Rivera v. Caribbean Refrescos, Inc.

Full title: ESTHER DAVILA RIVERA et al., Plaintiffs, v. CARIBBEAN REFRESCOS, INC., et…

Court: United States District Court, D. Puerto Rico

Date published: May 26, 2004

Civil No. 02-2499 (DRD) (D.P.R. May. 26, 2004)

Opinion

Civil No. 02-2499 (DRD).

May 26, 2004

REPORT AND RECOMMENDATION FACTUAL BACKGROUND

CAMILLE L. VELEZ-RIVE, Magistrate Judge

Esther Dávila Rivera ("Dávila") was born on November 17, 1952 in Río Piedras, Puerto Rico. On August 12, 1974, Dávila started to work at Caribbean Refrescos, Inc. ("CRI") as a secretary in its legal department and until the date of ceasing her employment with CRI in 2002, Dávila worked at CRI's finance department as an Administrative Assistant II.

On April 12, 1999, Mr. José Martínez ("Martínez") became CRI's manager of the Finance Department, and as such, Dávila's supervisor.

On or around May or June 2000, Dávila underwent therapies to treat a condition of carpal tunnel syndrome ("CTS"). Around June 2000, Dávila's work schedule was modified from a 9:00 am to 5:00 pm shift to an 8:30 am to 4:30 pm shift to allow her to undergo therapies and comply with her job responsibilities.

On or around June, 2000, Dávila informed Martínez she needed CTS surgery. Martínez did not express any objection to Dávila undergoing said surgery although at the time Dávila did not say when the CTS surgery was going to take place. However, Martínez told Dávila to inform him the date of the surgery in advance.

On or about the first week of December, 2000, Dávila informed Martínez her CTS surgery was scheduled for December 14, 2000. Dávila submitted a document dated December 7, 2000 requesting vacation leave from December 14, 2000 until December 28, 2000 citing a surgery as the reason for taking such leave. This request was approved by Martínez and CRI. On December 14, 2000, Dávila underwent a CTS surgery in her right hand Dávila took therapies for her hand before returning to work on January 22, 2001.

Prior to undergoing CTS surgery, and while being under the supervision of Martínez, Dávila had confronted health problems, such as allergies and back and shoulder problems. For those complications, CRI reasonably accommodated Dávila. For instance, for Dávila's back and shoulder problems, CRI purchased an ergonomic chair and lowered all her cabinets so she did not have to raise her arms above shoulder height. In addition, to accommodate Dávila's allergies, which were allegedly exacerbated by the manual opening of envelopes, CRI purchased an electric letter opener.

On January 18, 2001, Dr. Angel Pérez Toro ("Dr. Pérez Toro"), certified on that day, Dávila had completed her rehabilitation relating to her CTS surgery, and stated she could return to work on January 22, 2001. On January 22, 2001, Dávila returned to work after completing her rehabilitation.

Upon return to work, Dávila submitted to CRI a functional capacity form filled by Dr. Pérez Toro, which stated that for the period of January 22, 2001 until February 12, 2001, she should perform sedentary duties. Dr. Pérez Toro noted Dávila did not have any limitations in performing work involving fine or gross hand movement.

After reporting to work, Martínez instructed Dávila to digitally scan certain documents. Two days after returning to work, on January 24, 2001, Dávila went to CRI's medical dispensary to complain about an ailment and Nurse Daisy Meléndez noticed that Dávila's right hand was swollen. Nurse Meléndez informed Nurse Yolanda Rosario of this observation. Dr. Carlos Canales, CRI's in-house physician, recommended that Dávila wear a hand brace at work. On January 29, 2001, Dr. Canales saw Dávila for a follow-up visit and noted she was doing well and the swelling had gone away. Dávila continued scanning documents for four weeks after her visit to CRI's in-house dispensary. During this period of time, Dávila did not have any problems concentrating on the scanning duties and she did not return to the dispensary to express any discomfort concerning her hand, nor did she call any of her doctors in connection with this matter.

Dr. José Berrios, one of the psychiatrists who treated Ms. Dávila after February 23, 2001, stated that from the first time he saw her on December 21, 2000 until approximately six months thereafter, she reached a functionality rate of 80 percent.

On February 27, 2001, Dávila was referred to the State Insurance Fund and was placed on short term disability leave. Dávila went on leave and she knew her reserve period was for one year. During Dávila's short term disability leave, CRI sent her all necessary documents and forms to fill out a request for long-term disability leave. CRI provided orientation to Dávila concerning the long term disability benefit plan. Dávila completed her request for long-term disability benefits and submitted it to NATLSCO, the company that managed CRI's long-term disability plan and kept a copy of it at home. After sending the application to NATLSCO, Dávila received a notice from NATLSCO at her home address stating that her application had been received. Dávila never called NATLSCO to inquire about the status of her long-term disability application.

On November 17, 2001, Dávila's request for long-term disability was denied by NATLSCO. CRI did not have any involvement in the decision to grant or deny Dávila's request for long-term disability leave.

Dávila received a notice from CRI informing her that her year-long reserve period had ended through a letter dated February 27, 2002.

Prior to receiving said notice, Zoraida Nieves spoke via telephone to Dávila and informed her that her reserve was about to expire and that she would receive the aforesaid letter.

After Dávila ceased working at CRI, Ms. Evelyn Leal assumed the vast majority of Dávila's responsibilities, and to this day, performs the duties once assigned to Dávila.

PROCEDURAL BACKGROUND

The Court must analyze the factual scenario in this case construing the facts, the record, and all reasonable inferences in the light most favorable to the party opposing summary judgment. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 2110 (2000) (" . . . the Court must draw all reasonable inferences in favor of the nonmoving party . . ."); see also, Leahy v. Raytheon Company, 315 F.3d 11, 17 (1^st Cir. 2002) (". . . the court must take the record `in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor'.") ( quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1^st Cir. 1990); see also, Plumley v. Southern Container Inc., 303 F.3d 364, 368-69 (1^st Cir. 2002); Rosenberg v. City of Everett, 328 F.3d 12, 17 (1^st Cir. 2003) (the Court "presents [the facts] in the light most favorable to the plaintiff.")).

On July 3, 2003, plaintiffs Dávila, Rafael Vélez Rivera, and the conjugal partnership constituted by them ("plaintiffs") filed an Amended Complaint in this case alleging defendant CRI incurred in age, sex and disability discrimination. Plaintiffs raise the following causes of action: 1) disability discrimination in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12182 et seq. ("ADA") and Law No. 44, P.R. Laws Ann. Tit. 1, §§ 501 et seq. ("Law 44") (First and Fourth Causes of Action); 2) age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 ("ADEA") and Act 100, P.R. Laws Ann. Tit. 29 §§ 146-151 ("Act 100") (Second and Fifth Causes of Action); 3) sex discrimination in violation of Title VII of the Civil Rights Act (Third Cause of Action); 4) plaintiffs' emotional and moral damages under Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. Tit. 31 §§ 5141 and 5142 (Sixth and Seventh Causes of Action); and 5) violation of the Family Medical Leave Act ("FMLA") (Eighth Cause of Action). (Docket entry # 21).

On October 31, 2003, CRI filed a Motion for Summary Judgment, a Memorandum in Support thereof and a Supporting Statement of Material Facts. (Docket entry #30). In essence, CRI requests the Court to enter summary judgment because Dávila's requests for accommodation were never denied; Dávila is not "disabled" under the ADA; Dávila never suffered an adverse employment action; and Dávila has not established a prima facie case of age discrimination.

On December 15, 2003, plaintiffs filed their Opposition to the Motion for Summary Judgment and an Opposition to CRI's Statement under Rule 56(d). (Docket entries # 38 and # 39). The next day, CRI filed a Motion to Strike plaintiffs' Opposition because the Opposition was 43 pages in length in violation of the page limit established in the Court's Order Setting Initial Scheduling and Case Management Conference. (Docket entry #41).

On April 20, 2004, the Court issued an Order giving plaintiffs the opportunity to re-file, within 10 days, their Opposition "after pruning it into a twenty five page document." (Docket entry # 52). On April 23, 2004, CRI filed a Motion for Leave to file Supplementary Motion for Summary Judgment, a Supplemental Motion for Summary Judgment, a Memorandum in Support thereof, and a Supplemental Statement of Material Facts. (Docket entries # 55, #56, #57 and # 58). Leave was granted to file these pleadings that same day. (Docket entry # 59).

On May 4, 2004, plaintiffs re-filed their Opposition in a document of 25 pages. (Docket entry # 61). On May 5, 2005, CRI filed a Motion to Strike the Opposition and Request to file tendered Reply to the Opposition claiming plaintiffs did not abide by this Court's Order because, but for a few edits, the second Opposition was the same as the first 43 page Opposition. CRI alleged plaintiffs used a reduced font and expanded margins to compress the original opposition into 25 pages. In the alternative, CRI requested that if the Motion to Strike is denied, the Court consider the tendered Reply. (Docket entry # 63).

Defendants' Motion for Summary Judgment, with its corresponding exhibits, was referred to this Magistrate Judge for Report and Recommendation ( Docket entry #54).

First, we need to address whether the Second Opposition to the Motion for Summary Judgment filed by plaintiffs complies with the Court's Order to prune the document to 25 pages. We find it does not comply. A perusal of Plaintiffs' Second Opposition reveals that it is the same as the First Opposition but for several paragraphs and footnotes which were removed. The other difference is that the original 43 page Opposition was filed in an appropriate 12 point font and the Second 25 pages Opposition is in a minute condensed font with expanded margins making the reading of the document unbearable. Even though plaintiffs allege the font is Abadi Condensed Light 12 point font (Docket entry # 64), we believe the font is much smaller than the usual 12 point font contemplated by Local Rule 7.1(e) and which was properly used by plaintiffs in the First Opposition. Evidence of this is that a 43 page document was condensed into 25 pages with minor changes. The only way to do this is by using a font which is less than the 12 point font required by the Local Rules. Therefore, it is hard to believe plaintiffs' contention that they used a 12 point font in the Second Opposition. Certainly, "judges are not fools required to believe what ordinary citizens do not accept."Carrasquillo v. Aponte Roque, 682 F. Supp. 137, 141 note 1 (D. Puerto Rico 1988) ( citing Pueblo v. Luciano Arroyo, 83 D. Puerto Rico 573 (1961) ("[w]e judges should not, after all, be so naive as to believe statements which no one else would believe."); United States v. Ventura Meléndez, 186 F. Supp.2d 55, 59 (D. Puerto Rico 2001) (same).

This Court finds plaintiffs have blatantly tried to bypass the Court's April 20, 2004 Order and the requirements of the Local Rules. This conduct will not be condoned. Accordingly, CRI's request to Strike from the record Plaintiffs' Opposition to the Motion for Summary Judgment (Docket entry #61) is GRANTED and CRI's Motion for Summary Judgment is deemed unopposed.¹

1 A review of plaintiffs' Second Opposition shows that the only issue addressed by plaintiffs in the Second Opposition is the disability discrimination under ADA. Therefore, even if the Second Opposition were to be considered, the issues of age discrimination and FMLA raised by CRI in its Motion for Summary Judgment would be unopposed.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Pagano v. Frank, 983 F.2d 343, 347 (1^st Cir. 1993); Lipsett v. Univ. of P.R., 864 F.2d 881, 894 (1^st Cir. 1988); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505 (1986).

In Torres Rosado v. Rotger Sabat, 204 F. Supp. 2d 252 (D. Puerto Rico 2002), the presiding judge clearly indicated that oppositions are required by the district court's local rules and as such deemed that a motion for summary judgment, and the factual assertions supporting it, to be unopposed, because plaintiff had failed to timely file his opposition ( holding that the district court in Puerto Rico is justified in having one party's uncontested facts to be admitted when the other party fails to file oppositions in compliance with local rules).² The moving party's uncontested facts and other evidentiary facts of record must still show that said party would be entitled to summary judgment. Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 4 (1^st Cir. 2003). As such, when a motion for summary judgment remains unopposed, the district court may grant summary judgment, if appropriate. Still, a district court may not automatically grant a motion for summary judgment simply because the opposing party has failed to comply with a local rule requiring a response within a certain number of days. NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 7-8 (1^st Cir. 2002). See Cosme-Rosado v. Serrano-Rodriguez, 360 F.3d 42, 43 (1^st Cir. 2004) ( finding that failure to comply with Local Rule 311.12 admits the veracity of the movant's version of material facts). See also Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1^st Cir. 2000).

2 See, e.g, United Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d 323, 330 n. 10 (1^st Cir. 2003); Corrada Betances v. Sea-Land Serv., Inc., 248 F.3d 40, 43 (1^st Cir. 2001);Morales v. A.C. Orssleff's EFTF, 246 F.3d 32, 33-34 (1^st Cir. 2001); Ruiz Rivera v. Riley, 209 F.3d 24, 27-28 (1^st Cir. 2000).

Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show 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). A fact is material if, based on the substantive law at issue, it might affect the outcome of a case. A material issue is "genuine" if there is sufficient evidence to permit a reasonable trier of fact to resolve the issue in the non-moving party's favor. Anderson, 477 U.S. at 248.

ANALYSIS

I. DISABILITY DISCRIMINATION (FIRST AND FOURTH CAUSES OF ACTION).

The ADA prohibits discrimination against an otherwise qualified individual based on his or her disability. 42 U.S.C. Sec. 12112(a); See also, Katz v. City Metal Co., Inc., 87 F.3d 26, 30 (1^st Cir. 1996). The federal statutes barring discrimination based on disability do more than merely prohibit disparate treatment; they also impose an affirmative duty on employers to offer a "reasonable accommodation" to a disabled employee. 42 U.S.C. § 12112(b)(5)(A). García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 n. 9 (1^st Cir. 2000).

In order to establish a claim of disability discrimination under the ADA and, in the absence of direct evidence of discrimination, a plaintiff must rely on circumstantial evidence and establish a prima facie case through the burden shifting method developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973).³

3 See also Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1^st Cir. 1999); Laurin v. Providence Hosp., 150 F.3d 52, 58 (1^st Cir. 1998); Cruz v. McAllister Bros., Inc., 52 F. Supp.2d 269, 278-79 (D. Puerto Rico 1999).

Under the McDonnell Douglas framework, a plaintiff must first prove by a preponderance of the evidence that he or she (i) is a "qualified individual" with a disability within the meaning of the Act; (ii) is able to perform the essential functions of the job, with or without a reasonable accommodation; (iii) was subject to an adverse employment action by an employer who is 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. Carroll v. Xerox Corp., 294 F.3d 231, 237 (1^st Cir. 2002) ( citing Lessard v. Osram Sylvania, Inc., 175 F.3d 193, 197 (1^st Cir. 1999));Calero-Cerezo v. U.S. Department of Justice, 355 F.3d 6, 19 (1^st Cir. 2004).⁴

4 See also Katz, 87 F.3d at pg. 30; Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 511 (1^st Cir. 1996). See also Dichner v. Liberty Travel, 141 F.3d 24, 30 (1^st Cir. 1998);Acevedo López v. Police Dept. of Com. of Puerto Rico, 81 F. Supp. 2d 293 (D. Puerto Rico 1999).

Such a showing gives rise to an inference the employer discriminated due to the plaintiff's disability and places upon the employer the burden of articulating a legitimate, nondiscriminatory reason for the adverse employment decision.Cumpiano v. Banco Santander P.R., 902 F.2d 148, 153 (1^st Cir. 1990). This entails only a burden of production, and not a burden of persuasion. The burden of proving discrimination remains with the plaintiff at all times. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 256, 101 S.Ct. 1089 (1981). See also Dichner v. Liberty Travel, 141 F.3d 24, 29-30 (1^st Cir. 1998) (holding that the employer's burden is one only of production, inasmuch as the burden of proving an improper motive always remains with the plaintiff). Once the employer has satisfied said requirement, the ultimate burden falls on the plaintiff to show that the proffered legitimate reason is pretextual and that the adverse employment action resulted from the employer's discriminatory animus. Bishop v. Bell Atlantic Corp., 299 F.3d 53 (1^st Cir. 2002) 2002 WL 1799667 (1^st Cir. 2002); Fennell v. First Step Designs, Ltd, 83 F.3d 526, 535 (1^st Cir. 1996) ( citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-511, 113 S.Ct. 2742 (1993)).

Dávila claims in the Amended Compliant that the following events show discrimination from CRI because of her disability: 1) she suffers from carpal tunnel syndrome (hereafter "CTS") in her right hand; 2) when she returned from CTS surgery CRI failed to accommodate her because she was not assigned to sedentary duties as recommended by her physician; and 3) because of this treatment she developed a major depression. (Docket entry # 21, ¶ 47). Dávila claims, without more, that the CTS condition and the depression limited one or more of her major life activities. (Docket entry # 21, ¶ 50). Dávila is not a "qualified individual with a disability" under the ADA.

The first prong of the prima facie case requires plaintiff to bring forth enough evidence from which a reasonable jury could conclude that he or she is disabled within the meaning of the Act. It has been held that "disability" is a term of art in the ADA context." Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11, 21 (1^st Cir. 2002).

The ADA defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." § 12111(8).

In turn, the ADA defines "disability" as either: (a) a physical or mental impairment which substantially limits one or more of an individual's major life activities; (b) a record of such impairment; or (c) being regarded as having such an impairment. 42 U.S.C. § 12102(2).

A. Dávila did not suffer a physical or mental impairment which substantially limited any major life activity.

Under the three part test adopted by the Circuit Court of Appeals for the First Circuit, courts should first consider whether plaintiff's alleged condition constitutes a mental or physical impediment. Second, courts should identify the life activities upon which the plaintiff relies to determine whether they constitute "major life activities" under the ADA and, third, "tying the two statutory phrases together, [courts] ask whether the impairment substantially limits the activity found to be major life activity". Carroll, 294 F.3d at 238 ( citing Toyota Motors Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681 (2002)), Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196 (1998); Lebrón-Torres v. Whitehall Labs., 251 F.3d 236, 239-240 (1^st Cir. 2001).

In Toyota Motor, the Supreme Court held that "to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. The impairment's impact must also be permanent or long term." Toyota Motor, 534 U.S. at 184 ( citing 29 C.F.R. § 1630.2(j)(2)(ii)-(iii)).

Under the framework articulated above, "[i]t is insufficient . . . to merely submit evidence of a medical diagnosis of an impairment." Id. Rather, those seeking ADA protection must offer evidence that "`the extent of the limitation [caused by their impairment] in terms of their own experience . . . is substantial.'" Id. at 691-92 ( quoting Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 567, 119 S.Ct. 2162 (1999)).

It is well established that the determination of whether a plaintiff has a disability must be made on a case-by-case basis. See Toyota Motor, 534 U.S. at 198; Sutton v. United Air Lines, Inc., 527 U.S. 471, 483, 119 S.Ct. 2139 (1999).

EEOC regulations define "substantially limits" as "(i) [u]nable to perform a major life activity that the average person in the general population can perform; or (ii) [s]ignificantly restricted as to the condition, manner, or duration under which an individual can perform a major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1).

Factors to be considered in determining whether an individual is substantially limited in a major life activity are "(i) [t]he nature and severity of the impairment, (ii) [t]he duration or expected duration of the impairment, and (iii) [t]he permanent or long term impact . . . of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2).

Accordingly, the First Circuit has refrained from finding a disability pursuant to the ADA absent evidence the plaintiff "could not perform some usual activity compared with the general population, or that he had a continuing inability to handle stress at all times, rather than only episodically." Calef v. Gillette Co., 322 F.3d 75, 86 (1^st Cir. 2003) (employee with attention deficit hyperactivity disorder not disabled under ADA absent showing that substantially limited in the major life activities of learning or speaking).

In the instant case, Dávila asserts she suffered from a depression and a condition of CTS that caused her certain pain and discomfort and CRI failed to reasonably accommodate her alleged impairment. However, the fact plaintiff suffers from a physical impairment does not automatically qualify her as disabled under the ADA. Toyota Motors, 534 U.S. at 198 ("Merely having an impairment does not make one disabled for purposes of the ADA".);Santiago-Clemente v. Executive Airlines, 7 F. Supp. 2d 114, 117 (D. Puerto Rico 1998) ( stating that "not all physical impairments rise to the level of disability under ADA").

For this reason, when bringing an ADA lawsuit, a plaintiff must "articulate with precision" not only the alleged impairment, but also the major life activity affected by the impairment. See Poindexter v. Atchison, Topeka and Santa Fe Railway Co., 168 F.3d 1228 (10^th Cir. 1999).

Dávila contends she was disabled because she did not receive a reasonable accommodation to allow her to recover from CTS surgery. Dávila claims she was advised by her doctor that she needed a temporary modification of her tasks to accommodate her recovery from CTS surgery. She alleges in the Amended Complaint that she requested to be assigned to sedentary duties from January 22, 2001 to February 12, 2001. Dávila asserts that, contrary to her request, she was asked to scan documents after she returned to work after her CTS surgery. Dávila also contends she was disabled due to a depression.

The parties do not dispute Dávila's medical condition, which include CTS and depression amount to physical impairments. Thus, the relevant question, therefore, is whether these impairments substantially limited Dávila in a major life activity.

In this case, Dávila is not disabled under the first definition of disability of the ADA inasmuch as she has failed to identify any major life activity which was affected by her condition of CTS or her depression. Indeed, Dávila, in her Amended Complaint, limited her allegations, and only sustained that she was a disabled individual, that she could work if given accommodation, and that CRI discriminated against her for failure to provide the reasonable accommodation she requested. Dávila makes a general allegation in her Amended Complaint, without more, that her "physical and emotional conditions substantially limited one or more of her major life activities." (Docket entry # 21, ¶ 50).

Dávila, for the first time in her Second Opposition to CRI's Motion for Summary Judgment, identifies, and alleges that the life activities of lifting and carrying five to ten pounds, were burdened. Dávila does not identify any major life activity that has been jeopardized due to her alleged depression. This Court will not allow Dávila to attempt to amend her allegations through the Second Opposition pleading. See Alamo Rodríguez v. Pfizer, 286 F. Supp. 2d 144 (D. Puerto Rico 2003). It is one matter that the Court must analyze the factual scenario in this case construing the facts, the record, and all reasonable inferences in the light most favorable to the party opposing summary judgment. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. at 150, 120 S.Ct. at 2110. Another is to allow the plaintiff to bring forth new never raised allegations, and previously unmentioned major life activities that have been allegedly affected. The Court is not obliged to search the record, where plaintiff failed to request to amend the complaint, in order to set forth those new allegations, and theories.Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 260 (8th Cir. 1996); Alamo, 286 F. Supp. 2d at 144; Vega Rodríguez v. Loctite Puerto Rico, Inc., 967 F. Supp. 653, 658, n. 7 (D. Puerto Rico 1997). Moreover, as previously determined, the Second Opposition has been stricken from the record.

Dávila has not established that her condition substantially limited a major life activity. The Amended Complaint fails to allege a specific major life activity which was substantially limited by Dávila's CTS condition and depression so as to establish a claim under ADA.⁵ Nonetheless, the Amended Complaint states that, "with or without reasonable accommodation," plaintiff "was able to perform the essential functions of the position of Secretary in the Finance Department."⁶ (Docket entry # 29, ¶ 49). Thus, Dávila sustains in her Amended Complaint that, as an individual with a CTS and depression condition, she is covered by the ADA, and that she could work with or without accommodation. Therefore, for purposes of the instant discussion, we will assume "working" is the major life activity that Dávila allegedly has been substantially limited in. See Alamo, 286 F. Supp. 2d at 155; Sutton v. United Air Lines, Inc., 527 U.S. at 492;Lebrón, 251 F.3d at 239.⁷

5 "An ADA claimant must specify which major life activity has been limited." Sinkler v. Midwest Property Management Ltd. Partnership, 209 F.3d 678, 683 (7^th Cir. 2000).

6 See paragraph number 49 of the Amended Complaint. (Docket entry # 21).

7 See also, Gelabert-Ladenheim v. American Airlines, Inc., 252 F.3d 54 (1^st Cir. 2001) at 58-63 (major life activity of working was discussed, in case where Plaintiff brought action against former employer alleging failure to provide a reasonable accommodation)

The Supreme Court has stated that "[t]o be substantially limited in the major life activity of working, . . . one must be precluded from more than one type of job, a specialized job, or a particular job of choice." Sutton, 527 U.S. at 492, 119 S.Ct. 2139. It follows, for the same proposition, that "[i]f jobs utilizing an individual's skills (but perhaps not his or her unique talents) are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs." Id. See also, Duncan v. Wash. Metro. Area Transit Auth., 240 F.3d 1110, 1115-1116 (D.C. Cir. 2001) ("the ADA requires a plaintiff . . . to produce some evidence of the number and types of jobs in the local employment market in order to show he is disqualified from a substantial class or broad range of such jobs.").

It must be noted that in defining "substantially limits", the EEOC regulations only mention the "class" concept in the context of the major life activity of working, Toyota, 534 U.S. at 200, and thus, a claimant is required to show an inability to work in a "broad range", rather than in a "specific" job. Id.

Dávila's claim must fail because she has not shown she is unable to work; by contrast, all the evidence shows is that she experienced difficulties in a single task, namely, scanning. Even if Dávila encounters physical discomfort in the performance of certain tasks at her employment, this fact alone, is not enough to support a finding that plaintiff's illness, or physical impairment, amounts to a disability that substantially limits her capacity to work.

Dávila alleges her impairments (CTS and depression⁸) qualify as a disability under the ADA, however, she fails to provide the Court any specific evidence to support her conclusion. Dávila has thus failed to produce any evidence to support that her CTS and depression conditions satisfied the requirements of 29 C.F.R. § 1630.2(j)(3). See Alamo, 286 F. Supp.2d at 159. "An ADA claimant assumes a more fact specific burden of proof in attempting to demonstrate that his [her] impairment `substantially limits' the major life activity of working." Ortiz Molina v. MAI del Caribe, Inc., 83 F. Supp.2d 271, 275 (D.Puerto Rico 2000); Quint v. A.E.Staley Mfg. Co., 172 F.3d 1 at 9 (1^st Cir. 1999).

8 See, Ogborn v. United Food Commercial Workers Union, Local No. 881, 305 F.3d 763, 767 (7th Cir. 2002) ("[m]ajor depression can constitute a disability under the ADA.").

In addition, it is undisputed Dávila's CTS condition was not a permanent or long term condition and it did not warrant a long term recovery. Pursuant to a functional capacity form, Dávila was ordered to perform sedentary work for only three weeks. Moreover, the medical certificate authorizing Dávila to return to work to CRI stated that by January 22, 2001 Dávila had already completed her recuperation from CTS surgery. More importantly, the functional capacity form stated Dávila did not have any limitations concerning her gross or fine hand movement. This evidence is uncontested. Thus, based on the documents provided by Dávila to CRI, Dávila was not limited in the jobs she could perform with her hands.⁹

9 It is undisputed that as part of her duties, Dávila had scanned documents prior to her CTS.

Furthermore, Dávila admitted in her deposition that she was indeed able to scan documents for four weeks after she was given the assignment upon returning from CTS surgery. Also, the evidence presented by Dávila and her allegations in the Amended Complaint show that "she ended the scanning work for the years 1998, 1999 and part of 2000." (Docket entry #21, ¶ 24). Accordingly, Dávila's CTS limitation was not substantial in nature. Therefore, Dávila was able to perform her duties.

As to Dávila's depressive condition, she has failed to adduce evidence that she was "disabled" due to her depression. Dávila's only evidence is a diagnosis of major depression. This is not enough. The determination of whether a plaintiff is disabled is not based "on the name or diagnosis of the impairment the person has, but rather on the effect of that impairment on the life of that individual". Id; 42 U.S.C. § 12102(2)(A). Dávila has failed to come forth with any evidence on the effect of her depression in her life.

In any event, the record also shows the depression was not long term. The undisputed evidence demonstrates Dávila's own treating psychiatrist, Dr. José Berrios, testified during his deposition that six months to a year in her treatment, Dávila had already reached an 80% degree of functionality. The impairment must be a significant one to trigger the Act's obligation.

A summary review of the record demonstrates that a reasonable jury could not conclude that plaintiff is substantially limited in the major life activity of working. Here, as in the case ofGelabert, "there is not even a colorable claim that [plaintiff] is disqualified from a broad range of jobs in various classes. [She] is plainly qualified for a great variety of jobs, by [her] own admission." Gelabert, 252 F.3d at 61.

We find the evidence insufficient to demonstrate that Dávila has been substantially limited in working. Therefore, underToyota Motor, Dávila is not "disabled" within the statutory definition. Accordingly, Dávila's accommodation claims fail because she cannot demonstrate that she is "an otherwise qualified individual with a disability" under the ADA.

The Court's task, at summary judgment, may conclude here, nevertheless, the Court must also state CRI provided reasonable accommodation to Dávila.

B. CRI provided reasonable accommodation to Dávila.

"Reasonable accommodation does not require an employer to provide literally everything the disabled employee requests."Schmidt v. Methodist Hospital of Indiana, Inc., 89 F. 3d 342, 344 (7^th Cir. 1996). In fact, it has been held that "the use of the word `reasonable' as an adjective for the word `accommodate' connotes that an employer is not required to accommodate an employee in any manner in which the employee desires. Stated plainly, under the ADA a qualified individual with a disability is not entitled to the accommodation of her choice, but only to a reasonable accommodation." Stewart, 117 F. 3d at 1285-86. (Internal citations and quotations omitted.)

Although an employer "cannot deny an employee alternative employment opportunities reasonably available under the employer's existing policies (. . .), they are not required to find another job for an employee who is not qualified for the job he or she was doing." See Schmidt, 89 F.3d at 344. In light of the foregoing, the Appendix to the ADA regulations confer upon the employer the ultimate discretion in determining the accommodation to be provided to a qualified employee and, among various alternatives, "may choose the less expensive accommodation or the accommodation that is easier for it to provide." Hankins v. The Gap, 84 F. 3d 797, 800-01 (6^th Cir. 1996) ( citing 29 C.F.R. pt. 1630, app. at 415).

In the case at bar, the uncontested facts show that, two days after returning to work, on January 24, 2001, Dávila went to CRI's medical dispensary to complain about an ailment and Nurse Daisy Meléndez noticed that Dávila's right hand was swollen. Nurse Meléndez informed Nurse Yolanda Rosario of this observation. Dr. Carlos Canales, CRI's in-house physician, recommended that Dávila wear a hand brace to be used during work. Dr. Canales saw Dávila again for a follow-up visit on January 29, 2001, and noted she was doing well and the swelling was gone. After her first visit to CRI's in-house dispensary, Dávila continued scanning for four weeks. During this period of time, Dávila did not return to CRI's dispensary to complain about any discomfort concerning her hand, nor did she call any of her doctors in connection with this matter. Dávila admits she continued doing the scanning duties for four weeks. No other complaints were expressed by Dávila during this period.

This evidence shows CRI properly accommodated Dávila because, after she was prescribed with the hand brace, she did not complain any more of pain or swelling in her hand and she was able to perform her duties.

In view of the foregoing, we conclude CRI provided Dávila with reasonable accommodation after she complained about her discomfort in her hand while scanning documents at work.

Finally, Dávila argues in her Second Opposition, without more, that during 2001 she was restricted from sleep and concentration. Nonetheless, there are no allegations or evidence that Dávila requested a reasonable accommodation for her depression in late 2001. Accordingly, this claim is without merit.

Once again, the Court's task, at summary judgment, may conclude here, nevertheless, the Court must also state Dávila did not suffer an adverse employment action.

C. Dávila did not suffer an adverse employment action.

Assuming, exclusively for argument's sake, that Plaintiff would establish the first prong of the prima facie case, the record demonstrates plaintiff has not been able to prove the third prong of the prima facie case, to wit, that she suffered an adverse employment action. In order to establish a prima facie case of disability discrimination, plaintiff must establish that the employer took adverse action against her because of her disability. Carroll, 294 F.3d at 237; Calero-Cerezo, 355 F.3d at 19. There was no adverse employment action in this case.

This Court has ruled that an employee who goes on paid long-term disability leave and caused cancellation of her disability benefits by an insurance provider resulting in the termination of her employment status did not suffer "adverse employment action" for purposes of prima facie case under ADEA, where employee knew that she would be constructively discharged once her benefits were terminated but did not contact employer regarding her availability or desire to return to work. Estades Negroni v. Associates Corp. of North America, 208 F. Supp.2d 144, 149 (D. Puerto Rico 2002).

Similarly, in Walton v. Johnson Johnson Services Inc., 203 F. Supp.2d 1312 (M.D. Florida 2002), the court held that an employee who was terminated after her short-term disability benefits expired in order to be eligible for long-term disability benefits did not suffer from "adverse employment action" for purposes of Title VII retaliation claim, despite her allegations that these disability benefits deprived her of her full salary, benefits, and job advancement.¹⁰

10 See also, Harris v. SmithKline Beecham, 27 F. Supp.2d 569 (E.D. Pennsylvania 1998) (black former employee's failure to return to work after her short-term disability benefits expired was legitimate non-race based reason for employer's termination of employee; there was no evidence that employer's proffered reason was pretextual).

It is undisputed Dávila went on leave and she knew her reserve period was for one year. It is also undisputed Dávila was notified via letter dated February 27, 2002, that her short term disability benefits had expired on February 26, 2002, one year after she had left on short term disability leave. Dávila's short term disability benefits expired while awaiting a determination of her application for long term disability benefits. This was Dávila's choice and she cannot blame now CRI for her decision and her own actions. Therefore, it must be concluded Dávila did not suffer an adverse employment action.

In view of the foregoing, Dávila has failed to prove a prima facie case of disability discrimination. Accordingly, it is recommended that CRI's Motion for Summary Judgment as to plaintiffs' claims of disability discrimination under ADA be GRANTED.

II. AGE DISCRIMINATION (SECOND AND FIFTH CAUSES OF ACTION).

The ADEA makes it unlawful for an employer to "discharge any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1) (2003). In an ADEA wrongful discharge case, the plaintiff must prove that he would not have been fired but for his age. Serrano-Cruz v. DFI P.R., Inc., 109 F.3d 23, 25 (1^st Cir. 1997). Where, as here, there is no evidence of direct discrimination, the familiar McDonnell Douglas burden-shifting framework governs. Id.; see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817 (1973).

A plaintiff makes a prima facie case of discrimination underMcDonnell Douglas by showing that (1) he was at least forty years old; (2) he met the employer's legitimate job expectations; (3) he was discharged; and (4) the employer did not treat age neutrally and plaintiff was replaced by another individual of similar skills and qualifications. Pages-Cahue v. Iberia Lineas Aereas de Espana, 82 F.3d 533, 536 (1^st Cir. 1996). The fourth element requires the plaintiff to produce "evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion." O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307 (1996).

The initial prima facie case is not burdensome and raises a rebuttable presumption of unlawful discrimination. Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1^st Cir. 1995). The burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action.Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1^st Cir. 1991). If the employer makes this showing, the presumption of discrimination disappears, and the burden shifts back to the employee. Id. The plaintiff must then show, without resort to the presumption created by the prima facie case, that the employer's explanation is a pretext for age discrimination.

A review of the Amended Complaint shows plaintiff's claim of age discrimination is based on the fact that Dávila was over 40 years of age during the relevant period and she was replaced by Evelyn Leal who did not have Dávila's experience and who was around 40 years of age.¹¹

11 Plaintiffs totally failed to address the age discrimination issue in her Second Opposition to the Motion for Summary Judgement that will be stricken for the record as previously explained. Thus, even if the Second Opposition were to be considered, plaintiffs have waived her opposition to the age discrimination issue and the Motion for Summary Judgment as to age discrimination is unopposed.

It is uncontested Dávila was over 40 years of age, thus, Dávila falls under the protected class. Nonetheless, Dávila's claim fails because, as explained above, she did not suffer an adverse employment action but was informed her short term disability had expired.

Furthermore, Dávila's replacement was insignificantly younger. It is uncontested that, after Dávila ceased her employment with CRI, her duties were in a substantial majority performed by Evelyn Leal who was born on April 9, 1954, that is, 18 months younger than Dávila. This age difference is not enough to support a prima facie case of age discrimination.

In O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S.Ct. 1307 (2000), the Supreme Court explained that a " prima facie case requires evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion. In the age-discrimination context, such an inference cannot be drawn from the replacement of one worker with another worker insignificantly younger." Id. at 312-13. The Circuits, including the First Circuit, that have interpretedO'Connor are in accord that an age difference of less than five years is insufficient to support a prima facie case of age discrimination. See, e.g., Williams v. Raytheon Co., 220 F.3d 16, 20 (1^st Cir. 2000) (age difference of three years between terminated employee and his replacement was insufficient to support prima facie presumption of age discrimination in violation of ADEA); Hoffmann v. PRIMEDIA Special Interest Publications, 217 F.3d 522, 524-25 (7^th Cir. 2000) (plaintiff failed to establish prima facie case of age discrimination where replacement was only three years younger); Bush v. Dictaphone Corp., 161 F.3d 363, 368 (6^th Cir. 1998) (five year age difference is not "substantially younger"); Schiltz v. Burlington N.R.R., 115 F.3d 1407, 1413 (8th Cir. 1997) (same).

Thus, we conclude the age difference in this case is too insignificant to support a prima facie case of age discrimination. Accordingly, it is recommended that CRI's Motion for Summary Judgment as to plaintiffs' claims of age discrimination under ADEA be GRANTED.

III. SEX DISCRIMINATION (THIRD CAUSE OF ACTION).

CRI has failed to request in its Motion for Summary Judgment that the Third Cause of Action for sex discrimination be summarily dismissed. As such, the Third Cause of Action for sex discrimination included in plaintiffs' Amended Complaint will not be considered by this Magistrate Judge for resolution. Therefore, the Third Cause of Action for sex discrimination survives the summary judgment request.¹²

12 An employee alleging sex discrimination must first establish a prima facie case by showing that: (1) she belonged to a protected class, (2) she performed her job satisfactorily, (3) her employer took an adverse employment decision against her, and (4) her employer continued to have her duties performed by a comparably qualified person. Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1^st Cir. 2000). In this case, there was no adverse employment action as previously explained as to the ADEA and ADA claims.

IV. THE STATE LAW CLAIMS: LAW 44, LAW 100 AND ARTICLE 1802.

Plaintiffs also contend CRI violated Puerto Rico's anti-discrimination disability law (Law 44), and Puerto Rico's anti-discrimination statute (Law 100). Plaintiffs request damages under Article 1802 of the Puerto Rico Civil Code, as result of CRI's alleged discriminatory employment actions.

As to plaintiffs' state claims, discrimination is also unlawful in the Commonwealth of Puerto Rico. Article II, Section 1 of the Constitution of the Commonwealth of Puerto Rico; Law No. 100, P.R. Laws Ann. Tit. 29, § 146, et seq.; Law No. 44, P.R. Laws Ann. Tit. 1, §§ 501 et seq.; and Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. Tit. 31, §§ 5141-42.

Because this is not a diversity case, the power of the federal court to hear and to determine state law claims depends on the presence of at least one "substantial" federal claim in the lawsuit. Newman v. Burgin, 930 F.2d 955, 963 (1^st Cir. 1991) ( quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130 (1966)). Federal jurisdiction hinges on the Title VII claim in this case. Since "pendent" or "supplementary" claims consist of state matters over which Congress did not grant federal courts independent jurisdiction, once the federal question issues are dismissed the Court may dismiss the entire case. See Cotto v. Citibank, N.A., 247 F. Supp.2d 44, 47 (D. Puerto Rico 2003); Newman, 930 F.2d at 964.¹³

13 See also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614 (1988) ( emphasizing that exercise of pendent jurisdiction is at the district court's discretion);Rodríguez v. Doral Mortg. Corp., 57 F.3d at 1177 ("[a]s a general principle, the unfavorable disposition of a plaintiff's federal claims at the early stages of a suit, well before the commencement of trial, will trigger the dismissal without prejudice of any supplemental state-law claims"); Gibbs, 383 U.S. at 726 ("if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well."); see also, Moor v. County of Alameda, 411 U.S. 693 at 716, 93 S.Ct. 1785 at 1799 (1973).

Therefore, it is Recommended that plaintiff's claims against CRI arising under Puerto Rico law, i.e, Law 44, Law 100 and Article 1802 for damages be DISMISSED WITHOUT PREJUDICE.

V. FAMILY MEDICAL LEAVE ACT (EIGHTH CAUSE OF ACTION).

The FMLA applies to private sector concerns that employ fifty or more persons. 29 U.S.C. § 2611(4). Congress enacted it as a means of alleviating the tension that so often exists between the demands of earning a living and the obligations of family life. See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159 (1^st Cir. 1998); Price v. City of Fort Wayne, 117 F.3d 1022, 1024 (7^th Cir. 1997). To achieve this objective, the FMLA seeks to balance authentic family needs and legitimate employer interests. See 29 U.S.C. § 2601(b)(1), (3). This accommodation entails a set of entitlements for employees and a matched set of rules for employers.

An employee becomes eligible for FMLA leave if he or she has been employed by a covered employer for no less than a year and has worked at least 1250 hours during the preceding twelve months. Id. § 2611(2)(A). Once eligible, an employee may take reasonable periods of unpaid leave for medical reasons, for childbirth or adoption, or for the care of a spouse, parent, or child who suffers from a serious health condition. Id. § 2601(b)(2). Leave periods are circumscribed: an eligible employee may take a maximum of twelve workweeks of FMLA leave in any twelve-month span. Id. § 2612(a)(1). Following such a leave, an employee is entitled to reclaim his or her former job (or some other position with equivalent pay, benefits, and conditions of employment). Id. § 2614(a)(1); Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1^st Cir. 2001).

Under the FMLA, "[e]xcept as provided in paragraph (2), an action may be brought under this section no later than 2 years after the date of the last event constituting the alleged violation for which the action in brought." 29 U.S.C. § 2617 (c)(1).

A. FMLA Claim is Not Time-Barred.

CRI contends Dávila's FMLA claim is time-barred. We find this argument unpersuasive. Dávila's claim under the FMLA is predicated on the telephone conversation Yolanda Rosario had with Dávila's husband on March 7, 2001. Thus, the last event constituting the alleged violation took place on this date. Dávila filed her original complaint on October 4, 2002 and the same did not include an FMLA claim. (Docket entry # 1). On June 9, 2003, the Amended Complaint was filed which included an FMLA claim. (Docket entry # 16).

Pursuant to Federal Rule of Civil Procedure 15(c)(2), an amendment of a pleading relates back to the date of the original pleading when "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading . . ." We find that Dávila's FMLA claim stems from the same conduct claimed in the original complaint. Thus, the Amended Complaint relates back to the date of the original pleading, to wit October 4, 2002. Consequently, the FMLA claim is deemed to have been timely filed within the two (2) years of the date of the last event and is not time-barred.

B. FMLA Claim is Without Merit.

Dávila claims in the Amended Complaint that CRI breached its obligation under the FMLA in that its decision to fire her was based on her "protected absences." (Docket entry # 21, ¶ 91-93). ¹⁴

14 Plaintiffs totally failed to address the FMLA issue in her Second Opposition to the Motion for Summary Judgement that will be stricken for the record as previously explained. Thus, even if the Second Opposition were to be considered, plaintiffs have waived their opposition to the FMLA issue and the Motion for Summary Judgment as to FMLA is unopposed.

On February 10, 2004, the District Court issued an Opinion and Order denying CRI's Motion to Dismiss Eighth Cause of Action of Amended Complaint (FMLA) (Docket entry # 45). The District Court ruled that, based on the facts of the Amended Complaint, CRI "not only provided for the required twelve-week medical leave, they afforded Dávila approximately forty additional weeks of leave prior to her dismissal. Hence, Davila's claim for FMLA violation based on her discharge is unwarranted." (Docket entry # 45). Plaintiffs have not presented any evidence to contradict the Court's ruling. We need not revisit this issue at this time.

Nonetheless, the District Court did not dismiss the FMLA claim because it determined the Amended Complaint established sufficient factual allegations from which a violation of the FMLA could be discerned, i.e. unwarranted interference with her medical coverage. (Docket entry # 45).

CRI now contends Dávila's cause of action under the FMLA should be dismissed because she never lost her private medical coverage while employed with CRI.

First it must be noted, that CRI filed its Supplementary Motion for Summary Judgment addressing the FMLA claim before Dávila filed her Second Opposition. Nonetheless, Dávila totally failed to address the FMLA issue in her Second Opposition. In any event, as previously indicated, the Second Opposition has been stricken for the record. Thus, the Supplementary Motion for Summary Judgment and its Statement of Material Facts are deemed unopposed.

It is undisputed Dávila never lost her private medical coverage while employed at CRI. Dávila did not lose her private medical treatment as a result of Yolanda Rosario's telephone call on March 7, 2001 to her husband, co-plaintiff Vélez-Rivera. At that time, Dávila was being treated for her emotional condition by the State Insurance Fund. Dávila had started her treatment at the State Insurance Fund on February 26, 2001 and was discharged on May 7, 2001.

Furthermore, it is uncontested Cigna was the carrier for CRI's health plan and Dávila was a subscriber. Under CRI's plan, "[p]ayment will not be made for expenses incurred by [the insured or any of his/her] dependents [f]or or in connection to an illness covered by any workers compensation or similar law."

Rosario's telephone conversation was to inform Dávila of what her medical plan provided because Dávila was receiving treatment from the State Insurance Fund on March 7, 2004 for the same medical condition she was visiting Dr. Nuñez. CRI's medical insurance policy with Cigna is secondary to the worker's compensation insurance for work related injuries as expressly stated in the plan. Therefore, Cigna cannot pay proceeds if an insured employee is receiving workers' compensation payments at the time. Thus, CRI was informing Dávila the plan was not going to cover for her visits to a private physician while she was undergoing treatment with the State Insurance Fund for the same condition for which treatment was sought.

In addition, it is uncontested that, upon Dávila's discharge from the State Insurance Fund, she used her CRI Cigna health plan in connection with her emotional condition, i.e. therapy and treatment she received from Dr. Berrios after her discharge from the State Insurance Fund.

Finally, upon the expiration of Dávila's leave on February 2002, CRI sent her a letter advising her of her right under COBRA. This is evidence that, at the time Dávila ceased her employment with CRI in February 2002, she was entitled to receive the benefits of CRI's health plan with Cigna. As a matter of fact, Dávila admitted during her deposition she benefitted from CRI's health plan under COBRA.

In view of the foregoing, CRI did not interfere with Dávila's medical plan. Accordingly, it is recommended that CRI's Supplementary Motion for Summary Judgment as to plaintiffs' claims under the FMLA be GRANTED.

CONCLUSION

Dávila has failed to prove a prima facie case of disability discrimination. Accordingly, it is recommended that CRI's Motion for Summary Judgment as to plaintiffs' claims of disability discrimination under ADA be GRANTED.

The age difference in this case is too insignificant to support a prima facie case of age discrimination. Thus, it is recommended that CRI's Motion for Summary Judgment as to plaintiffs' claims of age discrimination under ADEA be GRANTED.

It is also recommended that plaintiff's claims against CRI arising under Puerto Rico law, i.e, Law 44, Law 100 and Article 1802 for damages be DISMISSED WITHOUT PREJUDICE.

Since CRI did not interfere with Dávila's medical plan, it is recommended that CRI's Supplementary Motion for Summary Judgment as to plaintiffs' claims under the FMLA be GRANTED.

Consequently, the only cause of action which survives the summary judgment request is the Third Cause of Action for sex discrimination.

IT IS SO RECOMMENDED.

The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1^st Cir. 1994);United States v. Valencia, 792 F.2d 4 (1^st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1^st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").

IT IS SO ORDERED.