Of the Eighth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 04-1072

NEREIDA FELICIANO-HILL,

Plaintiff, Appellant,

v.

ANTHONY J. PRINCIPI, 

Secretary of the Department of Veterans Affairs,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

 Lipez and Howard, Circuit Judges,

 and Gibson, Senior Circuit Judge. *

John Ward-Llambias for the appellant.

Lisa E. Bhatia-Gautier, Assistant United States Attorney,

with whom H.S. Garcia, United States Attorney and Miguel A.

Fernandez, Assistant United States Attorney, Chief, Civil

Division, were on brief, for the appellee.

February 22, 2006
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LIPEZ, Circuit Judge. On behalf of herself, her husband,

and their conjugal partnership, Dr. Nereida Feliciano-Hill, a

psychiatrist formerly employed by the Department of Veterans

Affairs (the department), brought suit in the district court,

alleging that the department had failed to accommodate her

disability, as required by the Rehabilitation Act, 29 U.S.C.

§§ 701, 794 (1999). The case went to trial, and a jury found for

the department. Dr. Feliciano-Hill now appeals the district

court's denial of her motion for a new trial. We affirm.

I.

 We review the facts in the light most favorable to the

verdict. Whitfield v. Melendez-Rivera, 431 F.3d 1, 3 (1st Cir.

2005). Dr. Feliciano-Hill worked at the department's San Juan

Medical Center from 1990 until 2000. Her tenure at the hospital

was uneventful until 1999, when the University of Puerto Rico

Medical School stopped sending psychiatry residents to work at the

Medical Center. In November 1999, the department reached an

agreement with Dr. Feliciano-Hill's union, pursuant to which senior

physicians would be required to perform the tasks formerly

delegated to residents. Under the agreement, a staff psychiatrist

would be available for patient care at all times. Consequently,

Dr. Feliciano-Hill would be required to work one night or weekend

shift a month, and occasionally (about once a month) to see

patients at their bedsides. Previously, she had worked only
Although Feliciano-Hill initially cited the Americans with 1

Disabilities Act as grounds for relief, the ADA does not provide

for suits against the federal government. However, the

Rehabilitation Act, which predated the ADA, does and generally is

analogous in its prohibition of employment discrimination. See

Calero-Cerezo v. Dep't of Justice, 355 F.3d 6, 19 (2004).

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Tuesday through Friday and had seen patients only in her office.

Dr. Feliciano-Hill expressed unhappiness -- to her union steward

and to officials in Washington D.C. -- about the new arrangement.

After her complaints failed to produce results, Dr.

Feliciano-Hill wrote a letter to the Medical Center's human

resources staff, explaining that she suffered from arthritis and

had difficulty walking, and requesting a "reasonable accommodation

. . . under the ADA . . . for a qualified person with a

disability." The department sought medical certification of Dr. 1

Feliciano-Hill's condition. Dr. Feliciano-Hill's rheumatologist,

Dr. Rafael Gonzalez-Alcover, produced first a "diagnostic

impression," and later a diagnosis of rheumatoid arthritis, among

other conditions. When the department asked him to clarify how Dr.

Feliciano-Hill's medical condition affected her, Dr. GonzalezAlcover opined that she was "unable to cover the different areas as

required in her new responsibilities." Dr. Gonzalez-Alcover

declined the department's request for more specific information

about Dr. Feliciano-Hill's limitations. 

On the basis of Dr. Gonzalez-Alcover's diagnosis, the

department offered to provide Dr. Feliciano-Hill a motorized
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wheelchair to use when, on occasion, she had to travel around the

hospital. She refused to be so accommodated, averring that she was

"not crippled or otherwise in need of a wheelchair" and did not

want to appear disabled to her patients and colleagues. She

requested, instead, that she be allowed to see all of her patients

in her office, during her customary working hours.

Dr. Feliciano-Hill refused to come to work during her

negotiations with the hospital because, she said, she felt

harassed. She asked at least twice for leave. The department

granted her two weeks of sick leave but denied her request for a

longer term of unpaid leave. The department offered Dr. FelicianoHill an opportunity to return to work. Instead, she resigned her

position at the hospital. 

Dr. Feliciano-Hill, her husband, and their conjugal

partnership then brought suit under the Rehabilitation Act,

alleging that the department had failed reasonably to accommodate

her disability, and that her supervisors had treated her "in an

aggressive and hostile manner" in retaliation for her request for

accommodation. The plaintiffs complained of lost income, emotional

distress, and loss of consortium.

The district court granted summary judgment on the claims

brought by Mr. Hill and the conjugal partnership, after concluding

that their claims were not cognizable under the Rehabilitation
The district court adopted the magistrate judge's recommendations 2

as to resolution of the summary judgment motion. The magistrate

judge had concluded that the Rehabilitation Act does not provide

relief to employees' spouses or conjugal partnerships on employment

discrimination claims. Dr. Feliciano Hill has not appealed from

that ruling.

Dr. Gonzalez-Alcover testified on the first day of the trial, the 3

only day for which we do not have a transcript. Apparently, the

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Act. The district court rejected the department's motion for 2

summary judgment as to Dr. Feliciano-Hill. The case went to trial,

focused on whether the department had denied Dr. Feliciano-Hill a

reasonable accommodation for a disability. Dr. Feliciano-Hill

attempted to prove that she was disabled by rheumatoid arthritis

and that the department's offer to provide her a motorized

wheelchair did not constitute a reasonable accommodation for her

disability. The department sought to convince the jury that Dr.

Feliciano-Hill actually was not disabled, and that if she was, the

department's offer to provide her a motorized wheelchair was a

reasonable accommodation. Dr. Feliciano-Hill also contended that

the department took adverse employment action against her in

retaliation for her disability discrimination complaint. The

department denied that allegation as well.

On the reasonable accommodation issue, both sides

presented rheumatologists, who gave conflicting opinions as to

whether Dr. Feliciano-Hill was disabled. Dr. Feliciano-Hill relied

on testimony from Dr. Gonzalez-Alcover, from whom she had sought

treatment. Dr. Gonzalez-Alcover testified that Dr. Feliciano-Hill 3
transcript of his testimony was not produced, and Dr. FelicianoHill has not submitted to us any statement summarizing Dr.

Gonzalez-Alcover's testimony. See Fed. R. App. P. 10(c). We

recount Dr. Gonzalez-Alcover's testimony as it has been summarized

in the briefs and other record materials. Although the available

record allows us to decide this case with confidence, we note that

Dr. Feliciano-Hill was obligated to produce the transcript or a

statement of the evidence and that she must "'bear the brunt of an

insufficient record on appeal.'" Surprenant v. Rivas, 424 F.3d 5,

15 (1st Cir. 2005) (quoting Real v. Hogan, 828 F.2d 58, 60 (1st

Cir. 1987)); see also Fed. R. App. P. 10(b)(2) ("If the appellant

intends to urge on appeal that a finding or conclusion is

unsupported by the evidence or is contrary to the evidence, the

appellant must include a transcript of all evidence relevant to

that finding or conclusion.").

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may have suffered from rheumatoid arthritis, but that he could not

so conclude for certain. Although he recalled that Dr. FelicianoHill had complained of pain in her joints, he admitted that his

records did not contain any reference to a complaint by Dr.

Feliciano-Hill that she was having difficulty walking. However,

Dr. Gonzalez-Alcover reaffirmed his judgment, first expressed in

letters to the department around the time of Dr. Feliciano-Hill's

request for an accommodation, that she was capable only of "limited

ambulation." He agreed that a motorized wheelchair would have

aided Dr. Feliciano-Hill. 

Dr. Ramadés Sierra-Zorita, testifying for the department,

opined that "there was nothing to suggest that [Dr. Feliciano-Hill]

had rheumatoid arthritis" at the time she made her complaints. Dr.

Sierra-Zorita testified that he had performed four physical

examinations of Dr. Feliciano-Hill and inspected her medical

records. In his view, she did not have "much of a difficulty in
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walking." Indeed, he said, he had found no evidence that Dr.

Feliciano-Hill was disabled at all in "her history and from what

was seen on the available record." Dr. Sierra-Zorita testified

that he had no opinion regarding the suitability of a motorized

wheelchair as an accommodation for a disabled psychiatrist.

Dr. Feliciano-Hill twice asked the district court to

limit the impact of Dr. Sierra-Zorita's testimony. Though she had

not challenged Dr. Sierra-Zorita's qualifications before trial (as

the district court required), Dr. Feliciano-Hill objected to the

admission of his testimony at trial on the ground that his report

and testimony did not meet the standards for expert evidence

imposed by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993), and Fed. R. Evid. 702. The district court admitted the

testimony over the objection. Dr. Feliciano-Hill also asked the

district court to augment its charge to the jury (taken from Dr.

Feliciano-Hill's written proposed instructions) with an additional

later-proposed instruction that Dr. Sierra-Zorita's testimony

should not be considered on the question of reasonable

accommodation. The district court declined this request as well.

On the retaliation issue, Dr. Feliciano-Hill sought to

prove that her supervisors had reacted to her complaints about the

new union agreement by subjecting her to harassment, by requiring

her to comply with unnecessary bureaucratic requests, and by

denying her leave. She pointed particularly to two interactions
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with her supervisor, Dr. Luis Iguina. One concerned a veteran who

was Dr. Feliciano-Hill's patient. Dr. Iguina complained to Dr.

Feliciano-Hill that, despite the patient's urgent need for

psychiatric services, Dr. Feliciano-Hill had cancelled three of her

appointments, resulting in a delay that Dr. Iguina feared could

verge on "patient abuse." Dr. Feliciano-Hill averred that the

patient was difficult and that she would need support from other

professionals to care for the patient. Dr. Iguina arranged for

such support. Dr. Felicano-Hill contended at trial that Dr.

Iguina's reference to "patient abuse" helped create a hostile

working environment. On another occasion, Dr. Iguina said

something to the effect that "women are always complaining about

their illnesses," a remark that Dr. Feliciano-Hill contended was

harassment. 

Dr. Feliciano-Hill also argued that the department

created a hostile work environment and prompted her resignation by

asking repeatedly for more specific medical documentation about her

disability, and that the department retaliated against her by

refusing to grant all of her requests for leave. 

After the jury returned a verdict for the defendant, Dr.

Feliciano-Hill moved for a new trial. She argued that the court

should not have allowed the department's medical expert to testify,

and should have given the limiting instruction she had requested.

Additionally, she contended that the jury's verdict was against the
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weight of the evidence. The district court rejected both arguments

in a written order, Feliciano-Hill, et al. v. Principi, et al., Cv.

No. 00-2439(SEC) (D.P.R. 2004), and this appeal followed.

II.

Dr. Feliciano-Hill enumerates ten issues for review.

These fall into three categories -- one is her contention that Dr.

Sierra-Zorita should not have been allowed to testify, two are

arguments that the judge should have given a limiting instruction

as to that doctor's testimony, and seven are objections to the

jury's view of the evidence. We address first the issues relating

to Dr. Sierra-Zorita and second the arguments about the sufficiency

of the evidence.

A. Defense Expert Testimony

1. Admission of Dr. Sierra-Zorita's Testimony and Report

Dr. Feliciano-Hill argues that, pursuant to Daubert and

Rule 702, the district court should have refused to admit Dr.

Sierra-Zorita's testimony as evidence. The district court denied

Dr. Feliciano-Hill's motion both because it was untimely -- Dr.

Feliciano-Hill waited until the moments before Dr. Sierra-Zorita's

testimony to object, even though she had received the doctor's

report five months earlier -- and because Dr. Sierra-Zorita's

report and proposed testimony met the applicable standard. The

district court was correct on both grounds.
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Parties have an obligation to object to an expert's

testimony in a timely fashion, so that the expert's proposed

testimony can be evaluated with care. Dr. Feliciano-Hill did not

make a timely motion here and has not offered any reason for her

delay. The district court was on firm ground in refusing her

motion as untimely. See Alfred v. Caterpillar, Inc., 262 F.3d

1083, 1087 (10th Cir. 2003) (explaining that "because Daubert

generally contemplates a 'gatekeeping' function, not a 'gotcha'

junction," untimely Daubert motions should be considered "only in

rare circumstances"); see also Club Car, Inc. v. Club Car (Quebec)

Import, Inc. 362 F.3d 775, 780 (11th Cir. 2004) ("A Daubert

objection not raised before trial may be rejected as untimely.").

In any case, Dr. Feliciano-Hill's Daubert motion lacked

merit. Dr. Feliciano-Hill argues that Dr. Sierra-Zorita's

testimony should have been excluded because Dr. Sierra-Zorita's

opinion differed from that of Dr. Feliciano-Hill's treating

physician, Dr. Gonzalez-Alcover, a "very well respected and beloved

rheumatologist," and because Dr. Sierra-Zorita's report did not

"cite[] medical authorities and w[as] based on 'experience' and

general knowledge." The mere fact that two experts disagree is not

grounds for excluding one's testimony. Even if we were to assume

that Dr. Gonzalez-Alcover was somehow more qualified than Dr.

Sierra-Zorita -- and there is no reason in the record for us to do

so -- the district court could not have excluded Dr. Sierra-
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Zorita's testimony on that ground alone. See Holbrook v. Lykes

Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996) ("[W]itnesses may

be competent to testify as experts even though they may not, in the

court's eyes, be the 'best' qualified. Who is 'best' qualified is

a matter of weight upon which reasonable jurors may disagree."). 

We also reject Dr. Feliciano-Hill's assertion that Dr.

Sierra-Zorita's testimony did not meet the standard of Daubert and

Rule 702 because the doctor failed to support his diagnosis with

citations to published authorities. As the district court noted,

the underlying medical question -- whether Dr. Feliciano-Hill's

medical condition prevented her from walking around the hospital --

was "not a complex medical situation." Dr. Sierra-Zorita's

testimony and report did not involve novel medical theories. The

doctor was called upon only to offer a routine diagnosis, on a

patient he had examined, pertaining to a common condition well

within his particular expertise. In this case, the doctor's

training and experience placed his report and testimony well above

the Rule 702/Daubert bar. Indeed, even in more complicated cases

when an examining physician calls upon training and experience to

offer a differential diagnosis (a determination of which of two or

more diseases, presenting with similar symptoms, has caused a

patient's ailments), most courts have found no Daubert problem.

See, e.g., Bitler v. A.O. Smith Corp., 391 F.3d 1114, 1123 (10th

Cir. 2004) (collecting cases holding that qualified doctor's
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differential diagnosis of patient was sufficiently reliable for

Rule 702 and Daubert purposes); Mattis v. Carlon Elec. Products,

295 F.3d 856, 861 (8th Cir. 2002) ("A medical opinion based upon a

proper differential diagnosis is sufficiently reliable to satisfy

Daubert."). 

2. Limiting Instruction

Dr. Feliciano-Hill argues that the district court should

have instructed the jury that Dr. Sierra-Zorita's testimony should

only be considered on the question of whether Dr. Feliciano-Hill

was disabled, not on the issue of reasonable accommodation. The

district court denied the motion both because it was untimely --

Feliciano-Hill had not requested the instruction in her written

proposed jury instructions, which the court had adopted -- and

because it was unnecessary. Again, the district court ruled

correctly.

The instruction Dr. Feliciano-Hill requested was plainly

unnecessary. The district court noted, and the transcript

confirms, that "[t]he witness was . . . crystal clear" that he had

no opinion regarding the reasonableness of a motorized wheelchair

as an accommodation for a person with rheumatoid arthritis. As the

district court concluded, "The jury ha[d] that message." The

district court did not err in refusing to offer an unnecessary

instruction about the scope of Dr. Sierra-Zorita's testimony. See,

e.g., Elliot v. S.D. Warren Co., 134 F.3d 1, 6 (1st Cir. 1998)
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(finding no error in district court's refusal to give requested

instruction that was unnecessary to explain the applicable law to

the jury).

B. Sufficiency of the Evidence

We will reverse the district court's refusal to order a

new trial on the ground of insufficient evidence only where "the

jury's verdict was so clearly against the weight of the evidence as

to constitute a manifest miscarriage of justice." Wagenmann v.

Adams, 829 F.2d 196, 201 (1st Cir. 1987) (internal quotation marks

omitted). This is not such a case. 

1. Reasonable Accommodation

To succeed on her Rehabilitation Act reasonable

accommodation claim Dr. Feliciano-Hill had to convince the jury: 

(1) that she suffered from a 'disability'

within the meaning of the statute; (2) that

she was a qualified individual in that she was

able to perform the essential functions of her

job, either with or without a reasonable

accommodation; and (3) that, despite her

employer's knowledge of her disability, the

employer did not offer a reasonable

accommodation for the disability.

 

Calero-Cerezo, 355 F.3d at 20. The jury could have rejected Dr.

Feliciano-Hill's case either because Dr. Feliciano-Hill was not

disabled or because the department had offered a reasonable

accommodation in the form of a motorized wheelchair. (The

department agreed that Dr. Feliciano-Hill possessed the

qualifications for her job.) Because we have focused on the
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dueling expert testimony on whether Dr. Feliciano-Hill was

disabled, we will review the sufficiency of the evidence on that

issue. 

Dr. Sierra-Zorita, a qualified expert, gave compelling

testimony that Dr. Feliciano-Hill did not actually have rheumatoid

arthritis. He also testified that the plaintiff had little

difficulty walking. Moreover, Dr. Gonzalez-Alcover's contrary

testimony was not emphatic. He revealed that Dr. Feliciano-Hill's

lab tests were negative for rheumatoid arthritis and that Dr.

Feliciano-Hill had no swelling in her joints. Dr. Gonzalez-Alcover

admitted that he had examined Dr. Feliciano-Hill only four times

over the six-year period leading up to her complaint. He indicated

that he had no knowledge of how far Dr. Feliciano-Hill would have

been required to walk at her job and that he was not familiar with

the layout of the Medical Center. On this evidence the jury could

reject Dr. Feliciano-Hill's claim that she was disabled.

2. Retaliation

This leaves only Dr. Feliciano-Hill's argument that the

department retaliated against her for her disability discrimination

complaint, a claim she is entitled to press even though the jury

reasonably rejected her case on outright discrimination. See

Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997)

(recognizing that retaliation claim may succeed even where

disability discrimination claim fails). To make out a case for
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retaliation, "a plaintiff must show that (i) she undertook

protected conduct, (ii) she suffered an adverse employment action,

and (iii) the two were causally linked." Noviello v. City of

Boston, 398 F.3d 76, 88 (1st Cir. 2005); see also Weber v.

Cranston Sch. Comm., 212 F.3d 41, 48 (1st Cir. 2000) (holding that

Rehabilitation Act prohibits retaliation). At trial, Dr.

Feliciano-Hill argued that she suffered an "adverse employment

action" through the creation of a hostile work environment and a

constructive termination. To prove that a hostile work environment

constituted "adverse employment action," the plaintiff must show

that the harassment she complains of was "so severe or pervasive

that it alters the conditions of the plaintiff's employment."

Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 26 (1st Cir

2002). Similarly, to establish a constructive discharge, a

plaintiff must show "that her working conditions were so difficult

or unpleasant that a reasonable person in her shoes would have felt

compelled to resign," an objective standard that "cannot be

triggered solely by the employee's subjective beliefs, no matter

how sincerely held." Id. at 28 (internal quotation marks and

brackets omitted). The question whether a work environment is

sufficiently hostile to create liability is best left to a jury.

Che v. Mass. Bay Trans. Auth., 342 F.3d 31, 40 (1st Cir. 2003). 

Here, the evidence allowed the jury to find that Dr.

Feliciano-Hill's treatment by the department was not "objectively
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intolerable." Marrero, 304 F.3d at 28. On the record, the jury

could have found that Dr. Iguina's concerns about the treatment of

the female veteran were properly expressed and unobjectionable.

And the jury could have found, after listening to testimony on the

point, that Dr. Iguina's remark "about women complaining a lot" and

any other isolated comments from her peers did not constitute

severe or pervasive harassment, or a course of conduct that would

have led a reasonable person to resign.

As for the department's insistence that Dr. FelicianoHill provide medical documentation supporting her insistence that

she could not walk around the hospital, the jury could have found,

in reliance on the evidence, that the hospital reasonably needed

more specific guidance from Dr. Alcover-Gonzalez and that its

procedures were not harassing or unreasonable. Finally, the jury

could have found that the department's denial of Dr. FelicianoHill's request for additional leave did not, in the circumstances,

create a hostile work environment or constitute an "adverse

employment action."

In short, on examination of the record we cannot conclude

that the verdict represented a "manifest miscarriage of justice."

Wagenmann, 829 F.2d at 201.

Affirmed.