Carreras v. Sajo Garcia & Partners

Filing 920100223

Opinion

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var WPFootnote1 = ' Of the Federal Circuit, sitting by designation.\
'

var WPFootnote2 = ' Although Carreras characterizes Ruíz\'s email as a tantrum, he\
does not deny that it was sent and that he replied.\
'

var WPFootnote3 = ' SGP\'s personnel manual listed working hours as 9 a.m. to 6 p.m.,\
but expressly stated that working hours are irregular in the\
advertising industry and that all employees must be available when\
necessary during and/or after normal hours. The only storage\
requirement for Carreras\' insulin was refrigeration. SGP had a\
refrigerator available to employees at its offices.\
'

var WPFootnote4 = '  Carreras argues that, despite its assertion to the contrary, the\
district court rejected his entire response to SGP\'s Statement of\
Uncontested Facts. We disagree. In its recitation of the facts,\
set forth in a portion of the opinion entitled "Uncontested Facts,"\
the district court made clear which facts it considered to be\
uncontested with citations to the record signifying that certain of\
those facts were derived from SGP\'s Statement of Uncontested Facts. \
As noted, the court\'s focus in this recitation was on Carreras\'\
workplace discrimination claim, not his retaliation claim. The\
district court was under no obligation to go beyond the relevant\
facts, as it saw them, in order to catalogue the sufficiency of\
Carreras\' opposition to every one of SGP\'s proposed facts.\
'

var WPFootnote5 = ' "A \'genuine\' issue is one that could be resolved in favor of\
either party, and a \'material fact\' is one that has the potential\
of affecting the outcome of the case." Calero-Cerezo v. U.S. Dep\'t\
of Justice, 355 F.3d 6, 19 (1st Cir. 2004).\
'

var WPFootnote6 = ' Although Carreras states on appeal that he was regarded as having\
an impairment, he did not assert this argument below and we deem it\
to be waived. Even if Carreras had not waived this argument below,\
it would fail here because his brief contains no support for the\
claim. As we have explained on many occasions, "\'[i]ssues adverted\
to in a perfunctory manner, unaccompanied by some effort at\
developed argumentation, are deemed waived.\'" United States v.\
Rivera Calderon, 578 F.3d 78, 94 n.4 (1st Cir. 2009) (quoting\
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).\
'

var WPFootnote7 = ' In considering whether a litigant\'s physical impairment is\
substantially limiting for purposes of the ADA, the inquiry is not\
confined to limitations that might occur in the workplace. Toyota\
Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 200-01\
(2002), superseded by statute on other grounds, ADA Amendments Act\
of 2008, Pub. L. No. 110-325, 172 Stat. 3553 (2008). Rather,\
courts must focus on whether a major life activity is substantially\
impaired in the course of a litigant\'s daily life. Id. at 200-02. \
'

var WPFootnote8 = ' Carreras has made no argument about the effect of the ADA\
Amendments Act of 2008 on his claim. See Pub. L. No. 110-325, §\
2(a)(4)-(6), 122 Stat. 3553 (2008). Regardless, that law is not\
retroactive where, as here, the disputed activity occurred before\
its passage and Congress expressed no clear intent to make the\
statute retroactive. We have recently suggested as much, see\
Thornton v. United Parcel Serv., Inc., 587 F.3d 27, 34 n.3 (1st\
Cir. 2009), and all circuits to consider the issue to date have so\
held. See Becerril v. Pima County Assessor\'s Office, 587 F.3d\
1162, 1164 (9th Cir. 2009) (per curiam); Fredericksen v. United\
Parcel Serv., 581 F.3d 516, 521 n.1 (7th Cir. 2009); Lytes v. DC\
Water & Sewer Auth., 572 F.3d 936, 940 (D.C. Cir. 2009);\
Milholland v. Summer County Bd. of Educ., 569 F.3d 562 (6th Cir.\
2009); E.E.O.C. v. Agro Distribution, LLC, 555 F.3d 462, 469 n.8\
(5th Cir. 2009). \
'

var WPFootnote9 = ' Carreras\' complaint states that failure to take his insulin\
causes headaches and an undefined "loss of control of his\
condition." \
'

var WPFootnote10 = ' We note that the district court did not circumscribe the summary\
judgment record with a deeming order that applies to the\
retaliation claim. \
'

var WPFootnote11 = '10 In Soileau, we explained that because of the relatedness of the\
two statutes, “guidance on the proper analysis of [an] ADA\
retaliation claim is found in Title VII cases.” 105 F.3d at 16. \
We therefore refer to cases interpreting Title VII’s retaliation\
provision as well as those specifically addressing the ADA in\
conducting our analysis of Carreras’ retaliation claim.\
'

var WPFootnote12 = ' Carreras attempts to argue, in the alternative, that his email\
somehow constituted opposition to his employer\'s "interfer[ence]\
with the treatment for his diabetes," and that such opposition is\
protected conduct under the ADA. This claim is undeveloped and\
therefore waived. Even if it were not, our analysis of the\
retaliation claim would be the same. \
'

var WPFootnote13 = ' From Carreras\' response to this email, which is also in the\
record, we deduce that the "personal issue" to which Ruíz refers\
was Carreras\' failure to come to work on time because he did not\
have his glasses.\
'

var WPFootnote14 = ' Carreras also cites the lack of "written evidence" of any\
deficiencies in his performance during the months preceding his\
firing. In making this argument, Carreras overlooks the August\
2004 email from Ruíz. \
'

var WPFootnote15 = ' We also affirm the district court\'s dismissal without prejudice\
of Carreras\' claims arising under Puerto Rico law. See Penobscot\
Indian Nation v. Key Bank of Maine, 112 F.3d 538, 564 (1st Cir.\
1997) ("[T]he decision to retain or disclaim jurisdiction over the\
remaining state law claims at issue in this case lies in the broad\
discretion of the district court.")\
'

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