          United States Court of Appeals
                     For the First Circuit


No. 15-1607

                      GISELA VÉLEZ-RAMÍREZ,

                      Plaintiff, Appellant,

                               v.

COMMONWEALTH OF PUERTO RICO, through its Secretary of Justice on
      behalf of the Correction and Rehabilitation Department;
 CORRECTIONAL HEALTH SERVICES CORPORATION (CHSC); JOSÉ U. ZAYAS-
  CINTRÓN,* in his official capacity as Acting Secretary of the
   Department of Corrections and Rehabilitation of Puerto Rico;
   DEPARTMENT OF CORRECTIONS AND REHABILITATION; LIBERTY MUTUAL
                         INSURANCE COMPANY,

                     Defendants, Appellees,

                            JOHN DOE,

                           Defendant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

     [Hon. Pedro A. Delgado-Hernández, U.S. District Judge]


                             Before

                      Howard, Chief Judge,
              Torruella and Lynch, Circuit Judges.


     Manuel Porro-Vizcarra, with whom Yesenia M. Varela-Colón and

     * Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
we substitute José U. Zayas-Cintrón for the prior Secretary, Jesús
González-Cruz.
Manuel Porro Vizcarra Law Offices were on brief, for appellant.
     Carmen Lucía Rodríguez Vélez, with whom Néstor J. Navas
D'Acosta, Navas & Rodríguez, P.S.C., Mariel Y. Haack, and Adsuar
Muñiz Goyco Seda & Pérez-Ochoa, P.S.C. were on brief, for appellees
Correctional Health Services Corporation (CHSC) and Liberty Mutual
Insurance Company.
     Margarita Mercado-Echegaray, Solicitor General, with whom
Andrés González-Berdecía, Assistant Solicitor General, Department
of Justice, Commonwealth of Puerto Rico, was on brief, for appellee
Commonwealth Of Puerto Rico.


                          June 27, 2016
            HOWARD, Chief Judge.          The Americans with Disabilities

Act ("ADA"), 42 U.S.C. § 12001, et seq., provides persons with

disabilities equal opportunities under law.               Plaintiff-appellant

Gisela Vélez-Ramírez ("Vélez") alleges that her employers violated

the ADA by discharging her and not rehiring her because of her

vision   disability.      Because       the   record   establishes    that   the

defendants acted for a legitimate, non-discriminatory reason, we

affirm the district court's entry of summary judgment in their

favor.

                                        I.

            We take the record in the light most favorable to the

non-moving party, Vélez.         Collazo-Rosado v. Univ. of Puerto Rico,

765 F.3d 86, 89 (1st Cir. 2014).         Vélez worked as a contract health

educator for the Puerto Rico Department of Corrections ("the

Department") and the Correctional Health Services Corporation

("the    Corporation").      The    Department       operates   Puerto    Rico's

correctional facilities.         The Corporation provides health care for

the Department's inmates.

            In   2007,   Vélez    was    diagnosed     with   the   eye   disease

diabetic retinopathy.      In February 2010, she asked the defendants

to reasonably accommodate her vision loss.              That same month, she

underwent laser eye surgery.            Afterward, she did not return to

work.    In April, the Corporation denied her request for reasonable

accommodations on the basis that she was an independent contractor.


                                     - 3 -
              Later that month, the defendants considered whether to

renew       their     professional           services        contracts,          and     they

affirmatively recommended the renewal of Vélez's contract.                               They

also notified the contractors about the renewal process via an

automatically-generated           email.        The   email        was    sent    over    the

Department intranet, a private computer network accessible only

from the Department's premises.

              Vélez says that because she had stopped going to work,

she   did    not    sign     on   to    the    intranet       or    read    the    notice.

Nevertheless, she acknowledges that she understood the contract

renewal     procedures,       including       whom    she     had    to    contact,       the

paperwork required, and the deadline.                    Despite this undisputed

evidence, she did not submit the required paperwork or contact the

defendants about the renewal.                 Her contract subsequently expired

in June 2010 and was not renewed.

              During the time that the contract renewal process was

unfolding,     Vélez    applied        for    government      benefits      through      the

Vocational     Rehabilitation          Program.         On    her    application,        she

claimed that she had left her job with the defendants because her

"[c]ondition prevented [her] from doing job."                        In May 2010, she

was deemed eligible to receive benefits under the Program.

              The following February, Vélez filed an administrative

complaint      with    the    Equal      Employment          Opportunity         Commission

("EEOC"), claiming that the defendants had discriminated against


                                         - 4 -
her because of her disability.                 She later formalized this charge,

see 29 C.F.R. §§ 1626.3, 1626.6, 1626.8, and the EEOC notified her

of her right to sue. Vélez then brought this action in the District

of Puerto Rico, alleging that the defendants violated the ADA.1

She    alleged        discrimination      on    two     grounds:    first,     that   the

defendants actually or constructively discharged her by denying

her    request        for   reasonable    accommodations;          and   second,   after

Vélez's contract expired in June 2010, that the defendants refused

to rehire her because of her disability.                   Vélez also alleged that

the defendants refused to rehire her in retaliation against her

request for reasonable accommodations.

                The    district   court       awarded    summary    judgment     to   the

defendants.           The court assumed that Vélez was an employee rather

than       an   independent     contractor,       and    that   she      had   exhausted

administrative          remedies.        It     nevertheless       dismissed     Vélez's

discrimination claims for three reasons: (1) Vélez was not an ADA

"qualified individual" because she admitted to the Vocational

Rehabilitation Program that she could not work; (2) the defendants'

denial of Vélez's request for reasonable accommodations did not


       1
       Vélez also brought a Rehabilitation Act claim, 29 U.S.C.
§ 701, et seq. The district court dismissed this claim for the
same reasons as the ADA claim. In addition, Vélez brought state
anti-discrimination claims, over which the district court declined
to exercise supplemental jurisdiction because the federal claims
were dismissed.      Except insofar as these conclusions are
intertwined with her ADA claim, Vélez does not challenge them on
appeal.


                                          - 5 -
constitute discharge; and (3) the defendants' decision not to

rehire Vélez was for a non-discriminatory reason: because she did

not submit her renewal paperwork.      The court also relied on this

last ground to dismiss the retaliation claim.

                                II.

            We review summary judgment decisions de novo.      Colón-

Fontánez v. Municipality of San Juan, 660 F.3d 17, 27 (1st Cir.

2011).   Summary judgment is proper where the movant shows that

there is no genuine dispute as to any material fact, and that it

is entitled to judgment as a matter of law.     Id.   We may affirm a

grant of summary judgment on any ground supported by the record.

Id.

            We proceed arguendo on the assumption that Vélez is an

employee.   See Dykes v. DePuy, Inc., 140 F.3d 31, 37 n.6 (1st Cir.

1998) (noting other circuits that have required employee status).

To succeed on an ADA discrimination claim, a plaintiff must show

that "(1) she was disabled within the meaning of the ADA; (2) she

was qualified to perform the essential functions of the job, either

with or without reasonable accommodation; and (3) the employer

took an adverse employment action against her because of the

alleged disability."    Colón-Fontánez, 660 F.3d at 32.       Once a

plaintiff makes a prima facie showing on each of these elements,

a presumption of discrimination arises.       See Marcano-Rivera v.

Pueblo Int'l, Inc., 232 F.3d 245, 251 (1st Cir. 2000) (citing


                               - 6 -
Dichner v. Liberty Travel, 141 F.3d 24, 29-30 (1st Cir. 1998)).

The burden of production then shifts to the defendant.                See id.

If     the   defendant      produces    admissible   evidence    of   a   non-

discriminatory reason for its actions, then the presumption drops

out.       See id.    In any event, the ultimate burden of persuasion

remains on the plaintiff.          See id.

              We conclude that Vélez has failed to establish a triable

issue on the third element of her ADA claim: that the defendants

took an adverse employment action because of her disability.               To

establish this element, Vélez claims that the defendants took two

unlawful actions due to her disability: they discharged her, and

they refused to renew her contract.2

              First, she says that the defendants either actually or

constructively discharged her when they sent a letter denying her

request for reasonable accommodations.            On its face, however, the

letter only denies the request for reasonable accommodations;

nowhere      does    it   state   or   imply   discharge.   To   close    this


       2
       Although the district court also addressed a claim for
denial of reasonable accommodations, Vélez appears to have
abandoned this claim on appeal, and neglects even to even cite the
relevant statutory provision, 42 U.S.C. § 12112(b)(5)(A). Rather,
she only argues that the defendants' denial of reasonable
accommodations constituted a discharge.     In addition, both on
appeal and in the district court, she has made only passing
reference to the defendants' failure to engage in an interactive
process. See 29 C.F.R. § 1630.2(o)(3). Thus, we deem Vélez to
have waived any reasonable accommodation or interactive process
claim for lack of adequate development. See Perfect Puppy, Inc.
v. City of E. Providence, R.I., 807 F.3d 415, 418 (1st Cir. 2015).


                                       - 7 -
evidentiary    gap,   Vélez   argues   that   the    denial    of   reasonable

accommodations necessarily constituted an actual discharge.                 We

disagree.     Practically speaking, an employer may deny a request

for reasonable accommodations but nevertheless allow an employee

to continue working. The statute also views a denial of reasonable

accommodations and a discharge as two distinct acts.                Compare 42

U.S.C.   §    12112(b)(5)(A)     (prohibiting       denial    of    reasonable

accommodations), with id. § 12112 (b)(5)(B) (prohibiting denial of

"employment opportunities . . . based on the need . . . to make

reasonable accommodation").       Vélez's proposed construction, that

the failure to accommodate necessarily constitutes a discharge,

would render section (b)(5)(A) superfluous.              We therefore decline

to adopt her construction.       Cf. Milner v. Dep't of Navy, 562 U.S.

562, 575 (2011) ("statutes should be read to avoid making any

provision superfluous" (internal quotation mark omitted)).

             Vélez argues that Sensing v. Outback Steakhouse of Fla.,

LLC, 575 F.3d 145 (1st Cir. 2009), supports her reading, but it

does not. Nowhere in Sensing did we say that a denial of reasonable

accommodations     necessarily    constitutes       an    actual    discharge.

There, the employer had, among other things, repeatedly refused

the employee's requests to return to work, id. at 149-50, and we

held that those repeated refusals constituted actual discharge,

id. at 158-60.     But Vélez never sought to return to work.




                                   - 8 -
          Vélez's constructive discharge argument also fails.      To

prevail on this argument, she must show that (1) "a reasonable

person in [her] position would have felt compelled to resign" and

(2) "[she] actually resigned."    Green v. Brennan, 136 S. Ct. 1769,

1777 (2016) (citing Pa. State Police v. Suders, 542 U.S. 129, 148

(2004)); accord Sensing, 575 F.3d at 160 n.18.        Vélez, however,

concedes that she did not resign.

          We turn to Vélez's claim that the defendants refused to

rehire her after her contract expired.       This claim fails because

the record establishes that the defendants acted for a legitimate,

non-discriminatory reason: Vélez failed to submit the required

paperwork.   Vélez replies that this purported reason was pre-

textual, a cover-up for discrimination.      She claims that, because

the defendants did not want to rehire her, they chose not to inform

her effectively of the renewal procedures, causing her to not

submit her paperwork.   But the record shows that the defendants

specifically recommended Vélez's contract for renewal and provided

the same intranet email notice directed to Vélez as to every other

professional services contractor.        In any event, Vélez concedes

that she knew the renewal procedures, including whom she had to

contact, the documents required, and the deadline.

          Even so, Vélez insists that the defendants should have

taken an extra step and also contacted her via telephone or mail.

Surely the defendants could have tried harder to reach Vélez, and


                                 - 9 -
perhaps it would have been wise for them to do so.              But the ADA

does not regulate merely unwise employment decisions, and federal

courts   are     not   "super-personnel    departments"   overseeing       the

American economy.       Collazo-Rosado, 765 F.3d at 92.    Rather the ADA

prohibits disparate treatment based on disability.              Raytheon Co.

v. Hernandez, 540 U.S. 44, 52 (2003).            We fail to see how the

employer's application of a neutral, generally applicable policy

-- notifying all of its contractors of the renewal procedure via

the same intranet email -- constitutes disparate treatment.                See

id. at 55.

             In addition, to the extent that Vélez argues that the

defendants' choice to send an intranet email, despite their being

aware of her absence from work, suggests discriminatory intent,

that claim is belied by the record.          The intranet email was not

the product of an intentional decision to discriminate; rather, as

Vélez acknowledges, it was automatically generated.

             Vélez's retaliation claim fails for similar reasons.           To

succeed on an ADA retaliation claim, a plaintiff must show that

the   employer    retaliated   against    her   because   she    engaged    in

protected conduct.        Collazo-Rosado, 765 F.3d at 92 (citing 42

U.S.C. § 12203(a)).        Vélez says that the defendants refused to

rehire her in retaliation against her request for reasonable

accommodations.        But she has put forth no competent evidence of




                                  - 10 -
her own to rebut the defendants' evidence that they decided not to

rehire her because she did not submit the required paperwork.3

                              III.

          The judgment of the district court is AFFIRMED.




     3 The defendants also assert that the retaliation claim is
barred because Vélez failed to timely exhaust administrative
remedies. See Rivera-Díaz v. Humana Ins. of Puerto Rico, Inc.,
748 F.3d 387, 390 (1st Cir. 2014) (citing 42 U.S.C. § 2000e–
5(e)(1)). Vélez responds that Rivera-Díaz, as a predicate to its
ADA exhaustion holding, erroneously construed Puerto Rico state
law, conflicting with the Puerto Rico Court of Appeals' decision
in García López v. Amgen Mfg. Ltd., No. E2CI007, 2012 WL 3235804,
at *4 (P.R. Cir. June 29, 2012). Whatever the merit of Vélez's
argument, we are bound by Rivera-Díaz.      See United States v.
Rodríguez-Vélez, 597 F.3d 32, 46 (1st Cir. 2010). In any event,
we choose to bypass this non-jurisdictional issue, see Bonilla v.
Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999), and
to dispose of the claim on another ground.


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