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Valle-Arce v. Puerto Rico Ports Authority, No. 10-1102 (1st Cir. July 8, 2011)

One of the critical stages in many disability discrimination cases is when the employee gets a new manager or supervisor, who does not understand - or is insensitive to - an accommodation formerly extended to a person with a disability. As this First Circuit case reveals, a botched switch in the gears can create a triable issue of fact for a jury about whether the employee was denied reasonable accommodations.

Valle-Arce v. Puerto Rico Ports Authority, No. 10-1102 (1st Cir. July 8, 2011): In brief, the employee was first diagnosed with Chronic Fatigue Syndrome (CFS) in 2000, with symptoms including insomnia that usually kept her from sleeping more than four hours a night, joint and muscle pain and weakness, and headaches. She at once sought a flexible schedule as an accommodation. The Authority granted this request, at first. But things changed in 2005, when she returned to her previous career position, Auxiliary Chief of the Human Resources Department. "For the first few months after her return, her new supervisor accepted her flexible schedule."

"On May 9, 2005, however, Sara Gregory was named the new Chief of the Human Resources Department, and became Valle's supervisor. Valle testified that Gregory first questioned Valle's flexible schedule two days later . . . ." The new chief, according to the opinion, began to scrutinize her hours, "harassed Valle about her work schedule '[p]ractically every week,'" served written reprimands for attendance and deprived the employee of other accommodations (a printer in her office, air conditioning, close proximity to the washroom) that eased her symptoms.

The district court granted the employer judgment as a matter of law after the plaintiff rested her case-in-chief, one week into the trial. Both the Authority's motion and the judge's rulings were oral.

The First Circuit vacates the dismissal and remands the case for retrial. It holds that the district court erred in granting judgment as a matter of law on the ADA discrimination and retaliation claims.

First, it holds that the district court judge got it wrong by holding that the plaintiff was not a qualified individual with a disability. While the Authority did not dispute the employee's disability status, it argued that job attendance was an essential function of her job. But the First Circuit holds that the record presented a fact issue on this question, in light of the history of the reasonable accommodations:

"Valle testified that she had never been reprimanded in relation to her attendance during the period from 2003-2005 in which her supervisors had informally granted her a flexible schedule. She also testified that the stress of Gregory's repeated haranguing about Valle's attendance contributed to Valle's acute need to take extended medical leave, which in turn resulted in the long absences on which the district court based its ruling. Significantly, there was expert testimony to support this contention. Valle's expert witness, a psychiatrist, testified similarly, and also testified that it caused Valle a great deal of stress to go to work realizing that she was going to be late, which led to many of her absences. A reasonable jury crediting this testimony could conclude that Valle had produced sufficient evidence that she was able to attend work regularly when granted the reasonable accommodation of a flexible schedule."

Second, the panel finds a genuine issue of material fact on whether the delay in readjusting the employee's schedule deprived her of a reasonable accommodation.

"Here, where Valle testified to ways in which the Ports Authority did not follow its normal reasonable accommodations procedure in her case, where the agency delayed months after even the 2006 request, and where the rigid 9:00 a.m. to 5:00 p.m. schedule eventually granted was not what she sought and arguably did not reasonably accommodate Valle's condition, Valle was entitled to present to a jury the question of whether the agency failed to grant her a reasonable accommodation."

The panel also vacates judgment as a matter of law on the plaintiff's ADA retaliation and Puerto Rican law claims.

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