Bustillo-Formoso v. Million Air San Juan Corp., et al

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Bruce M. Selya, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Unpublished. [16-2076]

Case: 16-2076

Document: 00117187366

Page: 1

Date Filed: 08/09/2017

Entry ID: 6111810

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 16-2076
PEDRO BUSTILLO-FORMOSO,
Plaintiff, Appellant,
v.
MILLION AIR SAN JUAN CORPORATION; THOMAS HILL, individually and
as President of Million Air San Juan Corporation,
Defendants, Appellees,
JANE DOE; JOE DOE,
Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Bruce J. McGivern, U.S. Magistrate Judge]

Before
Torruella, Selya, and Kayatta,
Circuit Judges.

Javier A. Morales Ramos on brief for appellant.
Luis M. Rodríguez-López and Guzmán & Rodríguez-López Law
Office on brief for appellees.

August 9, 2017

Case: 16-2076

Document: 00117187366

KAYATTA,

Page: 2

Circuit

Date Filed: 08/09/2017

Judge.

Entry ID: 6111810

Plaintiff

Pedro

Bustillo-Formoso ("Bustillo") worked as an airplane pilot for
defendant Million Air San Juan Corporation ("Million Air").

In

2012, Bustillo filed charges against Million Air with the United
States

Equal

Employment

Opportunity

Commission

and

the

Antidiscrimination Unit of the Puerto Rico Department of Labor,
claiming that Million Air was discriminating against him because
of his age.

In at least one of those filings, Bustillo sought

"[c]ompensation for damages, sufferings, and mental anguishes for
[him] and [his] family."
Upon being notified of Bustillo's charges, Million Air
told

Bustillo

that,

because

of

his

allegation

of

"damages,

sufferings, and mental anguishes," the company was grounding him
until he could obtain medical certification showing that he was
still "fit to fly." Bustillo continued to receive his salary while
he was grounded.

When Bustillo went to meet with the doctor to

whom Million Air had referred him, Bustillo refused to be examined
because the doctor did not agree to place certain limitations on
the examination.
that

the

doctor

Among the requested limitations was a demand
not

disclose

his

psychological condition to Million Air.

opinion

of

Bustillo's

Soon thereafter, Million

Air fired Bustillo.
Bustillo later filed suit in the United States District
Court for the District of Puerto Rico, alleging claims under the

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Entry ID: 6111810

Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621–
634, the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§
12101–12213, Puerto Rico Law 44, P.R. Laws Ann. tit. 1, §§ 501–
511b, Puerto Rico Law 100, id. tit. 29, §§ 146–151a, and Puerto
Rico Law 115, id. tit. 29, §§ 194–194b.

After full discovery, the

parties cross-moved for summary judgment.

The magistrate judge,

sitting as the district court without objection by the parties,
granted summary judgment to Million Air.
On appeal, Bustillo argues primarily that his claim for
"[c]ompensation for damages, sufferings, and mental anguishes for
[him] and [his] family" did not justify Million Air's demand that
he obtain medical certification that he was fit to fly.

Rather,

Bustillo contends, Million Air's demand was a form of retaliation,
a

pretext

for

his

later

termination,

and,

in

any

event,

insufficiently limited in scope.
The problem for Bustillo is that he did not adequately
argue any of the foregoing to the magistrate judge.

On the

question of retaliation, his opposition to Million Air's summary
judgment motion merely stated the following:
1) Bustillo engaged in conduct protected
under the ADEA - filing the Age Discrimination
Charges;
2) Bustillo was thereafter subjected to
an adverse employment action - suspension,
grounding; and,

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Entry ID: 6111810

3) That a causal connection existed
between the protected conduct and the adverse
action.
Accordingly, the magistrate judge found that Bustillo "failed to
develop an argument for his ADEA retaliation claim."

With regard

to pretext, Bustillo provided only the unsupported assertion that
Million Air "offered a pretextual reason for an adverse employment
action."

Yet, as the magistrate judge correctly noted, such

"conclusory arguments do not hold water at this stage of the
proceedings."

And finally, as the magistrate judge so found in

assessing Bustillo's claim regarding the scope of the medical
examination, Bustillo did not even "elaborate on the respects in
which the requested medical examination was overbroad."

Given

Bustillo's failure below not only to tender any developed argument
to support his assertions, but also to point to even a single piece
of relevant evidence in the record, we decline to address his
challenges to the medical referral on appeal.

See Rockwood v. SKF

USA Inc., 687 F.3d 1, 9 (1st Cir. 2012) ("[A]rguments not raised
in the district court cannot be raised for the first time on
appeal." (quoting Sierra Club v. Wagner, 555 F.3d 21, 26 (1st Cir.
2009))); Rocafort v. IBM Corp., 334 F.3d 115, 121 (1st Cir. 2003)
("Passing reference to legal phrases and case citation without
developed argument is not sufficient to defeat waiver.").
Bustillo's

appellate

brief

also

challenges

the

magistrate judge's determination that Bustillo otherwise failed to

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support or develop his various claims for relief.

Entry ID: 6111810

However, our

own review of the record confirms that Bustillo has not advanced
his claims in a manner that would have allowed the magistrate judge
to understand and evaluate whatever evidence it was that Bustillo
had in mind, much less to conclude that a reasonable jury could
find in his favor.

See Chiang v. Verizon New Eng. Inc., 595 F.3d

26, 34 (1st Cir. 2010) ("To defeat a summary judgment motion, a
party

'must

do

more

than

simply

show

that

there

is

some

metaphysical doubt as to the material facts.'" (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)));
Rocafort, 334 F.3d at 121.
We therefore affirm the dismissal of Bustillo's claims.

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