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Pena v. Honeywell International, Inc.

United States Court of Appeals, First Circuit

April 26, 2019

MAYRA F. PENA, Plaintiff, Appellant,


          Mark P. Gagliardi for the appellant.

          Neal J. McNamara, with whom Aaron F. Nadich and Nixon Peabody LLP were on brief, for the appellee.

          Before Lynch, Stahl, and Lipez, Circuit Judges.


         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 (1999). We affirm the district court's grant of summary judgment in favor of Honeywell.


         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 Pena 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]

         Pena 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 letter 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 noise 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 to 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, ...

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