Citations
- 980 F. Supp. 2d 170
Full opinion text
AMENDED OPINION AND ORDER NUNC PRO TUNC ADOPTING REPORT AND RECOMMENDATION
DANIEL R. DOMÍNGUEZ, District Judge.
Pending before the Court are: (a) Defendant’s Motion For Summary Judgment And Memorandum Of Law In Support Thereof, Docket entries No. 35 and 36; (b) Plaintiffs Memorandum of Points and Authorities in Opposition to Motion for Summary Judgment, Docket No. 51; (c) Defendant’s Reply to Opposition To Motion For Summary Judgment, Docket No. 63; (d) Report and Recommendation issued by the Magistrate Judge Marcos E. López (hereinafter “Magistrate Judge”), Docket No. 77; (e) Plaintiffs Objection to Report and Recommendation on Summary Judgment Request, Docket No. 78; (f) Opposition to Plaintiffs Objections to Magistrate Judge’s Report and Recommendation, Docket No. 82. The Report and Recommendation concluded that the federal claims under the Americans with Disability Act (“ADA”), including Puerto Rico Law No. 44, against defendants Melvin Fonseca and Melissa Negrón, be dismissed with prejudice, and the state law claims be dismissed without prejudice. See Docket No. 77, page 214.
The instant case was referred to the Magistrate Judge Marcos E. López (hereinafter “Magistrate Judge”) for report and recommendation. See Docket entries No. 71 and 74. The Magistrate Judge entered the Report and Recommendation on August 30, 2013, Docket No. 77. Pursuant to the Order Referring Case, Docket No. 71, the parties were granted five business days to file any objections. The record shows that plaintiff timely opposed the Report and Recommendation on September 3, 2013, Docket No. 78. On September 10, 2013, the defendants filed their response to plaintiffs objections on a timely fashion and after requesting leave of Court. See Docket entries No. 81 and 82. For the reasons set forth below, the Magistrate Judge’s Report and Recommendation is adopted in toto, as supplemented herein.
Standard of Review
The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B) (1993); Rule 72(b) of the Federal Rules of Civil Procedure (“Fed. R. Civ.P.”); Rule 72 of the Local Rules for the District of Puerto Rico (“Local Rules”). See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). As a general rule, an adversely affected party may contest the Magistrate Judge’s report and recommendation by filing its objections within fourteen (14) days after being served a copy thereof. See Local Rule 72(d); Fed.R.Civ.P. 72(b). Moreover, 28 U.S.C. § 636(b)(1), in its pertinent part, provides that:
Within fourteen days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.
“The district judge need not normally conduct a new hearing and may consider the record developed before the magistrate judge, making his or her own determination on the basis if that record.” See Local Rule 72(d) of December 3, 2009, as amended on September 2, 2010.
However, “[a]bsent objection by the plaintiffs, [a] district court ha[s] a right to assume that [a party] agree[s] to the magistrate’s recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, “[flailure to raise objections to the Report and Recommendation waives that party’s right to review in the district court and those claims not preserved by such objection are precluded on appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). See also Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir.1994) (holding that specific objections are required when challenging findings actually set out in magistrate’s recommendation, as well as magistrate’s failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that “[o]bjection to a magistrate’s report preserves only those objections that are specified”); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, “however he was not entitled to a de novo review of an argument never raised”). See generally United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980). Hence, the standard for review of an objected report and recommendation is de novo review of those matters properly objected. See Borden v. Secretary of H.H.S., 836 F.2d at 6. The Court, therefore proceeds, as the Report and Recommendation has been objected, to review the Report and Recommendation of the Magistrate Judge de novo, as to those parts that have been objected. Borden v. Secretary of H.H.S., supra.
The Summary Judgment Standard
Generally, “[s]ummary judgment is proper where ‘the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.’ Fed.R.Civ.P. 56(c).” Richardson v. Friendly Ice Cream Corporation, 594 F.3d 69, 74 (1st Cir.2010). See also Celotex Corp. v. Catrett, 477 U.S. 317, 324-325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Thompson v. Coca-Cola, Co., 522 F.3d 168, 175 (1st Cir.2008); Rodríguez-Rivera, et al. v. Federico Trilla Regional Hospital of Carolina, et al., 532 F.3d 28, 30 (1st Cir.2008). “The object of summary judgment is ‘to pierce the boilerplate of the pleadings and assay the parties’ proof in order to determine whether trial is actually required.’ ” Dávila v. Corporación de Puerto Rico Para La Difusión Pública, 498 F.3d 9, 12 (1st Cir.2007), citing from Acosta v. Ames Dep’t Stores, Inc., 386 F.3d 5, 7 (1st Cir.2004) (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.1992)). In Davila, the United States Court of Appeals for the First Circuit (“First Circuit”) held:
For this purpose, an issue is genuine if a reasonable jury could resolve the point in favor of the nonmoving party. Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 53 (1st Cir.2000). By like token, a fact is material if it has the potential to determine the outcome of the litigation. See Calvi v. Knox County, 470 F.3d 422, 426 (1st Cir.2006). Where, as here, the nonmovant has the burden of proof and the evidence on one or more of the critical issues in the case “is ... not significantly probative, summary judgment may be granted.” Acosta, 386 F.3d at 8 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
When reviewing de novo, the court “must scrutinize the evidence in the light most agreeable to the nonmoving party, giving that party the benefit of any and all reasonable inferences.” Noviello v. City of Boston, 398 F.3d 76, 84 (1st Cir.2005), citing Cox v. Hainey, 391 F.3d 25, 27 (1st Cir.2004). See also Richardson v. Friendly Ice Cream Corporation, 594 F.3d at 74. “[T]he nonmovant bears ‘the burden of producing specific facts sufficient to deflect the swing of the summary judgment scythe.’ ” Noviello, 398 F.3d at 84, citing Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir.2003). See also, Dávila, 498 F.3d 9. “Those facts, typically set forth in affidavits, depositions, and the like, must have evidentiary value; as a rule, ‘[e]vidence that is inadmissible at trial, such as, inadmissible hearsay, may not be considered on summary judgment.’ ” Noviello, 398 F.3d at 84, citing Vázquez v. López-Rosario, 134 F.3d 28, 33 (1st Cir.1998); accord Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). “The evidence presented by the non-moving party may not be ‘eonclusory allegations, improbable inferences, [or] unsupported speculation.’ ” Torres-Negrón v. Merck & Company, Inc., et al., 488 F.3d at 39, citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). Based on these premises, the Court proceeds with the analysis.
Analysis
Factual and Procedural Background
The facts in this case are straightforward. Plaintiff Jacqueline Ortiz Santiago (hereinafter “Ortiz” or “plaintiff’) alleges in the Complaint several employment violations under the American with Disabilities Act (“ADA”), such as, “illegal and discriminatory actions taken by the employer on the basis of her disability,” “questioning her need for reasonable accommodation, and retaliated against her when she requested the Company to comply with the law,” 42 U.S.C. §§ 12101 et seq., and constructive discharge. See Complaint, Docket No. 1, page 1. Ms. Ortiz seeks a declaratory and injunctive relief enjoining the defendants from engaging in practices of disability discrimination, as well as damages against her former employer, defendant Sears Holdings a/k/s Sears Roebuck de Puerto Rico, Inc. (hereinafter “Sears”). Plaintiff is also seeking reinstatement to her prior position or in the alternative, “front pay and related benefits in lieu of reinstatement.” See Complaint, Docket No. 1, page 9. In addition, plaintiff seeks compensatory damages, lost wages and benefits, past and future, as well as attorneys fees and costs.
Plaintiff was hired as a part-time employee in the year 2005. On April 5, 2010, plaintiff voluntarily quit her job. Ms. Ortiz was hired as a sales associate in the Sears’ store located at the Santa Rosa Mall in Bayamón. See Docket No. 1 ¶ 4.5. Plaintiff alleges that she is disabled under the ADA, as she suffers from Type I diabetes and high blood pressure, “conditions which substantially limit her ability to engage in one or more major life functions.” Id. ¶4.2. “Since the beginning of her employment, plaintiff requested reasonable accommodation for her disability.” Id. ¶ 4.6. Late in the year 2008, plaintiff was transferred to the Sears outlet located at Los Paseos, as an assistant to the Office Supervisor in the administrative office. Id. ¶ 4.7. It appears that the Office Supervisor was transferred to another store in August 2009, and plaintiff performed the functions of the Office Supervisor on a temporary basis until a person be designated to occupy the position. Id. ¶ 4.8. Plaintiff applied for the position of Office Supervisor, however, defendant Melissa Negron (“Ms. Negron”) was hired in December 2009 for the position, notwithstanding plaintiff that her “formal and informal evaluations were always satisfactory.” Id. ¶¶ 4.9 and 4.11. Plaintiff trained Ms. Negron in the new position. Id. ¶ 4.12. Plaintiff alleges that after the training, Ms. Negron “began a pattern of harassing Ms. Ortiz due to plaintiffs needs for reasonable accommodation.” Id. ¶ 4.14.
Plaintiff further alleges that Ms. Negron and the operations manager Mr. Fonseca, “refus[ed] to pay plaintiff sick time when she was out of the workplace due to her disability.” Id. ¶ 4.14(e). Both Ms. Negron and Mr. Fonseca, the operations manager, began to assign “excess work” to plaintiff, refused to allow her sufficient time to complete the assigned tasks, and even reduced her work hours. Id. ¶ 4.15.
“On April 5, 2010, shortly before plaintiffs scheduled meal break, Ms. Negron and Mr. Fonseca ordered plaintiff to perform a certain task. While performing the assignment plaintiff felt ill and requested Mr. Fonseca to allow her to take her meal break.” Id. ¶ 4.19. “In response to plaintiffs request, Mr. Fonseca not only prohibited her from taking the required meal break, but also humiliated plaintiff and told her that she was worthless in front of other employees.” Id. ¶ 4.20. “Ms. Ortiz felt the need to demonstrate to Mr. Fonseca her entitlement to the break by showing the supervisor medical certificates in her personnel file documenting her disability and the need for reasonable accommodation.” Id. at page 6, ¶ 4.21. “However, Mr. Fonseca refused to speak to plaintiff. He completely refused to engage in any process, interactive or otherwise, in order to facilitate and comply with plaintiffs request, or to comply with his obligation as an agent of a covered employer to assure that there is reasonable accommodation for a qualified individual.” Id. ¶ 4.22.
Plaintiff resigned from her job on April 5, 2010, immediately after an incident with Ms. Negron and Mr. Fonseca that occurred prior to Ms. Ortiz’ lunch break. See Plaintiffs Resignation Letter April 5, 2010, Docket No. 35-23 (Spanish language), and a medical certificate attached thereto, and the certified English translation, Docket No. 43-7. The Court notes that the Complaint is silent as to: (a) the date of the alleged constructive discharge; (b) the fact that the April 6, 2010 claim filed with the Puerto Rico Department of Labor Anti-Discrimination Unit was filed after plaintiff was no longer working with Sears; (c) the record is also silent as to the filing of any other prior claims with her employer and/or the EEOC while plaintiff was still working with Sears, and (d) what events, if any, transpired between April 6, 2010 when the claim was originally filed until the March 7, 2011 date of the right to sue letter allegedly issued by the Equal Employment Opportunities Commission (“EEOC”) and notified to plaintiff. Moreover, a copy of the March 7, 2011 right to sue letter is not part of the record. Indeed, the Complaint is based on unsupported, general conclusory allegations, with the exception of the two medical certificates of October 2005 and March 23, 2010, in addition to the copy of the EEOC claim filed on April 6, 2010.
Sears moved for summary judgment and the dismissal of the instant action, as plaintiff was unable to show a disability under the ADA and/or a prima facie case of employment discrimination on grounds of Sears’ failure to provide reasonable accommodation, Sears’ employment discrimination on grounds of her condition of diabetes, and constructive discharge. See Docket entries No. 35 and 36. Plaintiff opposed defendants’ summary judgment request on the grounds that there are material issues of contested facts, which impair the granting of summary judgment. See Docket No. 51.
As stated above, this matter was referred to the Magistrate Judge for a report and recommendation. For the reasons set forth below, the Court hereby adopts and incorporates the findings of fact made by the Magistrate Judge, see Attachment No. 1.
The Objections to the Report and Recommendation
The Magistrate Judge found the following triable issues of fact: (a) individual liability under both ADA and Puerto Rico Law 44; (b) retaliation; (c) failure to provide reasonable accommodation; (d) hostile work environment; and, (e) constructive discharge. The Magistrate Judge recommended that all the federal claims be dismissed with prejudice, and denied the constructive discharge. The Magistrate Judge further recommended that plaintiffs supplemental claims under Puerto Rico law be also dismissed.
Plaintiff Ortiz objected to all the findings of fact, legal analysis and recommendations made by the Magistrate Judge. See Docket No. 78. Defendants filed an opposition to plaintiffs objections, after having requested timely leave of Court. See Docket entries No. 81-83.
After a careful review of plaintiffs objections to the Report and Recommendation, Docket No. 77, the Court is forced to conclude that plaintiff is just seeking a second bite to the apple, as plaintiffs objections constitute a rehash of plaintiffs opposition to the defendants’ motion for summary judgment. Plaintiff, however, alleges that the Magistrate Judge failed to address several “points” raised by Sears, and “confined his analysis to the purported insufficiencies in the failure-to-aecommodate and the hostile environment/retaliation claims, and who based his recommendation on the Faragher-Ellerth [Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)] defense.” See Docket No. 78, pages 22-25.
The Court notes that plaintiffs counsel reiterates throughout the record her disagreement as to the Magistrate Judge’s conclusion that there is no individual liability under Title VII and ADA based on First Circuit precedent Fantini v. Salem State College, 557 F.3d 22 (1st Cir.2009), and prior thereto other circuit courts. See Docket No. 51, page 7, and Docket No. 78, n. 2. The Court is barred from altering and/or not following the precedent in point of the First Circuit.
At the outset, the Court finds that the record is devoid of certified medical information regarding plaintiffs high blood pressure condition, as well as her Type I diabetes, with the exception of: (a) plaintiffs Pre-Employment General Medical Physical Examination Certificate issued on October 31, 2005 by Yazmín V. Fuentes, MD, see Docket No. 35-6, and the certified English translation, Docket No. 43-3; and, (b) Medical certificate issued by Joseph S. Campos Salgado, MD to Jacqueline Ortiz on March 23, 2010, which reads, in its pertinent legible part, as follows: “Patient _ diagnosis of DM type I which requires strict diet and blood sugar monitoring. Patient currently with uncontrolled blood sugar which requires special treatment and attention.” See Docket No. 35-21. The Court notes that the Medical Certificate issued by Dr. Campos on March 23, 2010 is silent as to what type of special treatment and attention is required for plaintiff, and what type of measures and/or reasonable accommodation are required from plaintiffs employer. Again, there is no mention as to plaintiffs high blood pressure condition and/or heart disease, if any.
Disability v. Physical Impairment under the American with Disabilities Act
Plaintiff has requested a de novo review of the Magistrate Judge’s Report and Recommendation, Docket No. 77. However, the Court prefers to start by reviewing the applicable provisions of ADA, which constitutes the legal grounds for granting summary judgment. In Ramos-Echevarría, et al. v. Pichis, Inc. d/b/a Pichis Hotel and Convention Center, et al., 698 F.Supp.2d 262, 266-268 (D.P.R.2010), affirmed, Ramos-Echevarría v. Pichis, Inc. d/b/a/ Pichis Hotel and Convention Center, et al., 659 F.3d 182 (1st Cir.2011), the Court held:
Pursuant to the provisions of the ADA, disability of an individual is “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102(2)(A) (1990). “Major Life Activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” See Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, 29 C.F.R. § 1630.2(i) (1991). The ADA’s definition of disability also accepts an individual “being regarded [by the employer] as having such an impairment.” 42 U.S.C. § 12102(2)(c).
When considering a question of physical disability under the ADA, the Court will examine whether the plaintiff has established his or her discrimination claim under the ADA on physical disability grounds. The Court finds that Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 511-514 (1st Cir.1996), illustrates the three separate and independent options available to plaintiff to show discrimination for physical disability under the ADA provisions:
The ADA is a federal civil rights statute, enacted “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1)....
To establish a claim of disability discrimination under the ADA, a plaintiff must prove three things by a preponderance of the evidence:
First, that he [or she] was disabled within the meaning of the Act. Second, that with or without reasonable accommodation he [or she] was able to perform the essential functions of [the] job. And, third, that the employer discharged him [or her] in whole or in part because of his [or her] disability.
Katz v. City Metal Co., Inc., 87 F.3d 26, 30 (1st Cir.1996). [Second] A plaintiff may also indirectly prove his or her case “by using the prima facie case and burden shifting methods that originated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Id. n. 2 (citations omitted); see Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 162-63 (5th Cir.1996) (citations omitted). Under the McDonnell Douglas analysis, a plaintiff must first prove by a preponderance of the evidence that he or she (i) has a disability within the meaning of the Act; (ii) is qualified to perform the essential functions of the job, with or without reasonable accommodations; (iii) was subject to an adverse employment action by a company subject to the Act; (iv) was replaced by a non-disabled person or was treated less favorably than non-disabled employees; and (v) suffered damages as a result. See Taylor, 93 F.3d at 162-63.
The third option is provided by 42 U.S.C. § 12102(2)(C) (1990), under the definition of disability as to an individual, “being regarded as having such an impairment.” In Taylor, 93 F.3d at 164, the Court held that:
For purposes of proving ADA discrimination, it is important to distinguish between an employer’s knowledge of an employee’s disability versus an employer’s knowledge of any limitations experienced by the employee as a result of that disability. This distinction is important because the ADA requires employers to reasonably accommodate limitations, not disabilities.
Accordingly, it is incumbent upon the ADA plaintiff to assert not only a disability, but also any limitation resulting therefrom.
If the employee fails to request an accommodation, the employer cannot be held liable for failing to provide one. (Emphasis ours).
See also Jacques v. Clean-Up Group, Inc., 96 F.3d at 513-514.
Although the ADA provisions do not provide a definition of the term impairment, one can be found in its regulations. 29 C.F.R. § 1630.2(h)(1) and (2) provides:
(h) Physical or mental impairment means:
(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine; or
(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. To determine whether plaintiff has an actual disability, plaintiff must: (a) “initially prove that he or she has a physical or mental impairment;” [42 U.S.C. § 12102(2)(A) ]; (b) “demonstrate that the impairment limits a major life activity;” [42 U.S.C. § 12102(2)(A) (1994 ed.) ]; and (c) “show that the limitation on the major life activity is ‘substantia[l];’ ” [42 U.S.C. § 12102(2)(A) ].
In Arnold, v. United Parcel Service, Inc., 136 F.3d 854, 860-861 (1st Cir.1998), the Court referred to the legislative history of the ADA for enlightenment when determining whether an individual has a disability under the ADA provisions.
Indeed, Congress spoke directly to the medical condition at issue in this case [diabetis]: “persons with impairments, such as epilepsy or diabetes, which substantially limit a major life activity,” are considered to have an actual disability, “even if the effects of the impairment are controlled by medication.” House Labor Report at 52 [H.R.Rep. No. 101-485, pt. II, at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 334 (“House Labor Report”) ]. Senate Report at 22 (same) [S.Rep. No. 101-116, at 23 (1989) (“Senate Report”) ].
Another important goal of the third prong of the [disability] definition is to ensure that persons with medical conditions that are under control, and that therefore do not currently limit major life activities, are not discriminated against on the basis of their medical conditions. For example, individuals with controlled diabetes or epilepsy are often denied jobs for which they are qualified. Such denials are the result of negative attitudes and misinformation.
The fundamental purpose of the ADA is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(l)(1994). In the context of employment discrimination, the thrust of this purpose is essentially to protect individuals who have an underlying medical condition or other limiting impairment, but who are in fact capable of doing the job, with or without the help of medications, prosthetic devices, or other ameliorative measures, and with or without a reasonable accommodation by the employer. See e.g., 42 U.S.C. § 12101(a)(7). (Emphasis ours).
Hence, in order to show disability, plaintiff must prove with preponderance of evidence that plaintiff is disabled within the meaning of ADA, that is: (a) that she is disabled within the meaning of the ADA; (b) that she is able to perform the essential functions of her job, with or without reasonable accommodation; and (c) that the adverse employment decision was based in whole or in part on her disability. See Pichis, 698 F.Supp.2d at 269, citing Phelps v. Optima Health, Inc., 251 F.3d 21, 24 (1st Cir.2001); García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 (1st Cir.2000). See also Pichis, 659 F.3d at 187-188.
In the instant case, the last part of the test is inapplicable, as Sears did not take any adverse employment decision against plaintiff. The record shows that plaintiff Ortiz decided to voluntarily resign on April 5, 2010, upon the incident that transpired during that morning and without giving her employer and herself the opportunity to analyze and discuss the events that transpired on that day. Further, plaintiff has the burden of proof to show constructive discharge. Plaintiff Ortiz also has the burden of showing with preponderance of evidence the first two parts of the test, as the record is devoid of evidence showing any adverse action taken by Sears. Plaintiff may prove her disability claim with direct evidence of discrimination or indirectly by using the burden shifting test set forth in McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817. See Pichis, 659 F.3d at 186-187. The Court further held:
The McDonnell Douglas analysis requires the plaintiff to offer evidence sufficient to establish that he “(i) has a disability within the meaning of the [ADA]; (ii) is qualified to perform the essential functions of the job, with or without reasonable accommodations; (iii) was subject to an adverse employment action by a company subject to the [ADA]; (iv) was replaced by a non-disabled person or was treated less favorably than non-disabled employees; and (v) suffered damages as a result.” Id. If he establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its action. Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 99 (1st Cir.2007); see also McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817. If the employer offers a nondiscriminatory reason, the burden then shifts back to the plaintiff to show that the employer’s justification is mere pretext cloaking discriminatory animus. Freadman, 484 F.3d at 99.
Under the ADA, a disability is a physical or mental impairment that substantially limits one or more of an individual’s major life activities. 42 U.S.C. § 12102(2)(A) (1990). Disability may also be established by having a record of such an impairment or being regarded as having such an impairment. 42 U.S.C. § 12102(2)(B), (c) (1990); see also Santiago Clemente v. Exec. Airlines, Inc., 213 F.3d 25, 30 (1st Cir.2000). Ramos-Echevarria contends that he actually has an impairment and that he also has a record of such an impairment. He does not argue that Pichis regarded him as having such an impairment.
We apply a three-part analysis to determine whether an impairment qualifies as a disability under the ADA. See Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998); Carroll v. Xerox Corp., 294 F.3d 231, 238 (1st Cir.2002). First, the plaintiff must establish that he suffers from a physical or mental impairment. [FN8] Carroll, 294 F.3d at 238. Second, he must demonstrate that it affects life activities that are “major,” i.e., “of central importance to daily life.” Id. Major life activities are basic activities of daily life that an average person in the general population can perform with little or no difficulty— “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i) (1991). Finally, he must show that the impairment “substantially limits” the identified major life activity. Carroll, 294 F.3d at 238 (citing Lebrón-Torres v. Whitehall Labs., 251 F.3d 236, 239-40 (1st Cir.2001)).
FN 8. The EEOC defines an impairment as “[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or any mental or physiological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” 29 C.F.R. § 1630.2(h) (1991).
In assessing whether someone is disabled under the ADA, we must consider the impairment’s effect on the particular individual. Katz, 87 F.3d at 32. The limitation caused by the impairment must be permanent or long-term. [See ] 29 C.F.R. § 1630.2(j)(2)(ii), (in) (1991). Evidence of a medical diagnosis of impairment, standing alone, is insufficient to prove a disability. See Toyota Motor Mfg., Ky., Inc., 534 U.S. 184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). What is required is evidence showing that the impairment limits this particular plaintiff to a substantial extent. See Carroll, 294 F.3d at 238 (citations omitted). (Emphasis ours).
In the instant case, the Court finds that plaintiff has shown that she suffers a disability under ADA based on her diagnosis of diabetes Type 1 and her use of insulin, however, plaintiff failed to show a prima facie case of impairment under ADA, as she failed to show that she suffers from an impairment that substantially limits one major life activity. The existence of a disability under ADA is determined on a case-by-case basis. Carreras v. Sajo, García & Partners, 596 F.3d 25, 33 (1st Cir.2010) (“To be substantially limiting, an impairment must cause a person to be ‘unable to perform a major life activity as compared to an average person in the general population.’ 29 C.F.R. § 1630.2(j)(l)”). “The analysis of when and under what conditions diabetes is considered a disability for ADA purposes ‘is a matter of degree.’ ” Carreras, 596 F.3d at 34-35. “What is required is evidence showing that the impairment limits this particular plaintiff to a substantial extent.” Carroll, 294 F.3d at 238. Plaintiffs record is devoid of any supporting evidence, medically or otherwise, to establish that she cannot perform her tasks with or without reasonable accommodation. The supporting documents provided by plaintiff show that plaintiff merely informed Sears when she was hired that she suffered from diabetes Type I. As stated above, only two medical certificates were submitted, that is, the October 2005 and the March 23, 2010 certificates, which aside from stating that plaintiff suffers from diabetes Type I, both certificates are silent as to any special treatment and/or reasonable accommodation required for plaintiffs medical needs. The Report and Recommendation, Docket No. 28, further finds:
The uncontroverted evidence indicates that, over the course of the approximately five years that plaintiff worked for Sears, she was never denied a single request to use the restroom, measure her blood sugar level, take time to eat, or do anything else related to her condition [see Docket No. 43-1, page 43, lines 10-15], except that, on April 5, 2010, her lunch break was delayed no longer than twenty-five minutes. Plaintiff has failed to present evidence such that a jury could conclude that a twenty-five-minute delay in taking her lunch break constituted an unreasonable course of action for purposes of the accommodation recommended by her physicians. See ECF Nos. 43-3, at 1; 35-21. Plaintiff was still permitted to “eat [her lunch] at her times,” ECF No. 43-3, at 1, considering that she was able to leave for lunch at 12:23 p.m. [on the day she resigned], within a half hour after she initially requested to leave—well within the one-hour period of time permitted by Sears for lunch breaks. Furthermore, plaintiff has provided no evidence that her condition was aggravated by the twenty-five-minute delay in taking her lunch break. Rather, it is uneontroverted that, after plaintiff drank juice, she measured her blood sugar level and it was normal. See Edlund v. St. Anthony Med. Ctr., No. 00 C50216, 2002 WL 596358, at *5 n. 2 (N.D.Ill. Apr. 16, 2002) (granting defendant’s motion for summary judgment even where plaintiff presented evidence that, on eight different occasions, her supervisor “refused to allow her to immediately check her blood sugar level, but instead made her wait anywhere from five minutes to an hour to do so,” because, inter alia, no reasonable inference could be made that “the delays caused her to experience hypoglycemic reactions” and plaintiff “ha[d] not pointed out any evidence showing the delays in checking her blood sugar level on those eight occasions affected her physically or in any way interfered with her ability to do her job”). Under such circumstances, no reasonable jury can determine that Fonseca failed to reasonably accommodate her disability on April 5, 2010. Although his approach to the situation on April 5, 2010, may reflect a lack of prudence and constitute unprofessional or even rude conduct, it does not rise to the level of a failure to provide reasonable accommodation pursuant to the ADA. (Emphasis ours).
The Court finds that the Magistrate Judge’s findings are fully supported by plaintiffs own statements, to wit:
QUESTION: So on that particular day that you are telling me [April 5, 2010], your last day that you worked, what was it that you felt that it was necessary for you to measure your sugar at that particular time that you were not able to do it? Did you feel bad or was it that you had been having high sugar since before?
ANSWER: I cannot answer you if I was having high sugar since before, because I do not recall that, I can look for it, but I already felt bad, I was getting headaches, I was already shaking....
QUESTION: At that time, did anyone tell you that you could not go to measure your sugar?
ANSWER: When ...
QUESTION: But did anyone tell you that you could not measure your sugar?
ANSWER: No.
QUESTION: When was it that they told you that you could not eat?
ANSWER: The day I resigned.
QUESTION: What was it that they told you?
ANSWER: That I had to finish my job first and then I would go have lunch, the job of the tally of the cash registers.
QUESTION: And you eventually went to have lunch?
ANSWER: Yes.
QUESTION: That day, had you taken the 15 minute break?
ANSWER: That is what I explained to you a while ago, that I did not take it to try to finish the job that they were pressuring me to finish.
See Plaintiffs deposition, Docket No. 43-1, pages 32-34. (Emphasis ours).
QUESTION: You had measured your sugar before telling Mr. Melvin Fonseca that you were going to lunch, you had measured it?
ANSWER: I was coming down from the upstairs floor from a cash tally towards my office to ... I had not measured my sugar.
QUESTION: In other words, that you don’t know at that time whether it was high or whether it was low?
ANSWER: No, because of the symptoms, it was low, because I was already shaking.
QUESTION: Did you get to check it eventually, after talking with Mr. Melvin Fonseca?
ANSWER: I never did get to talk to Mr. Melvin Fonseca, only those words.
QUESTION: Exactly. What did you do after the exchange?
ANSWER: After the exchange I left for lunch.
QUESTION: At what time was that?
ANSWER: I don’t recall the time well, at noontime.
See Plaintiffs deposition, Docket No. 43-1, page 35.
QUESTION: In other words, you are coming down with him [associate José Carmona] to give him his change, you gave him the change, and you clock out and you went to lunch?
ANSWER: I gave him change, I looked for my medical certificates to take it to Melvin and to ask him what was the reason for why I couldn’t go to lunch when he knew my medical condition. He does not want to talk to me at any time unless Melissa [Negron] is there ... he told me that he needed another person, a supervisor, a manager who was a woman. I bring in Mrs. Carmen Tañón, he tells me no, that it has to be with Melissa, so I turned around, I got my things and I clocked out, to go have lunch.
QUESTION: Did you measure your sugar at that time?
ANSWER: At that time, I did not measure my sugar. At that time I was talking to him and showing him the certifícate.
QUESTION: Well, you told me that you clocked out, and you went to lunch, and at the moment that I’m asking you is ....
ANSWER: I clocked out and I went to lunch, and because of everything that had happened, and what had just had happened, I decided to resign. I left, I drank some juice, I made a resignation letter and I took it to him.
QUESTION: But my question is whether ... before resigning, after clocking out, you ... measured your sugar?
ANSWER: I did not measure my sugar before resigning.
QUESTION: Did you drink some juice?
ANSWER: Half a juice, a juice that I bought at Walgreens.
QUESTION: When did you measure your sugar at that time, at noon?
ANSWER: After I made the letter of resignation, before giving it to him.
QUESTION: Okay. And how was your sugar?
ANSWER: I recall that it was approximately about 100, it had already gone up, I had a drink of juice, approximately 100, the sugar, 80 or 100, I don’t recall what, exactly the number.
QUESTION: And did you measure your sugar after having drank the juice?
ANSWER: Yes, I bought the juice at Walgreens when I clocked out to leave.
QUESTION: And where did you measure your sugar, at Walgreens?
ANSWER: No, in the car with my mom.
QUESTION: Do you drive?
ANSWER: No.
QUESTION: Did you call your mom to go get you?
ANSWER: Yes.
QUESTION: When did you call her?
ANSWER: As soon as I clocked out and I left the store, while I was walking toward Walgreens.
QUESTION: Okay. And how long, more or less, did your mom take to pick you up after that?
ANSWER: She didn’t take long ... about less than half an hour, about 20 minutes.
QUESTION: Did you have lunch?
ANSWER: No, I drank the juice, I had lunch ... after I tendered the resignation letter to Melvin I went to lunch, because I had already drank some juice, that the sugar had gone up a little bit.
QUESTION: But you had not measured it.
ANSWER: Afterwards, when I was in the car, I measured it, that was already ... you’re asking me whether I had lunch afterwards.
See Plaintiffs deposition, Docket No. 43-1, pages 37-40.
QUESTION: But did she tell you that she did not believe you? [Plaintiffs incident with Melissa Negron two or three weeks prior to the April 5, 2013].
ANSWER: It’s that it’s necessary to say it, you know from their face.
QUESTION: In other words, that she made a face that you understand that it was that she did not believe that you felt bad?
ANSWER: Correct.
QUESTION: But she did not tell you that you could not leave?
ANSWER: No, she'did not tell me.
QUESTION: Aside from that time, any other that you recall where there was any kind of ... ?
ANSWER: That I had to leave?
QUESTION: No, where there was any kind of attitude. You’re the one who told me that there were some attitudes or faces.
ANSWER: Well, during several times “I have to go to the bathroom,” “I have to check my sugar,” “I have to do this,” attitude “again?” or “go,” or “well ...” And high sugar, you have to go to the bathroom a lot to be able to ... and drink a lot of water, because water makes the sugar go down and you urinate the sugar, and the sugar goes down too. If your sugar is too high you have to drink a lot of water too.
QUESTION: And in all of those times, you, in fact, were able to go to the bathroom and, in fact, you were able to measure your sugar or do whatever you had to do?
ANSWER: Uh-huh, correct.
QUESTION: You have given me two specific events, the incident with Melvin, the last time you worked, and this incident that you had to leave early, that you had to show Melissa the glucometer. Any other, beyond what you told me, that she would make faces when you would tell her that you had to go to the bathroom, any other specific incident like that, that you recall with more detail?
ANSWER: As far as I recall ... no, those, the attitudes either at the sales floor or wherever, those that I told you.
See Plaintiffs deposition, Docket No. 43-1, page 343-44. (Emphasis ours).
QUESTION: Did you talk with Elizabeth Ayala about any particular schedule you need?
ANSWER: Schedule?
QUESTION: Uh-huh.
ANSWER: Not schedules. It depends again on the ...
QUESTION: Of what was happening that day, how ever you felt that day?
ANSWER: Correct.
See Plaintiffs deposition, Docket No. 43-1, pages 45-46.
QUESTION: She [Melissa Negron] followed you to the bathroom. When did she follow you the bathroom?
ANSWER: When I was going to the bathroom two or three times.
QUESTION: But did she tell you anything, did she ask you whether you were going to the bathroom?
ANSWER: No.
See Plaintiffs deposition, Docket No. 43-1, page 53.
QUESTION: Did you tell Mrs. Melissa Negron that you needed a particular schedule ...
ANSWER: For?
QUESTION: ... To attend your condition?
ANSWER: No, as I said a while ago, I do not need specific schedule. I do not have to, at 7:00 in the morning, 7:00, 7:00, 10:00, 10:00, it depends on the day, i depends on how my sugar is doing.
QUESTION: And did you tell her that those breaks of yours had to be of any particular length?
ANSWER: No, I mean the time it takes me to go to the bathroom, to check my sugar to see if it’s high, if I have to eat, it depends on what I have to do. If I have I have to check my pressure, if I have to urinate.
QUESTION: It depends on how you felt that day?
ANSWER: Aha, it depends on the need I had at that time.
See Plaintiffs deposition, Docket No. 43-1, pages 54-55.
QUESTION: The truth is that you stopped working on April 5, which is two weeks later [after plaintiff filled out a document requesting the company to adjudicate to sick leave the hours corresponding to March 23, 2010, when plaintiff left early to go to the doctor].
ANSWER: Well, two weeks after that, I had to fill it in two times for them to pay it them to me.
QUESTION: Did she tell you at any time that they were not going to be paid to you?
ANSWER: No, but I did not see that they had paid me, so I filled it in again.
See Plaintiffs deposition, Docket No. 43-1, page 57.
In sum, the Court summarizes plaintiffs relevant statements as follows:
1. Except for the two medical certificates mentioned above, that is, the October 2005 and March 3, 2010 certificates, plaintiffs record is devoid of any other medical information.
2. Plaintiff never requested reasonable accommodation from Sears, as her statements show that plaintiff only limited herself to inform her employer that she suffers from diabetes Type 1, and that she needs to take her meals timely. Moreover, when Sears offered plaintiff a reasonable accommodation, plaintiff refused, as she did not need any schedules.
3. On April 5, 2010, plaintiff admitted that she was working, and that she was working under pressure, however, she still decided to skip on her own volition her mid-morning break to measure her sugar. Moreover, even after the incident, she failed to measure her sugar and/or to provide herself a meal intake or snack, if necessary.
4. Plaintiff did not request reasonable accommodation to Elizabeth Ayala or Melissa Negron during her working term with her employer Sears.
5. Sears never refused to pay plaintiff the sick leave requested.
Hence, after taking into consideration, the record and the Magistrate Judge’s Report and Recommendation, Docket No. 77, the Court finds that no reasonable jury can determine that Sears failed to provide reasonable accommodation for plaintiffs disability. Plaintiff has simply failed to show a prima facie case of employment discrimination under ADA and Title VII.
The Court will not repeat the analysis already made by the Magistrate Judge as to the triable issues, as the Court fully agrees with all the legal determinations and recommendations included in the Report and Recommendation, Docket No. 77, which are adopted and incorporated herein, after a de novo review of the facts, the record and the legal memorandums of the parties. The Court simply disagrees with plaintiffs objections to the Report and Recommendation, and lack of legal foundation.
Constructive Discharge
Plaintiff claims constructive discharge due to the isolated incident of April 5, 2010. “Constructive discharge typically ‘refers to harassment so severe and oppressive that staying on the job while seeking redress—the rule save in exceptional circumstances—is intolerable.’ ” Gerald v. University of Puerto Rico, 707 F.3d 7, 25 (1st Cir.2013), citing Lee-Crespo v. Schering-Plough Del Caribe, Inc., 354 F.3d 34, 45 (1st Cir.2003) (internal quotations and citation omitted). “A successful constructive discharge claim requires “working conditions so intolerable that a reasonable person would have felt compelled to resign.’ ” Id., citing Pennsylvania State Police v. Suders, 542 U.S. 129, 147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004).
In the instant case, the record clearly shows otherwise. Plaintiff stated in her deposition that she presented her resignation even though she was not asked by the administration, at any time, to resign. See Plaintiffs deposition, Docket No. 43-1, pages 37-40. The fact is that plaintiff resigned on April 5, 2010, as an impulsive act, and without a single explanation to her employer Sears. Furthermore, it uncontested that plaintiff filed a charge of discrimination with the Anti-Discrimination Unit of the Puerto Rico Department of Labor on April 6, 2010, wherein plaintiff clearly states, “[d]uring the whole time, that I have been working for this company, I have never had any complaint or problem, including by all my bosses.” See Docket No. 43-12. “My work had been categorized as excellent.” Id. “Some time ago, due to my problems with my sugar, because I have diabetes, I started to have problems with the operations manager because he gets upset when I have to go eat, this problem becomes more intense 3 months ago, when my supervisor also started to have a negative attitude and I started having problems at the time of verifying my sugar, going to the bathroom, going out to eat, etc.” Id. The Court finds that these are conclusive statements. Moreover, plaintiff admitted that she did not return to work except to deliver her resignation letter to Mr. Fonseca. See Plaintiffs deposition, Docket No. 43-1, pages 37-40. Hence, plaintiff could not have suffered “severe and oppressive” working conditions when she voluntarily returned to her work place to personally deliver her resignation letter to the operations manager. Gerald v. University of Puerto Rico, 707 F.3d at 25.
Considering that plaintiff was never terminated by her employer, as she resigned voluntarily after an isolated incident that took place on April 5, 2010, the Court refuses to act as a super overseeing personnel office. The Court remains mindful that its role is not to “second-guess[ing] the business decisions of an employer [and/or an employee], nor to impose [its] subjective judgments of which person would best fulfill the responsibilities of a certain job.” Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 31 (1st Cir.1990). “Courts may not sit as super personnel departments, assessing the merits—or even the rationality—of employer’s nondiscriminatory business decisions.” Mesnick v. General Electric Co., 950 F.2d 816, 823 (1st Cir.1991).
Hence, the Court finds that plaintiff was not constructively discharged, rather that she resigned knowingly and voluntarily without any “sever and oppressive” conditions present. Gerald v. University of Puerto Rico, 707 F.3d at 25. See Plaintiffs deposition, Docket No. 43-1, pages 37-40. The Court finds that one isolated incident and/or bare allegations and/or conclusive statements, are insufficient as they fail to prove any type of discrimination conduct from the defendants. The Court further finds that plaintiff failed to show a prima facie case under ADA and Title VII.
Plaintiffs claim for constructive discharge is denied, as she failed to show that her working conditions were “so intolerable that a reasonable person would have felt compelled to resign.” Gerald v. University of Puerto Rico, 707 F.3d at 25. Hence, summary judgment is warranted as to the claim of constructive discharge.
Conclusion
For the reasons stated above, the Court finds that there is no plain error in the Magistrate Judge’s Report and Recommendation, Docket No. 77. Hence, the Report and Recommendation is hereby adopted in toto, as supplemented herein. All federal causes of action are dismissed with prejudice and all causes of action under state law are dismissed without prejudice.
The Report and Recommendation issued by the Hon. Magistrate Judge Marcos E. López shall be published as an addendum of the instant Opinion and Order.
Judgment is to be entered accordingly.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
MARCOS E. LÓPEZ, United States Magistrate Judge.
On May 19, 2011, plaintiff Jacqueline Ortiz González (“plaintiff’ or “Ortiz”) filed a complaint against defendants Sears Holding Corporation, also known as Sears Roebuck of Puerto Rico, Inc. (“Sears”), Melvin Fonseca (“Fonseca”), and Melissa Negrón (“Negron”), alleging claims under the Americans with Disability Act (“ADA”), 42 U.S.C. § 12101 et seq., Law 44 of July 2, 1985 (“Law 44”), P.R. Laws Ann. tit. 1, § 501 et seq., and Law 80 of May 30, 1976 (“Law 80”), P.R. Laws Ann. tit. 29, § 185a et seq. ECF No. 1. Pending before the court is defendants’ motion for summary judgment, along with plaintiffs response and defendants’ reply. ECF Nos. 35; 51; 63.
I. Summary op Uncontested Material Facts
A. Plaintiffs Medical Condition
Plaintiff was diagnosed with diabetes mellitus type 1 when she was fifteen years old. Due to her condition, plaintiff does not secrete insulin at all. As such, she has always been on insulin treatment to control her blood sugar levels. She uses two types of insulin: long-term and rapid-action. Plaintiff takes long-term insulin twice a day, in the morning and at night, and rapid-action insulin with her food or whenever her sugar levels get too high. See ECF Nos. 35-1, ¶¶2, 8; 51-1, ¶¶ 1.2-1.3, 2, 8; 63-1, ¶¶ 1.2-1.3.
Ordinarily, plaintiff injects herself in the morning with both the long-term and rapid-action insulin and has her breakfast. Between 2.5 and 3 hours later, she has a light snack and, another 2.5 to 3 hours later, she has her lunch. Another 2.5 to 3 hours later, she has an afternoon snack, and 2.5 to 3 hours later she has dinner. She has a final snack before going to bed. Over the course of one day, plaintiff has three meals and three snacks. See ECF Nos. 35-1, ¶ 9; 51-1, ¶ 9.
Plaintiff must check her blood sugar level with every meal, using a medical device called a glucometer. Additionally, she usually checks her blood sugar level when she takes her snack. Whether she does so depends on how her blood sugar levels had been that day. She also needs to check her blood sugar levels if she feels ill. The times when plaintiff needs to monitor her blood sugar vary constantly and depend on a number of factors, including the time she had breakfast and whether she feels ill. Moreover, diabetes patients urinate more frequently than non-diabetic individuals in order to eliminate excess sugar. See ECF Nos. 35-1, ¶¶ 10-11; 51-1, ¶¶ 1.10-1.11, 1.13-1.14, 7.13-7.15, 10-11; 63-1, ¶¶ 1.10-1.11.1.13-1.14, 7.13-7.15.
Ortiz must have a snack when her blood sugar is low or adjust her insulin treatment when her blood sugar is high. A “snack” could involve drinking four ounces of juice. Failure to take a snack when needed runs the risk of hypoglycemia, which could result in symptoms such as slurred speech, confused thinking, disorientation, profuse sweating, and even loss of consciousness. Plaintiff specifically has experienced symptoms such as hunger, thirst, trembling, nervousness, sweating, headache, coldness, heat, or pain. Stress is a factor which may affect the blood sugar levels of a diabetes patient. Diabetes was the seventh leading cause of death listed on U.S. certificates in 2007. See ECF Nos. 51-1, ¶¶ 1.7, 1.9, 1.12, 1.14-1.15, 7.13-7.14, 7.16-7.17; 63-1, ¶¶ 1.7, 1.9, 1.12, 1.14-1.15, 7.13-7.14, 7.16-7.17.
B. Plaintiffs Background
Plaintiff graduated from high school in 2004, attended the University of Puerto Rico, Bayamon campus, from May 2004 to May 2009, and transferred to Atlantic University College on February 25, 2010. As of March 29, 2012, she had not yet graduated from Atlantic University College. See ECF Nos. 35-1, ¶ 3; 51-1, ¶ 3.
In 2005, plaintiff began working for Sears as a part-time Sales Associate in the Service and Parts Department of the Bayamon Service Center under the supervision of Janice Cotto (“Cotto”). At the time, she underwent a pre-employment examination where the evaluating physician stated that plaintiff suffered from type I diabetes and “requires eating at her times.” ECF No. 43-3, at 1. Plaintiff provided the medical certificate from the examination to Sears, which was placed in her personnel file. See ECF Nos. 35-1, ¶¶ 4-5; 51-1, ¶¶ 21-2.2,2.5-2.7, 4-5; 63-1, ¶¶ 2.1-2.2, 2.5-2.7.
During her pre-employment interview, plaintiff disclosed her diabetes' condition to Elizabeth Ayala (“Ayala”). At the time, Ayala was the Human Resources Representative at the Service and Parts Department. Plaintiff also explained that she needed to take breaks to monitor her blood sugar levels or ingest food, or leave if she felt ill. Plaintiff told Ayala that she “ha[d] to eat at specific hours.” ECF No. 51-3, at 9. Plaintiff, however, did not request a specific schedule for her breaks. She told Ayala that it depended on her blood sugar levels each day. Ayala informed Ortiz that Sears “provide[d] a break during the scheduled hours.” Id. at 10. Ayala also told her that, if she “needed more than that break, ... she could always talk to her manager and she would refer it to Human Resources Manager and they could evaluation [sic] the situation individually.” Id. While plaintiff worked at the Service and Parts Department of the Bayamon Service Center, Cotto would always let her use the restroom, measure her blood sugar levels, take snacks, and administer insulin. See ECF Nos. 35-1, ¶ 12; 51-1, ¶¶ 2.3-2.4,2.9-2.11, 8.1,12; 63-1, ¶¶ 2.3-2.4, 2.9-2.11, 3.1.
Sears employees are entitled to one fifteen-minute rest period for each four hours of work in a workday. Additionally, Sears employees have a right to a sixty-minute lunch break if they work five hours or more in a workday. See ECF Nos. 35-1, ¶¶ 15; 51-1, ¶¶ 3.6,15; 63-1, ¶ 3.6.
C. Galería Los Paseos Store
On September 7, 2008, after the department where she worked closed, plaintiff was transferred to the Galería Los Paseos Store (“Paseos Store”) as a part-time Office Associate assigned to the Human Resources (“HR”) Department. By this point, Ayala had been transferred to the position of HR Lead at the Paseos Store. As such, Ayala was plaintiffs first supervisor at the Paseos Store. When plaintiff started there, she again informed Ayala about her medical condition and her need to monitor her blood sugar level, to eat snacks if it was too low, and to inject insulin. Ortiz also explained to Ayala what to do if she fainted. Nevertheless, plaintiff never requested a specific schedule of breaks to ingest food or monitor her blood sugar to Ayala, Negrón (HR Lead at time of plaintiffs resignation), or anyone else at Sears. See ECF Nos. 35-1, ¶¶6-7, 13; 51-1, ¶¶ 2.15-2.16, 3.2, 6-7, 13; 63-1, ¶¶ 2.15-2.16, 3.2.
While Ayala was plaintiff’s supervisor at the Paseos Store, plaintiffs diabetes condition was in an uncontrolled state. Under such circumstances, blood sugar levels can be high all of the time or drop to very low levels. Ayala told the store manager about plaintiffs medical condition. When there was a change of managers, she would give the new manager the information. See ECF Nos. 51-1, ¶¶ 3.3—3.4; 63-1, ¶¶ 3.3-3.4.
Each time that plaintiff asked Ayala for “a break before the two hours and [Ayala] understood that it wasn’t going to interfere with her job and she could take it, [Ayala] would say yes.” ECF No. 51-3, at 30. Ayala would let Ortiz go to the restroom as needed. She did not consider plaintiffs restroom breaks to be excessive. See ECF Nos. 51-1, ¶¶ 2.12, 3.8; 63-1, 1HI2.12, 3.8.
Ayala had “always known [plaintiff] to be a good associate.” ECF No. 51-3, at 11. She never had any complaints about Ortiz’s work. Cotto, plaintiff’s first supervisor, gave her good references about her work. Cotto considered plaintiff to be a good employee who could run the office in her absence and do the work of HR Lead. While under Ayala’s supervision, Ortiz typically completed all of the tasks she was assigned. On the occasions when the time allotted was insufficient to do so, she would inform Ayala. See ECF Nos. 51-1, ¶¶ 2.14, 2.26-2.27; 63-1, ¶¶ 2.14, 2.26-2.27.
Plaintiff would monitor her blood sugar levels with a glucometer in a restroom of the Paseos Store, which was across the hall from the HR office. The process of measuring her sugar levels would take ten to fifteen seconds. In the event that her blood sugar level was very high, she had to administer insulin. At the Paseos Store, she would do this in a restroom stall. The entire process would take ten to fifteen minutes. See ECF Nos. 35-1, ¶ 17; 51-1, ¶¶ 5.2-5.3,17; 63-1, ¶¶ 5.2-5.3.
Plaintiff would bring snacks from home or buy something to eat during her work shift to stabilize her blood sugar levels. If plaintiffs blood sugar levels reached over 400, she would have to leave the workplace. Plaintiffs physician’s instructions to her indicated that, under such circumstances, she would have to administer insulin and go home to rest. If her blood sugar levels nonetheless remained high, she would have to seek immediate medical attention, either with her doctor or at an emergency room. During the period Ortiz was under the supervision of Negron, who was HR Lead at the time of plaintiffs resignation, this occurred only one time. See ECF Nos. 51-1, ¶¶5.4-5.6; 63-1, ¶¶ 5.4-5.6.
At the Paseos Store, plaintiff was generally assigned the morning shift, from 9:00 a.m. to 1:00 p.m. Plaintiff would have breakfast before going to work. As a part-time employee, plaintiff would generally work shifts that were not longer than five hours. Under Ayala’s supervision, plaintiff worked approximately fifteen to twenty hours per week. See ECF Nos. 35-1, ¶¶ 18-20; 23; 51-1, ¶¶2.20, 18-20, 23; 63-1, ¶ 2.20.
At Sears, the Department Manager would distribute the hours assigned to the Department among the employees. The decision as to the number of hours assigned to the HR Department at the Pa