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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 97-2280 <br> <br>                       IVETTE SOTO-OCASIO, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                   FEDERAL EXPRESS CORPORATION, <br> <br>                       Defendant, Appellee. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Salvador E. Casellas, U.S. District Judge] <br>                                 <br>                                 <br>                                 <br> <br> <br>                             Before <br>                                 <br>                     Torruella, Chief Judge, <br>                Selya and Stahl, Circuit Judges. <br>                                 <br>                                 <br> <br> <br>     Federico Lora Lpez for appellant. <br>     Vivian Nuez, with whom Luis D. Ortiz Abreu and Goldman, <br>Antonetti & Cordova were on brief, for appellee. <br> <br> <br> <br> <br> <br>July 16, 1998 <br> <br> <br> <br>                                 <br>                                 <br> <br>

  STAHL, Circuit Judge.  Plaintiff-appellant Ivette Soto <br>Ocasio ("Soto") appeals the district court's grant of summary <br>judgment to defendant Federal Express Corp. ("Federal Express" or <br>"the company").  Plaintiff had claimed that Federal Express failed <br>to provide a reasonable accommodation to her known physical <br>limitations, in violation of the Americans with Disabilities Act <br>("ADA" or "Act"), 42 U.S.C.  12101-12117, and Puerto Rico law.  <br>We affirm. <br>                                I. <br>  The following facts are undisputed.  In June 1988 <br>plaintiff began working for Federal Express as a full-time <br>operations agent at its Borinquen Station Office ("BSO") in <br>Aguadilla, Puerto Rico.  The purpose of the operations agent <br>position as set forth in a job description dated March 11, 1988, <br>was to "perform routine administrative/clerical duties necessary <br>for efficient field operations."  These duties included entering <br>data into the company's computer, composing letters and memoranda, <br>reviewing reports for accuracy, ordering supplies, typing and <br>filing various forms and papers, processing bills, maintaining <br>personnel data, and auditing air bills.  Plaintiff was the only <br>operations agent in the Aguadilla office, although three customer <br>service agents and twenty-five couriers also worked there. <br>  To carry out her duties, plaintiff would arrive at work <br>at 6:00 a.m.  From 6:00 a.m. until 7:00 a.m., she would enter data <br>from employees' time cards into a computer.  She would then begin <br>her filing and ordering duties, as well as continue her data entry <br>duties, which required that she enter into a computer data from <br>each of the previous day's "hubs" left in a tray for her.  Hubs are <br>air bills which contain each customer's account number, the <br>sender's and recipient's names and addresses, and other pertinent <br>information.  On any given day, she would enter 80 to 375 hubs into <br>the system, a task which, on some days, required that she work <br>overtime, until 4:00 or 5:00 p.m., because company policy required <br>that hubs be entered by the end of the next business day.  During <br>the day, she would take a single one-hour break. <br>  On March 7, 1993, plaintiff was involved in a car <br>accident during non-working hours.  Her physician, Dr. Hiram Luigi, <br>diagnosed her as having a cervical sprain with myofacial pain, <br>which is pain due to damage in the muscles in the trapezius and <br>cervical areas of the body.  After exhausting her allotted sick <br>leave, plaintiff took additional leave pursuant to Federal <br>Express's short term disability plan, which allowed her to receive <br>benefits for an additional twenty-six weeks.  On September 9, 1993, <br>plaintiff applied for long-term disability benefits under Federal <br>Express's disability insurance policy.  Two months later, John <br>Hancock Mutual Life Insurance Company ("John Hancock"), Federal <br>Express's insurance carrier, approved the application.  <br>Subsequently, plaintiff suffered a period of depression and was <br>hospitalized from February 23 until March 13, 1994, at a <br>psychiatric hospital in San Juan.   <br>  On March 24, 1994, Dr. Luigi, who had last examined <br>plaintiff in mid-January 1994, filled out a medical release form at <br>plaintiff's request.  He did not reexamine plaintiff prior to <br>signing the release, on which he wrote the words, "patient light <br>duty."  Because Federal Express's BSO operations manager, George <br>Franqui, was on vacation at the time, plaintiff submitted the <br>medical certificate to senior manager Craig Connors, who rejected <br>the certificate and refused to permit her to return to work, <br>expressing doubts about the meaning of "light duty."  On April 4, <br>plaintiff obtained a second release (again without an examination) <br>from Dr. Luigi, this one describing her limitations as follows: <br>"Work 2 hours and rest 10 minutes.  Cannot lift more than 7 pounds.  <br>Patient must be in treatment."  In his deposition, Dr. Luigi <br>testified that, at the time he completed the second release, he did <br>not know the nature of plaintiff's occupation.  Plaintiff presented <br>the second certificate to Franqui, who accepted it and told her <br>that he would give her a work schedule.  <br> <br>  Notwithstanding his initial receptiveness, Franqui stated <br>in a letter to plaintiff, dated May 10, that she would not be <br>allowed to return to work until she had obtained medical <br>certification that she was able "to resume all of [her] <br>responsibilities" and "to work without restrictions."  He further <br>stated that "[i]n order to maintain operational efficiency and <br>service to our customers it is necessary that I take steps to <br>replace you in your position."  In regard to the decision to <br>replace plaintiff, Franqui testified that  <br>  I initially thought that she would be able to <br>  return back to work, after consulting with <br>  Personnel.  We wanted to have more specific <br>  information of her restrictions.  So I <br>  initially did tell her that I was going to <br>  give her a work schedule but it was just until <br>  we could get a [sic] feedback from our doctor.  <br>  Based on the medical leave of absence policy <br>  for anybody who has been out for an extended <br>  period of time before reinstating that person <br>  we have to send them, that person, to be seen <br>  by one of our doctors. <br>There is no evidence, however, that, prior to May 10, Federal <br>Express raised its concerns about plaintiff's medical release forms <br>either to Dr. Luigi or to its own medical personnel.   <br>  Plaintiff responded to Franqui's letter on May 12, <br>expressing willingness to be examined by a physician designated by <br>Federal Express, and requesting reasonable accommodation.  She also <br>sought permission to participate in Federal Express's "Temporary <br>Return to Work" ("TRW") program, and an evaluation of her case by <br>the company's Human Capital Management ("HCM") Committee.  A month <br>later, on June 14, Connors asked Dr. Leonel Shub to examine <br>plaintiff "to determine if she is physically able to return to her <br>full duties in Federal Express."  After the examination, Dr. Shub <br>reported to Connors that, in his opinion, plaintiff was "not <br>physically capable of performing the essential functions of her job <br>given her present condition."  He stated that her condition did not <br>permit her to lift, push, or pull more than ten pounds; sit or <br>stand for more than 45 minutes at a time; climb stairs <br>repetitively; perform jobs that require cervical flexion   "the <br>motion of chin to chest"   "of more than 25 for more than 30 <br>consecutive minutes;" or elevate her hands above her shoulders.  <br>He concluded that "[s]hould there exist a reasonable accomodation <br>[sic] which complies with these restrictions, it is recommended <br>that she return to work on a gradual basis starting with a 4 hours <br>[sic] part time job."  Federal Express did not provide a copy of <br>the report to plaintiff or discuss it with her.  Based on the <br>restrictions that Dr. Shub outlined, Franqui, Connors, and senior <br>personnel representative Lynn Busler decided not to reinstate <br>plaintiff and instead referred plaintiff's case to the HCM <br>Committee as plaintiff had requested.  The three decisionmakers <br>disregarded plaintiff's request to participate in the TRW program, <br>purportedly on the basis that it was not available to Puerto Rico <br>employees.  Meanwhile, on June 24, 1994, plaintiff filed a charge <br>of employment discrimination under the ADA with the Equal <br>Employment Opportunity Commission.  <br>     The HCM Committee met on August 31, 1994, and, in a <br>memorandum to Franqui, stated that it required "additional medical <br>information regarding the date Ms. Soto will be fully released to <br>return to work."  It thus instructed Franqui to contact Dr. Shub <br>for this information, stating that, in the event that Dr. Shub <br>needed to reexamine plaintiff, Franqui should have plaintiff set up <br>an appointment with Dr. Shub for that purpose.  Finally, the <br>committee determined that if plaintiff would be able to return to <br>work within 90 days, she should do so under the TRW program.  The <br>record is unclear as to whether Franqui contacted Dr. Shub as <br>instructed; however, on October 23, 1994, Eric Hernandez, who had <br>replaced Franqui as operations manager, sent a memorandum to <br>plaintiff stating that the HCM Committee had requested additional <br>information about her condition and instructing her to contact Dr. <br>Shub for an appointment.   <br>     By the time Hernandez sent the memorandum, plaintiff had <br>been involved in two more car accidents, which had worsened her <br>physical condition and caused a recurrence of her depression, for <br>which she had been rehospitalized until October 10, 1994.  She did <br>not revisit Dr. Shub for the requested second examination.  <br>Furthermore, in September 1994, on the advice of John Hancock, <br>plaintiff had filed a claim with the Social Security Administration <br>("SSA"), which on October 15, 1994, informed her that she was <br>entitled to Social Security disability benefits beginning August <br>1994.  The SSA further informed plaintiff that it had been <br>"determined that [her] period of disability began February 23, <br>1994," the date "[her] condition first prevented [her] from doing <br>substantial gainful work."  Franqui testified that plaintiff's <br>position had been vacant since March 1993 and that the work load <br>had "been distributed among 4 or 5" Federal Express employees. <br>     On September 26, 1995, plaintiff sued Federal Express <br>under the ADA and Puerto Rico antidiscrimination laws.  Following <br>completion of discovery, the court granted Federal Express's motion <br>for summary judgment, determining that plaintiff had failed to meet <br>her burden of showing that she was a "qualified individual with a <br>disability" under the ADA.  The court also dismissed, without <br>prejudice, plaintiff's claims under Puerto Rico law.  Plaintiff <br>appeals.  <br>                               II. <br>     We review a grant of summary judgment de novo, viewing <br>the record in a light most favorable to the non-moving party and <br>"indulging all reasonable inferences in that party's favor."  <br>Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991).  <br>Although entry of summary judgment may be upheld only if the record <br>"show[s] that there is no genuine issue as to any material fact and <br>that the moving party is entitled to judgment as a matter of law," <br>id., the party seeking to avoid summary judgment "must be able to <br>point to specific, competent evidence to support his claim," Augustv. Offices Unlimited, Inc., 981 F.2d 576, 580 (1st Cir. 1992).  <br>"Mere allegations, or conjecture unsupported in the record, are <br>insufficient to raise a genuine issue of material fact."  Id.   <br>     The ADA prohibits an employer from discriminating against <br>"a qualified individual with a disability because of the disability <br>of such individual."  42 U.S.C.  12112.  In addition to <br>prohibiting adverse employment decisions, such as termination or <br>denial of benefits, when such decisions are based on a qualified <br>individual's actual or perceived disability, see id.  12112(a), <br>12112(b)(3) & (4), the Act also prohibits an employer from failing <br>to make "reasonable accommodations to the known physical or mental <br>limitations of an otherwise qualified individual with a <br>disability," id.  12112(b)(5)(A).   <br>     To establish a claim under the ADA, a plaintiff must <br>prove by a preponderance of the evidence (1) that she was disabled <br>within the meaning of the ADA; (2) that she was able to perform, <br>with or without reasonable accommodation, the essential functions <br>of her job; and (3) that the adverse employment decision was based <br>in whole or in part on her disability.  See E.E.O.C. v. Amego, <br>Inc., 110 F.3d 135, 141 n.2 (1st Cir. 1997); Jacques v. Clean-Up <br>Group, Inc., 96 F.3d 506, 511 (1st Cir. 1996).  The second <br>requirement   that a plaintiff be "qualified"   itself involves a <br>two-part inquiry: the plaintiff must demonstrate both that she <br>satisfies the prerequisites for the position, that is, that she has <br>the proper training, skills, and experience, and that she could <br>perform the essential functions of her job, either with or without <br>reasonable accommodation.  See 29 C.F.R.  1630.2(m).  <br>     In this case, plaintiff and Federal Express do not <br>dispute that, during the relevant period of time, plaintiff was a <br>disabled person within the meaning of the ADA, that she satisfied <br>the prerequisites for the position of operations agent, and that <br>data entry and other clerical functions are the essential functions <br>of that position.  They do, however, dispute whether plaintiff has <br>demonstrated that there exists a genuine issue of material fact as <br>to whether, at the time that she requested to return to work, she <br>could perform the essential functions of her job.  Our evaluation <br>of the record persuades us that she has not. <br>     It is plaintiff's burden to prove that, at the time she <br>sought to resume her job, she had the ability to perform the <br>essential functions of an operations agent.  Yet she has presented <br>no "specific, competent evidence" to that effect, other than the <br>pro forma medical releases she received from Dr. Luigi.  Instead, <br>she has concentrated on the argument that Federal Express also had <br>an ADA-imposed burden: to be responsive to plaintiff's request for <br>reasonable accommodation.  She asserts that a trial is required to <br>determine whether the company satisfied this burden when it <br>rejected "out of hand" plaintiff's request for reasonable <br>accommodation and did not "engage in meaningful discussion on the <br>subject."   <br>     Plaintiff doubtless draws from the ADA's interpretive <br>regulations, which state that determining an appropriate reasonable <br>accommodation may require an employer "to initiate an informal, <br>interactive process" with the individual seeking accommodation.  29 <br>C.F.R.  1630.2(o)(3).  Indeed, we have held that "[t]here may well <br>be situations in which the employer's failure to engage in an <br>informal interactive process would constitute a failure to provide <br>reasonable accommodation that amounts to a violation of the ADA."  <br>Jacques, 96 F.3d at 515.  In so doing, we have cautioned that <br>"cases involving reasonable accommodation turn heavily upon their <br>facts and an appraisal of the reasonableness of the parties' <br>behavior."  Id. <br>     But in this case, plaintiff's assertion that Federal <br>Express failed to engage in "meaningful" interaction with plaintiff <br>regarding reasonable accommodation is of no moment   or, more <br>precisely, it puts the cart well before the horse   because no <br>reasonable trier of fact could have found, on this record, that <br>plaintiff was capable of performing the duties of operations agent, <br>with or without reasonable accommodation.  At the times that <br>plaintiff sought to return to work, in March and April 1994, she <br>continued to receive long-term disability benefits.  To be eligible <br>to receive those payments, plaintiff was required to represent to <br>John Hancock that she met the definition of "total disability," <br>which, as described in a letter, dated December 8, 1993, to <br>plaintiff from a John Hancock disability claims analyst, is "the <br>inability because of a physical impairment, to engage in any <br>substantially gainful activity for which [the claimant is] <br>reasonably qualified (or could become reasonably qualified) on the <br>basis of [the claimant's] education, training, or experience."  In <br>addition, on July 27, 1994, Dr. Luigi submitted to John Hancock, in <br>response to its request that he update her condition, a completed <br>"attending physician's report," presumably based on his examination <br>of plaintiff on July 20   a date after plaintiff had represented to <br>Federal Express that she was able to return to work.  In the <br>report, Dr. Luigi stated that plaintiff "needs disability at this <br>moment; cannot work; still in medical care."     <br>     We have addressed in a prior case whether a disabled <br>individual's representations (or those of her treating physician) <br>regarding the extent of his or her disability, made in connection <br>with an application for total disability benefits that extended <br>through the point at which he or she sought to return to work, may <br>have a preclusive effect on the individual's attempt to establish <br>that he or she is qualified within the meaning of the ADA.  SeeAugust, 981 F.2d at 580-83.  In August, we determined that the <br>plaintiff's application for total disability insurance, the <br>benefits of which continued through the point at which he requested <br>reinstatement, in combination with the fact that he had not <br>demonstrated that he was capable of performing any work (even with <br>a requested accommodation), eliminated any genuine issue as to his <br>ability to work with reasonable accommodation.  See id.; see alsoD'Aprile v. Fleet Servs. Corp., 92 F.3d 1, 5 (1st Cir. 1996) <br>(describing the holding in August).  We did, however, indicate <br>that, had the plaintiff "pointed to facts which could raise any <br>issue as to whether he was totally disabled during the period in <br>question," August, 981 F.2d at 583, he might have been able to <br>establish a genuine issue as to his ability to perform the <br>essential functions of his job.   <br>     The Seventh Circuit has similarly determined that, <br>although a plaintiff "might have been deemed disabled under some <br>other statutory or contractual framework," the plaintiff may <br>counter any presumption that he or she is not a "qualified <br>individual" by presenting "additional evidence that shows she could <br>perform the essential duties of a desired position with or without <br>reasonable accommodation."  Weigel v. Target Stores, 122 F.3d 461, <br>468 (7th Cir. 1997).  The panel concluded that "absent some such <br>affirmative showing of the plaintiff's ability to perform the <br>essential functions of the position, there will be no genuine issue <br>of material fact as to whether the plaintiff is a 'qualified <br>individual' and the employer will be entitled to judgment as a <br>matter of law."  Id.  In other words, if an ADA plaintiff was <br>receiving, during the time she claims to have been denied <br>reasonable accommodation, total disability benefits that were <br>predicated on her inability to perform the job, then, to defeat a <br>motion for summary judgment, she must make some type of showing <br>that she was in fact able to perform the essential functions of her <br>job during the time in question.  We think this reasoning is sound. <br>     The record is bereft of any support for Soto's assertion <br>that, at the relevant points in time, she was able to perform the <br>essential functions of her position with reasonable accommodation.  <br>The evidence demonstrates only that plaintiff gave her supervisors <br>two medical releases from Dr. Luigi: one appeared to state that her <br>duties should be "light," and the other set forth a very sketchy <br>list of requirements accompanied by a statement that plaintiff was <br>still in need of medical treatment.  Plaintiff presents no evidence <br>to counter either Dr. Luigi's testimony that, at the times in <br>question, plaintiff could probably not sit at a computer for more <br>than thirty minutes, or Dr. Shub's testimony that data entry <br>requires "continuous" cervical flexion, substantially more than the <br>1.25 times per minute permitted by her condition. <br>     To be sure, the term "reasonable accommodation" may <br>include "job restructuring [and] part-time or modified work <br>schedules."  42 U.S.C.  12111(9)(B).  However, the ADA does not <br>require an employer "to reallocate job duties in order to change <br>the essential function of a job."  Milton v. Scrivner, Inc., 53 <br>F.3d 1118, 1124 (10th Cir. 1995); see Cockrum v. Old Ben Coal Co., <br>102 F.3d 908, 913 (7th Cir. 1996) ("[R]easonable accommodation does <br>not encompass reallocation of essential job functions."); Fussellv. Georgia Ports Auth., 906 F. Supp. 1561, 1571 (S.D. Ga. 1995) <br>("The law is clear that reallocation of job duties constitutes a <br>change in the essential functions of [the employee's] job and <br>[therefore] is not required under the ADA." (internal quotation <br>marks omitted)), aff'd, 106 F.3d 417 (11th Cir. 1997).  But <br>reallocating duties is precisely what Federal Express would have <br>had to do in order to comply with plaintiff's request.  Plaintiff's <br>job required her to enter substantial amounts of data into a <br>computer, which, according to plaintiff's own deposition testimony, <br>required up to six to nine hours in a day.  The time-sensitive <br>nature of plaintiff's work meant that if plaintiff could not enter <br>all of the data, the company would have had to allocate other <br>employees to complete the work.  Because reallocation of job <br>functions exceeds the scope of reasonable accommodation, it follows <br>that Federal Express was not required under the ADA to permit <br>plaintiff to resume her job. <br> <br>     Because we find that plaintiff failed to adduce evidence <br>that she was a qualified individual with a disability within the <br>meaning of the ADA, the district court's order granting summary <br>judgment to defendant is affirmed.  Costs to appellee.</pre>

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