MAYRA F. PENA, Plaintiff, Appellant,
HONEYWELL INTERNATIONAL, INC., Defendant, Appellee.
Before, Howard, Chief Judge, Torruella, Stahl, Lynch, Lipez,
Thompson, Kayatta, and Barron, Circuit Judges.
ORDER OF COURT
Mayra F. Pena's petition for rehearing en banc having
been submitted to the active judges of this court and a
majority of the judges not having voted that the case be
heard en banc, it is ordered that the petition for rehearing
en banc be denied.
to First Circuit Internal Operating Procedure X(C), the
petition for rehearing en banc has also been treated as a
petition for rehearing before the original panel. The
petition for panel rehearing is denied by a majority of the
panel of judges who decided the case. It is ordered that the
petition for panel rehearing be denied.
AND STAHL, CIRCUIT JUDGES.
petition misconstrues the majority opinion, which is
fact-specific and concludes on the facts of record that Pena
failed to meet the requirements laid out in Cleveland v.
Policy Management Systems Corporation, 526 U.S. 795
(1999), to defeat summary judgment. On the facts of record,
Pena did not satisfy her burden under Cleveland to
provide an explanation "sufficient to warrant a
reasonable juror's concluding that, assuming the truth
of, or the plaintiff's good-faith belief in, the earlier
statement, the plaintiff could nonetheless 'perform the
essential functions' of her job, with or without
'reasonable accommodation.'" Id. at
record shows that Pena was given multiple opportunities
throughout her deposition to clarify her position that
despite the Social Security Administration's finding that
she was totally disabled on March 8, 2013, the last day she
worked at Honeywell, she was still capable of working. For
Q: When you said in the sentence, you know, "I became
unable to work because of my disabling condition," did
you mean that you were unable to do any work?
A: Yes, at that time when I stated that, yes, because I was
under a lot of medications, and my depression increased.
Q: Okay. And as we've already discussed, your application
has been approved, and Social Security found that you are
fully disabled and, therefore, unable to work; do you
Soon after that exchange, Pena was asked directly about the
issue at hand:
Q: Ms. Pena, can you explain why on the one hand you applied
for disability benefits and said that you were unable to work
at all as of March 8, 2013 and that was found to be accurate,
and on the other hand you then assert a claim against
Honeywell, which includes an assertion that if you had been
given an accommodation, you could have done your job? Can you
explain that to me?
A: About the lawsuit when I went to ...