Del Rio Gordo v. Hospital Ryder Memorial Inc. et al
Filing
191
OPINION AND ORDER granting defendants' motions to dismiss. This case is dismissed with prejudice as to all defendants. Final judgment to be entered. Signed by US Magistrate Judge Bruce J. McGiverin on January 23, 2018.(McGiverin, Bruce)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
EDUARDO DEL RIO GORDO,
Plaintiff,
v.
Civil No. 13–1145 (BJM)
HOSPITAL RYDER MEMORIAL INC., et
al.,
Defendants.
OPINION AND ORDER
Eduardo Del Rio Gordo (“Del Rio”) brought this action against Sonia Rosa-Sanchez
(“Rosa”), Hospital Ryder Memorial, Inc., Ryder Home for the Elderly, and Ryder Management
Services, Inc. (collectively, “Ryder”), alleging violation of the Fair Housing Act (“FHA”), 42
U.S.C. § 3601 et seq., Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. §
701 et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and Article
1802 of the Puerto Rico Civil Code (“Article 1802”), P.R. Laws Ann. tit. 31, § 5141. Docket No.
104. On January 17, 2018, Del Rio, representing himself, presented his evidence before me at a
non-jury trial. Docket No. 187. Ryder then moved for judgment on partial findings under Federal
Rule of Civil Procedure 52(c), and Del Rio opposed. Docket No. 187. Rosa also sought to dismiss
the causes of action against her for insufficient process under Federal Rules of Civil Procedure
4(m). Docket No. 189. This case is before me on consent of the parties. Docket No. 158.
Ryder sought judgment on all three of Del Rio’s causes of action. Under Federal Rule of
Civil Procedure 52(c), “[i]f a party has been fully heard on an issue during a nonjury trial and the
court finds against the party on that issue, the court may enter judgment against the party on a
claim or defense that, under the controlling law, can be maintained or defeated only with a
favorable finding on that issue.” See Moulton v. Bane, No. 14-CV-265-JD, 2016 WL 1091093, at
*4 (D.N.H. Mar. 21, 2016) (“A motion made at the close of the evidence in a jury-waived trial,
asserting that the plaintiff’s evidence is insufficient to sustain a claim, is governed by Federal Rule
of Civil Procedure 52(c) and is known as a motion for judgment on partial findings.”). Through
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drawing “reasonable inferences and mak[ing] credibility determinations,” Diaz Aviation Corp. v.
Airport Aviation Servs., Inc., 716 F.3d 256, 263 (1st Cir. 2013), the court must make findings of
fact and conclusions of law in support of its decision. Fed. R. Civ. P. 52(c).
“The Fair Housing Amendments Act of 1988 makes it unlawful to discriminate against
‘any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision
of services or facilities in connection with such dwelling’ on the basis of that person’s handicap.”
Trovato v. City of Manchester, N.H., 992 F. Supp. 493, 497 (D.N.H. 1997) (quoting 42 U.S.C.A. §
3604(f)(2)). “The [FHA] contemplates three types of claims for perceived discrimination:
‘disparate treatment, disparate impact, and failure to make reasonable accommodations.’” Astralis
Condo. Ass’n v. Sec’y, U.S. Dep’t of Hous. & Urban Dev., 620 F.3d 62, 66 (1st Cir. 2010) (quoting
Smith & Lee Assocs. v. City of Taylor, Mich., 102 F.3d 781, 790 (6th Cir. 1996)). Discrimination
can also include “a failure to design and construct [a covered multifamily dwelling] in such a
manner that the public use and common use portions of such dwellings are readily accessible to
and usable by handicapped persons.” 42 U.S.C.A. § 3604(f)(3)(C). When assessing a FHA claim,
courts may also look to “authority under the Americans with Disabilities Act” as “generally
persuasive.” Astralis, 620 F.3d at 66.
The parties stipulated that Del Rio is handicapped within the meaning of the FHA and
ADA. Docket No. 175. In his testimony, Del Rio stated that he had lived at Ryder Home for the
Elderly for seventeen years. He also asserted that he is or had been the president of the committee
of residents at the home and that he advocated on their behalf to Ryder because the residents had
experienced a lot of problems. Furthermore, Del Rio stated that Ryder now sought to evict him
because he had been trying to solve things.
Del Rio also called two witnesses, Jose R. Feliciano Sepulveda and Rosa. Rosa testified
that Ryder had parking for residents from 2000 to 2011 but that it did not have parking spaces for
disabled residents in those years. Feliciano also testified that Ryder did not have parking spaces
for disabled residents from 2000-2011 although they do now. Rosa testified that she sent Del Rio
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letters telling him that he had to move his van from the parking space it was in at Ryder because it
was in a disabled parking spot designated for visitors.1
Considering whether Del Rio has sustained a claim under each avenue for relief under the
FHA in turn, the court will begin with disparate treatment. For a claim of disparate treatment, Del
Rio must show that an “invidious discriminatory purpose was a motivating factor” behind Ryder’s
failure to have handicapped parking available for residents. Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 266 (1977). “The court analyzes whether a discriminatory purpose
motivated the defendant by examining the events leading up to the challenged decision and the
legislative history behind it, the defendant’s departure from normal procedures or substantive
conclusions, and the historical background of the decision and whether it creates a disparate
impact.” Ave. 6E Investments, LLC v. City of Yuma, Ariz., 818 F.3d 493, 504 (9th Cir. 2016). As
Del Rio did not present any direct evidence of discriminatory intent, the court applies the burden
shifting framework under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). See
Mussallihattillah v. McGinnis, 684 F. App’x 43, 46–47 (2d Cir. 2017) (applying McDonnell
Douglas burden-shifting framework when entering judgment on a Title VII case under Fed. R. Civ.
P. 52(c)); Chase v. United States Postal Serv., 149 F. Supp. 3d 195, 206 (D. Mass.), aff’d, 843 F.3d
553 (1st Cir. 2016) (applying McDonnell Douglas burden-shifting framework when entering
judgment on an FMLA case under Fed. R. Civ. P. 52(c)); Pina v. Town of Plympton, 529 F. Supp.
2d 151, 155–56 (D. Mass. 2007) (“When a plaintiff offers no direct evidence of discrimination, his
claim of discrimination under the FHA is to be examined under the burden-shifting framework
of McDonnell Douglas, established in Title VII cases.”) (internal citation omitted). Under the
McDonnell Douglas framework, the plaintiff must make an initial prima facie showing of unlawful
discrimination, which is a “‘small showing,’ ‘not onerous’ and ‘easily made.’” PSI, LLC v. Nautilus
Ins. Co., No. 12-CV-12073, 2014 WL 7409578, at *3 (D. Mass. Dec. 30, 2014) (quoting Kosereis
v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003)).
1
It is unclear from the testimony when these letters were sent.
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Although it is not a high bar, Del Rio did not present enough evidence to make a prima
facie showing of disparate treatment. It is stipulated that his handicap makes him a member of a
protected class under the FHA. However, Del Rio provided none of the evidence that courts look
for to find an invidious purpose, including evidence of the events leading up to Ryder’s decision
not to have handicapped parking for residents; whether it is normal for homes for the elderly to
have handicapped parking for residents; and whether Ryder’s decision had any impact on the
handicapped residents. Consequently, the court cannot find that Ryder’s lack of handicapped
parking for residents was disparate treatment as there is no evidence of discriminatory animus or
intent.
Del Rio’s second possible theory is Ryder’s practices had a disparate impact on
handicapped persons. “[D]isparate impact cases are the result of policies or practices that are not
necessarily intended to discriminate but in fact have a disproportionately adverse effect on a
protected class.” Rhode Island Comm’n for Human Rights v. Graul, 120 F. Supp. 3d 110, 122–23
(D.R.I. 2015). “In order to make out a prima facie case under a disparate impact theory, a plaintiff
must show ‘(1) the occurrence of certain outwardly neutral practices, and (2) a significantly
adverse or disproportionate impact on persons of a particular type produced by the defendant's
facially neutral acts or practices.’” Lowe v. Planning & Zoning Comm’n of the Town of Mansfield,
No. 3:16-CV-381, 2018 WL 379010, at *6 (D. Conn. Jan. 10, 2018) (quoting Mhany Management,
Inc. v. County of Nassau, 819 F.3d 581, 617 (2d Cir. 2016); see Graul, 120 F. Supp. 3d at 123
(“The elements . . . are (a) membership in a protected group; (b) a denial of a housing benefit; (c)
the causal relationship between the denial and a facially neutral policy (i.e., the disparate impact);
and (d) that the benefit remained available or was given to a non-member of the group.”).
Here, Del Rio has not established a claim under a disparate impact theory. While it is
stipulated that he is a member of a protected group, he did not argue or set forth any evidence
showing that he was denied a housing benefit. Del Rio did present evidence that there was no
resident parking specifically designated for people with handicaps, but he did not present evidence
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that he, as a handicapped person, could not use the normal parking available for residents.
Therefore, there is no evidence that he was denied a housing benefit.
Furthermore, Del Rio cannot establish a claim under the FHA for failure to grant a
reasonable accommodation. Under the FHA, it is unlawful to refuse to make reasonable
accommodations in “rules, policies, practices, or services, when such accommodations may be
necessary to afford [a handicapped person] equal opportunity to use and enjoy a dwelling.” 42
U.S.C.A. § 3604(f)(3)(B). Courts have found that “parking is clearly a ‘service or facility in
connection with’ their property affecting their use and enjoyment thereof and is covered by the
Act.” Trovato, 992 F. Supp. at 497 (citing Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 333–335
(2nd Cir. 1995)). Nonetheless, as Del Rio never submitted evidence that he asked Ryder to create
handicap parking for residents or even to enact any changes, he cannot establish a claim for
discrimination based on a failure to grant an accommodation. See Astralis, 620 F.3d at 67 (“[T]he
claimant must show that he requested a particular accommodation that is both reasonable and
necessary to allow him an equal opportunity to use and enjoy the housing in question.”).
Lastly, in analyzing the FHA’s provision for designing buildings to be handicap accessible,
parking areas do qualify as a “common use” area under the FHA as it is “shared by two or more
individuals.” United States v. Edward Rose & Sons, 384 F.3d 258, 262–63 (6th Cir. 2004) (“[T]he
stair landing in front of the entrance is a common area that the statute mandates be accessible. The
fact that two apartment units share the stair landing makes the space a common area. . . . At the
time of the statute's enactment, dictionaries generally defined ‘common’ as belonging to or shared
by two or more individuals.”). However, Del Rio did not present evidence showing that “the public
use and common use portions of” Ryder Home for the Elderly are not “readily accessible to and
usable by handicapped persons.” Although he identified a common use area—the parking lot—
Del Rio never argued that it was not accessible to and usable by handicapped persons. While the
court can certainly hypothesize that a failure to have handicapped parking spaces for residents
would make the parking lot unusable by handicapped persons, it is not the role of the court to
create arguments when a party has failed to do so. Moreover, Del Rio did not show that Ryder
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Home for the Elderly is a multifamily dwelling, meaning a “building[] consisting of 4 or more
units if such buildings have one or more elevators; and ground floor units in other buildings
consisting of 4 or more units,” because he presented no evidence that it includes four or more
units. Nat’l Fair Hous. All., Inc. v. Hunt Investments, LLC, No. 3:14-CV-716, 2015 WL 4362864,
at *4 (E.D. Va. July 14, 2015) (quoting 42 U.S.C. § 3604(f)(7)(A)-(B)).
In his first cause of action, Del Rio argued that the lack of handicapped parking for residents
also violated Section 504. Section 504 “prohibits discrimination ‘under any program or activity
receiving [F]ederal financial assistance’ against any otherwise qualified individual with a
disability, solely because of his disability.” Neudecker v. Boisclair Corp., 351 F.3d 361, 363 (8th
Cir. 2003) (quoting 29 U.S.C. § 794(a)). It appears from the Second Amended Complaint that Del
Rio’s basis for the alleged violation of Section 504 is that he was discriminated against and
retaliated against. With no direct evidence of either discrimination or retaliation, the court again
must use the three-part burden shifting test from McDonnell Douglas, which begins by requiring
the plaintiff to make a prima facie case of either discrimination or retaliation. Sherman v. Runyon,
235 F.3d 406, 409 (8th Cir. 2000). A retaliation claim requires “(1) plaintiff engaged in statutorily
protected activity; (2) defendant took adverse action against plaintiff; and (3) causal connection
exists between adverse action and protected activity. Neudecker, 351 F.3d at 364 (citing Amir v. St.
Louis Univ., 184 F.3d 1017, 1025 (8th Cir.1999)). Here, even if the court assumes that Del Rio’s
work on behalf of the other residents was a statutorily protected activity, there is no evidence that
Ryder took any adverse action against him. In the Second Amended Complaint, Del Rio suggested
that he was subjected to retaliatory parking notifications and notices threatening eviction, but no
such evidence was presented at trial. Similarly, Del Rio presented no evidence that he was
discriminated against as he did not point to any actions that Ryder took against him.
Del Rio’s second cause of action is under the ADA. While it is questionable whether the
ADA applies in this case, it is unnecessary for me to explore that issue as I already concluded that
Del Rio did not present any evidence that could substantiate a discrimination claim under the
Rehabilitation Act, which for these purposes prohibits the same unlawful actions as the ADA. See
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Sutton v. Freedom Square Ltd., No. 07-14897, 2008 WL 4601372, at *6–7 (E.D. Mich. Oct. 15,
2008), aff’d sub nom. Sutton v. Piper, 344 F. App’x 101 (6th Cir. 2009) (“The ADA only regulates
non-residential facilities[,]” so residential condominiums, apartments, and their assigned parking
“are not ‘public accommodations’” protected by the ADA); see also Crevier v. Town of Spencer,
600 F. Supp. 2d 242, 264 (D. Mass. 2008) (“[T]he case law construing the [ADA and the
Rehabilitation Act] . . . is essentially interchangeable.”).
Del Rio’s final cause of action is under Article 1802. Article 1802 of the Puerto Rico Civil
Code states that “[a] person who by an act or omission causes damages to another through fault or
negligence shall be obliged to repair the damage done.” P.R. Laws Ann. tit. 31, § 5141. Under
Puerto Rico law, the elements of negligence are (1) an injury, (2) a breach of duty, and (3)
proximate causation. Vásquez-Filippetti v. Banco Popular de P.R., 504 F.3d 43, 49 (1st Cir. 2007).
During trial, Del Rio did not present any evidence of an injury that he suffered, let alone one caused
by Ryder’s breach of duty. Without having alleged an injury, Del Rio cannot sustain a claim for
either purposeful or negligent infliction of harm by Ryder.
Rosas’s motion to dismiss based on insufficient process is also granted. At trial, Rosa’s
attorney stated that she had never been served with process although the complaint had been filed
in this case considerably over ninety days prior. See Fed. R. Civ. P. 4(m) (“If a defendant is not
served within 90 days after the complaint is filed, the court—on motion or on its own after notice
to the plaintiff—must dismiss the action without prejudice against that defendant or order that
service be made within a specified time.”). Del Rio asserted that he had served process, and I
ordered that Del Rio present the receipt from the process server to the court by the following day,
January 18, 2018. However, six days later, Del Rio still has not presented evidence that Rosa was
ever served. Therefore, Rosa’s motion to dismiss based on insufficient process must be granted as
well.
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CONCLUSION
During the trial, Del Rio did not present enough evidence to sustain any of his three causes
of action. He also did not serve Rosa with sufficient process. For the foregoing reasons, Ryder’s
motion for partial judgment on the findings is GRANTED, and Del Rio’s claims against Ryder
and Rosa are DISMISSED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 23rd day of January 2018.
S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge
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