Figueroa-Guzman et al v. Wyndham Grand Resort Rio Mar et al
Filing
72
OPINION AND ORDER. GRANTED in Part 50 Motion for Summary Judgment. The Court declines to exercise supplemental jurisdiction over Plaintiff's claims under Commonwealth law. Signed by Judge Salvador E. Casellas on 3/14/2016.(JRD)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LUIS A. FIGUEROA GUZMAN, ET AL.,
Plaintiffs,
v.
Civil No. 14-1345 (SEC)
WHM CARIB, LLC,
Defendant.
OPINION AND ORDER
Before the Court is Defendant’s Motion for Summary Judgment, Docket # 50,
seeking to dismiss Plaintiffs’ claims under the American with Disabilities’ Act, 42
U.S.C. § 12102, et seq. (ADA), and his claims under Puerto Rico’s wrongful dismissal
and general torts statutes. Because Plaintiffs failed to establish prima facie claims for
discrimination and retaliation under the ADA, Defendant’s motion is GRANTED as
to the federal claims. The Court declines to exercise supplemental jurisdiction as to
Plaintiffs’ Commonwealth law claims.
I.
Factual and Procedural Background
WHM Carib, LLC (Wyndham or Defendant) owns and operates the Wyndham
Grand Resort Rio Mar in Rio Grande, Puerto Rico. Luis Figueroa (Figueroa or
Plaintiff) started at Wyndham’s Culinary Department on May 2009, as a Second Cook.
Working his way up, he got promoted to First Cook, then Lead First Cook, and finally
to Sous Chef.
Early in 2013, Figueroa suffered an accident while carrying supplies on a dolly
from the storage room to one of the hotel restaurants. Weeks later, he sought medical
assistance from the Puerto Rico State Insurance Fund (SIF). He was ordered to rest for
ten days and then returned to work with continued treatment. Two days after his
return, he received a favorable end-of-the-year job-performance evaluation that
Civil No. 14-1345 (SEC)
Page 2
recognized him as a “Key Contributor” to Wyndham’s Culinary Department. Docket #
50-15.
Plaintiff’s employment relationship took a turn for the worse on April 30, 2013,
after another Wyndham employee accused him of leaving the hotel premises through
an unauthorized exit with hotel supplies. Figueroa was suspended a few days later
pending an internal investigation on the potential theft. He was ultimately terminated
for stealing a box of defrosted chicken breasts and for lying during the investigation
process.
Between the suspension and termination, Figueroa filed a disability
discrimination and retaliation charge before the Equal Employment Opportunity
Commission (EEOC). The charge states that after returning to work from the SIF’s
leave, Luis Acevedo—Plaintiff’s immediate supervisor—started discriminating against
Figueroa because of his alleged disability. It also charges Acevedo with manufacturing
the theft accusation to get Figueroa fired. Docket # 50-17.
Almost three months after the EEOC issued a Notice of Right to Sue, Figueroa
and his wife filed this action against Wyndham1 alleging discrimination and retaliation
under the ADA; unjust dismissal under Act No. 80 of May 30, 1976, P.R. Laws Ann.
Tit. 29 §185a et seq. (Act 80); and general damages under Articles 1802 and 1803 of
the Puerto Rico Civil Code, P.R. Law Ann. Tit. 31 §§ 5141-5142.2 In due course,
1
Plaintiffs also joined four other Wyndham employees. But because neither the ADA nor Title VII applies to
individual defendants, see Roman-Oliveras v. Puerto Rico Elec. Power Auth., 655 F.3d 43, 52 2011 (1st Cir.
2011); Fantini v. Salem State Coll., 557 F.3d 22, 31 (1st Cir. 2009), the Court dismissed with prejudice the
federal claims against the individual employees. The Court declined to exercise supplemental jurisdiction over
Plaintiff’s pendent local-law claims against the individual employees, and therefore dismissed them without
prejudice. See Docket ## 17-18.
2
Plaintiffs—apparently by mistake—also brought an action for hostile work environment and retaliation under
Title VII of the Civil Rights Act of 1964, which bars only discrimination on the basis of race, color, religion, sex,
and national origin. 42 U.S.C. § 2000e–2(a). However, Defendants correctly point out that the complaint’s
allegations are limited to discrimination and retaliation on an alleged disability theory. The Court sua sponte
dismisses the Title VII claims because “the material facts are crystal clear and no amendment of the complaint
could possibly serve to alter the Court’s disposition of Plaintiffs’ claims.” Villegas-Reyes v. Universidad
Interamericana de P.R., 476 F. Supp. 2d 84, 92 (D.P.R. 2007) (dismissing sua sponte Plaintiff’s Title VII claims
at the summary judgment stage were the complaint only alleged discrimination on the basis of age and
disability).
Civil No. 14-1345 (SEC)
Page 3
Defendant filed a well-supported motion for summary judgment. Plaintiff’s belated
response, on the other hand, devoted less than a page to discussing the merits of his
case.
II.
Standard of Review
Summary judgment is appropriate only if the “movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine if a “reasonable fact-finder
could resolve in favor of either party and a material fact is one that could affect the
outcome of the case.” Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015). At
this stage, it is axiomatic that courts “may not weigh the evidence,” Casas Office
Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir. 1994), and must
construe the record in the “light most flattering” to the nonmovant. Soto-Padró v.
Public Bldgs. Authority, 675 F.3d 1 (1st Cir. 2012). A court must similarly resolve all
reasonable inferences in favor of the non-moving party. Tolan v. Cotton, 134 S.Ct.
1861, 1863 (2014) (per curiam).
Once the movant properly configures a summary-judgment motion, the burden
shifts onto the nonmovant—or “the party who bears the burden of proof at trial,”
Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st Cir. 2014)—to “point to competent
evidence and specific facts to stave off summary judgment.” Tropigas de P.R., Inc. v.
Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir. 2011). So the
nonmovant cannot rest on conclusory allegations and improbable inferences.
Advanced Flexible Circuits, Inc. v. GE Sensing & Inspection Technologies GmbH,
781 F.3d 510, 516 (1st Cir. 2015). Neither “effusive rhetoric,” Cadle Co. v. Hayes, 116
F.3d 957, 960 (1st Cir. 1997), nor “arguments woven from the gossamer strands of
speculation and surmise,” RTR Technologies, Inc. v. Helming, 707 F.3d 84, 93 (1st
Cir. 2013), suffice to forestall the entry of summary judgment. Failure to shoulder this
Civil No. 14-1345 (SEC)
Page 4
burden “allows the summary judgment engine to operate at full throttle.” Lawton v.
State Mut. Life Assur. Co., 101 F.3d 218, 223 (1st Cir. 1996).
III.
Applicable Law and Analysis
Wyndham moves for summary judgment arguing that the evidence on record
reveals that Plaintiff: 1) was not disabled within the meaning of the ADA; 2) did not
request a reasonable accommodation; 3) did not engage in protective conduct under
the ADA that could lead to a retaliation claim; and, in any event, 4) Wyndham offered
a non-discriminatory reason for Plaintiff’s termination. The Court agrees with
Defendant on its first and third arguments. Because these are case-dispositive, the
Court need not reach the merits of the second and fourth arguments. Further, as the
federal claims falter before trial, the Court declines to exercise supplemental
jurisdiction over Plaintiff’s Commonwealth law claims. See Gonzalez-De-Blasini v.
Family Dep’t, 377 F.3d 81, 89 (1st Cir. 2004) (“As a general principle, the unfavorable
disposition of a plaintiff's federal claims at the early stages of a suit...will trigger the
dismissal without prejudice of any supplemental state-law claims.” (quoting Rodríguez
v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir. 1995))
The ADA forbids employers from discriminating against qualified persons in
“job application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and privileges of
employment” because of a person’s actual or perceived disability. 42 U.S.C. §
12112(a). Where, as here, direct evidence of discrimination is absent, a plaintiff must
rely on circumstantial evidence to establish a prima facie case under the ADA through
the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 (1973). Under this analysis, a plaintiff must offer evidence sufficient to
establish that he “(i) has a disability within the meaning of the [ADA]; (ii) is qualified
to perform the essential functions of the job, with or without reasonable
accommodations; (iii) was subject to an adverse employment action by a company
Civil No. 14-1345 (SEC)
Page 5
subject to the [ADA]; (iv) was replaced by a non-disabled person or was treated less
favorably than non-disabled employees; and (v) suffered damages as a result.” Id.
If the plaintiff succeeds in establishing a prima facie claim, “the burden shifts to
the defendant to articulate a legitimate, non-discriminatory reason for its action.”
Ramos-Echevarria v. Pichis, Inc., 659 F.3d 182, 186-87 (1st Cir. 2011). “If the
employer offers a non-discriminatory reason, the burden then shifts back to the
plaintiff to show that the employer’s justification is mere pretext cloaking
discriminatory animus.” Id.
Wyndham further argues that unlike Title VII claims, where plaintiffs have to
prove only that discrimination was a “motivating factor” behind the employer’s
adverse action, see Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989), the ADA
requires proof that discrimination was the “but-for” cause of the adverse employment
action. It is true that in Serwatka v. Rockwell Automation, Inc., the Seventh Circuit
held that under the 2008 version of the ADA—which provided that “[n]o covered
entity shall discriminate against a qualified individual with a disability because of the
disability of such individual,” 591 F.3d 957, 962 (7th Cir. 2010) (quoting 42 U.S.C. §
12112(a) (2008))—a plaintiff had to prove that his disability was the sine qua non
cause of his termination. That case relied on Gross v. FBL Fin. Servs., Inc., where the
Supreme Court observed that the ADEA’s language prohibiting an employer to take an
adverse action “because of such individual’s age,” 557 U.S. 167, 176 (2009) means
that a plaintiff bringing a disparate treatment claim under that statute must prove that
age was the “but-for” cause of the adverse action. Id. at 180. The Sixth Circuit reached
the same conclusion in Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 318 (6th
Cir. 2012) (ADA), and the First Circuit cited these cases with approval in Palmquist v.
Shinseki, 689 F.3d 66, 74 (1st Cir. 2012) (holding that a “but-for” standard applies to
discrimination claims under the Rehabilitation Act).
But Serwatka and Lewis, were decided under the previous version of the ADA.
In 2008, Congress enacted significant amendments to the ADA. In Silk v. Bd. of
Civil No. 14-1345 (SEC)
Page 6
Trustees, Moraine Valley Cmty. Coll., the Seventh Circuit noted that “the language
prohibiting discrimination ‘because of’ a disability was amended to prohibit
discrimination ‘on the basis of a disability.’” 795 F.3d 698, 705 (7th Cir. 2015).
Because the issue was not adequately before it nor adequately briefed, the Seventh
Circuit refused to address “whether the but-for standard [it] announced in Serwatka
survived the amendment to the ADA” Id. at 706. Likewise, this Court need not address
this question now because, regardless of the standard applied, Plaintiff’s ADA claims
are doomed from the very start. Figueroa’s admissions trump the first prong of a prima
facie case—establishing disability within the meaning of the ADA.
The ADA defines disability as “a physical or mental impairment that
substantially limits one or more major life activities of such individual; a record of
such an impairment; or being regarded as having such an impairment.” 42 U.S.C. §
12102. To prove a substantial limit to a major life activity, “[e]vidence of a medical
diagnosis of impairment, standing alone, is insufficient.” Ramos-Echevarria v. Pichis,
Inc., 659 F.3d 182, 187 (1st Cir. 2011); see also Carroll v. Xerox Corp., 294 F.3d 231,
238 (1st Cir. 2002) (“It is insufficient...to merely submit evidence of a medical
diagnosis of an impairment.”). At the summary judgment stage, Figueroa “must
produce sufficient evidence that his impairment was ‘profound enough and of
sufficient duration, given the nature of [his] impairment,’ to significantly restrict him
in working.” Id. at 241 (citing Whitney v. Greenberg, Rosenblatt, Kull & Bitsoli, P.C.,
258 F.3d 30, 33 (1st Cir. 2001).
Other than conclusory statements indicating that the accident rendered him
unable to lift heavy loads, prepare food, or chop vegetables, Docket # 68-4, ¶ 19, the
record is bereft of evidence that Figueroa was disabled within the meaning of the
ADA. Plaintiff does not proffer a medical diagnosis or a medical certification evincing
that he was disabled in any way. The only medical evidence on record is a report from
the SIF ordering Figueroa a ten-day rest and an unspecified continued treatment.
Docket # 50-14. More importantly, the report does not indicate whether Plaintiff was
Civil No. 14-1345 (SEC)
Page 7
diagnosed with any disability or impairment. Figueroa even admits that he has “no
clue or…idea as to whether the SIF gave [him] some specific limitation.” Docket # 504 at 43. This is simply insufficient to establish liability under the statute. See Xerox
Corp., 294 F.3d at 240 (affirming the district court’s dismissal of an ADA claim
stating that a “conclusory allegation without evidentiary support; it is…insufficient to
carry [the plaintiff’s] burden”).
Furthermore, Figueroa does not raise a record of impairment nor offers any
evidence that he was regarded as disabled by Wyndham. See id. at 238, n. 4. Having
failed to offer evidence that he was disabled, had a record of disability, or was
regarded as disabled within the meaning of the ADA, Plaintiff failed to establish a
prima facie claim for disability discrimination. The Court thus moves on to Plaintiff’s
retaliation claim.
The ADA forbids retaliation “against any individual because such individual
has opposed any act or practice made unlawful…or because such individual made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under the ADA.” 42 U.S.C. § 12203. This action is independent
from, and “may succeed[,] even where [a] disability claim fails.” Valle-Arce v. Puerto
Rico Ports Auth., 651 F.3d 190, 198 (1st Cir. 2011) (citing Freadman v. Metro. Prop.
& Cas. Ins. Co., 484 F.3d 91, 106 (1st Cir. 2007)).
To establish a prima facie retaliation claim under the ADA, Figueroa “must
show that 1) [he] engaged in protected conduct, 2) [he] suffered an adverse
employment action, and 3) there was a causal connection between the protected
conduct and the adverse employment action.” D.B. ex rel. Elizabeth B. v. Esposito,
675 F.3d 26, 41 (1st Cir. 2012).
Like his disability claim, Figueroa’s retaliation claim also fails at the outset.
The only protected conduct asserted in the complaint concerns his claim before the SIF
for the work-related accident. Docket # 1, ¶ 54. Wyndham submits four cases
supporting the proposition that this is not protected conduct under the ADA. See
Civil No. 14-1345 (SEC)
Page 8
Reynolds v. American National Red Cross, 701 F.3d 143, 154 (4th Cir. 2012) (“Filing
a workers’ compensation claim is not something that is covered by the ADA, but
rather by retaliation provisions under state law”); Kendall v. Donahoe, 913 F. Supp. 2d
186, 193 (W.D. Pa. 2012) aff’d sub nom. Kendall v. Postmaster Gen. of U.S., 543 F.
App’x 141 (3d Cir. 2013) (“there is no statutory basis to find that filing for workers’
compensation benefits is a ‘protected activity’ under the ADA”); Fieni v. Franciscan
Care Ctr., 2011 WL 4543996 at *7 (E.D. Pa. Sept. 30, 2011) (“a plain reading of the
statute suggests that [the application for or receipt of workers’ compensation benefits]
it is not protected activity [under the ADA]”); Leavitt v. SW & B Construction Co.,
766 F.Supp.2d 263, 286 (D. Me. 2011) (filing a workers’ compensation claim does not
constitute protected activity under the ADA). Plaintiff failed to distinguish any of
these cases.3
Although requesting compensation benefits is not the same as seeking medical
assistance, the same principle applies. When Figueroa sought medical attention at the
SIF, he was not opposing any unlawful employment practice by Wyndham. Neither
was he making a charge, testifying, assisting nor otherwise participating in an
investigation, proceeding, or hearing related to the ADA. See 42 U.S.C. § 12203.
Hence, Plaintiff’s request for medical assistance from the SIF does not constitute
protected conduct pursuant to the ADA’s retaliation provision. The Court need not go
further to dismiss this claim.4
3
As result, Plaintiffs waived any argument in this regard. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).
4
Defendants candidly concede that “requesting an accommodation and complaining of discrimination on the
basis of disability are protected conduct for purposes of the ADA’s retaliation provision.” Docket # 51, n. 2
(citing Valle-Arce, 651 F.3d at 198). However, they also correctly point out that the complaint does not assert
that Figueroa’s retaliation claim was based on his request for accommodations. While Figueroa did allege that he
requested two additional cooks after returning from the SIF, Docket # 1, ¶ 24, the record reveals that this request
was made by all Sous Chefs on December 2012, months before the alleged accident. Moreover, even if
Plaintiff’s request had come after his accident, Plaintiff does not explain why his request was "reasonable"
within the meaning of the statute. After all, he was asking his employer to triple the available workforce due to
his injury, with all the concomitant expenses that implies. Finally, the EEOC complaint cannot serve as the basis
for retaliation as it was filed after Figueroa’s termination. Plaintiffs failed to address these issues in their
response and thus, waived any arguments against them. See Zannino, 895 F.2d at 17.
Civil No. 14-1345 (SEC)
IV.
Page 9
Conclusion
Because Plaintiffs failed to establish a prima facie case for ADA discrimination
and retaliation, all the federal claims are dismissed with prejudice. The Court
declines to exercise supplemental jurisdiction over the Commonwealth law claims, and
therefore, Plaintiffs’ claim under Puerto Rico’s wrongful termination and general tort
statutes are dismissed without prejudice.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 14th day of March, 2016.
s/ Salvador E. Casellas
SALVADOR E. CASELLAS
U.S. Senior District Judge
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