Pena v. Honeywell International, Inc.

Plaintiff Mayra F. Pena worked as a machine operator and associate assembler for defendant Honeywell International, Inc. (Honeywell), until Honeywell terminated her employment on June 17, 2013, on the basis of job abandonment. Pena had not come to work since March 8, 2013. On September 20, 2013, Pena applied for Social Security Disability Income (SSDI) benefits, asserting that she was totally disabled and had been since March 8, 2013.

On April 16, 2015, Pena filed this suit under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., and under various Rhode Island laws, claiming that Honeywell terminated her employment on the basis of her disabilities, failed to provide her with reasonable accommodations, and retaliated against her. After discovery and after she consistently testified at her deposition that she was totally disabled as of March 8, 2013, in accord with her SSDI application statements, the district court granted Honeywell's motion for summary judgment on all of Pena's claims. It noted, among other things, Pena's deposition testimony and her SSDI application. The court correctly held that Pena had not met the requirements of Cleveland v. Policy Management Systems Corporation, 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999). We affirm the district court's grant of summary judgment in favor of Honeywell.

I.

A. Facts

We recount the undisputed facts, examining them in the light most favorable to Pena. See Murray v. Kindred Nursing Centers W. LLC, 789 F.3d 20, 25 (1st Cir. 2015). In or about 2008, Honeywell hired *22Pena as a machine operator and associate assembler at its manufacturing facility in Cranston, Rhode Island. Pena worked (except for leave) at the facility until March 8, 2013, after which she never returned to work. On June 17, 2013, Honeywell terminated Pena's employment for job abandonment.

The Cranston facility's various production and assembly areas included the respiratory department,1 the molding department, the logo department, the quicloc/cedars department, and the SCBA area (SCBA stands for "self-contained breathing apparatus"). Before 2012, Pena usually worked in the respiratory department. In the molding department, unlike other departments, the machines run twenty-four hours a day, and emit a new part about every thirty seconds. In other departments, the employees can control the timing of the machines' operation.2

In 2012, Honeywell decided that all employees working in production and assembly should be cross-trained so that they could work as needed in all departments at the Cranston facility, including in the molding department. Honeywell believed that it was important "to move associate assemblers to departments where customer demand was greatest and, as a result, an employee['s] inability to work in any particular area would burden the production process." This was particularly true in the molding department due to its continuous operation. Honeywell then trained all of its employees, including Pena, to work in all "assembly departments," including the molding department.

In October 2012, Pena was assigned to and worked in the molding department under this policy. Pena then took a medical leave from November 29, 2012, until January 14, 2013. Pena attributed this request for medical leave to her seasonal depression. Before this leave, Honeywell had permitted Pena to take several other medical leaves of absence totaling twenty-three weeks, including from October 14, 2011, to November 21, 2011; from December 16, 2011, to February 13, 2012; and from June 22, 2012, to August 6, 2012.

When Pena returned to the Cranston facility on January 14, 2013, she began working in the molding department four hours per day, two to three times per week. She worked there without complaint or incident for about one month. She otherwise typically worked in the respiratory department.

In late February 2013, Pena complained to the Senior Human Resources Generalist, Jose Gouveia, that one of the production leaders had told her to go to the molding department. Pena says she told Gouveia during that conversation that she did not want to work in the molding department because "it was harmful to [her] emotionally."3

*23Pena met with Gouveia, as well as her supervisor, Kevin Dyer, and the Health Safety and Environmental Site Leader, Conor Ryan, on both March 7 and 8, 2013, about her request not to work in the molding department. At the March 7 meeting, Honeywell personnel requested that Pena provide a letter from her doctor. The next day, Pena provided a letter from her physician, Dr. James Greer. Dr. Greer's letter, dated March 4, 2013, stated:

Currently, [Pena] is reporting exacerbation of her anxiety symptoms which are interfering with her ability to function. She reports that these specifically occur when she is being sent to the moulding [sic] room as opposed to the more typical duties to which she is accustomed.

Dr. Greer "request[ed] that [Honeywell] assist her in other placements than in this setting," and stated that Pena "is completely capable of working in other settings." Dr. Greer's letter relied almost entirely on Pena's self-reported symptoms and did not contain a specific medical diagnosis. The letter also did not explain why the molding department, but not any other department or area, exacerbated Pena's symptoms.

Honeywell concluded that Dr. Greer's letter was inadequate to determine what accommodations Pena was requesting and whether Honeywell could meet those requests. On March 8, 2013, Ryan and Gouveia told Pena that the only work available to her was in the molding department, so if she refused to do that work, she would have to go home. Pena decided to go home, and never returned to work after that day.

Within a week, Pena had retained an attorney, Veronika Kot. Kot told Pena not to communicate with any Honeywell personnel, as Kot would handle all such communications.

Honeywell did not know that Pena had retained counsel, and repeatedly attempted to contact Pena to better understand her condition and determine what accommodations, if any, would be appropriate. In late March 2013, Gouveia sent Pena a Reasonable Accommodations Request Form.

On April 2, 2013, Honeywell's Associate Director of Health Services, Dr. Elizabeth Jennison, wrote to Dr. Greer, asking for "additional documentation to understand the medical necessity for [Pena's] request." Dr. Jennison's letter also asked Dr. Greer to "clarify how [Pena's] anxiety symptoms could allow her to work in many areas of the plant, while interfering with her ability to function in one area of the plant, the molding department, for which she is equally qualified and trained," and requested supporting medical documentation.4

In early April 2013, Pena submitted the Reasonable Accommodations Request Form to Honeywell, which was dated April 2, 2013. On the form, Pena stated that she was "unable to work in molding" because "the noise, speed and overall environment gives [her] anxiety, palpitations." On the form, Pena also stated, "I had been offered many permanent positions in molding while still working through an agency and refused because I knew 11 years ago that I could not perform this job."

The physician's portion of the Reasonable Accommodations Request Form was left blank, but Pena attached a second *24letter from Dr. Greer dated April 2, 2013. This letter stated that Dr. Greer diagnosed Pena as having "Major Depressive Disorder, Recurrent, Severe." The letter stated that Pena "is eager to return to work in her previous capacity," and that Dr. Greer could "state with a reasonable degree of medical certainty that continued assignment to the more recent work setting will result in worsening stress and further exacerbation of her condition." Dr. Greer's letter did not attempt to explain why his diagnosis of Pena would allow her to work everywhere except in the molding department.

On April 8, 2013, Gouveia sent a letter to Pena stating, "[y]ou have informed us you signed a release to give your physician permission to send your medical records to our medical department; however, no[ ] medical records have been received. As a result, and at the moment, we have insufficient information to assess your request." The letter also stated that while Honeywell "await[ed] the medical information required to assess [her] request," Pena had the following options in the meantime: returning to work and performing her regular duties, including in the molding department, which was "required of all employees in [Pena's] position"; remaining on unpaid medical leave; or using any paid time off she might have available.

Gouveia sent a follow-up letter to Pena on April 22, 2013, stating that Honeywell had not yet received any information from Pena's physician. That same day, Attorney Kot telephoned Gouveia. This was the point at which Honeywell became aware that Pena had retained counsel. Honeywell's in-house employment counsel, Jacqueline Rolfs, wrote to Kot later that same day, asking her to review Honeywell's correspondence with Pena to understand Honeywell's requests for additional medical records.

On April 23, 2013, Kot responded to Rolfs's letter in writing, stating that Pena had already provided two doctor's notes, and that Honeywell's request for a "release of all her sensitive medical records, including mental health records," was an "unnecessary and prohibited intrusion upon her privacy."

On April 25, 2013, Rolfs sent a letter to Kot, attaching the prior correspondence between Honeywell, Pena, and Dr. Greer. This letter detailed Honeywell's attempts to communicate with Pena, and stated that Honeywell had not asked for all of Pena's records, but rather, only those records that would explain how her symptoms prevented her from working in the molding department. Rolfs's letter also stated that "Honeywell remains willing to work with your client to assess her reasonable accommodation request. However, without the cooperation of your client and her physician in providing responses to Honeywell's reasonable questions about this request, we cannot proceed further in that process."

Kot responded to Rolfs in a letter dated April 30, 2013, accusing Honeywell of violating the ADA and of threatening to terminate Pena's employment if she did not return to work without accommodations. Kot's letter also stated that she would provide another letter from Pena's doctor shortly.

On May 6, 2013, Kot wrote to Rolfs again, expressing concern that Honeywell management had not provided Pena with "the appropriate support" and instead had "apparently ... urged [Pena] to quit and apply for SSI [Supplemental Security Income]" (Honeywell disputes this). Kot's letter enclosed a memorandum from Dr. Greer, stating that Pena "has reported repeatedly and consistently" that the molding room was stressful because of "a variety of factors which included increased *25noise levels, chemical odors, and the presence of robotics." Dr. Greer's memorandum also stated, "I cannot specifically identify particular issues there which might exacerbate her stress, but can state with a reasonable degree of medical certainty that there is a direct causal relationship between her working in that setting and the exacerbation of her symptoms." The memorandum attached four progress notes from Pena's visits with Dr. Greer that had taken place between March 4 and April 22, 2013.

Rolfs sent a letter to Kot on May 22, 2013, stating that Dr. Greer's most recent memorandum still did not explain the connection between Pena's diagnosis and her ability to work in the molding department, because all of the items mentioned were also true of work conditions in other departments. The letter explained that:

The noise level in molding is not appreciably different than that in respiratory. Indeed, employees in both areas are required to wear ear plugs. Nor is there any difference in the chemical odors between respiratory and molding. In addition, there are robotics in both molding and respiratory, and all are enclosed.

The letter stated that "all employees who work on the floor at this Honeywell facility will be required to rotate into molding as they complete the necessary training. The rotations are as brief as 15 minutes, or as long as one week." The letter also stated that "[r]espiratory will remain Ms. Pena's primary assignment," but that "Ms. Pena and the other employees will rotate among all the areas in the facility, not just molding." Rolfs's letter also repeated that Honeywell only sought medical records relevant to Pena's request for reasonable accommodation. It stated that "no one at Honeywell has suggested that Ms. Pena quit and apply for SSI." The letter further stated that Dr. Greer had not called Honeywell's Associate Director of Health Services, Dr. Jennison, as Honeywell had requested, and asked that Dr. Greer call Dr. Jennison as soon as possible.

Honeywell personnel did not hear from Kot after May 6, 2013. But the record shows, and her counsel at oral argument affirmed, that Pena had counsel at the time of each of the following crucial events.

On June 17, 2013, after Pena had been absent for over three months and had used all of her medical leave, Honeywell terminated Pena's employment on the basis of job abandonment.

On September 20, 2013, Pena applied for SSDI benefits. Pena was represented by different counsel, Amanda DelFarno, for her SSDI application. Pena's SSDI application included the statements "I became unable to work because of my disabling condition on March 8, 2013," and "I am still disabled." The application also stated:

I know that anyone who makes or causes to be made a false statement or representation of material fact in an application or for use in determining a right to payment under the Social Security Act commits a crime punishable under federal law by fine, imprisonment, or both. I affirm that all information I have given in connection with this claim is true.

That same day, Pena was given an electronic receipt for her SSDI application, which stated, "[y]ou declared under penalty of perjury that you examined all the information on this form and it is true and correct to the best of your knowledge. You were told that you could be liable under law for providing false information." The receipt stated that Pena should review her SSDI application and call the telephone number provided within ten days if Pena disagreed with any of the statements in her application. Pena does not say that she ever contacted the Social Security Administration *26to change any statements in her SSDI application.

On September 29, 2015, Pena testified at a hearing before an administrative law judge (ALJ). At the hearing, an impartial medical expert testified that "the medical evidence of record shows that the claimant has a 'core problem' of a somatoform disorder while translating everything to physical symptoms."5 On October 16, 2015, the ALJ granted Pena's SSDI application in a five-page decision, finding that Pena had been suffering from somatoform disorder and was totally disabled as of March 8, 2013.

B. Procedural History

On April 16, 2015, Pena, represented by new counsel, Mark Gagliardi, filed a complaint in Rhode Island Superior Court, which Honeywell removed to federal court on the basis of diversity jurisdiction. Pena's twelve-count complaint asserted claims under the federal ADA, 42 U.S.C. §§ 12101 et seq. ; the Rhode Island Civil Rights Act of 1990, R.I. Gen. Laws §§ 42-112-1 et seq. ; the Rhode Island Fair Employment Practices Act, R.I. Gen Laws §§ 28-5-1 et seq. ; the Civil Rights of People With Disabilities Act, R.I. Gen. Laws. §§ 42-87-1 et seq. ; and the Rhode Island Whistleblower's Protection Act, R.I. Gen. Laws §§ 28-50-1 et seq. The Complaint alleges that Honeywell failed to provide Pena with reasonable accommodations (Counts I through IV), terminated her employment on the basis of her disabilities (Counts V through VIII), and terminated her employment in retaliation for reporting discriminatory conduct (Counts IX through XII).

During discovery, Pena's deposition was taken on November 3, 2016. She does not say that she filed any corrections to her deposition transcript. After the completion of discovery, in February 2017, Honeywell moved for summary judgment on all of Pena's claims. Pena's counsel filed an opposition to Honeywell's motion for summary judgment on March 28, 2017, the day it was due. The opposition attached documents and letters as evidence, but did not attach any deposition transcripts. The next day, Pena's counsel filed an "addendum" to the opposition, which included six deposition transcripts and an affidavit executed by Pena on March 29, 2017, the day after the opposition had been due. That same day, Pena's counsel also filed a statement of undisputed facts and a statement of disputed facts. On April 11, 2017, Honeywell filed a reply brief, which included objections to Pena's late filings, including the affidavit. That same day, Pena filed a motion for a retroactive extension to file the "addendum," statement of disputed facts, and statement of undisputed facts. Later that same day, Honeywell objected to this motion. On April 26, 2017, the district court granted Pena's motion for an extension.

The magistrate judge held a hearing on Honeywell's motion for summary judgment on June 19, 2017. On September 22, 2017, the magistrate judge entered a report and recommendation that Honeywell's motion be granted. Pena v. Honeywell Int'l Inc., No. CV 15-179 WES, 2018 WL 582579, at *3-*12 (D.R.I. Jan. 29, 2018). On January 29, 2018, the district court accepted the report and recommendation and granted summary judgment in Honeywell's favor on all counts. Id. at *3. Pena timely appealed.

II.

A movant is entitled to summary judgment if "there is no genuine dispute as *27to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "We review the district court's disposition of a summary judgment motion de novo, 'scrutiniz[ing] the evidence in the light most agreeable to the nonmoving party, giving that party the benefit of any and all reasonable inferences.' " Murray, 789 F.3d at 25 (quoting Noviello v. City of Bos., 398 F.3d 76, 84 (1st Cir. 2005) ). If the record is "deficient in vital evidentiary support, this may suffice to show that the movant has met its initial burden" of "demonstrating the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law." Carmona v. Toledo, 215 F.3d 124, 132-33 (1st Cir. 2000).

A. Allegation Termination Was Based on Pena's Disabilities

The ADA forbids employers from terminating the employment of a "qualified individual on the basis of disability."6 42 U.S.C. § 12112(a). A prima facie case of disability discrimination requires the plaintiff to show that (1) she was disabled within the meaning of the ADA, (2) she was a "qualified individual," and (3) the defendant took an adverse employment action against her on the basis of her disability. Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 104 (1st Cir. 2005) ; 42 U.S.C. § 12111(8).

Under the ADA, a "qualified individual" is "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). By contrast, a successful SSDI applicant must be physically and mentally impaired such that she cannot do her previous work, or "any other kind of substantial gainful work which exists in the national economy."Id. § 423(d)(2)(A). This difference creates an obvious tension.

In Cleveland, the Supreme Court reversed a Fifth Circuit decision that had created a rebuttable presumption that a plaintiff's filing of an SSDI application precluded her from being a "qualified individual" under the ADA. 526 U.S. at 799-800, 807, 119 S.Ct. 1597. The Court remanded to the lower court for the purpose we quote later. Id. at 807, 119 S.Ct. 1597.

The Court held that an ADA plaintiff in an employment discrimination action is not judicially estopped from establishing that she can perform the essential functions of her job with reasonable accommodations solely because she has previously applied for and received SSDI benefits. Id. at 802, 119 S.Ct. 1597. It went on from there to establish what a plaintiff must show. Id. at 801-07, 119 S.Ct. 1597.

The Court stated that the first question was whether there was an inconsistency between a plaintiff's prior SSDI statements and her position in the ADA litigation. Id. at 802, 119 S.Ct. 1597. The Court stated that there are "many situations in which an SSDI claim and an ADA claim can comfortably exist side by side." Id. at 803, 119 S.Ct. 1597. The Court noted that while "the ADA defines a 'qualified individual' to include a disabled person 'who ... can perform the essential functions' of her job 'with reasonable accommodation,' " SSDI "does not take the possibility of 'reasonable accommodation' into account." Id. (alteration in original) (emphasis omitted)

*28(quoting 42 U.S.C. § 12111(9)(B) ). Instead, SSDI adjudications involve a "five-step procedure that embodies a set of presumptions about disabilities, job availability, and their interrelation."7 Id. at 804, 119 S.Ct. 1597 (citing 20 C.F.R. §§ 404.1520, 404.1525, 404.1526, 404.1560 ). These presumptions "eliminat[e] consideration of many differences potentially relevant to an individual's ability to perform a particular job" under the ADA. Id. Cleveland also noted that SSDI benefits are sometimes awarded "to individuals who not only can work, but are working," such as those on a statutory nine month trial-work period to test their ability to return to work. Id. at 805, 119 S.Ct. 1597 (citing 42 U.S.C. §§ 422(c), 423(e)(1) ; 20 C.F.R. § 404.1592 (1998) ).

Cleveland then stated that "[w]hen faced with a plaintiff's previous sworn statement asserting 'total disability' or the like, the court should require an explanation of any apparent inconsistency with the necessary elements of an ADA claim." Id. at 807, 119 S.Ct. 1597. To defeat summary judgment, the plaintiff's "explanation must be sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good-faith belief in, the earlier statement, the plaintiff could nonetheless 'perform the essential functions' of her job, with or without 'reasonable accommodation.' " Id.

Significantly, the plaintiff in Cleveland had argued in her brief that her SSDI statements "were made in a forum which does not consider the effect that reasonable workplace accommodations would have on the ability to work," and that her SSDI statements were " 'accurate statements' if examined 'in the time period in which they were made.' " Id. The Court rejected the plaintiff's argument that this was all that was needed. The court remanded the case so that the parties could "have the opportunity in the trial court to present, or to contest, [the plaintiff's] explanations, in sworn form where appropriate." Id.

Pena argues that she has given an adequate explanation for the apparent inconsistency between her SSDI statements and her position in this litigation. She first argues that it is enough for her to say in her brief that being disabled under the ADA is different from being disabled for SSDI benefits, because the ADA takes into account an employer's duty to make reasonable accommodations, while SSDI does not. Pena argues that if her SSDI application or the ALJ had asked if she needed disability accommodations to work, she would have responded "yes." She states that this is sufficient to meet her burden under Cleveland. This misreads (and would read out of the law) Cleveland's reasoned explanation requirement. When the plaintiff in Cleveland made these same general arguments, the Court did not accept them; rather, it remanded for factual findings. Id.

This court has interpreted Cleveland before, and rejected the argument Pena makes. In DeCaro v. Hasbro, Inc., 580 F.3d 55 (1st Cir. 2009), we upheld a jury instruction that the standard for receipt of SSDI benefits is different from the standard for whether the plaintiff was able, with or without reasonable accommodations, to perform the essential functions of his job. Id. at 62. We affirmed that the *29mere fact that the employee "received [SSDI] benefits is not in itself necessarily fatal to his claim," but that the receipt of SSDI benefits could be an admission by the employee of his inability to perform the essential functions of his job, and that the question turned on "all the facts and circumstances." Id. DeCaro rejected the argument that the mere differences in standards was all that a plaintiff had to show; the burden was on the plaintiff to offer a sufficient explanation. Id.

In Sullivan v. Raytheon Co., 262 F.3d 41 (1st Cir. 2001), we upheld a grant of summary judgment to the employer where the plaintiff offered "no evidence to explain" why his prior SSDI statements were consistent with his claim that he could perform the essential functions of his job with reasonable accommodations. Id. at 47. Like here, the plaintiff, in his deposition testimony, had "continually and consistently claimed that he was totally disabled" from the date the defendant terminated his employment, and that his condition had "stayed the same or worsened" after that. Id. We stated that to defeat summary judgment, the plaintiff needed to produce "evidence to explain this discrepancy." Id.

Nor has Pena's argument been accepted by any circuit. The Third Circuit has held that "simply averring that the [ADA and SSDI] statutory schemes differ is not enough to survive summary judgment in light of Cleveland. An ADA plaintiff must offer a more substantial explanation to explain the divergent positions taken, or else summary judgment could never be granted." Motley v. N.J. State Police, 196 F.3d 160, 166 (3d Cir. 1999). Under Cleveland, "each case should be decided on its unique facts." Id. at 164. The Fourth Circuit has held that a plaintiff does not "automatically avoid[ ] summary judgment when the defendant asserts that the plaintiff's sworn statement of total disability in her SSDI application has negated the 'qualified individual' element of her ADA case." E.E.O.C. v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 378 (4th Cir. 2000) (emphasis in original). The Seventh Circuit has similarly concluded that "[e]xplanations of the sort Cleveland requires are, in short, contextual." Lee v. City of Salem, Ind., 259 F.3d 667, 675 (7th Cir. 2001). The Fifth Circuit has also held that a plaintiff's explanation that her SSDI statements "did not take into account the prospect of accommodation as contemplated under the ADA" is insufficient under Cleveland, at least when the plaintiff has also made "specific factual statements which are inconsistent with her claim" that she could perform the essential functions of her job. Reed v. Petroleum Helicopters, Inc., 218 F.3d 477, 479-80 (5th Cir. 2000).

Pena's second argument is that she has produced evidence of a reasoned explanation sufficient to allow a jury to find she was a "qualified individual." We agree with the district court that she has not met her burden under Cleveland. In her SSDI application, Pena offered no qualification of any sort to her statement that she was totally disabled as of March 8, 2013. She submitted this application under penalty of perjury, and was represented by counsel at the time. From the ALJ's decision that Pena was totally disabled due to somatoform disorder as of March 8, 2013, it is evident that cause and that date are what Pena had argued to get SSDI benefits. Somatoform disorder is not the disability for which Pena had claimed to Honeywell she needed reasonable accommodations. This SSDI evidence cuts against her and against the argument that she has provided a reasonable explanation.

As the district court noted, Pena's deposition testimony does not explain, but rather reinforces, the inconsistency between her SSDI application and her claims in this *30case. Pena was represented by counsel at her deposition. During Pena's deposition, Honeywell asked Pena several times to explain the statements in her SSDI application, and Pena repeatedly stated that she was totally disabled as of March 8, 2013. She did not state that she could have performed the essential functions of her prior job with reasonabl