Abigail Guzmán-Rosario (“Guzmán”) sued United Parcel Service (“UPS”) in the district court for violations of Titles I and V of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12, 101-12, 213 (2000), and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (2000). 1 The district court granted summary judgment in favor of UPS and Guzmán now appeals.
The history can be briefly told. In 1986, Gúzmán began part-time work with UPS (four to five hours a day) at its package clearing center at its Muñiz Base facilities in Carolina, Puerto Rico. Her main work assignment was to scan (with a laser reader) packages moving down an assembly line and, where necessary, to reposition packages on the belt. This required her to stand and move around in the vicinity of the belt.
In November 1997, Guzmán felt pain in her left side and entered a hospital for a three-day stay. She was eventually, diagnosed with ovarian cysts; this condition sometimes disappears in a few months without surgery. To see if the cysts resolved themselves and perhaps for other reasons, surgery was deferred for about eight months. In the end, the cysts did not disappear; they were surgically removed in July 1998, restoring Guzmán to health.
When she was hospitalized, Guzmán told her supervisor of her condition to excuse herself from work, which he permitted. Yet Guzmán thereafter suffered symptoms intermittently, including pain and occasional dizzy spells that required her to sit down or double over. Occasionally her symptoms were severe enough to require her to remain at home lying down. Partly on this account and partly because her son was repeatedly ill during this period and required hospital care, Guzmán was absent from work several times (in excess of her sick leave allowance) and was sometimes late to work.
In March 1998, Guzmán explained her condition to two supervisors, providing them with medical documentation evidencing her condition, to justify her absences from work and her occasional sitting down. Though one supervisor told Guzmán that “it was okay”; the other said that she had to resolve her condition because her absences and her sitting down while working were adversely affecting the company. In May 1998, Guzmán received a warning letter from, the division manager — later withdrawn as untimely under the collective bargaining agreement — for lateness and absences during the period January through April. A second warning letter, relating to one more lateness in June, was timely.
In July 1998, UPS conducted a monthly audit of telephone usage and the auditor reported to the division manager that Guz-mán had been making excessive and unauthorized phone calls on company time. The division manager discharged Guzmán, treating the matter as a theft of time from
In September 1999, about 13 months after her discharge, an arbitrator found that the termination was not justified under the collective bargaining agreement because the company had not earlier described such calls as “theft” and the evidence against Guzmán was not strong. The company filed a court appeal but then settled, reinstating Guzmán and providing partial back pay for the period of her discharge.
Several months before the arbitration award issued, Guzmán filed an administrative charge of disability discrimination. In January 2002, the relevant agency rejected her claim and issued a right-to-sue letter. Three months later, Guzmán brought the present action in federal district court. Apart from an unsupported claim under the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2000), which Guzmán has now abandoned, the complaint charged UPS under the ADA and Rehabilitation Act with failure to accommodate her alleged disability and retaliation against her for seeking an accommodation.
After discovery, UPS moved for summary judgment based on Guzmán’s deposition and other documents. Deeming Guzmán’s statement of contested facts inadequate under the local Puerto Rico rule,
2
the district court adopted UPS’s statement of uncontested facts.
See Cor-rada Betances v. Sea-Land Serv., Inc.,
Review of the grant of summary judgment is
de novo. See, e.g., Gelaberh-Ladenheim v. Am. Airlines, Inc.,
Where a worker is disabled an employer may not assume stereotypically an inability to work and (beyond this) must provide “reasonable accommodation” unless undue hardship is shown. 42 U.S.C. § 12112(b)(5);
see id.
§ 12112(a)-(b). Having a “disability” means having or being “regarded as” having a mental or physical impairment that “substantially limits one or more ... major life activities-.”
Id.
§ 12102(2)(A), (C). We have regularly consulted EEOC definitions of the terms,
e.g., Wright v. CompUSA, Inc.,
Two different issues are presented as to Guzmán’s claim that she was disabled dur
Starting with the first of these issues, the ADA is not a medical leave act nor a requirement of accommodation for common conditions that are short-term or can be promptly remedied. The Supreme Court stated in
Toyota
that in order to be “substantially limiting],” an impairment must be “permanent or long term.”
Toyota,
Although
Santiago Clemente
suggested in dictum that an impairment whose duration “is expected to be at least several months” might qualify as a disability if severe enough,
The statute itself says nothing about duration and nothing in the term “disability” or its definition gives a judge, and still less a jury, much guidance. The problem is primarily a policy choice to which Congress did not speak clearly; and the Supreme Court has done no more than extrapolate, from some estimated numbers of those to be covered, that severe restrictions of very important activities were what Congress had in mind.
See Toyota,
In this case, Guzmán’s period of impairment falls within this zone, very close to the shorter end. That the impairment was not severe lends some support to the district court’s resolution, as our case law suggests that shorter durations are tolerated only for more severe impairments.
See, e.g., Santiago Clemente,
One major life activity relied on by Guzmán is “working.” The Supreme Court has expressed some doubt whether working can be so described.
See Sutton, v. United Air Lines, Inc.,
Awaiting a definitive ruling from the Supreme Court, otherwise, we have assumed that “working” is a major life activity and applied the EEOC’s framework in dismissing plaintiffs’ ADA claims,
e.g., Sullivan v. Neiman Marcus Group, Inc.,
Guzmán also claims as major life activities caring for her family, socializing, doing housework, and driving. Here, too, the law is unclear as to what counts;
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but in all events caring for oneself is commonly treated as a major life activity,
e.g., Fraser v. Goodale,
On appeal, Guzmán argues alternatively that she was “regarded as” disabled by UPS.
See
42 U.S.C. § 12,102(2)(C);
Sutton,
Finally, Guzmán claims that UPS retaliated against her for protected conduct, which is a separate claim under the ADA,
see
42 U.S.C. § 12,203(a), and does not depend on the success of the plaintiffs disability claim.
See Wright,
Conceivably Guzmán might argue that by notifying her supervisor of her condition she was implicitly requesting an
This case is a useful reminder that the ADA is not a cure for all work-related difficulties and, also, that some of them have other remedies. Here, the collective bargaining agreement appears to have done its work. With reinstatement and partial back pay, Guzmán must be content.
Affirmed.
Notes
. Title I prohibits employers from discriminating against a "qualified individual with a disability because of the disability,” 42 U.S.C. § 12112(a); Title V pertinently prohibits discrimination against individuals who engage in certain acts protected under the ADA,
see
42 U.S.C. § 12203(a). The counterpart provision of the Rehabilitation Act is construed as congruent with Title I,
Oliveras-Sifre v. P.R. Dep’t of Health,
. A local district court rule, now D.P.R. Rule 56 and formerly D.P.R. Rule 311.12, requires that the statements of uncontested and contested issues be specific and supported by record citations. Guzmán’s statement comprised six conclusory statements with no citations.
. See 1 Americans with Disabilities Act Handbook § 3.08, at 127 n. 453 (Henry H. Perritt, Jr. ed., 4th ed.2003) (collecting cases); Employment Discrimination Law 165-66 & nn. 109-11 (C. Geoffrey Weirich ed., 3d ed. supp. 2002) (same).
.
See, e.g. Felix v. N.Y. City Transit Auth.,
.
See Estades-Negroni v. Assocs. Corp. of N. Am.,