660 F.3d 17 (1st Cir. 2011), 10-1026, Colon-Fontanez v. Municipality of San Juan

Docket Nº:10-1026.
Citation:660 F.3d 17
Opinion Judge:TORRUELLA, Circuit Judge.
Party Name:Nitza I. COL
Attorney:Vilma M. Dapena-Rodr
Judge Panel:Before LYNCH, Chief Judge, TORRUELLA and SILER,[*] Circuit Judges.
Case Date:October 12, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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660 F.3d 17 (1st Cir. 2011)

Nitza I. COLÓN-FONTÁNEZ, Plaintiff, Appellant,


MUNICIPALITY OF SAN JUAN, Defendant, Appellee,

Jane Doe; John Doe; Corporation X, Y, Z, Defendants.

No. 10-1026.

United States Court of Appeals, First Circuit.

October 12, 2011

Heard March 8, 2011.

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Vilma M. Dapena-Rodríguez, for appellant.

Angel A. Valencia-Aponte, with whom Cristina S. Belaval-Burger and Martínez Odell & Calabria, were on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and SILER,[*] Circuit Judges.

TORRUELLA, Circuit Judge.

Plaintiff-Appellant Nitza I. Colón-Fontánez (" Colón" ) appeals the district court's award of summary judgment to her employer,

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the Municipality of San Juan (the " Municipality" ), on her claims of disability discrimination and retaliation in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (" ADA" ) and the Rehabilitation Act, 29 U.S.C. § 701 et seq., and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000 et seq. We conclude that summary judgment was properly granted as to each of Colón's claims. We further hold that the district court committed no reversible error when it (1) refused to consider evidence for which no corresponding English translation was provided to or properly filed with the court; (2) admitted summary charts prepared by a paralegal employed by the defendant-appellees' law firm in this case; and (3) dismissed Colón's alleged equal protection claim sua sponte. 1 We therefore affirm the decision of the district court.

I. Background

A. Colón's Employment at the Municipality

Colón first began working for the Municipality in 1989 as a temporary worker. In 1992, the Municipality reclassified Colón as a regular employee. Colón's position with the Municipality was reclassified multiple times in subsequent years. Of significance to this appeal is her reclassification on June 30, 2006, when the Municipality appointed Colón as an " Auction Officer," which became effective retroactively on May 1, 2005.

Colón's position as an Auction Officer required that she, among other duties, analyze bid recommendations, prepare bid notices, contracts, and award notices, attend the openings and holdings of bids, submit bid proposals for recommendations, evaluate recommendations and submit them to the Bid Board, and direct administrative work concerning the bids and proposals among various departments. To perform these duties, the Auction Officer was required to be physically present in the Auction Department. Additionally, auction papers could not be removed from the auction office premises.

As an Auction Officer, Colón worked in the Auction Department located in the Municipal Tower building in San Juan, Puerto Rico.2 The Municipal Tower building is accessible from a multi-floor parking building that is adjacent to the Municipal Tower building. The Municipality pays rent for approximately four hundred parking spaces for its employees. The Municipality pays $40.00 and the employee pays $20.00 for each rental of a parking space. The Municipal Tower itself offers approximately seventy-five parking spaces.

As an Auction Officer, Colón was under the supervision of several Municipality employees, all holding different managerial positions and varying degrees of authority over Colón during the years relevant to this dispute. These supervisors included José Alicea Rivera (" Alicea" ), Municipal Secretary and President of the Municipality's Auction Board; Ivonne Rodríguez (" Rodríguez" ), Director for the Purchases and Bids Department and one of Colón's main supervisors during the relevant period; Maria Marcano (" Marcano" ), Rodríguez's

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first line supervisor in the Auction Department; Julia Lanzó (" Lanzó" ), manager of the Auction Department; James Delgado (" Delgado" ), an auction official who was second in command in the Auction Department and who served as acting manager if Lanzó was not present; and José Rivera-Hernández (" Rivera" ), who served as the Special Assistant of the Municipal Secretary and who verified that all persons parked in the Municipal Tower parking lot were authorized to do so.

Generally, the Municipality scheduled Colón to work from 8:00 a.m. to 4:00 p.m. during the week. Due to health problems, however, Colón developed a pattern of absenteeism that continued throughout her employment.3 Her recurring absences made it necessary for her supervisors to temporarily shift Colón's work schedule and assignments in order to accommodate her absences and minimize work conflicts.

Several of Colón's supervisors testified as to the quality of Colón's work performance and overall attendance during her tenure. For instance, Lanzó testified that " in terms of the performance of her work, Nitza [Colón] was excellent." Lanzó acknowledged that despite her excellent work performance, she " would have liked for [Colón] not to get sick and to come to work" more often. Lanzó also noted that regardless of any health issues Colón might have undergone during her employment, " she would perform her tasks ...[,] [i]n that sense I have no complaints about Nitza," and that Colón " never stopped doing her work the way she used to, she always did it." In contrast, Rodríguez stated that " most of [Colón's] absences were and are unannounced; " that her attendance " is totally unpredictable; " and that " [s]he is absent continuously, most of the time without prior notice."

B. Municipality Attendance Policy

Although the Municipality's policies expressly require that all employees regularly and punctually attend work and comply with established work schedules, they do permit leave for illness. Specifically, the Municipality's attendance manual provides that career employees are entitled to accrue sick leave " proportional to the number of hours comprised by the assigned work schedule." If an employee exceeds her number of sick days, the manual states that " sick leave can be accrued up to a maximum of ninety (90) working days by the end of any calendar year." Additionally, the Municipality's " Manual Regarding Work Schedule, Attendance Registry, Accrual and Use of Leave" notes possible justifications for an employee's absence or tardiness, including an employee or family member's illness, an employee's injury, or a death in the employee's family. Lastly, the manual states that the Municipality is permitted to take disciplinary measures against an employee who is frequently absent from work in violation of established attendance norms or who exceeds the designated leaves of absence permitted.

C. Co-Worker Observations of Colón's Health Problems4

Lanzó, one of Colón's supervisors, testified that in 2006, Colón's absences became

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" more and more frequent" and that Colón's family members sometimes called to inform the office that Colón would be absent on account of illness. Lanzó also stated that " sometimes [Colón] came in swollen" to the office, and that Colón claimed to have pain in " [h]er joints, her knees." Lanzó also noted that Colón " was not one to stand up alot [sic] ... [and] remained at her ... desk," and that " regardless of the pain [Colón] may have had ... she would perform her tasks."

Yesiree Alemán O'Neill (" Alemán" ), a coworker in the Auction Department, testified that because of her condition, Colón could not carry the work files, which were " very big and heavy," but that she otherwise was able to carry out her immediate work tasks. Adela Otero Ortiz (" Otero" ) also testified that Colón " was always feeling sick."

D. Colón's Attendance Record

Colón's attendance record throughout her employment consists of numerous days during which she either was tardy or altogether absent from work on account of medical appointments, illness, or personal matters. Further, at times Colón's leave periods exceeded the amount permitted by the Municipality. On account of her excess leave days, the Municipality would take some form of compensatory action, like docking Colón's pay. A summary of Colón's attendance record reveals the following: 5

In 1992, the Municipality approved Colón's request for the advancement of eighteen days of sick leave, but later denied a subsequent request because Colón had " present[ed] a pattern debt on account of sick leave." Colón's performance evaluation for that same year noted that overall Colón " surpassed the expected result" in several performance categories, but that she needed to " work[ ] to recover her health to improve her attendance." In 1993, Colón was absent from work approximately twenty percent of the time, and in 1994, approximately fifty-nine percent of the time. The Municipality approved Colón's request for leave without pay from July 19, 1994 through January 18, 1995.

In 1995, Colón was on leave without pay from January 31, 1995 through April 25, 1995. In September of that same year, the Municipality sent Colón a letter informing her that as of September 30, 1995, she would " have no accrued leave balance." Colón's 1995 performance evaluation stated that Colón needed to make improvements in her attendance and that she " did not achieve [the] expected level" of attendance for that year.

In 1996, Colón was granted leave without pay for medical treatment for " an injury in [her] left foot" from May 16, 1996 through August 16, 1996.6 Colón received high rankings on her 1996 performance evaluation, but was informed that she needed to make improvements in her attendance. In 1997, Colón sought leave without pay on account of a " surgical intervention of the knee on [her] left...

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