to prevent summary judgment, the contested facts must be “material” and the dispute must be “genuine.” Material means that a contested fact has the potential to change the outcome of the suit under governing law. The issue is genuine when a reasonable jury could return a verdict for the nonmoving party based on the evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is well settled that “[t]he mere existence of a scintilla of evidence” is insufficient to defeat a properly supported motion for summary judgment. Id. at 252, 106 S.Ct. 2505. It is therefore necessary that “a party opposing summary judgment must present definite, competent evidence to rebut the motion.” Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). In making this assessment, the Court “must view the entire record in the light most hospitable to the party opposing summary judgment, indulging in all reasonable inferences in that party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). The court may safely ignore, however, “conclusory allegations, improbable inferences, and unsupported speculation.” Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). IV. Legal Analysis Colon-Fontanez claims that the Municipality discriminated against her in violation of the ADA and the Rehabilitation Act by refusing to grant her request for accommodation and by retaliating against her for making that request. A. Reasonable Accommodation Claim Pursuant to the ADA The Americans with Disabilities Act (“ADA”) prohibits covered employers from discriminating against a qualified individual on the basis of disability in regards to the terms, conditions and privileges of employment. 42 U.S.C. § 12112(a). To “discriminate” under the ADA includes an employer’s failure to make reasonable accommodations for the known physical or mental limitations of an employee with a disability who is otherwise qualified to perform the essential functions of his or her job. To evaluate a reasonable accommodation claim pursuant to the ADA, the Court looks at whether the plaintiff has shown that (1) she suffers from a disability within the meaning of the statute; (2) she was a qualified individual in that she could perform the essential functions of her job with or without a reasonable accommodation; and (3) despite knowing of her disability, the plaintiffs employer did not offer her a reasonable accommodation. See Calero-Cerezo v. U.S. Dep’t. of Justice, 355 F.3d 6, 20 (1st Cir.2004) (internal citations omitted). Colon-Fontanez claims that the Municipality violated the ADA by denying her request for a reserved parking space. The Municipality maintains, inter alia, that Colon-Fontanez fails to satisfy the first element of her failure to accommodate claim because she is not a qualified individual within the meaning of the ADA. Even assuming, arguendo, that ColonFontanez produced evidence from which a rational jury could have found her “disabled” within the meaning of the ADA, the Court agrees with the Municipality that Colon-Fontanez was not a qualified individual under the ADA. A qualified individual under the ADA is one who is able to perform the “essential functions” of the position, in this case the essential functions of an Auction Officer at the Municipality of San Juan, either with or without “reasonable accommodation.” See, e.g., Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 (1st Cir.2000). An essential function is not a marginal function but a “fundamental job duty of the employment position.” Ward v. Massachusetts Health Research Institute, Inc., 209 F.3d 29, 34 (2000) (citation omitted). Essential functions “may be more encompassing than such core job requirements as an employee’s technical skills and experience, even including such individual or idiosyncratic characteristics as scheduling flexibility.” Id. The Municipality argues that Colon-Fontanez’s absenteeism prevented her from performing an essent