Of the Tenth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 07-1013

LOIDA SÁNCHEZ-FIGUEROA, ET AL.,

Plaintiffs, Appellants,

v.

BANCO POPULAR DE PUERTO RICO,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Lipez, Circuit Judge,

Baldock, Senior Circuit Judge, *

Howard, Circuit Judge.

Rafael A. Oliveras López de Victoria for appellant.

Enrique R. Padró Rodríguez with whom Pedro J. Manzano Yates,

and Fiddler, González, & Rodríquez, PSC were on brief for

appellee. 

May 27, 2008
We take no position on whether appellants' claims would 1

have survived summary judgment if they had complied with the Local

Rules.

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LIPEZ, Circuit Judge. This appeal by Loida SánchezFigueroa (Sánchez) and her mother and sister, Luisa FigueroaMaldonado and Elizabeth Sánchez-Figueroa, respectively, challenges

the district court's grant of summary judgment to appellee Banco

Popular de Puerto Rico (Banco Popular). Before the district court,

appellants alleged that Banco Popular, Sánchez's former employer,

failed to provide Sánchez with a reasonable accommodation for her

disability in violation of the Americans with Disabilities Act

(ADA), 42 U.S.C. § 12101 et seq. The district court concluded

that, based on the summary judgment record properly before it,

Sánchez had failed to establish a prima facie case of disability

discrimination. We affirm the district court's grant of summary

judgment. In doing so, we note that this case is another example

of the unfortunate consequences for litigants of their failure to

comply with the District of Puerto Rico's Local Rules on summary

judgment.1

I.

We recite the facts in the light most favorable to the

non-moving party, relying upon the record as defined by the

district court's ruling that the appellant had not properly

controverted the facts set forth by the appellee in support of its
 We discuss the district court's basis for this ruling in the 2

next section.

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motion for summary judgment. CMI Capital Mkt. Inv., LLC v. 2

González-Toro, 520 F.3d 58, 61 (1st Cir. 2008).

1n 1989, Sánchez started working as a part-time office

clerk for Banco Popular. She was promoted to a position as a fulltime customer service representative in 1995. As a customer

service representative, she sold the bank's products to new and

existing customers and assisted customers over the phone with their

banking transactions, such as deposits, withdrawals, and payments.

Her job performance was by all accounts exemplary.

On October 29, 2001, while Sánchez was assisting a

customer on the phone, she determined that she needed the aid of

one of her supervisors and placed the customer on hold. When

Sánchez sought a particular supervisor's attention, the supervisor

allegedly refused to help her. Upon returning to her desk, Sánchez

discovered that the customer had hung up the phone. At that point,

Sánchez suddenly suffered from, in her words, "a lack of emotional

control."

On that same day, Sánchez filed a workers' compensation

report with the Puerto Rico State Insurance Fund (SIF), identifying

her mental health concerns stemming from this earlier incident.

SIF evaluated Sánchez and recommended that she should go on sick

leave indefinitely beginning October 30, 2001. While on leave, her
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treating psychiatrist, Dr. Eli Rojas, diagnosed her with a

temporary condition called mixed situational disorder. He advised

Banco Popular that when she returned to work, she should be placed

in a position that did not involve "dealing with the public." 

In September 2002, a human resources officer at Banco

Popular discussed with Sánchez the position she would take upon

returning from her leave. Sánchez alleges that the human resources

officer forced her under duress to go back to her previous position

as a daytime telephonic customer service representative and that

she was crying when she agreed to do so. Moreover, she claims that

Banco Popular never offered her a position that "did not entail

interfac[ing] with the public." Banco Popular contends that it did

offer Sánchez several positions that were responsive to her request

to avoid dealing with the public, including positions as an office

clerk and as a nighttime telephonic customer service representative

(which typically had a lower volume of calls). Banco Popular

asserts that Sánchez turned down all of these alternative

positions.

On October 7, 2002, after using 343 days of her 360-day

job reserve period under the Workmen's Compensation Act, 11 P.R.

Laws § 1 et seq., Sánchez returned to her previous position as a

daytime telephonic customer service representative. Sánchez

continued to work in this position until she had a relapse of her

emotional instability on March 24, 2003; she then went back on
Local Rule 56(b) states: "A motion for summary judgment 3

shall be supported by a separate, short, and concise statement of

material facts, set forth in numbered paragraphs, as to which the

moving party contends there is no genuine issue of material fact to

be tried."

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leave. When the remaining 17 days of Sánchez's job reserve period

ended and she failed to return to work, Banco Popular terminated

her employment. 

On September 15, 2003, Sánchez filed an administrative

complaint with the Equal Employment Opportunity Commission (EEOC),

alleging that Banco Popular had discriminated against her in

violation of the Americans with Disabilities Act (ADA), 42 U.S.C.

§ 12101 et seq., and the Civil Rights Act of 1964, 42 U.S.C. §

2000e et seq. Upon receiving a right to sue letter from the EEOC

on December 23, 2004, Sánchez filed a timely complaint, with her

sister and her mother as co-plaintiffs, in the District Court for

the District of Puerto Rico. Before the district court, she

reiterated the arguments she made to the EEOC. Banco Popular

answered the complaint on April 28, 2005, asserting that Sánchez

was not disabled within the meaning of the ADA and, in the

alternative, that it had offered her a reasonable accommodation. 

Almost a year later, after the parties had engaged in

discovery, Banco Popular filed its Motion for Summary Judgment,

accompanied by the required statement of facts. Sánchez filed her 3

Brief in Opposition to the Motion for Summary Judgment, which

purported to be in adherence with the Local Rules, as well as a
 Local Rule 56(c) states: "A party opposing a motion for 4

summary judgment shall submit with its opposition a separate,

short, and concise statement of material facts. The opposing

statement shall admit, deny or qualify the facts by reference to

each numbered paragraph of the moving party's statement of material

facts and unless a fact is admitted, shall support each denial or

qualification by a record citation as required by this rule. The

opposing statement may contain in a separate section additional

facts, set forth in separate numbered paragraphs and supported by

a record citation as required by subsection (e) of this rule." 

Local Rule 56(e) provides: "An assertion of fact set forth in

a statement of material facts shall be followed by a citation to a

specific page or paragraph of identified record material supporting

the assertion." If a party fails to comply, the court may

disregard the material lacking a specific citation. D.P.R.R.

10(b). Moreover, the court has no duty to search for or consider

parts of the record that are not specifically referenced in the

statement of facts. Id.

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counter-statement of facts. The district court found that the 4

plaintiffs' response was not in compliance with the Local Rules as

evidenced by "the disorganized and convoluted statement of facts,

spanning multiple documents" in violation of Local Rule 56(c) and

exhibits that were not properly translated from Spanish into

English in violation of Local Rule 10(b). The court noted that

because the plaintiffs failed to comply with the rules, it was

permitted to treat the moving party's statement of facts as

uncontested. Alsina-Ortiz v. Laboy, 400 F.3d 77, 80 (1st Cir.

2005).

Having reached this conclusion, the district court turned

to the question of whether Banco Popular was entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c). The "entry of a

summary judgment motion as unopposed does not automatically give
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rise to a grant of summary judgment" because the district court

still must consider the plaintiff's ADA claim based on the record

properly before the court, viewing the uncontested facts in the

light most favorable to the non-moving party. Aguiar-Carrasquillo

v. Agosto-Alicea, 445 F.3d 19, 25 (1st Cir. 2006).

To assess whether Banco Popular was entitled to summary

judgment, the district court considered whether, on the uncontested

record, Sánchez had established a prima facie claim of disability

discrimination under the ADA. Given the requirements of the Act,

the court evaluated whether (1) she was disabled within the meaning

of the ADA, (2) she was qualified to perform the essential

functions of her job, either with or without reasonable

accommodations, and (3) her employer took adverse action against

her because of her disability. See Bailey v. Georgia-Pacific

Corp., 306 F.3d 1162, 1166 (1st Cir. 2002). 

The district court said that it "would be justified in

holding that Sánchez's impairment did not qualify as a disability

under the ADA as Sánchez's impairment was not substantially

limiting." However, the district court went on to explain that

"even if the Court accepts that Sánchez was a disabled individual

within the ADA, her claims still fail" because Banco Popular
The district court also rejected Sánchez's civil rights 5

claim, finding "[t]here is simply no evidence whatsoever before the

Court which demonstrates that [Banco Popular's] treatment of

Sánchez was at all related to her race." Sánchez has abandoned

this claim on appeal. 

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offered her a reasonable accommodation and she did not suffer an

adverse employment action by virtue of her disability.5

We read the court's statement about Sánchez's impairment

as tantamount to a finding on the uncontested record that she was

not disabled within the meaning of the ADA. However, even if the

court intended a less definitive statement, we assess de novo the

district court's decision to grant summary judgment to Banco

Popular, Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1,

8 (1st Cir. 2007), and may affirm the district court's decision on

any ground supported by the record, Estades-Negroni v. Assocs.

Corp. of N. Am., 377 F.3d 58, 62 (1st Cir. 2004).

II.

Before reaching the merits of Sánchez's claim, we review

for abuse of discretion the district court's assessment that the

motion for summary judgment was uncontested because of the

plaintiffs' failure to comply with the District of Puerto Rico's

Local Rules. Crowley v. L.L. Bean, Inc., 361 F.3d 22, 25 (1st

Cir. 2004)(explaining that the "application of a district court's

local rule[s] is reviewed for abuse of discretion" and "a special

degree of deference [is accorded]. . . to a court's interpretation

of its own rules")(internal quotations omitted). Here, the
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appellants' counter-statement of facts did not comply with the

Local Rules. The citations to the record often referenced several

exhibits in support of a specific contention, without indicating

which pages or paragraphs were relevant. See Cabán Hernández, 486

F.3d at 7 ("[T]he appellants did not adhere to the record citation

requirement. . . . '[F]acts' memorialized in their counterstatement were supported only by references to multiple

exhibits."). This lack of specificity left the district court "to

grope unaided for factual needles in a documentary haystack" in

contravention of the intent of Local Rule 56, which is "to prevent

parties from unfairly shifting the burdens of litigation to the

court." Id. at 8.

Moreover, the appellants' counter-statement of facts

referred to about forty different exhibits, of which fewer than

five were properly translated by a certified court interpreter.

These submissions were a flagrant violation of Local Rule 10(b),

which requires that all documents presented to the district court

shall be accompanied by a certified English translation. D.P.R.R.
 Local Rule 10(b) requires: "All documents not in the English 6

language which are presented to or filed in this Court, whether as

evidence or otherwise, shall be accompanied at the time of the

presentation or filing by an English translation thereof, unless

the Court shall otherwise order. Such English translation shall be

certified by a Court interpreter, except that such certificate may

be waived by stipulation of the parties."

 Some of these untranslated documents were translated and 7

submitted on appeal. However, we cannot consider on appeal

documents that were not considered below. Aguiar-Carrasquillo, 445

F.3d at 25 ("Because these exhibits were not considered below, we

cannot consider them now.").

 We note one inconsistency in the court's evaluation of the 8

summary judgment record. Having concluded that Banco Popular's

statement of material facts would be treated as uncontested, the

court then proceeded to consider the psychiatric report by Dr. Aida

L. Delgado Mateo, which was included as an exhibit to appellants'

counter-statement of material facts. On the basis of this

document, the court decided that there were "conflicting

psychiatric reports" that gave rise to a genuine issue of material

fact. The court's reliance on this document was inconsistent with

its ruling, here affirmed, that Banco Popular's statement of facts

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10(b). The appellants acknowledge as much, citing their lack of 6

financial resources as an excuse.7

Although there is no mechanical rule that establishes

whether a statement is properly "short" and "concise" or whether

the citations within the opposing statements are adequately

specific, the filings provided by the appellants did not "even

arguably comply with the spirit or the letter of the rule[s],"

particularly to the extent that they referred to untranslated

exhibits that were not properly before the court. The district

court did not abuse its discretion in treating Banco Popular's

statement of facts as uncontested. We review its summary judgment

determination on that basis.8
was uncontested. Therefore, we exclude Dr. Delgado Mateo's report

from our analysis of the court's summary judgment ruling. 

We wish to comment further on this inconsistency point. As

noted, the district court's ruling on the appellant's noncompliance

with the local rule on summary judgment permitted the court to

treat the moving party's statement of material facts as

uncontested. Nonetheless, the district court considered materials

submitted by the nonmoving party in opposition to summary judgment

in deciding whether the movant was entitled to judgment as a matter

of law. This inconsistency creates uncertainty on appeal about the

scope of the summary judgment record. If the district court

chooses to conduct alternative analyses -- one viewing the moving

party's summary judgment motion as uncontested, the other viewing

the motion as properly contested in whole or in part -- it would be

helpful to us if the court explicitly acknowledged this alternative

approach. 

 On appeal, appellants argue for the first time that all 9

three of these definitions of disability applied to Sánchez during

the time she was employed by Banco Popular. Generally, we will not

consider issues raised by the parties for the first time on appeal.

See B & T Masonry Constr. Co., Inc. v. Pub. Serv. Mut. Ins., Co.,

382 F.3d 36, 40-41 (1st Cir. 2004). Appellants do not even attempt

an argument for deviating from this general rule.

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III.

Turning to the merits, we assess whether Sánchez

established a prima facie case of disability discrimination within

the meaning of the ADA. A disability under the ADA is defined as

(1) a physical or mental impairment that substantially limits one

or more of a person's major life activities; (2) a record of having

such an impairment; or (3) being regarded as having such an

impairment. 42 U.S.C. § 12102(2). We need only consider whether

Sánchez met the first definition of disability because she waived

her argument with respect to the other two definitions.9
 The ADA regulations state than an employer may need to 10

engage in an informal, interactive process with a disabled

employee. 29 C.F.R. § 1630.2(o)(3) (2005); see also Tobin v.

Liberty Mut. Ins. Co., 433 F.3d 100, 108 (1st Cir. 2005). Part of

this process may involve gathering information from a treating

physician regarding the nature of the impairment. 

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The Supreme Court explained in Toyota Motors

Manufacturing, Kentucky, Inc. v. Williams that an impairment's

impact must be "permanent or long term" to be considered

substantially limiting within the meaning of the ADA. 534 U.S.

184, 198 (2002). We have interpreted this requirement as

"encompass[ing] conditions that are potentially long-term, in that

their duration is indefinite and unknowable, but not those that are

brief or foreseeably temporary." Guzmán-Rosario v. United Parcel

Service, Inc., 397 F.3d 6, 11 (1st Cir. 2005)(internal quotations

omitted). 

Here, the record clearly establishes that Sánchez did not

have a substantially limiting condition because her impairment was

foreseeably temporary. After Sánchez requested an accommodation,

Dr. Rojas completed the medical questionnaire provided by Banco

Popular. Dr. Rojas stated that Sánchez's condition (mixed 10

situational disorder) was "not permanent" and that her "[p]rognosis

is good." In a later deposition, Dr. Rojas explicitly said that at

the time he completed the questionnaire, he perceived the condition

to be temporary. On that basis alone, the district court ruled
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correctly that the appellants did not establish a prima facie claim

for relief under the ADA. 

Affirmed.