source: Caselaw Access Project

author: SELYA, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Elvin ROMÁN-DÍAZ, Defendant, Appellant.
    No. 15-2355
    United States Court of Appeals, First Circuit.
    April 7, 2017

      Barry S. Pollack and Pollack Solomon Duffy LLP, Boston, MA, on brief for appellant.
    Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá Al-monte, Assistant United States Attorney, Chief, Appellate Division, and Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, on brief for appellee.
    Before LYNCH, SELYA and KAYATTA, Circuit Judges.
   SELYA, Circuit Judge.

Defendant-appellant Elvin Román-Díaz asserts that the sentencing court erred in “departing” from one criminal history category (CHC) to another without notice or an opportunity to be heard. He further asserts that the sentencing court erred in ordering his federal sentence to run consecutive to an undischarged state sentence. Finding no departure and no abuse of discretion in the imposition of the challenged consecutive sentence, we affirm.

I. BACKGROUND

A summary of pertinent events suffices to lend perspective. We draw the facts from the plea agreement (the Agreement), the change-of-plea colloquy, the undisputed portions of the presentence investigation report (PSI Report), and the sentencing transcript. See United States v. Dávila-González, 595 F.3d 42, 45 (1st Cir. 2010); United States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991).

During 2012, the appellant and others engaged in a conspiracy to distribute controlled substances in and around Ponce, Puerto Rico. The appellant functioned as an enforcer for the drug ring and also stored drugs and weapons for it. While the conspiracy was velivolant, a high-school student (Juan Ruiz-Vega) was shot and killed with a rifle owned by a member of the drug ring.

On July 24, 2013, a federal grand jury sitting in the District of Puerto Rico handed up a two-count indictment charging the appellant with conspiring to possess with intent to distribute in excess of 280 grams of cocaine base (crack cocaine) and detectable amounts of cocaine, heroin, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (count one), and aiding and abetting in the possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c) (count two). After some skirmishing, not relevant here, the appellant pled guilty to both counts pursuant to the Agreement.

In the Agreement, the appellant stipulated to handling, as part of the conspiracy, at least 112 grams but less than 196 grams of crack cocaine. The parties agreed that this drug weight corresponded to a base offense level of twenty-eight for count one, see USSG § 2D1.1, and that a three-level credit for acceptance of responsibility was warranted, see id. § 3E1.1. The parties further agreed to recommend a sixty-month sentence on count one and a consecutive sixty-month mandatory minimum sentence on count two. Finally, the parties agreed to recommend that the aggregate federal sentence be served concurrently with an undischarged 1,000-year state sentence previously imposed for convictions related to the Ruiz-Vega murder (which the parties considered to be relevant conduct, see id. § 1131.3(a)).

The Agreement contained no stipulation as to either the appellant’s CHC or his anticipated guideline sentencing range (GSR). The Agreement’s offense level and sentencing recommendations, though, offer some indication that the parties held out the hope that the appellant would be placed in CHC I.

After accepting the appellant’s plea, the district court ordered the probation office to prepare the PSI Report. When received, the report recommended that the court apply the murder cross-reference, see id. § 2Dl.l(d)(l), on the ground that the Ruiz-Vega murder took place in the course of the conspiracy. Accepting this recommendation had the effect of increasing the appellant’s adjusted offense level from twenty-five to forty. See id. § 2A1.1. Combined with a recommended CHC of III, this recasting yielded a GSR of 360-480 months for count one. See id. § 5Gl.l(a).

With respect to count two, the PSI Report was straightforward. It recommended — as had the parties — the statutory minimum term of sixty months’ imprisonment. See 18 U.S.C. § 924(c)(l)(A)(i); USSG § 2K2.4(b); see also United States v. Rivera-González, 776 F.3d 45, 49 (1st Cir. 2015) (explaining that the statutory minimum sentence is, in such circumstances, the guideline sentence).

The district court convened the disposition hearing on September 24, 2015. The appellant beseeched the court to follow the sentencing framework laid out in the Agreement and sentence him to two consecutive sixty-month incarcerative terms (a total of 120 months’ imprisonment), to run concurrently with his state sentence for the convictions related to the Ruiz-Vega murder. The prosecutor concurred.

The district court determined that the Ruiz-Vega murder did not comprise relevant conduct and, thus, refused to apply the murder cross-reference. The court then determined, based on the parties’ stipulation as to drug weight, that the base offense level was twenty-six. See USSG § 2Dl.l(c)(7). The court noted, though, that this stipulated drug weight underrepresented the appellant’s actual complicity. After crediting the appellant for acceptance of responsibility, the court set his total offense level at twenty-three.

Turning to the other side of the grid, the court determined that the appellant should be placed in CHC IV (a determination that added criminal history points for the state convictions related to the Ruiz-Vega murder because that murder was not deemed relevant conduct). The appellant initially objected to this recasting of the murder cross-reference, but retracted his objection once the court explained that, despite the higher CHC, the elimination of the murder cross-reference would result in a substantially lower GSR (seventy to eighty-seven months).

The court proceeded to sentence the appellant to a top-of-the-range incarcera-tive term on count one (eighty-seven months) and the mandatory minimum in-carcerative term (sixty months) on count two. As provided by statute, see 18 U.S.C. § 924(c)(l)(D)(ii), the sentence imposed on count two was ordered to run consecutively to the sentence imposed on count one. The court also ordered both sentences to run consecutively to the undischarged state sentence.

This timely appeal followed.

II. ANALYSIS

In United States v. Booker, 543 U.S. 220, 125 S.Ct 738, 160 L.Ed.2d 621 (2005), the Supreme Court effected a sea change in the law of federal sentencing, declaring the sentencing guidelines advisory and directing appellate courts to review sentences for reasonableness. See id. at 245, 260-61, 125 S.Ct. 738. The Court subsequently clarified that, in this context, review for reasonableness is functionally equivalent to review for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). That review entails a two-step process: an inquiring court first should resolve any claims of procedural error and then should address any challenges to the substantive reasonableness of the sentence imposed. See id.; United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008).

Of course, these standards of review may be altered when a party has failed to preserve particular claims of error in the court below. In such an event, review is for plain error. See United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir.), cert. denied, — U.S. -, 136 S.Ct. 258, 193 L.Ed.2d 191 (2015). To prevail under this rigorous standard, an appellant must establish “(1) that an error occurred (2) which was clear or obvious and which not only (3) affected [his] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

A.

The appellant’s first line of attack deals with the district court’s choice of a CHC. In his view, the court erred by “departing” from a CHC of III to a CHC of IV without either notice or an opportunity for him to be heard, thus violating Federal Rule of Criminal Procedure 32(h). Since this claim was not aired below, review is for plain error.

The premise of the appellant’s argument is unimpeachable: under Rule 32(h), a defendant is entitled to notice prior to any departure on a ground not identified for departure in the PSI Report or the parties’ presentencing submissions. But the appellant’s attempt to apply that premise here is mistaken. We explain briefly.

The appellant asserts that the district court’s decision to place him in a higher CHC constituted a departure. This assertion is simply wrong. In federal criminal sentencing, the term “departure” is a term of art. It refers specifically to a decision made by a sentencing court, after constructing the applicable guideline range, to impose a sentence above or below that range on one of certain enumerated grounds. See, e.g., United States v. Wallace, 573 F.3d 82, 96 (1st Cir. 2009); United States v. Sanchez, 354 F.3d 70, 78-79 (1st Cir. 2004). Part 5K of the sentencing guidelines collects those enumerated grounds. They include, for example, situations in which the offense conduct led to death, USSG § 5K2.1; situations in which the offense conduct led to significant physical injury, id. § 5K2.2; and situations in which the offense conduct involved extreme psychological injury, id. § 5K2.3.

Here, however, there was no departure. The guideline range itself is a product of two subsidiary determinations. The sentencing court must determine the offender’s total offense level and his CHC. See United States v. Parkinson, 44 F.3d 6, 9 (1st Cir. 1994). The decision about which the appellant complains — the determination that CHC IV applied — was integral to that process and was made as a part of it. As such, it was not a departure and was not subject to the notice requirements of Rule 32(h). See Irizarry v. United States, 553 U.S. 708, 714, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008).

In all events, the appellant’s claim that the court made the CHC determination without giving him adequate notice is specious. He and his counsel knew all along of the convictions related to the Ruiz-Vega murder and knew that those convictions would be factored into the calculation of his GSR. That he did not anticipate the exact manner in which the court would elect to use those convictions does not mean that he was deprived of notice in any meaningful sense. Cf. United States v. Vega-Santiago, 519 F.3d 1, 5 (1st Cir. 2008) (explaining that “[gjarden variety considerations of culpability, criminal history, likelihood of re-offense, seriousness of the crime, nature of the conduct and so forth should not generally come as a surprise to trial lawyers who have prepared for sentencing”).

The appellant’s remaining claim — that he was not afforded an opportunity to be heard on the court’s CHC determination— is jejune. In mounting this claim, the appellant invokes Federal Rule of Criminal Procedure 32(i)(l)(C), which states that the sentencing court “must allow the parties’ attorneys to comment on ... matters relating to an appropriate sentence.” Refined to its essence, the rule requires that the court furnish the defendant “a meaningful opportunity to comment on the factual information on which his or her sentence is based.” United States v. Rivera-Rodríguez, 489 F.3d 48, 53-54 (1st Cir. 2007) (quoting United States v. Berzon, 941 F.2d 8, 10 (1st Cir. 1991)). The sentencing guidelines reflect much the same sentiment: they require that a defendant be afforded “an adequate opportunity” to address “any factor important to the sentencing determination [that] is reasonably in dispute.” USSG § 6A1.3(a).

Here, the appellant had every opportunity to comment upon the sentencing court’s proposed treatment of the convictions related to the Ruiz-Vega murder. There is no indication that the court at any point refused to hear the appellant or his counsel regarding the CHC determination — a determination that, as noted above, actually favored the appellant. To cinch the matter, the appellant’s counsel, during the sentencing hearing, participated in a discussion with the court and the prosecutor. In that discussion, he assented to the court’s decision to give the appellant three additional criminal history points — the very points that shifted the appellant from CHC III to CHC IV.

To say more about the ersatz “departure” claim would be supererogatory. The appellant has not challenged the propriety of his placement in CHC IV; instead, he has challenged only the procedural aspects ancillary to the CHC determination. We hold, without serious question, that there was no error, plain or otherwise, in the procedures accompanying the district court’s CHC determination.

B.

We turn next to the appellant’s contention that the district court misapplied the sentencing guidelines in determining that his sentence should be imposed consecutively to the millennium-long state sentence. Because it is at least arguable that this contention was advanced below, review is for abuse of discretion. See United States v. Carrasco-de-Jesús, 589 F.3d 22, 26 (1st Cir. 2009).

This assignment of error is groundless. To begin, the district court had discretion to determine whether the sentence should run consecutive to or concurrent with the state sentence. After all, “[a] sentencing court’s choice between a consecutive or a concurrent sentence with respect to a defendant who is subject to an undischarged [state sentence] is normally discretionary.” Carrasco-de-Jesús, 589 F.3d at 27 (citing 18 U.S.C. § 3584(a)).

To be sure, a district court’s discretion to choose between making a sentence consecutive or concurrent is not absolute. See United States v. Ziskind, 471 F.3d 266, 271 (1st Cir. 2006). In effecting such a choice, a court must consider the factors set forth in 18 U.S.C. § 3553(a), “including any applicable sentencing guidelines or policy statements.” Carrasco-de-Jesús, 589 F.3d at 27 (citing 18 U.S.C. § 3584(b)). One such provision is USSG § 5G1.3, which deals with situations in which a defendant is subject to an undischarged state sentence.

USSG § 5G1.3 covers four possible scenarios. Subsection (a) applies when the offense of conviction “was committed while the defendant was serving a term of imprisonment.” This subsection is inapposite where, as here, the offense of conviction is committed before the commencement of the undischarged state term of imprisonment. In that event, one of the three remaining subsections may apply.

Subsections (b) and (c), though, pertain only when the undischarged state term of imprisonment qualifies as “relevant conduct” with respect to the offense of conviction. See, e.g., United States v. Lino, 493 F.3d 41, 44 (1st Cir. 2007); United States v. McCarthy, 77 F.3d 522, 537 (1st Cir. 1996). Given this limitation, neither subsection has any bearing here: the court below ruled that the appellant’s convictions stemming from the Ruiz-Vega murder did not encompass relevant conduct, and that ruling has not been appealed. It is, therefore, the law of the case. See United States v. Matthews, 643 F.3d 9, 12 (1st Cir. 2011).

This leaves subsection (d), which covers “any other case involving an undischarged term of imprisonment.” USSG § 5G1.3(d). When — as in this case — an undischarged state term of imprisonment covers an offense that took place prior to serving a term of imprisonment and is not relevant conduct, subsection (d) applies. That subsection cedes the sentencing court discretion to impose a sentence that runs concurrently with, partially concurrently with, or consecutively to the undischarged state term of imprisonment; provided, however, that the sentencing court considers the factors set out in 18 U.S.C. § 3553(a) and the applicable GSR. See United States v. Llanos-Falero, 847 F.3d 29, 36 (1st Cir. 2017).

In this instance, the court carefully considered the section 3553(a) factors and the appellant’s guideline range. It explained its calculation of the GSR and stated that it had considered “the general circumstances of the offense and all [section] 3553 factors.” The court went on to note that the appellant (age forty-four at the time of sentencing) had consistently been before the judicial system since age thirty and had recently been convicted of violent offenses related to what the court described as “the Ponce massacre.” Seen in this light, we think that the district court acted comfortably within the encincture of its discretion in choosing to run the aggregate federal sentence consecutively to the undischarged state sentence. See 18 U.S.C. § 3584(b); United States v. Figueroa-Figueroa, 791 F.3d 187, 191 (1st Cir. 2015).

III. CONCLUSION

We need go no further. For the reasons elucidated above, the sentence is

Affirmed.

      . Although Puerto Rico is not a state, sentences imposed by the Puerto Rico courts— like the sentence imposed with respect to the Ruiz-Vega convictions — have the same force and effect for federal sentencing purposes as sentences imposed by state courts. See, e.g., United States v. Carrasco-de-Jesús, 589 F.3d 22, 24, 27 (1st Cir. 2009) (treating an undischarged Puerto Rico sentence as a state sentence for purposes of evaluating propriety of consecutive sentence). For ease in exposition, we employ a conventional shorthand and refer to the Ruiz-Vega sentence as a state sentence.

      . In recommending that the appellant be placed in CHC III, the PSI Report did not attribute any criminal history points for convictions related to the Ruiz-Vega murder. This exclusion was consistent with the PSI Report's conclusion that the Ruiz-Vega murder occurred in the course of the conspiracy and, thus, constituted relevant conduct. See United States v. Correy, 570 F.3d 373, 390-91 (1st Cir. 2009).

      . The district court appropriately treated the 2014 edition of the sentencing guidelines as controlling. See United States v. Carrasco-Mateo, 389 F.3d 239, 242 n.1 (1st Cir. 2004) (explaining that a sentencing court must apply “the guidelines in effect at the time of sentencing unless doing so would present ex post facto problems”); see also USSG § 1B1.11(a). The parties, however, appear to have used either the 2012 or 2013 edition when drafting the Agreement. This explains the apparent discrepancy in the base offense level corresponding to the stipulated drug weight. Such a discrepancy is inconsequential for present purposes.

      . The recasting, though, had a potentially adverse effect: it meant that the question of whether the aggregate federal sentence would run concurrently or consecutively to the undischarged state sentence was shifted from the guidance of USSG § 5G1.3(b) to USSG § 5G1.3(d). We discuss the concurrent/consecutive question infra.

      . We recently have explained that Rule 32(h) is "a vestige of the time before [Booker], an era when the guidelines were mandatory.” United States v. Santini-Santiago, 846 F.3d 487, 489-90 (1st Cir. 2017). Under an advisory guideline regime, a sentencing court has considerable flexibility to vary a sentence, up or down, from the guideline range. See id. at 490. Unless the court specifically states that it is departing, even a sentence outside the GSR is almost always treated as a variance, not a departure. See id. There is no general notice requirement for variances. See Irizarry v. United States, 553 U.S. 708, 714, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008).

      . With respect to this feature of his sentence, the appellant reprises the contention that he should have been provided with notice and an opportunity to be heard. This contention is hopeless. The record makes manifest that the appellant had both notice of the issue and a meaningful opportunity to advocate for a concurrent sentence: that issue was spotlighted in the Agreement and, before any sentence was imposed, defense counsel argued vociferously that the court should run the aggregate federal sentence concurrently with the undischarged state sentence.

      . In his reply brief, the appellant complains that the district court did not explicitly mention section 5G1.3. That is true as far as it goes, but it does not take the appellant very far. What counts is not whether a sentencing court explicitly mentions a guideline provision but, rather, whether the court correctly applies that provision.

      . Subsection (b) applies to sentences already imposed. See, e.g., Carrasco-de-Jesús, 589 F.3d at 27. Subsection (c) applies to anticipated sentences. See USSG § 5G1.3, cmt. n.3 (explaining that "[s]ubsection (c) applies to cases in which the federal court anticipates that, after the federal sentence is imposed, the defendant will be sentenced in state court” (emphasis supplied)).


author: THOMPSON, Circuit Judge.

text:
    Gloria M. ORTIZ-MARTÍNEZ, Plaintiff, Appellant, v. FRESENIUS HEALTH PARTNERS, PR, LLC; Fresenius Medical Care Extracorporeal Alliance of Puerto Rico, Inc., Defendants, Appellees.
    No. 16-1453
    United States Court of Appeals, First Circuit.
    April 7, 2017

      Isis Aimée Roldán Márquez, Aguadilla, PR, for appellant.
    Alfredo M. Hopgood-Jovet, Patricia M. Marvez-Valiente, and McConnell Valdés LLC, Hato Rey, PR, for appellees.
    Before TORRUELLA, LIPEZ, and THOMPSON, Circuit Judges.
   THOMPSON, Circuit Judge.

Appellant Gloria Ortiz-Martínez worked as a social worker for appellees Fresenius Health Partners, PR, LLC and Fresenius Medical Care Extracorporeal Alliance of Puerto Rico, Inc. (together, “Fresenius”). After suffering a work-related injury, Ortiz-Martínez sued Fresenius for failing to accommodate her disability in violation of the American with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213. The district court granted summary judgment finding, first, that Ortiz-Martínez did not qualify as a “disabled” individual under the ADA and, second, that she was the cause of the breakdown in communications concerning her accommodations. After careful consideration, we affirm the district court’s ruling.

Background

The ease facts are largely undisputed and we summarize them in the light most favorable to the appellant. See Gillen v. Fallon Ambulance Serv,, 283 F.3d 11, 17 (1st Cir. 2002).

On January 25, 2010, Ortiz-Martínez was hired as a social worker at Fresenius, a health care services provider that administers dialysis treatment to patients with kidney disease or impaired renal function. As part of her duties, Ortiz-Martínez was required to regularly write and document various aspects of her work, including documenting all interventions and services she rendered to patients, and completing a monthly report for each patient under her care. During the course of her employment, Ortiz-Martínez suffered a hand injury while preparing written notes in her patients’ files.

Ortiz-Martínez subsequently went to see a doctor with the State Insurance Fund (“SIF”) on July 30, 2012 regarding her work-related injury and was placed on rest until August 9, 2012. Ortiz-Martínez went back to the SIF for several follow-up appointments over the course of the next year, and each time she was placed on additional rest and not permitted to return to work. Following a doctor’s appointment on July 12, 2013 where the doctor once again extended Ortiz-Martinez’s order of rest until July 22, 2013, Ortiz-Martínez returned to the SIF five days later (on July 17, 2013) to inquire about returning to work while she continued treatment for her injury. Her doctors agreed that she could return to work while continuing her treatments and, with the blessing of her doctors, she reported in on July 18, 2013.

Upon her return, Ortiz-Martínez provided her supervisor and Clinical Manager, Priscilla Ortiz (“Priscilla”), with a copy of the SIF form which indicated that Ortiz-Martinez had been diagnosed with a sprained left shoulder, arm, forearm, and hand, as well as bilateral carpal tunnel syndrome. The SIF form also indicated that after her medical examination on July 17, 2013, Ortiz-Martinez was cleared to return to work while she continued to receive medical treatment for her injuries. The SIF form did not indicate what specific accommodations were necessary to assist Ortiz-Martinez in the completion of her daily tasks while continuing treatments for her injury.

Accordingly, Priscilla informed Ortiz-Martinez that without more information regarding Ortiz-Martinez’s medical restrictions and what specific accommodations she was requesting, Fresenius would not be able, to reinstate her. That same day (July 18, 2013), Ortiz-Martinez returned to the SIF in an effort to obtain the additional information requested by Priscilla. The SIF provided Ortiz-Martinez with a letter that, in pertinent part, stated the following:

The following diagnosis was made at our agency: Sprained Left Shoulder and Arm. Sprained Left Forearm. Sprained Left Hand, Bilateral Carpal Tunnel Syndrome. These conditions produce constant pain, numbness in [Ortiz-Martinez’s] upper extremities, and difficulty in performing the activities that require exercising force or pressure in the affect [sic] area.
Dr. Miguel Rivera-González, Occupational Physician who is in charge of the case, recommends that this employee be provided with an occupational adjustment. The medical evidence shows that Mrs. Ortiz[-Martinez] has difficulty in performing repetitive tasks, lifting, holding and manipulating heavy and large objects for a prolonged length of time. She also has difficulty in holding, pulling, gripping and she shows problems related to restriction of movement and strength in her left hand. Because of this condition, she is a candidate for surgery in the left hand, which is pending.
According to the medical recommendations, we suggest that the possibility of providing this employee with the necessary adjustments be considered, so that she may be able to perform her duties without worsening her health condition while she continues to receive treatment through the State Insurance Fund Corporation. Furthermore, we recommend giving her short rest periods during her workday.

Ortiz-Martinez returned to Fresenius that same day and provided the SIF letter to Priscilla. Priscilla told Ortiz-Martinez that the letter “didn’t tell her anything,” but that Fresenius would evaluate the letter and get back to her. This would prove to be the second to last time that Ortiz-Martinez and Fresenius had a meaningful engagement to discuss her accommodation. One final meeting occurred in early August, which we discuss below.

While Ortiz-Martinez' disputes the exact number of calls attempted by Fresenius in the aftermath of the July 18, 2013 meeting, she concedes that Fresenius did, in fact, attempt to get in touch with her on numerous occasions after that date to discuss her accommodation needs. Indeed, the record indicates that after multiple failed attempts to reach Ortiz-Martinez by phone, Fresenius tried to reach her by letter. In a July 26, 2013 mailing Fresenius informed Ortiz-Martinez that the company had unsuccessfully attempted to contact her via phone as early as July 23, 2013, that they were unable to leave her a message because her voicemail was not activated, and they requested that Ortiz-Martinez contact Fresenius within the next five business days to discuss how the company could best accommodate her injury. Ortiz-Martinez claims that she did not receive the July 26, 2013 correspondence until August 6, 2013 and she could not remember whether she had made any effort to communicate with Fresenius between July 22, 2013 and August 6, 2013.

On July 26, 2013, however, despite Fre-senius’s attempts to contact her and despite her failure to communicate any further with the company, Ortiz-Martinez filed a complaint with the Equal Employment Opportunity Commission and on July 30, 2013 she filed a complaint with the Anti-Discrimination Unit of the Puerto Rico Department of Labor.

On August 2, 2013, Ortiz-Martinez’s union representative at Fresenius, Marcos Soto (“Soto”), telephoned Ortiz-Martinez to inform her that a Fresenius representative, Awilda Rodriguez (“Rodriguez”), had been trying to reach her via phone and mail. After the call, Ortiz-Martinez sent Soto a follow-up letter that confirmed that they had spoken that day, contended that she had no missed calls from Fresenius, and indicated that she had not yet located or received the July 26, 2013 letter from Fresenius. Even after learning from Soto that Fresenius was attempting to reach her to discuss her return to work, Ortiz-Martinez did not contact the company or attempt to further communicate her accommodation needs until August 6, 2013.

On that day, Ortiz-Martinez met with Soto, Rodriguez, and Priscilla to discuss her needed accommodations. The Freseni-us representatives again informed Ortiz-Martinez that they needed more information concerning her medical restrictions in order to accommodate her injuries. Soto recommended that Fresenius contact the SIF in order to clarify Ortiz-Martinez’s medical restrictions and the company agreed to do so.

True to their word, the very next day, Fresenius wrote to the SIF seeking clarification of the medical restrictions and accommodations needed for Ortiz-Martinez. The letter, addressed to Ortiz-Martinez’s doctor, read in relevant part:

In the document you submitted for our consideration, you told us in general terms, that the employee has difficulty in performing certain tasks and movements. Consequently, we are having difficulty evaluating what type of accommodations would be most appropriate for the employee. To this end, we would ask that you provide us with more specific information regarding the recommended restrictions, such as the weight or amount in pounds that the employee may lift, the frequency and duration of the rest periods, the repetitive movements she must avoid, the specific limitations for grabbing, pulling or squeezing, among others that you may point out.

The letter also included a job description for Ortiz-Martinez’s role and noted that her duties typically included writing and documenting her work. Fresenius never received a response from the SIF or Ortiz-Martinez’s doctors to the August 7, 2013 request and a month later, Fresenius sent Ortiz-Martinez yet another letter detailing the additional information needed to accommodate her injuries. Specifically, the letter indicated that Fresenius was “interested in continuing to have an interactive process with [Ortiz-Martinez],” that Fre-senius was unsuccessful in its attempts to reach her doctors at the SIF, and that they needed additional information including: the maximum weight she could lift; the frequency and duration of rest periods required; the kind of repetitive movements to be avoided; the kind of limitation for holding, pulling, and gripping; her capacity for using her left hand at the level required to perform her essential duties as a social worker; and any other specific recommendations that could be made. Ortiz-Martinez claims that she never received this final letter, but admits she never again initiated any further communication with Fresenius concerning her accommodation requests after the August 6, 2013 meeting. Ortiz-Martinez never returned to work at Fresenius and in April 2014 she filed suit alleging that Fresenius failed to accommodate her disability in violation of the ADA.

Discussion

Having extensively laid out the undisputed facts in this case, Ortiz-Martinez’s appeal can be easily dispatched. We review the district court’s grant of summary judgment de novo. Carreras v. Sajo, García & Partners, 596 F.3d 25, 32 (1st Cir. 2010) (citing Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007)).

“The ADA provides ‘a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’ ” Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 82 (1st Cir. 2008) (quoting Katz v. City Metal Co., 87 F.3d 26, 30 (1st Cir. 1996)). Indeed, “[t]he ADA was enacted for ‘the elimination or reduction of physical and social structures that impede people with some present, past, or perceived impairments from contributing, according to their talents, to our Nation’s social, economic and civil life....’” Ramos-Echevarría v. Pichis, Inc., 659 F.3d 182, 186 (1st Cir. 2011) (quoting Tennessee v. Lane, 541 U.S. 509, 536, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004) (Ginsburg, J., concurring)). To that end, the ADA “prohibits an employer from discriminating against a qualified person with a disability in regard to ‘job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment’ because of his or her disability or perceived disability.” Id. (quoting 42 U.S.C. § 12112(a) (1990)).

Under the ADA an employer is required to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on [its] operation of the business.” 42 U.S.C. § 12112(b)(5)(A); see also Rocafort v. IBM Corp., 334 F.3d 115, 119 (1st Cir. 2003) (“Under the ADA, ‘an employer who knows of a disability yet fails to make reasonable accommodations violates the statute.’ ” (quoting Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999))). To survive summary judgment on a failure-to-accommodate claim, a plaintiff must prove that: “(1) he [or she] is disabled within the meaning of the ADA, (2) he [or she] was able to perform the essential functions of the job with or without a reasonable accommodation, and (3) [his or her employer], despite knowing of [his or her] disability, did not reasonably accommodate it.” Rocafort, 334 F.3d at 119; see also EEOC v. Kohl’s Dep’t Stores, Inc., 774 F.3d 127, 131 (1st Cir. 2014).

The district court found that Ortiz-Martinez failed to establish the first and third prongs: namely, that (1) she is disabled within the meaning of the statute; and (2) that her employer failed to reasonably accommodate her when she was the one responsible for the breakdown in the interactive process. On appeal, Ortiz-Martinez argues that the district court erred in its findings. Even if we assume the district court erred in concluding that Ortiz-Martinez was not a disabled person, because we find that Ortiz-Martinez was in fact responsible for the breakdown of the interactive process, we affirm the district court’s holding.

“[A]n employee’s request for accommodation sometimes creates ‘a duty on the part of the employer to engage in an interactive process.’” Kohl’s, 774 F.3d at 132 (quoting Enica v. Principi, 544 F.3d 328, 338 (1st Cir. 2008)). The interactive process, which varies depending on the circumstances of each case nevertheless requires both the employer and employee to engage in a meaningful dialogue, in good faith, for the purpose of discussing alternative reasonable accommodations. Id. Once “a breakdown in the process has been identified, ‘courts should look for signs of failure to participate in good faith or failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary.’ ” Enica, 544 F.3d at 339 (quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996)). If an “employee fails to cooperate in the process, then the employer cannot be held liable under the ADA for a failure to provide reasonable accommodations.” Id.

Ortiz-Martinez argues on appeal that Fresenius’s request for additional information was excessive and unrelated to her work requirements as a social worker. She also argues that she was not responsible for the breakdown in communication because she “manifested her desire to be reinstated after her disability-related leave of absence,” Fresenius never offered her any sort of reasonable accommodation, and Fresenius never provided evidence that the letters it sent to the SIF were actually sent. We disagree.

The burden is on Ortiz-Martinez to demonstrate in the first instance what specific accommodations she needed and how those accommodations were connected to her ability to work. See Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 89 (1st Cir. 2012) (“The obligation is on the employee to provide sufficient information to put the employer on notice of the need for accommodation. This means not only notice of a condition, but of a ‘causal connection between the major life activity that is limited and the accommodation sought.’ ” (citations omitted)). Notwithstanding this burden, here the record is rife with uncontested facts demonstrating that Fresenius continually attempted to engage in the interactive process in good faith, while Ortiz-Martinez refused to meaningfully engage after submitting an initial letter from her doctors on July 18, 2013 and attending a meeting on August 6, 2013.

First, Fresenius’s request for more specific information was reasonable and important to determine the type of accommodations Ortiz-Martinez required. How much weight Ortiz-Martinez could support with her hands, the kind of movements that she was to avoid due to her injury, and how long or frequently she needed breaks throughout the day were directly relevant to the accommodations she would need and her duties of daily desk and personal computer work, while performing and documenting patient assessments, care planning, and counseling. “An accommodation request must be sufficiently direct and specific, and it must explain how the accommodation is linked to plaintiffs disability.” Id (citing Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 102 (1st Cir. 2007); Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 129 (1st Cir. 2009)). Fresenius’s attempts to further clarify Ortiz-Martinez’s requests and to seek specific information regarding her accommodation needs were not unreasonable, especially in light of her burden to explain how her specific accommodation requests were related to her disability and duties at work.

Ortiz-Martinez’s remaining complaints are also without merit. The mere fact that she expressed a desire to be reinstated does not demonstrate that she meaningfully engaged with the interactive process in good faith. A declaration of a desire to return did not assist Fresenius in probing the contours of her physical limitations in order to fashion an. appropriate accommodation and Fresenius’s failure to offer her any type of accommodation due to a lack of sufficient information cannot be the basis of liability — Fresenius committed no error in attempting to clarify her needs so that it could properly accommodate her. We therefore conclude that Ortiz-Martinez’s failure “to make reasonable efforts to help [Fresenius] determine what specific accommodations are necessary” caused the breakdown in the interactive process. Eni-ca, 544 F.3d at 339. Consequently, her failure to cooperate in Fresenius’s attempts to identify the proper accommodations precludes a finding that the company is liable for the failure to accommodate. See Phelps v. Optima Health, Inc., 251 F.3d 21, 27-28 (1st Cir. 2001) (where appellant failed to cooperate or actively engage in interactive process, employer could not be held liable for failure to accommodate).

Lastly, with regard to Ortiz-Martinez’s argument that Fresenius never submitted proof that its letter to the SIF on August 7, 2013 or its final letter to Ortiz-Martinez on September 6, 2013 were actually sent, these arguments are deemed forfeited because Ortiz-Martinez failed to raise them before the district court. See Davila v. Corporación De P.R. Para La Difusion Publica, 498 F.3d 9, 14 (1st Cir. 2007) (Finding that an argument was forfeited because “[t]he appellant did not present it to the district court.”). In any event, even if these two letters were not considered, the record is jam-packed with other instances of Fresenius’s attempts to communicate and engage in the interactive process with Ortiz-Martinez.

Conclusion

The district court correctly found Ortiz-Martinez responsible for the breakdown in communications and thus Fresenius cannot be held liable for its failure to accommodate. We, therefore, affirm the district court’s dismissal of her ADA claims.

      . In her complaint, Ortiz-Martínez stated that Fresenius Medical Care Extracorporeal Alliance of Puerto Rico, Inc. was her employer and that the company's name was later changed to Fresenius Health Partners Puerto Rico, LLC. In its answer to her complaint, Bio-Medical Applications of Arecibo, Inc. stated that it was served by Ortiz-Martínez in the underlying action, that Ortiz-Martínez erroneously named the company as Fresenius Health Partners Puerto Rico, LLC, and that Bio-Medical Applications of Arecibo, Inc. had been Ortiz-Martinez’s sole employer during all relevant times to the underlying action. Ortiz-Martínez did not dispute this fact below, nor on appeal, and the parties agreed that her proper employer was Bio-Medical Applications of Arecibo, Inc. Although Bio-Medical Applications of Arecibo, Inc. stated, that it would correct the caption of the case by separate motion, no such motion was ever filed. Instead, Bio-Medical Applications of Arecibo, Inc. continued to refer to itself as "Fresenius” before the magistrate judge and once again on appeal. To avoid any confusion we continue to refer to Bio-Medical Applications of Arecibo, Inc. as "Fresenius.”

        . In order to avoid confusion, we refer to Priscilla Ortiz by her first name — no disrespect is intended.

      . The job description detailed, in relevant part, that as a social worker, Ortiz-Martinez was responsible for patient assessments, care planning, and counseling. Ortiz-Martinez was responsible for "assessing] patients’ psychosocial status, strengths and areas of need that may affect rehabilitation.” And her "day to day work include[d] desk and personal computer work and interaction with patients, facility staff and physicians.”


author: STAHL, Circuit Judge.

text:
    Terry BRENNAN; Ron Kenner; Kevin Koziatek; Jeffrey Buterbaugh; Dragon Gate Management, Ltd; Vincent Rampe, Plaintiffs, Appellants, Aviad Bessler, individually and on behalf of all others similarly situated; Theodore J. Daly, Plaintiffs, v. ZAFGEN, INC.; Thomas E. Hughes, Defendants, Appellees.
    No. 16-2057
    United States Court of Appeals, First Circuit.
    April 7, 2017

      Jeffrey C. Block, with whom Joel A. Fleming, Block & Levitón LLP, Boston, MA, Jacob A. Goldberg, Gonen Haklay, and The Rosen Law Firm, P.A. were on brief, for appellants.
    Deborah S. Birnbach, with whom Kevin P, Martin, Adam Slutsky, Kate MacLe-man, Joshua Bone, and Goodwin Procter LLP, Boston, MA, were on brief, for ap-pellees.
    Before KAYATTA, Circuit Judge, SOUTER, Associate Justice, and STAHL, Circuit Judge.

       Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

   STAHL, Circuit Judge.

Following a significant drop in the share price of Zafgen, Inc., a biopharmaceutical developer based in Boston, Massachusetts, its investors brought a securities fraud class action suit against the company and its Chief Executive Officer, Dr. Thomas Hughes (“defendants”), pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b) and 78(t)(a), and Securities and Exchange Commission Rule 10b-5, 17 C.F.R. § 240.10b-5. The investors’ complaint focuses on several allegedly misleading statements made by the defendants regarding Zafgen’s anti-obesity drug Belo-ranib. Specifically, the complaint alleges that the defendants disclosed some, but not all, of the thrombosis-related adverse events that occurred during Beloranib’s clinical trials. The investors claim that these partial disclosures caused Zafgen’s common stock to trade at artificially-inflated prices — prices that plunged after a clinical patient taking Beloranib died and the Food and Drug Administration (“FDA”) placed the drug on a partial clinical hold.

Despite these allegations, the district court granted the defendants’ motion to dismiss, concluding that the investors’ complaint did not contain facts giving rise to a “cogent and compelling” inference of scienter as required under the Private Securities Litigation Reform Act of 1995 (“PSLRA”). Brennan v. Zafgen, Inc., 199 F.Supp.3d 444, 471 (D. Mass. 2016) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 324, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)). We agree, and therefore affirm.

I.

We recite the facts as alleged in the complaint, supplemented by certain “materials [the] defendants filed in the district court in support of their motion to dis miss.” Fire & Police Pension Ass’n of Colo. v. Abiomed, Inc., 778 F.3d 228, 232 (1st Cir. 2015); see also Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993) (noting that courts, when ruling on a motion to dismiss in securities fraud cases, often consider “documents the authenticity of which are not disputed by the parties,” along with “official public records; ... documents central to plaintiffs’ elaim[s]; [and] documents sufficiently referred to in the complaint”).

Zafgen’s stated goal is “to significantly improv[e] the health and well-being of patients affected by obesity and complex metabolic disorders.” To that end, Zafgen has focused its efforts on developing Belo-ranib, a drug aimed at combating these conditions. Hughes, as Zafgen’s Chief Executive Officer, oversaw Beloranib’s clinical testing. While doing so, Hughes also steered Zafgen towards its initial public offering (“IPO”), which the company completed on June 19, 2014. The current dispute arises from the intersection of these two strategic endeavors.

A. Beloranib and the FDA Approval Process

As part of the development process, the FDA requires that any new drug “go through a series of clinical trials before it can be approved for marketing and sales in the United States.” N.J. Carpenters Pension & Annuity Funds v. Biogen IDEC Inc., 537 F.3d 35, 39 (1st Cir. 2008) (citation omitted). After a pharmaceutical developer finishes its initial testing of a drug on animals, it must then “submit[ ] an application to the FDA for approval to test the drug on humans.” Id.; see also 21 C.F.R. § 312.20. If the FDA approves that request, human testing begins. Typically, such testing consists of three phases of clinical trials. Biogen IDEC, 537 F.3d at 39; see also 21 C.F.R. § 312.21. Each phase “requires the company to test the drug on a broader population and results in more stringent monitoring and evaluation.” Biogen IDEC, 537 F.3d at 39. Throughout the course of these trials, “the drug company must report to the FDA and to all participating physicians any serious and unexpected adverse drug experiences that occur.” Id. (citing 21 C.F.R. § 312.32(c)(l)(i)(A)).

At the time the investors first brought this suit, Zafgen had conducted three Phase I trials, four Phase II trials, and one Phase III trial. The investors’ complaint, however, concentrates on Zafgen’s ZAF-201 trial, a Phase II trial that consisted of 160 patients and lasted from August 2012 to May 2013. From this group of 160 patients; Zafgen treated 122 of them with Beloranib. As the ZAF-201 trial progressed, four of the patients given Beloranib suffered adverse “thrombotic,” or blood-clotting, events of varying severity. Third-party clinical investigators classified two of these adverse events as “superficial” and the other two as “serious.” Zafgen disclosed the two serious adverse events in advance of its IPO, noting their occurrence in its April 18, 2014 Form S-l Registration Statement. The company did not, however, directly disclose the two superficial adverse events at that time.

B. Zafgen’s Stock Price Declines

Zafgen’s share price began to decline in October 2015. On October 12th, Zafgen’s share price closed at $34.76. By the close of trading the next day, Zafgen’s share price had dropped to $15.75. On October 14th, Zafgen announced that a patient in its ongoing Phase III trial had died, and confirmed on October 16th that the patient had been treated with Beloranib, not a placebo, and that the FDA had placed Beloranib on a partial clinical hold. During a conference call held that same day, Dr. Dennis Kim, Zafgen’s Chief Medical' Officer, likewise informed analysts that a total of six adverse thrombotic events had occurred throughout the course of Beloran-ib’s clinical testing: two in the company’s ongoing clinical trials and four in the completed ZAF-201 trial. Dr. Kim’s comments marked the first time that Zafgen or any of its representatives had informed its investors of the two superficial adverse thrombotic events that had occurred in the ZAF-201 trial. By the close of trading on October 16th, Zafgen’s share price plummeted to $10.36 per share, a nearly 51% decline from the previous day’s closing price.

C. Zafgen’s Disclosures

Based on these events, the investors brought a class action suit against Zafgen and Hughes. The complaint asserted claims on behalf of a putative class consisting of all persons who purchased or otherwise acquired Zafgen common stock between June 19, 2014, the date of Zafgen’s IPO, and October 16, 2015, the date the company announced the FDA’s partial clinical hold. In the complaint, the investors claimed that the defendants made false or misleading statements concerning the results of the ZAF-201 trial, to wit:

• As severely obese patients are at an increased risk for cardiovascular disease, we measured systemic bio-markers of cardiovascular disease risk, including low density lipoprotein cholesterol, HDL, CRP, triglycerides and blood pressure in trial participants, to determine [B]eloranib’s impact on such biomarkers. The results of these biomarker measurements in this trial, as summarized below, suggest that [B]eioranib treatment does not increase the risk of cardiovascular disease and may be associated with reduced cardiovascular disease risk.
• There were no deaths or any SAEs [“serious adverse events”] deemed to be possibly, probably, or definitely related to [B]eloranib, although there were two serious thrombotic adverse events which, while not attributed to [Bjeloranib treatment, may point to the utility of assessment of prior history of thrombotic events in patients enrolled in subsequent trials and added vigilance for AEs- related to blood clotting during future clinical trials. The most commonly reported TEAEs [“treatment-emergent adverse events”] were gastrointestinal disorders, mainly nausea, diarrhea, or vomiting, nervous system disorders, mainly dizziness, and psychiatric disorders, mainly insomnia, sleep disorder, or abnormal dreams. TEAEs were generally mild in severity and transient. Other frequently reported TEAEs were headaches and injection site bruising/itching, although the incidences were comparable to placebo and not observed to be dose-related.

The investors alleged that Zafgen made these statements (and others that used substantially similar language) in ten different documents, all of which Hughes signed. These disclosures, the investors maintained, were materially misleading because “the FDA considers the frequency/rate of adverse events in determining whether a drug is causing those adverse events,” meaning that the defendants should have disclosed even the superficial adverse thrombotic events. Similarly, the investors alleged that “[a]t all times during the Class Period, [defendants knew — or were reckless in not knowing — that there was a significant risk of thrombotic adverse events in future clinical trials of [B]eloranib.”

In response to the investors’ allegations, the defendants emphasize several other statements made by Zafgen in its Form S-1 and its subsequent SEC filings, claiming that these additional disclosures belie the investors’ accusations of fraudulent intent:

• SAEs that are not characterized by clinical investigators as possibly related to [Bjeloranib or SAEs that occur in small numbers may not be disclosed to the public until such time the various documents submitted to the FDA as part of the approval process are made public. We are unable to determine if the subsequent disclosure of SAEs will have an adverse effect on our stock price.
• Many companies in the pharmaceutical arid biotechnology industries have suffered significant setbacks in late stage clinical trials after achieving positive results in early-stage development, and we cannot be certain that we will not face similar setbacks. These setbacks have been caused by, among other things, pre-clinical findings made while clinical trials were underway or safety or efficacy observations made in clinical trials, including previously unreported adverse events.

D. The District Court’s Dismissal of the Complaint

On' August 9, 2016, the district court granted Zafgen and Hughes’s motion to dismiss on the ground that the investors had failed to adequately plead scienter. With respect to the investors’ Section 10(b) claim, the district court determined that the complaint’s allegations were only marginally material, thus weakening any inference of scienter. The district court then also dismissed the investors’ Section 20(a) claim against Hughes. This appeal followed.

II.

The investors argue that the district court improperly heightened the PSLRA’s pleading requirements, applied these heightened requirements to its complaint, and then mistakenly dismissed both their claims for failing to plead facts giving rise to a “strong inference” of scienter. We review whether a complaint meets the PSLRA’s pleading requirements de novo, accepting all well-pled factual allegations as true and making all reasonable inferences in a plaintiffs favor. See Miss. Pub. Emps.’ Ret. Sys. v. Bos. Sci. Corp., 523 F.3d 75, 85 (1st Cir. 2008). Even through this lens, we agree with the district court that the facts alleged in the investors’ complaint do not give rise to a sufficiently strong inference of scienter.

A. Section 10(b) and Rule 10b-5

Section 10(b) of the Securities Exchange Act “forbids the ‘use or employ, in connection with the purchase or sale of any security ..., [of] any manipulative or deceptive device.’ ” Tellabs, Inc., 551 U.S. at 318, 127 S.Ct. 2499 (alterations in original) (quoting 15 U.S.C. § 78j(b)). Pursuant to this statute, SEC Rule 10b-5 makes it unlawful to, among other things, “make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.” 17 C.P.R. § 240.10b-5(b). Therefore, to state a claim for securities fraud under Section 10(b) and Rule 10b-5, “a plaintiff must allege: (1) a material misrepresentation or omission; (2) scienter, or a wrongful state of mind; (3) in connection with the purchase or sale of a security; (4) reliance; (5) economic loss; and (6) loss causation.” In re Genzyme Corp. Sec. Litig., 754 F.3d 31, 40 (1st Cir. 2014).

B. Scienter and the PSLRA

Scienter encompasses a “mental state embracing [an] intent to deceive, manipulate, or defraud.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193 n.12, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). At the pleading stage, the PSLRA requires plaintiffs to “state with particularity facts giving rise to a strong inference that the defendant acted with” scienter. 15 U.S.C. § 78u-4(b)(2)(A); see also ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 58 (1st Cir. 2008) (describing the PSLRA’s pleading standard for scienter as “rigorous”). In the current setting, scienter encompasses both a “conscious intent to defraud” and, alternatively, a “high degree of recklessness.” ACA Fin. Guar. Corp., 512 F.3d at 58 (quoting Aldridge v. A.T. Cross Corp., 284 F.3d 72, 82 (1st Cir. 2002)). Specifically, recklessness involves “a highly unreasonable omission” that involves “not merely simple, or even inexfcusable, negligence, but an extreme departure from the standards of ordinary care, and which presents a danger of misleading buyers and sellers that is either known to the defendant or is so obvious that the actor must have been aware of it.” Greebel v. FTP Software, Inc., 194 F.3d 185, 198 (1st Cir. 1999) (quoting Sundstrand Corp. v. Sun Chem. Corp., 553 F.2d 1033, 1045 (7th Cir. 1977)).

Meanwhile, “[t]o qualify as ‘strong’ ... an inference of scienter must be more than merely plausible or reasonable — it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent.” Tellabs, 551 U.S. at 314, 127 S.Ct. 2499. When evaluating a complaint for compliance with this demanding standard, a court “must consider the complaint in its entirety ... [Courts must ask] whether all the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard.” Id. at 322-23, 127 S.Ct. 2499. To that effect, we have found the standard met where a complaint “contains clear allegations of admissions, internal records or witnessed discussions suggesting that at the time they made the statements claimed to be misleading, the defendant[s] were aware that they were withholding vital information or at least were warned by others that this was so.” In re Bos. Sci. Corp. Sec. Litig., 686 F.3d 21, 31 (1st Cir. 2012). Likewise, a plaintiff “may combine various [other] facts and circumstances indicating fraudulent intent,” including those demonstrating “motive and opportunity,” to satisfy the scien-ter requirement. Aldridge, 284 F.3d at 82.

Here, the investors maintain that they met the PSLRA’s requirements for pleading scienter. They hinge this argument on their allegations that the defendants (1) knew, or were reckless in not knowing, about news and scientific articles that purportedly established a “link” between Be-loranib and the occurrence of thrombotic adverse events; and (2) had a motive to commit securities fraud, as shown by Zaf-gen’s compensation structure and the “heavy” insider sales that occurred before the patient death. We find these arguments unpersuasive, and therefore hold that the complaint’s allegations, viewed holistically, do not support a strong inference of scienter under either a conscious intent or recklessness theory.

1. News and Scientific Articles

To start, the investors’ reliance on news and scientific articles analyzing the effects of angiogenesis inhibitors, the class of drug to which Beloranib belongs, is misplaced. “The key question in this case is not whether defendants had knowledge of certain undisclosed facts, but rather whether the defendants knew or should have known that their failure to disclose those facts” risked misleading investors. City of Dearborn Heights Act 345 Police & Fire Ret. Sys. v. Waters Corp., 632 F.3d 751, 758 (1st Cir. 2011) (internal citation omitted). Here, though the articles may suggest that the defendants had an awareness of some connection between Beloran-ib and thrombotic events, they do not show that the defendants deliberately or recklessly risked misleading investors by not disclosing the two superficial adverse thrombotic events from the ZAF-201 study until October 16, 2015. See In re NVIDIA Corp. Sec. Litig., 768 F.3d 1046, 1060 (9th Cir. 2014) (noting that the articles cited by the plaintiffs did not contribute to a strong inference of scienter, in part because they “d[id] not reflect [the defendants’] knowledge” at the time of the alleged misstatements).

For example, two of the cited articles simply analyze the general effects of an-giogenesis inhibitors. Three other articles, meanwhile, examine clinical trials conducted for drugs other than Beloranib which were used to treat cancer, not severe obesity. Moreover, developers often administered these other drugs at significantly higher dosage levels compared to those dispensed in the ZAF-201 study. Of those articles that did discuss Beloranib, several suggested that lower doses of the drug reduced the risk of potential thrombotic-related side effects in patients being treated for obesity-related ailments.

Taken together, the articles do not add much support for the complaint’s allegation that the defendants knew, or were reckless in not knowing, that they risked misleading investors unless they disclosed the two superficial adverse thrombotic events. See In re Ariad Pharm., Inc. Sec. Litig., 842 F.3d 744, 751 (1st Cir. 2016) (noting that “[a] statement cannot be intentionally misleading if the defendant did not have sufficient information at the relevant time to form an evaluation that there was a need to disclose certain information and to form an intent not to disclose it” (alteration in original) (quoting Biogen IDEC, 537 F.3d at 45)). This conclusion is especially warranted where, as here, the complaint contains no specific facts about any “warnings by subordinates or expressions of concern by executives” regarding the propriety of allegedly deceptive disclosures. See Auto Indus. Pension Tr. Fund v. Textron Inc., 682 F.3d 34, 39 (1st Cir. 2012).

2. Motive and Insider Trading Allegations

The complaint’s motive allegations are similarly deficient. First, the investors focus on Zafgen’s compensation structure, namely that “a significant portion of [its] executives’ annual compensation consists of ‘Option Awards’ and ‘Non-Equity Incentive Plan Compensation’ (i.e., ‘performance-based cash bonuses’).” They allege that this structure resulted in Zafgen insiders, armed with undisclosed information regarding the ZAF-201 study results, selling substantial amounts of company shares in September 2015. Hughes, for instance, sold 22,500 of his Zafgen shares on September 17, 2015, and another 23,126 shares on September 18, 2015, generating approximately $1.8 million in personal proceeds.

Of course, even “weak[ ]” insider trading allegations provide “some support against the defendants’ motion to dismiss.” Miss. Pub. Emps.’ Ret. Sys., 523 F.3d at 92 (quoting Shaw v. Dig. Equip. Corp., 82 F.3d 1194, 1224 (1st Cir. 1996)). Still, “[t]he vitality of the inference to be drawn depends on the facts, and can range from marginal to strong.” Greebel, 194 F.3d at 197-98 (internal citations omitted). Here, the district court found that the insider trading alleged in the complaint was insubstantial. On appeal, the investors do not challenge the district court’s finding to that effect, instead arguing that the district court erroneously drew a negative inference against scienter based on the weakness of their allegations. Not so. Rather, the district court observed that the insider trading allegations in this case “are relatively weak” and therefore found that the allegations “d[id] not alter the conclusion that the complaint as a whole fails to raise a strong inference of scien-ter.” Brennan, 199 F.Supp.3d at 468.

In any event, we agree with the district court that the strength of the insider trading allegations drifts toward the marginal end of that spectrum because Hughes and all other Zafgen insiders kept the vast majority of their Zafgen holdings. After accounting for Hughes’s vested options, he retained at least 93% of his Zafgen holdings even after the September 2015 sales, and every other insider identified in the complaint retained at least 85%. See Waters Corp., 632 F.3d at 760-61 (“In calculating the percent of holdings sold, ... it is appropriate to consider not only the shares of stock that [the defendants] held prior to their sales, but also the shares that they could have sold through the exercise of options.... ”). Moreover, all of the insider sales happened before the patient death that occurred during Zafgen’s Phase III testing. As the district court noted:

During the October 16 conference call, which occurred almost a month after the final insider sale on September 18, Hughes stated that Zafgen disclosed the patient death to the FDA approximately two weeks earlier, and “well within” the one week requirement from the death to the FDA disclosure. Thus, even liberally construed, the complaint’s allegations support an inference that the patient death occurred at least a week after the final insider sale.

Brennan, 199 F.Supp.3d at 469. Therefore, neither the timing nor the amount of insider sales is particularly unusual or suspicious.

Second, the complaint asserts that Zafgen was a one-drug company, meaning Zafgen and Hughes had a motive to “shade the truth” since all of the company’s hopes, and a significant portion of Hughes’s compensation, hinged on Beloranib’s success. However, such “catch-all allegations,” which merely assert the existence of a motive and an opportunity to engage in fraudulent behavior, do not satisfy the PSLRA “without something more.” In re Cabletron Sys., Inc., 311 F.3d 11, 39 (1st Cir. 2002) (quoting Greebel, 194 F.3d at 197); see also Aldridge, 284 F.3d at 83 (noting that generalized financial incentive allegations are relevant to the scienter analysis only if they “go far beyond the usual arrangements of compensation based on the company’s earnings”). Here, the complaint only identifies “the usual concern by executives to improve financial results.” Cabletron, 311 F.3d at 39. Given that we must take into account the opposing inferences stemming from a complaint’s allegations, we find it difficult to infer fraudulent intent simply because the defendants’ compensation structure rewards the achievement of corporate goals. See In re Rigel Pharm., Inc. Sec. Litig., 697 F.3d 869, 884 (9th Cir. 2012) (noting that “it is common for executive compensation ... to be based partly on the executive’s success in achieving key corporate goals” and that it would be improper to “conclude that there is fraudulent intent merely because a defendant’s compensation was based in part on such successes”). Consequently, we assign these allegations little weight in the scienter calculus.

S. Other Considerations

Several other considerations also bolster our conclusion that the complaint’s allegations do not give rise to a sufficiently strong inference of scienter. To start, the marginal materiality of the two superficial adverse thrombotic events undermines such a finding. As we have previously noted, “the materiality and scienter inquiries are linked,” Abiomed, 778 F.3d at 240, since “the marginal materiality of an omitted fact ‘tends to undercut the argument that the defendants acted with the requisite intent ... in not disclosing’ it,” Ariad, 842 F.3d at 750 (citing Abiomed, 778 F.3d at 242). Thus, we must consider whether there is “a substantial likelihood that” a reasonable investor would have viewed the disclosure of the two superficial adverse thrombotic events “as having significantly altered the total mix of information made available.” Basic Inc. v. Levinson, 485 U.S. 224, 231-32, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988).

The investors’ arguments to this effect are unconvincing. “Adverse event reports are daily events in the pharmaceutical industry.” Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 43, 131 S.Ct. 1309, 179 L.Ed.2d 398 (2011). To be sure, these reports may be material even if they “d[o] not provide statistically significant evidence of a causal link.” Ld. at 44, 131 S.Ct. 1309. Nonetheless, it remains unlikely that a reasonable investor in this case would have viewed the two superficial adverse thrombotic events, at the time they occurred, as having significantly altered the information available to them. Zafgen forthrightly disclosed the two serious adverse thrombotic events to investors, and third-party investigators never linked any of the adverse events, including the serious ones, to Beloranib. Indeed, the superficial adverse thrombotic events took on the bulk of their significance only after the patient death. See ACA Fin. Guar. Corp., 512 F.3d at 62 (“A plaintiff may not plead ‘fraud by hindsight’; i.e., a complaint ‘may not simply contrast a defendant’s past optimism with less favorable actual results’ in support of a claim of securities fraud.” (quoting Shaw, 82 F.3d at 1223)).

In response, the investors claim that because the FDA looks to the overall frequency of adverse thrombotic events when evaluating a drug’s safety, all adverse thrombotic events must be material. This argument, however, ignores the Supreme Court’s observation that “the mere existence of reports of adverse events — which says nothing in and of itself about whether the drug is causing the adverse events— will not satisfy” the materiality standard. Matrixx Initiatives, 563 U.S. at 44, 131 S.Ct. 1309. Instead, “[s]omething more is needed.” Id. In this case, neither “the source, content, [nor] context of the reports” provides that “[s]omething more.” Id. Although a pharmaceutical developer must report all adverse events when filing a New Drug Application with the FDA, it need not disclose every superficial adverse event until it reaches that stage of clinical development. See 21 C.F.R. § 312.33(b)(1) (stating that developers, in their annual reports to the FDA, must disclose summary information “showing the most frequent and the most serious” adverse events observed during that year’s clinical and nonelinical drug investigations). Thus, even' the accuracy of the investors’ core assumption, that the FDA cared about the superficial adverse thrombotic events at the time they occurred, seems doubtful, further diminishing the materiality of these events to reasonable investors. See Bos. Sci. Corp., 686 F.3d at 31 (stating that “marginal materiality not only defeats any independent inference of deliberate withholding but also makes the pled facts insufficient for a fact finder to find the ‘extreme recklessness in not disclosing the fact’ that is the least that is required to establish scienter” (quoting Waters Corp., 632 F.3d at 757)).

We also note that Zafgen’s own disclosures both before and during the class period weaken the complaint’s scienter showing. The defendants disclosed to investors the two serious adverse thrombotic events, and noted on several occasions that the company was not going to disclose all the adverse events as they occurred. Although “[f]ragmentary information may be as misleading ... as active misrepresentation,” V.S.H. Realty, Inc. v. Texaco, Inc., 757 F.2d 411, 414-15 (1st Cir. 1985) (alteration in original) (citation omitted), the facts alleged in the complaint at the very least support a strong competing inference that the defendants disclosed what they considered to be, at the time, the most relevant information about Beloranib’s clinical trials.

The investors respond by pointing to literature from the Centers for Disease Control and Prevention (“CDC”) that they claim suggests that it is merely “fortuitous” for a blood clot to be non-serious. According to the investors, this report, coupled with the defendants’ statement acknowledging the possible “utility of assessment of prior history of thrombotic events ... and added vigilance for [adverse events] related to blood clotting during future clinical trials,” shows that their decision to not disclose the two non-serious thrombotic events was made intentionally or recklessly. However, while the CDC’s language cited in the complaint suggests that it may be true that “[h]ow a clot affects the body depends on the type and location of the clot,” it does not mean that good fortune is all that separates a superficial thrombotic adverse event from a more serious one. Instead, the FDA’s regulations, which do not require the disclosure of all thrombotic events, see 21 C.F.R. 312.33(b)(1), and the defendants’ own disclosures, which informed investors of the most serious adverse events and warned investors that Zafgen would not disclose all adverse events as they occurred, undercut the investors’ efforts to make this showing.

In short, although the investors maintain that Zafgen’s statements prove the company acknowledged that even superficial adverse events were important to investors, the totality of the company’s disclosures produces a compelling counter-inference that the company wished to “provide investors with warnings of risks,” actions which “generally weaken the inference of scienter.” Waters Corp., 632 F.3d at 760 (quoting Ezra Charitable Tr. v. Tyco Int’l, Ltd., 466 F.3d 1, 8 (1st Cir. 2006)). Thus, the defendants’ disclosures both before and during the class period further “undercut any inference of fraudulent intent on the part of defendants.” Genzyme Corp., 754 F.3d at 42.

III.

The investors concede that their Section 20(a) claim against Hughes is derivative of their Section 10(b) and Rule 10b-5 claim. Because we hold that the complaint, considered as a whole, does not present allegations giving rise to a “cogent and compelling” inference of scienter, Tellabs, 551 U.S. at 324, 127 S.Ct. 2499, we conclude that the district court properly dismissed both claims. Therefore, the judgment of the district court is affirmed.

      . The investors filed their original complaint on October 21, 2015, and amended that complaint on February 22, 2016. For the sake of clarity, we refer to this amended complaint as the "complaint” throughout this opinion.

      . At all relevant times, Zafgen was a "one-drug company,” meaning that Beloranib was Zafgen’s only product candidate in clinical development.

      . Our decision in Biogen IDEC ably summarized the objectives of these three phases:
      Phase I studies generally involve twenty to eighty subjects, and are designed to determine how the drug works in humans and the side effects associated with increasing doses. Phase II studies usually involve no more than several hundred subjects, and are designed to evaluate the effectiveness of the drug, as well as common short-term side effects and risks. Phase III studies are large-scale trials, usually involving several hundred to several thousand subjects, and are intended to gather the information necessary to provide an adequate basis for labeling the drug.... After Phase III, the FDA considers the results of all the clinical trials in determining whether to approve a drug for market.
      Id. (internal citations omitted).

      . An adverse event is “serious” if “it results in ... [d]eath, a life-threatening adverse event, inpatient hospitalization or prolongation of existing hospitalization, a persistent or significant incapacity or substantial disruption of the ability to conduct normal life functions, or a congenital anomaly/birth defect,” or where it "may require medical or surgical intervention to prevent one of [these] outcomes.” 21 C.F.R. § 312.32(a).

      . The district coiirt found that the only materially misleading statements alleged in the complaint concerned the defendants' failure to disclose the non-serious adverse thrombotic events. Neither the investors nor the defendants dispute this feature of the district court’s ruling.

      . "Even if plaintiffs wish to prove scienter by 'recklessness,' they still must allege, with sufficient particularity, that defendants had full knowledge of the dangers of their course of action and chose not to disclose those dangers to investors.” Maldonado v. Dominguez, 137 F.3d 1, 9 n.4 (1st Cir. 1998).

      . For instance, doses in the cancer trials often exceeded 50 mg of angiogenesis inhibitors, while Beloranib doses in the 2012-2013 ZAF-201 clinical trial, ranged from 0.6 mg to 2.4 mg.

      . This is not to say that a plaintiff in a securities case governed by the PSLRA must plead the existence of direct evidence of scienter to avoid dismissal. As the investors point out, an investor’s access to such information prior to discovery will often be limited at best. Nonetheless, it stands to reason that where a complaint is devoid of any direct-evidence allegations, the indirect-evidence allegations in the complaint will need to do more work to carry the burden of raising a "strong inference of scienter” on their own. See Local No. 8 IBEW Ret. Plan & Tr. v. Vertex Pharm., Inc., 838 F.3d 76, 83 n.9 (1st Cir. 2016) (acknowledging that "prior to discovery, few plaintiffs will be in a position to make specific allegations about the form of internal documents” or discussions, but also noting that Congress has nonetheless "deliberately raised the entry bar to discovery ... through the PSLRA’s heightened pleading standards” (alteration in original) (quoting Textron, 682 F.3d at 40)).

      . We decline to address the parties' arguments concerning the defendants’ 10b5-l trading plans, see 17 C.F.R. § 240.10b5-l(c), because the investors’ allegations regarding the purported insider trading are insufficient even without considering those plans.