Rodriguez v. Sistema San Juan Capestrano

939 F. Supp. 2d 94, 2013 WL 1489457, 2013 U.S. Dist. LEXIS 53362

• Court: District Court, D. Puerto Rico
• Decided: April 11, 2013
• Docket: Civil No. 11-1128 (DRD)
• Status: Published

Opinion

AMENDED OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

DANIEL R. DOMINGUEZ, District Judge.

Pending before the Court are: (a) Defendant’s Motion For Summary Judgment And Memorandum Of Law In Support Thereof, Docket No. 11; (b) plaintiffs response, Docket No. 16; (c) Defendant’s Reply To Plaintiff’s Opposition To Motion For Summary Judgment, Docket No. 23; (d) Report and Recommendation issued by the Magistrate Judge Silvia Carreño-Coll (hereinafter “Magistrate Judge”). The Report and Recommendation concluded that the federal claims be dismissed with prejudice. The state law claims were not dismissed, as the Magistrate Judge concluded that she did not wish “to undermine any jurisdictional basis for state-law claims.” Docket No. 38, page 12. The Court interprets that the state claims were to be dismissed without prejudice. For the reasons set forth below, the Magistrate Judge’s Report and Recommendation is adopted in toto, as supplement herein.

Factual and Procedural Background

Plaintiff Migdalia Santiago Rodriguez (hereinafter “Santiago” or “plaintiff’) alleges in the Complaint. several employment violations under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq., and the American with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and constructive discharge. Plaintiff also seeks compensatory damages, lost, wages and benefits, past and future, including loss of Social Security benefits triggered by plaintiffs supervisors on the ground of plaintiffs filing of an administrative claim with the Equal Employment Opportunities Commission (“EEOC”), attorneys fees and costs.

Defendant Sistema San Juan Capestrano (“Capestrano” of “hospital” or “defendant”) moved for summary judgment and the dismissal of the instant action with prejudice based on the fact that the plaintiff was unable to show a disability under the ADA, and a discrimination case under the ADEA, Docket No. 11. Plaintiff generally opposed on the grounds that the tests used by the defendant under the ADA and the ADEA are incorrect, as well as their applicability to the facts of the instant complaint. For example, plaintiff alleges that the defendant failed to apply the prima facie test showing discrimination under the ADEA as per McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which is the applicable test in cases under ADEA. See Docket No. 16, pages 11-15. Plaintiff further alleges that she is “regarded as disabled” under the ADA “because [of] her condition of positive cancer nodules on the thyroids.” Id. at page 15. Defendant replied that plaintiffs opposition is “proposing new additional facts and claiming that Defendant failed to proffer a non-discriminatory reason for. Plaintiffs demotion.” See Docket No. 23. “Plaintiff argues that Defendant did not rebut the presumptions of discrimination and provided ‘blunt and unsupported allegations.’” Id. “Plaintiffs arguments in opposition fall flat.” Id.

The instant case was referred to the Magistrate Judge for report and recommendation. See Docket entries No. 31 and 32. The Magistrate Judge entered The Report and Recommendation on January 14, 2013, Docket No. 33. Pursuant to the Order Referring Case, Docket No. 31, the parties were granted five business days to file any objections, that is, January 22, 2013. The record shows that plaintiff opposed the Report and Recommendation on January 28, 2013, Docket No. 34. The Court finds that plaintiffs opposition is tardy and was filed without leave of Court. Defendant filed a reply on February 7, 2013, Docket No. 35 without leave of Court. See Docket No. 33, pages 12-13. The Court is cognizant that the Report and Recommendation provides the parties fourteen days to object, however, this provision is contrary to the Court’s Order, Docket No. 31. In any event, the Court has reviewed plaintiffs tardy objection, as well as defendant’s reply, and finds that plaintiffs objections are merely a rehash of the arguments raised in the opposition to the motion for summary judgment. Hence, plaintiffs tardy objection will not alter the Court’s analysis nor the filing ruling.

Standard of Review

The district court may refer dispositive motions to a United States Magistrate Judge for a report and recommendation. 28 U.S.C. § 636(b)(1)(B); Rule 72(b) of the Federal Rules of Civil Procedure (“Fed. R.Civ.P.”); Local Civil Rule 72(a) of the Local Rules of the United States District Court for the District of Puerto Rico (“L.Civ.R.”).

“Absent objection, ... [a] district court há[s] a right to assume that [the affected party] agree[s] to the magistrate’s recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, “failure to raise objections to the Report and Recommendation waives that party’s right to review in the district court, and those claims not preserved by such objections are precluded on appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992).

In the instant case, plaintiffs objections to the Magistrate Judge’s Report and Recommendation were filed tardy. Hence, the Court will consider the Magistrate Judge’s Report and Recommendation as being unopposed. Thus, in order to accept the unopposed Report and Recommendation, the Court needs only satisfy itself by ascertaining that there is no “plain error” on the faqe of the record. See Douglass v. United Servs. Auto, Ass’n, 79 F.3d 1415, 1419 (5th Cir.1996) (en banc) (extending the deferential “plain error” standard of review to the unobjected legal conclusions of a magistrate judge); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982) (en banc) (appeal from district court’s acceptance of unobjected findings of magistrate judge reviewed for “plain error”); Nogueras-Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001) (“Court reviews [unopposed] Magistrate’s Report and Recommendation to ascertain whether or not the Magistrate’s recommendation was clearly erroneous”) (adopting the Advisory Committee note regarding Fed.R.Civ.P. 72(b)); Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa.1990) (“when no objections are filed, the district court need only review the record for plain error”).

After a careful review of the Magistrate Judge’s Report and Recommendation, the Court finds no “plain error” and agrees with the Magistrate Judge’s conclusions, as supplemented herein. As stated above, the Court’s review of plaintiffs tardy objections do not change the final ruling of the Court, as the Court finds that the arguments were properly address by plaintiff prior thereto in a filing, and the Court address then in this Opinion and Order.

Analysis

A review and in absence of plain error, the Court hereby accepts, adopts and incorporates by reference, the Magistrate Judge’s Report and Recommendation, Docket No. 33.

The Magistrate Judge found that the following facts were uncontested. Plaintiff was hired by the defendant in June 2006 as a general supervisory nurse. Plaintiff was 45 years old at the time she was hired by Sistema San Juan Capestrano. See Report and Recommendation, Docket No. 33, page 2. On November 21, 2009, an incident occurred at San Juan Capestrano, consisting of a per diem nurse’s administration of flu shots to some of defendant’s employees without authorization. Id. at page 3. This incident triggered an investigation by the defendant in early December 2009, which included plaintiffs failure to inform the incident to the defendant’s administration. Id. Plaintiff was interviewed by the defendant’s department of human resources, and confronted with the question of whether or not she informed the incident to the defendant’s administration. Id., see also Docket No. 11-2, at pages 34-36. During plaintiffs meeting with the department of human resources, plaintiff informed that she had scheduled an emergency surgery to remove her thyroid for December 21, 2009. See Report and Recommendation, Docket No. 33, page 3.

Plaintiff was later notified through defendant’s letter dated December 15, 2009, that the investigation has revealed that plaintiff failed to report the November 21, 2009 incident to the administration. Hence, plaintiff would be released from her current position of general supervisory registered nurse, and was to be transferred to the position of general registered nurse effective December 21, 2009.¹ Id. at pages 3-4, and Docket No. 11-5, and the certified English translation, Docket.No. 14-3.

Plaintiff proceeded with her surgery as scheduled on December 21, 2009, and never returned to work, resigning from the hospital through letter of January 7, 2010 effective January 12, 2010, see Docket No. 11-6, and the certified English translation, Docket No. 4. The Court finds that because the language of plaintiffs resignation letter addressed to Mrs. Colón, Clinical Services Director, is critical for plaintiffs claims, the same is cited below:

This is to inform you that effective January 12, 2010, I resign my position as General Nurse, a position to which I was demoted early in December after four years as General Supervisor of the 3-11 shift, the position for which I was hired. I wish to reiterate my position that the incident on which you based your decision to demote me was an isolated case of involuntary forgetfulness whereby I did not make the entry in the shift report, in the understanding that, since other supervisors were involved, the hospital administration was aware of and approved the vaccination. Also, the person providing the service was not a stranger to the institution, but rather an employee who, at the request of several coworkers, during her free time provides material and equipment to protect other employees, a function she performs on a daily basis as an employee of the Government of Puerto Rico.

Having nothing further to say, I thank you for the opportunity you gave me to work for the hospital. (Emphasis ours). Docket No. 14-4.

Plaintiff further alleges that her position of general supervisory registered nurse was assigned to Lisa Rivera, a younger nurse, who was being trained to a supervisory position by plaintiff prior to her demotion- and resignation. See Report and Recommendation, Docket No. 33, pages 4-5.

The American with Disabilities Act

The Court agrees with the legal analysis made by the Magistrate Judge as to the ADA, and incorporates the same herein:

Title I of the Americans with Disabilities Act (“the ADA”) prohibits employers from discriminating against persons with disabilities. 42 U.S.C. § 12112(a). To establish an ADA claim, a person must prove: (1) that she was “disabled within the meaning of the ADA”; (2) that she was “qualified to perform the essential functions of the job, either with or without a reasonable accommodation”; and (3) “that the employer took adverse action against” the employee “because of the disability.” Bailey v. Ga.-Pac. Corp., 306 F.3d 1162, 1166 (1st Cir.2002). An ADA plaintiff has several options for showing that she is disabled under the ADA;, here, Plaintiff has opted to argue that she is disabled under the ADA because she was “regarded as having” an impairment that substantially limited one or more of her major life activities. See Ruiz Rivera v. Pfizer Pharmaceuticals, LLC, 521 F.3d 76, 82-83 (1st Cir.2008).

“Regarded as” claims under the ADA are meant to protect plaintiffs from “myths, fears, and stereotypes” that may arise regarding their non-disabling medical conditions. See id. at 82. To prevail under this test, the plaintiff must show not only that her employer “perceived h[er] as somehow disabled,” but that “the employer regarded h[er] as disabled within the meaning of the ADA.” Id. at 83 (citing Bailey, 306 F.3d at 1169). Plaintiff “must demonstrate not only that the employer thought [she] was impaired in [her] ability to do the job that [she] held, but also that the employer regarded h[er] as substantially impaired ‘in either a class of jobs or a broad range of jobs in various classes as compared with the average person having comparable training, skills, and abilities.’” Sullivan v. Neiman Marcus Grp., Inc., 358 F.3d 110, 117 (1st Cir.2004) (quoting Murphy v. United Parcel Serv., 527 U.S. 516, 523, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999)).

Almost nothing in the statements of facts addresses how Plaintiff was perceived by her employer. The following, however,' is undisputed: Plaintiff was never subjected to any comments about any perceived disability, and she admitted during her deposition that she was not perceived or treated as disabled. All Plaintiff has to hang her “regarded as” argument on is the fact that she told the hospital’s human resources department that she was going to have thyroid surgery, and .that this surgery could cause muteness. It is the muteness that Plaintiff claims led to her being regarded as disabled, but there are two salient facts that make her argument implausible: first, it is uncontested that Plaintiff was demoted before the surgery, and she never returned to work after it was performed; and second, she does not even allege that she told the hospital that muteness was a possible consequence of the surgery.

It is our opinion that Plaintiffs “regarded as” claim under the ADA must fail because she was at no time working with any condition that could have been regarded by her employer as a disability under the Act. To the contrary, it is uncontested that Plaintiff ceased to work at the hospital before undergoing the surgery that she says led to the perception of disability. We cannot understand, then, how such a perception might have been formed. Thus, we recommend that the motion for summary judgment be granted with regard to her ADA claim.

See Report and Recommendation, Docket No. 33, pages 7-10. See also Ramos-Echevarría v. Pichis, Inc., 659 F.3d 182, 187 (1st Cir.2011):

In assessing whether someone is disabled under the ADA, we must consider the impairment’s effect on the particular individual. Katz v. City Metal Co., 87 F.3d 26, 32 (1st Cir.1996). The limitation caused by the impairment must be permanent or long-term. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002); see also 29 C.F.R. § 1630.2(j)(2)(ii), (iii) (1991). Evidence of a medical diagnosis of impairment, standing alone, is insufficient to prove a disability. See Toyota Motor Mfg., Ky., Inc., 534 U.S. at 198, 122 S.Ct. 681. What is required is evidence showing that the impairment limits this particular plaintiff to a substantial extent. See Carroll v. Xerox Corp., 294 F.3d 231, 238 (1st Cir.2002) (quoting Toyota Motor Mfg., Ky., Inc., 534 U.S. at 196-200, 122 S.Ct. 681) (internal quotations marks omitted).

In the instant case, the Court finds that the record is devoid of any supporting documents regarding plaintiffs thyroid condition. The record is plagued with plaintiffs bare, general conclusory allegations, which indeed are in itself contradictory with plaintiffs own statements given in her deposition.

Question: How many tests did you have prior to the surgery?

Answer: Only the biopsy.

Question: What activities are you precluded from performing due to this medical condition that your mentioned that Dr. Giraldes identified?

Answer: None.

Question: How did this condition affect your ability to work?

Answer: In no way.

Question: Is there something that you used [to do] that you cannot perform now?

Answer: No.

Question: Are there any limitations imposed on you by this condition that you undergo surgery for?

Answer: No.

Question: Was this a temporary or permanent condition?

Answer: Permanent.

Question: Did you consult any other doctor, besides Dr. Giraldes, for this condition?

Answer: No.

Question: Did you request leave under SINOT at San Juan Capestrano?

Answer: No.

Question: Were you dismissed from work at San Juan Capestrano?

Answer: No.

Question: At the time that you handed your resignation to San Juan Capestrano, were you authorized to work from your doctor?

Answer: Yes.

See Docket No. 11-2, pages 17-18.

Question: Did you ever request a reasonable accommodation at San Juan Capestrano due to this condition that you’re claiming [possibility of muteness for a period of three months after the thyroid surgery, and end up hoarse]?

Answer: No, but they indicated to me that I was going to be rotated.”

Id. at page 19.

Question: Were you ever perceived or treated as disabled by someone at San Juan Capestrano?

Answer: No.

Question: Before undergoing surgery, did you ever report to San Juan Capestrano on medical leave?

Answer: Yes.

Question: Were you subject to any disciplinary action, or a comment because you went on sick leave?

Answer: No.

Question: Did you ever report to Workmen’s Compensation?

Answer: Yes.

Question: Were you reinstated in your job after you were released from Workmen’s Compensation?

Answer: Yes.

Question: Were you subjected to any remarks, or comments, or disciplinary action because you reported yourself to Workmen’s Compensation?

Answer: No.

Id. at page 20.

Plaintiff also admitted never hearing comments regarding her disability, or that someone perceived or treated her as disabled. See Report and Recommendation, Docket No. 33, page 5.

The Court notes-that there are no medical certificates or diagnosis on the record regarding plaintiffs thyroid condition. Hence, the Court finds that the plaintiff failed to show that indeed she had a disability either by direct evidence or by indirect evidence using the prima facie case test as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

The Age Discrimination in Employment Act

Plaintiff Santiago alleges that she was discriminated against due to her age. See Report and Recommendation, Docket No. 33, pages 5-6. However, the Court finds that according to plaintiffs deposition, she did not feel discriminated against due to her age.

Likewise, the Court agrees with the legal analysis made by the Magistrate Judge as to the ADA, and incorporates the same herein:

The Age Discrimination in Employment Act prohibits employers from taking adverse employment actions against employees who are forty years of age or older because of the employee’s age. Bennett v. Saint-Gobain Corp., 507 F.3d 23, 30 (1st Cir.2007) (citing 29 U.S.C. §§ 623(a)(1), 631(a)). To prevail on her ADEA claim, Plaintiff must prove that she suffered an adverse employment action that was motivated by her age, and that she suffered an injury as a result. Mélendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30, 33 (1st Cir.2001). Here, Plaintiff was over forty years old and was replaced, in at least some of her responsibilities, by a person younger than her.

In this case, the central question is whether Plaintiffs demotion was motivated by age discrimination. Plaintiff alleges that her age triggered her demotion; the hospital argues that Plaintiffs demotion was precipitated by errors she made on the job. At the summary judgment state, the relevant question is whether Plaintiff “has pointed to enough admissible evidence to create a factual issue for trial on the issue of motivation — that is, to permit a reasonable jury to conclude that the decision to demote her was taken or prompted by someone based on age-based stereotyping or hostility.” Id.; see also Dávila v. Corporación de P.R. para la Difusión Pública, 498 F.3d 9, 16 (1st Cir.2007) (“At summary judgment, this question reduces to whether or not the plaintiff has adduced minimally sufficient evidence to permit a reasonable factfinder to conclude that he was fired because of his age.”).

Plaintiff has adduced no evidence supporting discrimination apart from the mere facts of her age and that of her supposed replacement. She admits that she heard no comments directed at her age and that other, older employees worked around her. More relevantly, her resignation letter from her position takes some responsibility for the errors in judgment that the hospital says led to her demotion. Simply put, we do not think there is enough here to permit a reasonable factfinder to conclude that Plaintiff suffered age discrimination.

See Dávila, 498 F.3d at 17 (“For a quondam employee to withstand summary judgment in an age discrimination case, there must be some significantly probative evidence from which the factfinder can infer that the employer discharged the employee because of his age.”). Accordingly, we must recommend that the motion for summary judgment be granted with regard to her ADEA claim.

Plaintiff further alleges that she was discriminated against due to her age. See Report and Recommendation, Docket No. 33, pages 5-6. However, the Court finds that according to plaintiffs deposition, she did not feel discriminated against due to her age.

Question: Did someone at Capestrano ever made a comment to you that you were old? .

.Answer: No.

Question: Did you ever contact him [the director of human resources] to report any conduct or any situation regarding these comments?

Answer: No.

Question: Did you ever try to reach Mr. Rivera [the director of human resources], and he refused to listen to you?

Answer: No.

See Docket No. 11-2, page 8.

In the instant case, there is not one single allegation of age discrimination supported by plaintiffs own admissions. The record clearly shows otherwise, to wit: (a) plaintiff was hired when she was 45 years old; (b) plaintiff is a registered nurse with post-graduate studies, and is currently studying a doctoral degree; (c) plaintiff was unable to establish that her demotion was age related, hence, she failed to meet the “but for” test, required by the Supreme Court in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) (requiring that the termination must be “the motivating factor” instead of “a motivating factor”). In sum, the Court finds that summary judgment is warranted on plaintiffs ADEA claim.

Constructive Discharge

Plaintiff claims constructive discharge due to her demotion. “Constructive discharge typically ‘refers to harassment so severe and oppressive that staying on the job while seeking redress— the rule save in exceptional circumstances — is intolerable.’ ” Gerald v. University of Puerto Rico, 707 F.3d 7, 25 (1st Cir.2013), citing Lee-Crespo v. Schering-Plough Del Caribe, Inc., 354 F.3d 34, 45 (1st Cir.2003) (internal quotations and citation omitted). “A successful constructive discharge claim requires ‘working conditions so intolerable that a reasonable person would have felt compelled to resign.’ ” Id., citing Pennsylvania State Police v. Suders, 542 U.S. 129, 147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004).

In the instant, case, the record clearly shows otherwise. Plaintiff stated in her deposition that she presented her resignation under pressure, even though she was not asked by the administration to, resign. See Docket No. 11-2, page 15. Moreover, .plaintiff admitted that she did not return .to work after the surgery, notwithstanding that she had a job at the hospital, and her doctor allowed her to return to work and perform as usual. See Docket No. 11-2, pages 16-18. Hence, plaintiff could not have suffered “severe and oppressive” working conditions while she was away on sick leave. Gerald v. University of Puerto Rico, 707 F.3d at 25. Lastly, plaintiff admitted that she was not dismissed from work at San Juan Capestrano. Id. Contrariwise, plaintiff sent a resignation apologetic letter admitting that she had in fact provided “unauthorized employees” [the per diem nurse, who was also an employee of the Government of Puerto Rico] to receive fhi vaccinations. See Letter of Resignation, Docket No. 14-4. Plaintiff further admitted that she forgot to make the proper entry on the “shift report.” Id. The record reflects that the defendant was a “general supervisory nurse” with a license to act as a registered nurse, occasionally acting as the registered nurse in charge of the hospital. See Report and Recommendation, Docket No. 33, page 2.

Considering that plaintiff was never terminated but only demoted, and never returned to work after surgery, notwithstanding she was capable and authorized by her physician to work, the Court refuses to act as a super overseeing personnel office. The Court remains mindful that its role is not to “second-guess[ing] the business decisions of an employer, nor to impose [its] subjective judgments of which person would best fulfill the responsibilities of a certain job.” Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 31 (1st Cir.1990). “Courts may not sit as super personnel departments, assessing the merits—or even the rationality — of employer’s nondiscriminatory business decisions.” Mesnick v. General Electric Co., 950 F.2d 816, 823 (1st Cir.1991).

Question: Were you dismissed from work at San Juan Capestrano?

Answer: No.

Question: At the time you handed your resignation to San Juan Capestrano, were you authorized to work from your [personal] doctor?

Answer: Yes.

See Docket No. 11-2, page 18.

Hence, the Court finds that plaintiff was not constructively discharged, rather that she resigned knowingly and voluntarily without any “sever and oppressive” conditions present. Gerald v. University of Puerto Rico, 707 F.3d at 25. The record also shows that another supervisor resigned from Capestrano, however, plaintiff could not provide the name of said supervisor and the circumstances that triggered the supervisor’s alleged resignation. See Docket No. 11-2, page 21. The Court finds that this bare allegation is irrelevant, as it fails to prove any type of discrimination conduct from the defendant, or how this resignation is related, if any, to plaintiffs resignation.

Plaintiffs claim for constructive discharge is denied, as she failed to show that her working conditions were “so intolerable that a reasonable person would have felt compelled to resign.” Gerald v. University of Puerto Rico, 707 F.3d at 25. Hence, summary judgment is warranted as to the claim of constructive discharge.

Conclusion

For the reasons stated above, the Court finds that there is no plain error in the Magistrate Judge’s Report and Recommendation, Docket No. 33. Hence, the Report and Recommendation is hereby adopted in toto, as supplemented herein. All federal causes of action are dismissed with prejudice and all causes of action under state law are dismissed without prejudice.

Judgment is to be entered accordingly.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

SILVIA CARRE ÑO-COLL, United States Magistrate Judge.

In this employment discrimination suit, Defendant Sistema San Juan Capestrano, Inc., has filed a motion for summary judgment, Docket No. 11, which has been referred to the undersigned by the presiding district judge for a report and recommendation, Docket No. 31. We recommend that the motion be granted and the case be dismissed.

I. Background

We will begin with those facts not in dispute.¹ Plaintiff Migdalia Santiago-Rodriguez was hired by San Juan Capestrano in June 2006 as a general supervisory nurse. Statement, ¶ 2; Opposition Statement, ¶ 1.2. At the time, Plaintiff was 45 years old. Statement, ¶ 3; Opposition Statement, ¶ 1.3. Plaintiff held a masters degree in hospital administration, as well as a degree in mental health. Statement, ¶ 5; Opposition Statement, ¶ 1.5.

In Plaintiffs capacity as a general supervisory nurse, she supervised hospital personnel during her shift, and, when the hospital’s administration was absent, she was in charge of the hospital.² Statement, ¶ 6; Opposition Statement, ¶ 1.6. Among Plaintiffs duties, she was required to draft daily incident reports at the end of her shifts describing incidents that had occurred; she was also to report such incidents to her supervisor, Olga Colon, by phone. Statement, ¶ 9; Opposition Statement, ¶ 1.9.

On November 21, 2009, an incident occurred at the hospital. The details are disputed, but it is agreed that a per diem nurse³ gave flu shots to some employees without authorization. Statement, ¶ 12; Opposition Statement, ¶ 1.12. It is also undisputed that Plaintiff did not inform the hospital administration of this incident.⁴ Statement, ¶ 15; Opposition Statement, ¶ 1.15. Plaintiff was subsequently interviewed by human resources and “confronted” about not informing the administration. Statement, ¶ 19; Opposition Statement, HI.19. During this interview, Plaintiff informed the hospital that she would be undergoing thyroid surgery in December 2009. Statement, ¶ 20; Opposition Statement, ¶1.20. On December 15, 2009, the hospital sent Plaintiff a letter informing her that because of her failure to report the immunization incident, she was being demoted to the position of general nurse.⁵ Statement, ¶ 21; Opposition Statement, ¶ 1.21. After being informed of the demotion, Plaintiff went on medical leave and never returned, resigning from the hospital on January 7, 2010. Statement, ¶¶ 23-25; Opposition Statement, ¶¶1.23-1.25. In her resignation letter, Plaintiff takes at least some responsibility for her demotion⁶ Statement, ¶ 26; Opposition Statement, ¶ 1.26. After Plaintiff resigned, at least some of her work responsibilities were assigned to Lisa Rivera,^{6 7} a new supervisory nurse who is younger and possesses, fewer degrees than Plaintiff, and who Plaintiff had been training. Statement, ¶ 28,' 30; Opposition Statement, ¶ 1.28, 1.30, 11.16; Reply Statement, ¶ 16.

Finally, Plaintiffs complaint alleges age and disability discrimination, and so we pay some attention to the facts bearing on those allegations. Plaintiff began working at the hospital when she was 45, and she was 48 or 49 at the time she resigned. Statement, ¶¶ 3, 4. Lisa Rivera, the person who took over some of Plaintiffs duties after her resignation, is currently 38. Reply Statement, ¶ 43. While employed at the hospital, Plaintiff was not the oldest employee. Statement, ¶ 10; Opposition Statement, ¶ 1.10. She was never subjected to any comments about her age, nor did she ever hear comments about her “disability.” Statement, ¶¶ 11, 31; Opposition Statement, ¶¶1.11, 1.31. Indeed, Plaintiff admitted in her deposition that no one perceived or treated her as disabled. Statement, ¶ 32; Opposition Statement, ¶ 1.32. Nonetheless, the thyroid surgery that Plaintiff told the hospital she was going to have ran the risk of causing (temporary ⁸) muteness. Opposition Statement, ¶ 35; Reply Statement, ¶ 35.

II. Summary Judgment Standard

A motion for summary judgment will be granted “if the pleadings, the discovery and disclosure material on file, and any affidavits show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is in genuine dispute if it could be resolved in favor of either party, and it is material if it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.2004).

The movant carries the burden of establishing that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This burden may be satisfied by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations ... or other materials.” Fed.R.Civ.P. 56(c)(1)(A). The movant may also point to a lack of evidence supporting the nonmovant’s case. See Fed.R.Civ.P. 56(c)(1)(B); see also Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once the movant makes a preliminary showing that no genuine issues of material fact exist, “the nonmovant must produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy [dispute].” Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir.2006) (internal quotation marks omitted); see also Fed.R.Civ.P. 56(c)(1).

In evaluating a motion for summary judgment, we view the record in the light most favorable to the nonmovant. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3).

III. The Federal Claims

A. The Americans with Disabilities Act

Title I of the Americans with Disabilities Act (“the ADA”) prohibits employers from discriminating against persons with disabilities. 42 U.S.C. § 12112(a). To establish an ADA claim, a person must prove: (1) that she was “disabled within the meaning of the ADA”; (2) that she was “qualified to perform the essential functions of the job, either with or without a reasonable accommodation”; and (3) “that the employer took adverse action against” the employee “because of the disability.” Bailey v. Ga.-Pac. Corp., 306 F.3d 1162, 1166 (1st Cir.2002). An ADA plaintiff has several options for showing that she is disabled under the ADA; here, Plaintiff has opted to argue that she is disabled under the ADA because she was “regarded as having” an impairment that substantially limited one or more of her major life activities. See Ruiz-Rivera v. Pfizer Pharmaceuticals, LLC, 521 F.3d 76, 82-83 (1st Cir.2008).

“Regarded as” claims under the ADA are meant to protect plaintiffs from “myths, fears, and stereotypes” that may arise regarding their non-disabling medical conditions. See id. at 82. To prevail under this test, the plaintiff must show not only that her employer “perceived h[er] as somehow disabled,” but that “the employer regarded h[er] as disabled within the meaning of the ADA.” Id. at 83 (citing Bailey, 306 F.3d at 1169). Plaintiff “must demonstrate not only that the employer thought [she] was impaired in [her] ability to do the job that [she] held, but also that the employer regarded h[er] as substantially impaired ‘in either a class of jobs or a broad range of jobs in various classes as compared with the average person having comparable training, skills, and abilities.’” Sullivan v. Neiman Marcus Grp., Inc., 358 F.3d 110, 117 (1st Cir.2004) (quoting Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 523, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999)).

Almost nothing in the statements of facts addresses how Plaintiff was perceived by her employer. The following, however, is undisputed: Plaintiff was never subjected to any comments about any perceived disability, and she admitted during her deposition that she was not perceived or treated as disabled. All Plaintiff has to hang her “regarded as” argument on is the fact that she told the hospital’s human resources department that she was going to have thyroid surgery, and that this surgery could cause muteness. It is the muteness that Plaintiff claims led to her being regarded as disabled, but there are two salient facts that make her argument implausible: first, it is uncontest'ed that Plaintiff was demoted before the surgery, and she never returned to work after it was performed; and second, she does not even allege that she told the hospital that muteness was a possible consequence of the surgery. .....

It is our opinion that Plaintiffs “regarded as” claim under the ADA must fail because she was at no time working with any condition that could have been regarded by her employer as a disability under the Act. To the contrary, it is uncontested that Plaintiff ceased to work at the hospital before r undergoing the surgery that she says led to the perception of , disability. We cannot understand, then, how such a .perception might have been formed. Thus, we recommend that the ipotion for summary judgment be .granted with regard to her ADA claim.

B. The Age Discrimination in Em-; ployment Act

The Age Discrimination in Employment Act prohibits employers from taking adverse employment actions against employees who are forty years of age or older because of the employee’s age. Bennett v. Saint-Gobain Corp., 507 F.3d 23, 30 (1st Cir.2007) (citing 29 U.S.C. §§ 623(a)(1), 631(a)). To prevail on her ADEA claim, Plaintiff must prove that she suffered an adverse employment action that was motivated by her age, and that she suffered an injury as a result.. Melendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30, 33 (1st Cir.2001). Here, Plaintiff was over forty years old and was replaced, in at least some of her responsibilities, by a person younger than her.

In this case, the central question is whether Plaintiffs demotion was motivated by age discrimination. Plaintiff alleges that her age triggered her demotion; the hospital argues that Plaintiffs demotion was precipitated by errors she made on the job. At the summary judgment state, the relevant question is whether Plaintiff “has pointed to enough admissible evidence to create a factual issue for trial on the issue of motivation — that is, to permit a reasonable jury to conclude that the decision to demote her was taken or prompted by someone based on age-based stereotyping or hostility.” Id.; see also Davila v. Corporacion de P.R. para la Difusión Pública, 498 F.3d 9, 16 (1st Cir.2007) (“At summary judgment, this question reduces to whether or not the plaintiff has adduced minimally sufficient evidence to permit a reasonable factfinder to conclude that he was fired because of his age.”).

Plaintiff has adduced no evidence supporting discrimination apart from the mere facts of her age and that of her supposed replacement. She admits that she heard no comments directed at her age and that other, older employees worked around her. More relevantly, her resignation letter from her position takes some responsibility for the errors in judgment that the hospital says led to her demotion. Simply put, we do not think there is enough here to permit a reasonable factfinder to conclude that Plaintiff suffered age discrimination. See Davila, 498 F.3d at 17 (“For a quondam employee to withstand summary judgment in an age discrimination case, there must be some significantly probative evidence from which the factfinder can infer that the employer discharged the employee because of his age,”). Accordingly, we must recommend that the motion for summary judgment be granted with regard to her ADEA claim.⁹

IV. The State-Law Claims

Plaintiff also raises several state-law claims against Defendants. We will not address these claims, however, because our recommended course of dismissing the federal claims would undermine any jurisdictional basis for state-law claims’ consideration.

V. Conclusion

For all of the reasons stated above, we recommend that the Court GRANT the motion for summary judgment, Docket No. 11, and DISMISS Plaintiffs complaint, Docket No. 1, in its entirety.

IT IS SO RECOMMENDED.

The parties have fourteen days to file any objections to this report and recommendation. Failure to file the same within the specified time waives the right to appeal this report and recommendation. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); United States v. Valencia-Copete, 792 F.2d 4 (1st Cir.1986).

1 . The Court notes that this is not the first time that plaintiff has been interviewed by the defendant's department of human resources, see defendant’s Employee Corrective Actions Report of July 3, 2009, Docket No. 14-5, regarding plaintiff’s frequent absences from work without proper and/or timely notice with her supervisors. No disciplinary action was taken by the defendant at the time.

1 . These facts are drawn from Defendant’s Statement of Uncontested Facts ("Statement”), Docket No. 11-1, Plaintiff's Opposing Statement of Uncontested Material Facts ("Opposition Statement”), Docket No. 16-1, and Defendant's Reply to Plaintiff’s Additional Uncontested Material Facts ("reply Statement”), Docket No. 23-1.

2 . This phrase is drawn from the statement of uncontested facts, which provides no details explaining just what Plaintiff's responsibilities were when she was "in charge of the hospital.”

3 . The statement of uncontested facts doesn’t explain the phrase, but we assume that a per diem nurse is one paid daily for her work at the hospital. See, e.g., Holyoke Visiting Nurses Ass'n v. NLRB, 11 F.3d 302, 304 (1st Cir.1993).

4 . However, Plaintiff disputes whether or not it was her responsibility to inform the administration about the immunizations.

5 . Plaintiff admits this fact with regard to the time that she was informed of her demotion, as well as the contents of the demotion letter; she disputes, however, the letter's accuracy. Opposition Statement, ¶ 1.21.

6 . In the letter, Plaintiff writes that the incident leading to her demotion "was an isolated case of involuntary forgetfulness whereby I did not make the entry in the shift report.” Docket No. 14-4. She goes on to say that because other supervisors were involved, she assumed the administration had approved the vaccinations. Id. The hospital interprets this language as an "acknowledgement] of her wrongdoing.” Statement, ¶ 26. Plaintiff denies that it is such an acknowledgment, Opposition Statement, ¶ 1.26, but we agree with the hospital that its language does include an admission of wrongdoing, though it also attempts to explain Plaintiff's supposed error.

7 . According to the hospital, Plaintiff’s position was not replaced. Instead, the hospital claims that Rivera was already training to be a supervisory nurse before Plaintiff’s demotion, and that she was sharing responsibilities with Plaintiff, who had been training her; the hospital says that she continued in this position. Plaintiff's position is that after she resigned, her position was given to Rivera. In either case, many of Plaintiff’s former responsibilities ended up becoming Rivera's after Plaintiff’s demotion and resignation.

8 . At her deposition,' Plaintiff testified that her physician had told her that with the surgery, "there was a possibility that I would be mute for a period of three months, and end up hoarse.” Docket No. 11-2, at 19.

9 . The parties devote much space to arguing whether or not Plaintiff was constructively discharged; we don't consider the matter, however, because even if she was, she would also need to establish that her age was the "but-for” cause for the constructive discharge — something that she has failed to do. See Cabrera-Ruiz v. Rocket Learning, Inc., 852 F.Supp.2d 154, 169 (D.P.R.2012).