Calero-Cerezo v. U.S. Dept. of Justice, 02-2643.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtPonsor
Citation355 F.3d 6
PartiesSylvia I. CALERO-CEREZO, Plaintiff, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants, Appellees.
Docket NumberNo. 02-2643.,02-2643.
Decision Date14 January 2004
355 F.3d 6
Sylvia I. CALERO-CEREZO, Plaintiff, Appellant,
UNITED STATES DEPARTMENT OF JUSTICE, et al., Defendants, Appellees.
No. 02-2643.
United States Court of Appeals, First Circuit.
Heard June 3, 2003.
Decided January 14, 2004.

Appeal from the United States District Court for the District of Puerto Rico, Juan M. Perez-Gimenez, J.

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Sylvia I. Calero-Cerezo, pro se.

Fidel A. Sevillano-Del Rio, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Miguel A. Fernandes, Assistant United States Attorney, were on brief for the United States.

Before SELYA, Circuit Judge, LIPEZ, Circuit Judge, and PONSOR*, District Judge.

PONSOR, District Court Judge.

This cases raises, among other issues, the knotty question of how far the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701 et seq., requires an employer to go to accommodate an employee whose disability — clinically diagnosed major depression — has affected, in some respects, her ability to function in the workplace. The trial judge, grappling with claims under several statutes, granted summary judgment for defendants on all the plaintiff's causes of action. Because we find that the record, viewed in the light most favorable to the appellant, might support a claim under the Rehabilitation Act, and (equally importantly) that appellees' counsel has entirely failed to address either the facts or the law buttressing this claim, we are constrained to reverse and remand for further proceedings.

I. Procedural Background

A brief review of the procedural history of this case will serve to put the issues in context.

After pursuing administrative remedies starting in 1998, plaintiff-appellant, Sylvia I. Calero-Cerezo ("Calero"), an attorney employed by the Immigration and Naturalization Service ("INS") proceeding pro se, filed her complaint in the United States District Court on October 4, 1999. The defendants were the United States Department of Justice ("DOJ"), the INS, then-Attorney General Janet Reno, and then-Commissioner of the INS Doris Meissner. Amended complaints followed in May 2000 and May 2002. Perhaps because plaintiff was representing herself, the precise causes of action were rather hard to discern from the pleadings. Plaintiff now asserts that, while she may have included additional theories in her administrative proceedings, her complaint and amended complaints as submitted to the district court were intended to encompass only two claims: (1) a claim for failure to accommodate her disability under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.,1 and the Rehabilitation

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Act, and (2) a claim for retaliation under Title VII, 42 U.S.C. § 2000e et seq.

Eventually the parties filed cross-motions for summary judgment, and on September 18, 2002, the district court issued its opinion granting the defendants' motion and denying the plaintiff's. In his memorandum, the district court judge conscientiously addressed all causes of action that might reasonably have been inferred from the plaintiff's less than artfully drafted pleadings, including claims for discrimination based on gender, national origin and age, which the plaintiff has not pursued, as well as the claims for failure to accommodate and for retaliation, which the plaintiff has continued to press on this appeal. Specifically, with regard to plaintiff's claim for failure to accommodate her disability, the district court suggested, first, that "depression per se" is not a recognized disability, then went on to conclude that, in any event, the record conclusively indicated that plaintiff could not perform the legitimate requirements of her position, and moreover that plaintiff's requested accommodation was not feasible.

On November 15, 2002, Calero filed her Notice of Appeal, challenging only the district court's rulings regarding her claims for failure to accommodate and for retaliation. Despite clear notification of the scope of this appeal, and further confirmation in the appellant's brief, appellees' counsel has inexplicably treated this appeal as though it involved merely a garden variety claim of discrimination under Title VII. No significant discussion whatever addresses Calero's claim — the heart of her case — that the defendants failed to make any reasonable effort to accommodate her disability. This neglect has played a substantial part in the court's decision to remand.

II. Factual Background

We recount the facts in the light most favorable to Calero, the party opposing summary judgment. Motorsport Eng'g, Inc. v. Maserati SPA, 316 F.3d 26, 28 (1st Cir.2002).

Calero began practicing law in 1977 in Puerto Rico's Department of Justice. Later, she worked for private firms and agencies in Puerto Rico, and, from 1993 to 1995, in East Hartford, Connecticut with the Federal Deposit Insurance Corporation. In 1995, Calero was hired as an assistant district counsel in the New York District Office of the INS' Office of the General Counsel ("OGC"). Her performance was rated "excellent" in her 1996-97 appraisal, and in May 1997 Calero successfully petitioned for a transfer to the San Juan District Office of the OGC, where she began working part-time as an assistant district counsel. Nothing in the record suggests that Calero, up to this point in her twenty-year career as an attorney, had ever encountered significant difficulties in performing her job at or above the level of her employers' expectations.

During the summer of 1997, Calero began to suffer from tension headaches and lethargy, the first sign of the onset of a disability that was soon to erode her capacity to function without accommodation. On January 16, 1998, Dr. Roberto Rodriguez ("Dr.Rodriguez") diagnosed Calero with a recurrence of depression and prescribed the antidepressant Paxil. Calero had suffered previously from depression, in 1990 when her mother and father died and again in 1992 upon the death of her brother. The record does not suggest, however, that at these earlier times her depression interfered with her capacity to work.

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In February 1998, Calero began working full-time at the San Juan District Office. One month later, and two months following her diagnosis of depression, Calero's emotional fragility catapulted her into the first of a series of acrimonious episodes with her supervisor Vivian Reyes-Lopez ("Reyes"). Before summarizing the evidence related to these incidents, two observations about the state of the record are appropriate.

First, in recounting her conflicts with Reyes, plaintiff's pro se papers sometimes appear to suggest that Calero's problems at work derived not from a failure to accommodate her disability, but simply from Reyes' general unfairness to her. To the extent Calero might succeed in placing blame for her problems at work on Reyes personally, she may vindicate her own virtue but doom her case. The Rehabilitation Act is not, of course, designed to provide a worker a remedy against an arbitrary supervisor, per se. It is designed to insure that a capable, disabled worker, covered by the statute, is not deprived of the opportunity to work and earn a living due to the refusal of the employer to make a reasonable accommodation. Viewed in the light most favorable to the plaintiff, therefore, the summary below will concentrate on facts that a reasonable factfinder might find supportive of this statutory claim, and not on Calero's occasional self-justifying suggestions that it was Reyes, not she, who was responsible for their ongoing problems.

Second, we are aware in recounting this background that a reasonable factfinder might conclude that Calero's friction with her supervisor (and, as will be seen, others including family and friends) might be explained on the ground that she was simply a very difficult, not a disabled, person. In the context of summary judgment, however, we must respect the role of the factfinder to choose between alternative, reasonably supported inferences. Since the factual mosaic, seen from plaintiff's perspective, might reasonably support a claim of disability, we summarize the facts in a manner consistent with that viewpoint.

The first episode of what was to be a lengthy series of problems between Calero and Reyes arose over what should have been a trivial matter. On March 9, 1998, Reyes denied Calero's request to make up a lost work hour during lunchtime. In response, Calero complained in a loud voice that Reyes was the worst supervisor she ever had and that Reyes treated her like a child. The outburst was vociferous enough to be overheard by other INS staff in the office.

The following day, March 10, 1998, Reyes asked Calero to come to her office to discuss the previous day's contretemps. At the meeting, Reyes told Calero that raising her voice in the office was not necessary. Calero responded with a further verbal attack, criticizing Reyes' supervisory skills, telling Reyes that she had a bad attitude, and suggesting that Reyes had lost an appointment as an immigration judge because of her poor professional ability.

A week later, on March 17, 1999, Calero consulted Dr. Filia S. Garcia, who referred Calero to a psychologist for evaluation of her "masked depression."

On March 18, 1998, Calero received a formal reprimand (a so-called memorandum of "admonishment") from Reyes for her behavior on March 9th and 10th.

The day following her receipt of this reprimand, Calero sent an e-mail message to Jack Penca ("Penca"), the Regional District Counsel and Reyes' immediate supervisor, who worked out of the Vermont office of the INS, regarding the recent

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friction with Reyes. Calero complained to Penca that Reyes was harassing her and that this daily harassment was affecting her emotionally. Calero informed Penca that she was taking...

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