Jimenez-Jimenez v. International Hospitality Group, Inc.

Filing 86

ORDER granting 44 motion for summary judgment. Signed by US Magistrate Judge Silvia Carreno-Coll on 11/30/2017. (mcv)

IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO

MIGUEL JIMENEZ-JIMENEZ,

Plaintiff,
CIV. NO.: 15-1461 (SCC)
v.
INTERNATIONAL HOSPITALITY
GROUP, INC./CASINO DEL SOL

Defendant.

OPINION AND ORDER
Plaintiff Miguel Jiménez-Jiménez worked as a dealer, or
“croupier” in Casino del Sol, a casino owned and operated by
defendant International Hospitality Group (“IHG”). Jimenez
claims to suffer from a severe allergic condition that is
triggered by some perfumes and chemicals. Jimenez sought
reasonable accommodation from his employer to deal with

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his condition. After his employer allegedly denied his request,
he filed suit against IHG, claiming that he suffered
discrimination and retaliation due to his disability. He also
alleges that he was constructively discharged from his
employment.
IHG moved for summary judgment. Having examined the
parties’ arguments, I conclude that plaintiff has not made a
sufficient showing that his condition rendered him disabled
within the meaning of the ADA and that IHG cannot
reasonably accommodate Jiménez’ disability, therefore,
summary disposition of his claims is proper.
I. Background
Jiménez sued his employer, IHG, under the American
with Disabilities Act (“ADA”), and Puerto Rico’s Law 115 of
December 20, 1991 and Law No. 44 of July 2, 1985. See the
Complaint at Docket No. 1, the Amended Complaint at
Docket No. 9, and the Second Amended Complaint at Docket
No. 35. Jiménez also seeks redress under Puerto Rico Law No.
80 of May 30, 1976, P.R. Laws Ann. tit. 29 §288(7).

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IHG filed a motion for summary judgment, arguing that
Jimenez failed to exhaust administrative remedies; cannot
show that he has a disability covered under the ADA; cannot
show that he is substantially limited in the performance of a
major life activity; cannot show how a reasonable
accommodation would have allowed him to perform the
essential duties of his job; cannot show that IHG did not
reasonably accommodate his disability; cannot show a causal
connection between engaging in a protected activity and the
adverse employment action; and cannot show that IHG
created a hostile work environment that led to his
constructive discharge. See Docket Nos. 44 and 47.
Jiménez filed an opposition. Docket Nos. 57 and 58. IHG
replied. Docket No. 70.
IHG also moved to strike a declaration signed by Jiménez
in support of his opposition to IHG’s Motion for Summary
Judgment. Docket No. 71. The Court granted in part, and
denied in part, the request. Docket No. 80.

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II. Factual Findings
The following factual findings are taken from the parties’
statements of uncontested facts (“SUF”) and supporting
documentation. In accordance with Local Rule 56, the court
credits only facts properly supported by accurate record
citations. See Local Rule 56(e). The court has disregarded all
arguments,

conclusory

allegations,

speculation,

and

improbable inferences disguised as facts. See Forestier Fradera
v. Municipality of Mayaguez, 440 F.3d 17, 21 (1st Cir.2006);
Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st
Cir.1990).
The court finds that the following facts are uncontested:
1. IHG is a company that operates a duly licensed gaming
casino commercially known as Casino del Sol (the
“Casino”). See Docket No. 44-2, Declaration of
Guillermo Márquez at ¶ 2, attached hereto as Exhibit 1
(hereinafter “Márquez Declaration”). 1
2. The Casino operates on leased premises located within
the main lobby of the Courtyard Isla Verde Beach
Resort, a hotel in Carolina, Puerto Rico. See Márquez

1 Plaintiff admitted SUFS 1-15. See Docket No. 57-1.

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Declaration at ¶ 3.
3. The premises of the Casino are located in the northeast
side of the hotel lobby. See Márquez Declaration at ¶ 4.
4. The Hotel provides the air conditioning system for the
Casino which is shared with the lobby and the rest of
the entertainment venues located in the Hotel’s first
floor. See Márquez Declaration at ¶ 5.
5. The Casino operates 24 hours a day, seven days a
week, and features a number of slot machines and
gaming tables. Over 300 people visit the Casino daily;
with the largest number coming in on weekends. See
Márquez Declaration at ¶ 6.
6. During relevant times, the Casino employed less than
100 employees. See Márquez Declaration at ¶ 7.
7. The Casino’s operations are licensed and regulated by
the Gaming Division of the Government of Puerto
Rico. See Márquez Declaration at ¶ 8.
8. The Casino is also subject to direct supervision of an
outside Inspector. This is a government employee
appointed by the Gaming Division and tasked to
supervise

and

enforce

the

gaming

laws

and

regulations in casinos. Inspectors work on premises

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and wield considerable authority over an array of
operational

and

compliance

issues,

including

monitoring and controlling gaming tables and slot
machines. The Casino’s manager must obey the
decisions of the Inspector over any matter relating to a
game or an activity within a gaming area. See Márquez
Declaration at ¶ 9.
9. Guillermo Márquez is the General Manager of the
Casino. He oversees all operations of the Casino. He
also oversees all Human Resources functions and is the
only person authorized to hire or fire an employee at
the Casino. See Márquez Declaration at ¶ 2.
10. The General Manager is assisted by shift managers.
There are three shift managers. One covers the 12:00
noon - 8:00 p.m. shift and the other the 8:00 p.m. - 4:00
a.m. shift. A third manager rotates covering the other
two managers’ days off. The 4:00 a.m. – 12:00 noon shift
does not have a shift manager. Instead, the Cage
Manager supervises it. See Márquez Declaration at ¶
10.
11. Angel Castrodad was, during relevant times, the Shift
Manager assigned to the 12 noon-8:00 p.m. shift. See

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Márquez Declaration at ¶ 11.
12. Jeffrey Chernoff was, during relevant times, the Shift
Manager assigned to the 8:00 p.m.- 4:00 a.m. shift. See
Márquez Declaration at ¶ 12.
13. Shift Managers oversee the casino activities during an
assigned shift. They are tasked with ensuring total
customer satisfaction and operational efficiency. Most
of the time is spent on the “floor” of the Casino and the
gaming and customer service areas, closely interacting
with

employees

and

customers.

See

Márquez

Declaration at ¶ 13.
14. Elvin Santana is a shift manager covering Chernoff and
Castrodad days’ off. He alternated between day (12:00
Noon – 8:00 p.m.) and night shift (8:00 p.m. – 4:00 am).
See Márquez Declaration at ¶ 14.
15. During relevant times, the Casino operated with eight
gaming tables daily from 12:00 noon to 4:00 a.m. There
were three for black jack, two for poker, two for
roulette and one for dice (also known as “craps”).
There were also a number of slot machines. See
Márquez Declaration at ¶ 15.
16. Dealers, also known as croupiers, assist and engage in

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the gaming tables. There may be one or more dealers
at a table depending on the gaming table. See Márquez
Declaration at ¶ 17. 2
17. The dice table is run with three dealers and the black
jack with one. See Márquez Declaration at ¶ 18.
18. Dealers generally remain at the table where they are
most skilled and may occasionally work in other table
depending on their skillset and the needs of the Casino.
See Márquez Declaration at ¶ 20. 3
19. Dealers work for one hour and then rest for 20 minutes.
There is at least one restroom that the employees can
use. See Márquez Declaration at ¶ 21; see also Docket
No. 57-2, Jiménez’ Declaration under Penalty of
Perjury, at ¶ 4.
20. The dealers are supervised by table supervisors who,
in turn, report to the Shift Manager. A table supervisor
may have up to three tables assigned during a given
shift. See Márquez Declaration at ¶ 22. 4
21. Employees at the Casino- particularly dealers and slot

2 Plaintiff admitted the statements contained in SUFs 16-17.
3 Plaintiff admitted this SUF.
4 Plaintiff admitted this SUF.

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attendants- work directly with the public. They also
have to meet particular physical demands while
performing their duties. For example, table dealers
spend their shift standing behind a table. See Márquez
Declaration at ¶ 23; Jiménez Declaration at ¶ 5.
22. The Casino aims to portray a professional and neat
image to its customers and has a set of guidelines for
employees to follow. Among other things, it requires
staff to “maintain their personal hygiene in an
optimum level, thus preventing excessive sweat and
disagreeable

odors.

The

use

of

deodorant

is

imperative, only soft cologne and perfumes are
allowed.” See Márquez Declaration at ¶ 25. 5
23. On February 11, 2009, IHG hired Jiménez. At the time
of hiring he received the “Team Member’s Handbook”
and employment policies of IHG. He began actual
work on February 14, 2009 and was immediately
assigned to the dice table. See Márquez Declaration at
¶¶ 27-28; Docket No. 57-3, Jiménez Deposition, pg. 10,
lines 6-12.

5 Plaintiff admitted this SUF.

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24. The dice table operated from 4:00 p.m. to midnight,
Sunday through Thursday, and from 6:00 p.m. to 2:00
a.m. on Fridays and Saturdays. See Márquez
Declaration at ¶ 29. 6
25. Although Jiménez knew the blackjack and roulette
games, he did not consider himself to be “a very good
roulette dealer.” See Docket No. 57-3, Jiménez
Deposition, pg. 14, lines 9-24.
26. At the end of his probationary period evaluation,
Jiménez’ supervisor, Jorge Valle, noted that he needed
to develop himself in other table games and also show
more interest in learning and developing new skills in
the other games. See Márquez Declaration at ¶ 30.
27. Jiménez took 8 days of sick leave in July 2012. Upon
returning, he presented a medical certificate stating
that he had been suffering from “severe allergies from
exposure to strong perfumes used by some of his coworkers.” The doctor recommended minimizing the
exposure due to his condition and one month of rest.
See Medical Certificate at Docket No. 57-4.

6 Plaintiff admitted this SUF.

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28. In September 2012, Jimenez presented a document
dated September 13, 2012, and signed by Doctor Rafael
Zaragoza-Urdaz.

The

document

indicated

that

Jiménez was “found to be severely allergic to
chemicals, including volatile organic compounds,
formaldehyde, ethanol, phenol, orris root (perfumes)”.
Docket No. 57-5. The doctor recommended that
plaintiff be offered a reasonable accommodation in an
allergen-low

environment,

among

other

recommendations. Id.
29. Sometime afterwards, Jimenez approached Márquez
and said that he was getting reactions from some of the
scents of colognes/perfumes from coworkers that he
perceived as “too strong” and he wanted Márquez to
enforce the Casino’s policy on soft colognes. This
policy states as follows:
Personal Hygiene
All Team Members must maintain their personal
hygiene in an optimal level, thus preventing excessive
sweat and disagreeable odors. The use of deodorants
is imperative, only soft colognes and perfumes are
allowed.

JIMENEZ-JIMENEZ v. CASINO DEL SOL

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See Márquez Declaration at ¶ 33.7; see also Docket No.
44-2, Exhibit D.
30. The next day after his meeting with Jiménez, Márquez
met with Chernoff and Castrodad, his shift managers,
to discuss the issues Jiménez had raised. Márquez
instructed them to review the soft cologne/perfume
policy with all the workers in the line-up meetings to
make sure they were adhering to it. See Márquez
Declaration at ¶ 34; Docket No. 44-3, Jeffrey Chernoff
Declaration

at

¶

8,

(hereinafter

“Chernoff

Declaration”).
31. A lineup is a pre-shift meeting to brief staff on a
particular event, review what is expected of them, and
make sure they are ready to serve customers. During
these

meetings,

employees

are

provided

an

opportunity to give feedback. See Chernoff Declaration
at ¶ 9. 8
32. In at least one of the lineups, the issue of enforcement
of the “soft scents policy” was discussed. See Docket
No. 44-4, Appx. 3, Jiménez Deposition, pg. 89, lines 127 Plaintiff admitted the statements contained in this SUF.
8 Plaintiff admits the statements contained in this SUF.

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25, pg. 90, lines 1-12; see also, Chernoff Declaration at ¶
9.
33. In his deposition, Jiménez emphasized that the only
accommodation he requested was to enforce the “light
cologne” policy. See Jiménez Deposition, pg. 64, lines
5-25. 9
34. Not all scents in the Casino bothered Jiménez and not
all scents that bothered him allegedly triggered a
reaction that needed adjustment. He claimed that the
allergic reaction varied depending on the scent and its
strength. He also indicated that the reactions were not
necessarily immediate and that by moving away from
the smell, he could remedy the situation. See Jiménez
Deposition, pg. 173, lines 14-19, and pg. 174, lines 2-14.
35. According to Jiménez, he only got ill from some of his
co-workers, not all of them. See Jiménez Deposition,
pg. 161, lines 10-11, and page 95, lines 4-6.
36. Jiménez admitted in his deposition that in “very few”
occasions he was bothered by a scent from a casino
guest, and in those occasions, he would move away

9 Plaintiff admitted this SUF.

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from the customer. See Jiménez Deposition, pg. 160,
lines 9-23.
37. After Jiménez’ meeting with Márquez, Chernoff
noticed that Jiménez complaints were more frequent
but still sporadic; meaning that several weeks or a
month could go by without a complaint. See Chernoff
Declaration at ¶ 10.10.
38. In case Jiménez found any disagreeable scents in the
regular break-room, Jiménez was provided an
alternative break-room. See Chernoff Declaration at ¶
21; Docket No. 44-4, Jiménez Deposition at pg. 97, lines
20-25.
39. The nature and frequency of Jiménez’ complaints and
requests differed. Sometimes, he just signaled to a
supervisor that a fragrance was bothering him but did
not request an immediate adjustment. Other times, he
commanded

immediate

adjustments

from

his

supervisors to avoid smelling a particular scent that he
alleged was rapidly making him ill. Other times,
Jiménez’ complaint did not go beyond his objection to

10 Plaintiff admitted the statements contained in this SUF.

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a particular scent which could surface in the breakroom or in the gaming area. See Chernoff Declaration
at ¶ 25. 11
40. Circumstances at the Casino vary constantly in terms
of number of: visitors, players, tables in play, dealers
in the floor or at break, dealers skilled at a particular
game, among many other circumstances. There are
hundreds of visitors at the Casino every day. See
Chernoff Declaration at ¶ 26. 12
41. To relieve Jiménez so that he could take an
unscheduled rest or to relocate the employee whose
scent was bothering him, supervisors had to identify a
replacement to substitute the employee. The same
thing happened if Jiménez took a break. This
arrangement was only possible if there was a table that
only required one dealer to operate who happened to
be qualified to play dice or the game of the dealer
he/she was going to relieve; and at that moment there
11 Though Jiménez objected to this SUF, he did not provide a record
citation to support his opposing statement, as required under Local Rule
56(c).
12 As with the previous SUF, Jimenez’ opposing statements was not
properly supported by a record citation.

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were no clients playing at the table. See Chernoff
Declaration at ¶ 29.
42. Jiménez’ pay was never materially affected. See
Chernoff Declaration at ¶ 35; Márquez Declaration at
¶ 49.
43. Jiménez acknowledged at deposition that the Casino
would provide an adjustment when he complained of
a particular scent. See Jiménez Deposition at pg. 174,
lines 9-12.
44. Jiménez also acknowledged in his deposition that,
whenever he felt ill, he would be sent to rest at the
breakroom until an adjustment could be made in the
Casino area. See Jiménez Deposition, at pg. 174, lines 225; pg. 175, lines 1-4.
45. According to Chernoff, during the latter half of 2014,
Jiménez had turned more vocal about his complaints.
See Chernoff Declaration at ¶ 37.
46. In mid- 2014, Jiménez complained about the scent of a
urinal screen used in a bathroom stall. The product was
replaced

by

Chernoff

himself

when

Jiménez

complained. No complaints were received again. See
Chernoff Declaration at ¶ 38.

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47. From October 2014 on, Chernoff noticed that Jiménez’
grievances with scents were generally limited to the
fragrances worn by one or two women, mostly another
employee named Vanessa Torrens. See Chernoff
Declaration at ¶ 37. 13
48. Jiménez admitted that most of the incidents revolving
scents that made him ill involved Ms. Torrens. See
Jiménez Depo at pg. 166, lines 5-25, pg. 170, lines 1-11.
49. Jiménez admitted that in December 14, 2012, he was
given counseling for failing to register his meal period
in 26 instances. See Jiménez Deposition, pg. 120, lines
9-21.
50. IHG’s policies require employees to register their time,
including meal periods, through the Casinos’ official
time and attendance system. See relevant pages of the
employee handbook attached to Docket No. 44-4,
Appx. No. 046-047.
51. On September 28, 2013, Jiménez was involved in an
incident with his direct supervisor in which he threw
on the table his casino license and left the work area

13 Plaintiff admitted the statements contained in this SUF.

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without authorization. Chernoff met with Jimenez and
gave him a verbal counseling, which he recorded in
writing. See Chernoff Declaration at ¶19.
52. Abandoning a work area during a shift, unless
authorized by a supervisor/manager is a serious
violation that can be sanctioned by immediate
termination. See Docket No. 44-4, Portions of Employee
Handbook, Appx. No. 043-044.
53. Courtesy and respect are one IHG’s written standards
and part of the Team Member’s Handbook. It states
among other things, the following:
Courtesy and Respect: In a business as competitive
as ours, it is not enough to offer the best possible
service. The same has to be complemented with
efficient, respectful, courteous and attentive service
by our team members to our clients, visitors and
the general public.
Regardless of your assigned work area; you will
always have to interact with clients, visitors and the
general public. Your behavior, as well as your
attitude, will be the image they will receive of our
Company.
....

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You must conduct yourself at all times with respect,
courtesy and professionalism. Should any
difficulty arise, you must observe the highest
degree of tolerance and if you feel you can’t handle
the situation, you must kindly refer it to your
supervisor/manager.
See Docket No. 44-4, Portions of Employee Handbook,
Appx. No. 045.
54. On January 25, 2014, Jiménez was given a verbal
counseling by Elvin Santana, a supervisor, because he
had failed to show up for work, or call to excuse his
absence. See Márquez Declaration at ¶ 39. 14
55. On April 30, 2014, Jiménez acknowledged that he had
received updated copies of the Casino’s “Team
Member’s Handbook” and “Our Policies” booklet. See
Márquez Declaration at ¶ 40.
56. Chernoff interviewed employees Johnny Ramos, Dina
Mercado and Vanessa Torrens regarding their
interactions with Jiménez. See Chernoff Declaration at
¶ 41.
14 Jiménez objected the statements contained in this SUF because of
“irrelevancy”, but did not challenge the veracity of the information
contained therein.

JIMENEZ-JIMENEZ v. CASINO DEL SOL

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57. On November 27, 2014, Ms. Torrens filed a written
complaint regarding an incident in which she had been
removed from her table because Jiménez had indicated
that her scent was making him ill. She was bothered by
the fact that earlier that day, Jiménez had spent at least
20 minutes interacting with her during a scheduled
break, and had raised no complaints. She was
concerned that in IHG’ eagerness to accommodate
Jiménez, she was being relegated to a distant area and
her performance and work environment were being
affected despite the fact that she knew most of the
games in the Casino. See Márquez Declaration at ¶ 43.
58. On November 28, 2014, Jiménez filed a disability
discrimination charge with the Equal Employment
Opportunity Commission (“EEOC”). It was received at
the Casino on December 3, 2014. See Docket No 44-2,
EEOC Charge, Appx. 08, and Márquez Declaration at
¶ 44. 15
59. According to Márquez, the charge took him by
surprise. Márquez personally handled the charge with

15 Plaintiff admitted the statements contained in this SUF.

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the assistance of the Casino’s attorney. Márquez claims
that he was not notified of any meeting or
administrative hearing, until he received a copy of a
right-to-sue letter issued by the EEOC to Jiménez. See
Márquez Declaration at ¶ 45.
60. On February 8, 2015, Chernoff gave Jiménez a verbal
orientation regarding an incident during which he
wanted Chernoff to move another dealer away from
him because her scent was bothering him. Chernoff
recorded his conversation with Jiménez in writing. See
Chernoff Declaration at ¶ 43.
61. On March 8, 2015, Castrodad gave Jiménez another
verbal counseling regarding a missing medical
certificate. See Márquez Declaration at ¶ 46.
62. The next day, Jiménez responded to Castrodad’s
verbal counseling and copied Márquez. See Docket No.
57-8, Letter of March 9, 2015; see also, Márquez
Declaration at ¶ 47.
63. On March 18, 2015, Márquez replied to Jiménez. In his
response, Márquez explained the role of a shift
manager and the rule regarding sick leaves and
medical certificates. He also explained to Jiménez

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why he was given a verbal counseling. Márquez also
cautioned Jiménez from hurling false or malicious
accusations. See Márquez Declaration at ¶ 47.
64. On March 31, 2015, the EEOC issued a Notice of Right
to Sue letter in the case filed by Jimenez because the
Investigator found it unlikely that the EEOC would be
able to complete the administrative processing within
180 days from the filing of the charge. See Docket No.
44-2 at Appx. 09.
65. On May 14, 2015, Jiménez presented a letter of
resignation effective May 15, 2015. See Márquez
Declaration at ¶ 48; Jiménez Declaration at ¶ 43.
66. After presenting the letter, Jiménez worked at his
assigned table until he completed his shift. During that
shift, he “told the guys . . . he was resigning.” See
Docket No. 44-4, Appx. No. 013-014, Jiménez
Deposition, pg. 131, lines 21-25; pg. 132, lines 1-25.
67. IHG’s Employee Manual states that IHG is committed
to having workers being treated justly and respectfully
and establishes a process to secure those rights.
Employees that have a complaint are expressly
authorized and instructed to initiate their grievance

JIMENEZ-JIMENEZ v. CASINO DEL SOL

Page 23

with their immediate supervisor; if the employee is
unable to obtain the necessary help, he or she then
proceeds go to the manager and if still the employee is
not satisfied, the manager will coordinate a meeting
with the General Manager. See Márquez Declaration at
¶ 52.
68. Jiméenez was asked in his deposition what was the
basis for claiming that he suffered retaliation. He
stated the following: (i) that the company began to
“make him a file” after he filed the EEOC charge; (ii)
that he got admonished whenever he complained
about scents; (iii) that his employer was “rude” to him;
(iv) that his employer was “pushing him” to “make
him angry” so that he would resign. See Docket No. 444, Appx. No. 015-018, Jiménez Depo, pg. 138, lines 1925, pg. 140, lines 1-10.
69. When asked to explain what he meant by “making a
file” and “being admonished,” Jiménez specified two
documents: a record of conversation from February 8,
2015, and the advice and counseling of March 8, 2015.
See Jiménez Depo, pg. 140, lines 12-25, pg. 141, lines 114, pg.142, lines 1-6.

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70. Before joining IHG, Jiménez worked at another Casino,
Casino del Mar, for several months. He indicated that
during that time, he did not experience any kind of
issues with perfume scents. And prior to that, while he
worked at the Diamond Palace Hotel, he only
experienced problems with perfumes “a few times.”
See Jiménez Depo, pg. 47, lines 2-25, pg. 48, lines 1-10,
included in Docket No. 44-4, Appx. No. 003-004.
71. Jiménez currently works at a beach paddle business.
See Docket No. 44-4, Appx. No. 049, Jiménez Depo, pg.
24, lines 18-23.
72. According to Jiménez, his condition is triggered “only
when he is exposed to strong odors and strong
perfumes and colognes.” Docket No. 57-2, Jiménez’
Declaration at ¶ 8.
73. Pursuant to a medical certificate dated July 7, 2012,
Jiménez suffers from “severe allergy to exposure to
strong perfumes used by some of his co-workers.”
Docket No. 57-4.
III. Analysis
The ADA prohibits discrimination in the workplace
against an otherwise qualified person with a disability, unless

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the employer can demonstrate that the accommodation
would impose an undue hardship on the employer’s
business. 42 U.S.C. § 12112(b)(5)(A); U.S. Airways, Inc., v.
Barnett, 535 U.S. 391, 400 (2002). “Discrimination in violation
of the ADA includes, inter alia, ‘not making reasonable
accommodations to the known physical or mental limitations
of an otherwise qualified individual with a disability.’”
McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F.3d 92,
96 (2nd Cir. 2009); 42 U.S.C. § 12112(b)(5)(A). Jiménez’ claims
are based on this modality.
To survive summary judgment on his “reasonable
accommodation” claim, Jiménez has to produce enough
evidence for a reasonable jury to find that (1) he is disabled
within the meaning of the ADA, (2) he is able to perform the
essential functions of the job with or without a reasonable
accommodation, and (3) IHG, despite knowing of his
disability, did not reasonably accommodate it. Tobin v. Liberty
Mut. Ins. Co., 433 F.3d 100, 107 (1st Cir. 2005)(citing Estades–
Negroni v. Associates Corp. of North America, 377 F.3d 58, 63 (1st

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Cir.2004)).
(1) Discrimination Due to Disability
(i)
Whether Jiménez is disabled within the
meaning of the ADA
A plaintiff seeking protection under the ADA is required
to show that he is a qualified individual, 16 with a condition
that substantially limits one or more major life activities.
Carroll v. Xerox Corp., 294 F.3d 231, 240 (1st Cir. 2002).
Jiménez describes his disability as “a severe allergic
condition that makes him sensitive to the smell and breathing
of some perfumes and chemicals.” 17 He argues that the
disorder substantially limits him in performing the major life
activities of “breathing, eating, concentrating, smelling,
touching and interacting with others”. Id. 18

16 A qualified individual is one who “with or without reasonable
accommodation, can perform the essential functions of” the relevant
position. 42 U.S.C. § 12111(8).
17 See Second Amended Complaint, Docket No. 35, at ¶ 14.
18 Examples of major life activities are: caring for oneself; performing
manual tasks; walking; seeing; hearing; speaking; breathing; learning; and
working. This list, however, is not meant to be comprehensive. 29 C.F.R. §
1630.2(i).

JIMENEZ-JIMENEZ v. CASINO DEL SOL

Page 27

The ADA recognizes breathing and respiratory functions
as major life activities. See 42 U.S.C. § 12102(2)(A), see also 29
C.F.R. § 1630.2(i)(1)(I)-(ii). However, IHG asserts that Jimenez
is not disabled within the meaning of the ADA because his
impairment only manifests when he is exposed to an allergen
at work, and not in other environments. IHG also states that
Jiménez has not presented admissible medical evidence to
supports his disability claim.
At this stage, the burden is on Jiménez to show that he
suffers a condition which makes him unable, or significantly
restricted in his ability to perform a particular major life
activity. See 42 U.S.C. § 12102(2)(A). Jiménez must also show
that he has a record of the impairment, or that his employer
regards him as having such an impairment. Id.; see also
Schapiro v. New York City Dept. of Health, 25 Fed.Appx. 57, 6061 (2nd Cir. 2001).
We have surveyed the case law focused on plaintiffs with
respiratory conditions and found several where courts held
that individuals suffering from respiratory sensitivity to

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Page 28

airborne agents did not show a substantial limitation on the
major life activity of breathing within the meaning of the
ADA. See, Schapiro, 25 Fed.Appx. at 61 (finding that plaintiff
“did not offer sufficient evidence of respiratory problems
outside of his work activity”, and, therefore, failed to establish
that his physical impairments substantially limited him in the
major life activities of either breathing or working); Keck v.
New York State Office of Alcoholism & Substance Abuse Services,
10 F.Supp.2d 194, 200 (N.D.N.Y. 1998)(held that plaintiff did
not allege specific instances of difficulty breathing outside of
work context and noted that several cases “support the
conclusion that failure to allege specific evidence of the extent
to which other jobs are foreclosed by smoke sensitivity is
generally fatal at the summary judgment stage”); López-Cruz
v. Instituto de Gastroenterología de PR, 960 F.Supp.2d 367, 371 n.
8 (D.P.R. 2013)(citations omitted)(recognizing that “[a]
number of courts conclude that an individual does not suffer
a disability when an impairment only manifests itself when
the individual is exposed to an allergen at work.”); Watson v.

JIMENEZ-JIMENEZ v. CASINO DEL SOL

Page 29

Hughston Sports Medicine Hospital, 231 F. Supp. 2d 1344, 1349
(M.D. Ga. 2002)(Court found that a registered nurse with a
severe latex allergy was not substantially limited in the major
life activity of breathing, within the meaning of the ADA).
The record shows that Jiménez has suffered from his
allergic condition since 1991. Docket No. 57-2 at ¶ 47. In
describing his condition, Jiménez himself explained that he
“did not get sick with all the co-workers” and only “with the
strong odor fragrances and the employees who used
perfumes with strong odors.” Docket No. 57-2 at ¶ 11.
Furthermore, it is uncontested that prior to joining Casino del
Sol, Jiménez had worked at Diamond Palace Hotel, where he
only experienced problems with perfumes “a few times”, and
at Casino del Mar, where he did not experience any kind of
issues with perfume scents.
By definition, an individual is “substantially limited” in
his ability to carry out a major life activity when he is “(i)
unable to perform a major life activity that the average person
in the general population can perform; or (ii) is significantly

JIMENEZ-JIMENEZ v. CASINO DEL SOL

Page 30

restricted as to the condition, manner or duration under
which an individual can perform a particular major life
activity as compared to the condition, manner, or duration
under which the average person in the general population can
perform that same major life activity.” 29 C.F.R. § 1630.2(j)(1).
Having reviewed the record, we have found no evidence
that Jiménez’ condition was triggered outside of his place of
employment. Therefore, the plaintiff has not made a sufficient
showing that his condition rendered him disabled within the
meaning of the ADA.
Nevertheless, even if Jiménez had shown that he is
disabled within the confines of the ADA, the Court cannot
conclude that a material and genuine issue exists with regard
to the question of whether he is a qualified individual under
the Act.
(ii)

Whether Jiménez is a qualified individual
under the ADA

In order to be a “qualified individual” under the Act, the
burden is on the employee to show: first, that he possesses the

JIMENEZ-JIMENEZ v. CASINO DEL SOL

Page 31

requisite skill, experience, education and other job-related
requirements for the position, and second, that he is able to
perform the essential functions of the position with or without
reasonable accommodation. García-Ayala v. Lederle Parenterals,
Inc., 212 F.3d 638, 646 (1st Cir. 2000); see also 29 C.F.R. §
1630.2(m).
A review of the record shows that Jiménez possesses the
skill, experience and education to fulfill the requirements of
the position.
Our inquiry therefore concerns only whether Jiménez
made

a

sufficient

showing

that,

with

reasonable

accommodation, he could perform the essential functions of
the relevant job and that IHG failed to make the appropriate
accommodations. A reasonable accommodation may include,
inter alia, restructuring of job duties and schedules,
modification of the facilities in which a job is performed, and
“reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B).
The plaintiff bears the burdens of both production and
persuasion as to the existence of some accommodation that

JIMENEZ-JIMENEZ v. CASINO DEL SOL

Page 32

would allow him to perform the essential functions of his
employment. See Feliciano v. State of R.I., 160 F.3d 780, 786 (1st
Cir. 1998); Mulloy v. Acushnet Co., 460 F.3d 141, 147 (1st Cir.
2006) (citing Phelps v. Optima Health, Inc., 251 F.3d 21, 25 (1st
Cir. 2001)). However, the failure to make a reasonable
accommodation will not be considered discrimination if the
employer can demonstrate that the accommodation would
impose an undue hardship on the operation of its business. 42
U.S.C. § 12112(b)(5)(A).
In the present case, Jiménez argues that IHG had a duty to
accommodate him by placing him in a low-allergen
environment, meaning, one with “light perfumes without
fixers, no iris root, scents and air refreshers”, and also
requested “the use of activated charcoal prefilters in the
working area, to avoid the application of perfumes in the
working area and to avoid scheduling [him] in high antigenload days.” See Docket No. 58.
Plaintiff has not offered sufficient evidence to establish
how IHG might have accomplished the accommodation,

JIMENEZ-JIMENEZ v. CASINO DEL SOL

which

entails

accommodation

a

Page 33

showing

is

“for

of

the

how

“feasible”

employer

under

the
the

circumstances.” See Reed v. LePage Bakeries, Inc., 244 F.3d 254,
259 (1st Cir. 2001). Given the nature of IHG’s business, it seems
highly impractical to police the scents that both employees
and clients use. Jiménez alleges that he was only bothered by
the scents of some of his co-workers, and was never afflicted
from the smell emanating from a client. However, he failed to
specifically identify which scents or smells were the culprits
behind his condition, thereby making it extremely onerous for
his employer to identify a proper manner for controlling the
allergens that allegedly triggered his “disability.”
For its part, IHG provided ample evidence of the
difficulties

in

accommodating

Jiménez’

condition,

particularly in light of the nature of his job, and the burden it
would impose on other employees. “The ADA does not
require an employer to accommodate a disability by
foregoing an essential function of the position or by
reallocating essential functions to make other workers' jobs

JIMENEZ-JIMENEZ v. CASINO DEL SOL

Page 34

more onerous.” Feliciano, 160 F.3d at 785.
Taking all these factors into account, the Court concludes
that Jiménez failed to establish that he is a qualified
individual under the ADA and, therefore, he is not entitled to
relief under the Act. 19
(2) Retaliation
Jiménez also claims that IHG retaliated against him for
engaging

in

protected

activity,

specifically,

making

continuous requests for reasonable accommodation, and
filing an EEOC charge.
“An ADA plaintiff need not succeed on a disability claim
to assert a claim for retaliation.” Wright v. CompUSA, Inc., 352
F.3d 472, 477 (1st Cir. 2003)(citing Soileau v. Guilford of Maine,
Inc., 105 F.3d 12, 16 (1st Cir.1997)). The ADA retaliation
provision states that “[n]o person shall discriminate against
any individual because such individual has opposed any act

19 Although IHG’s Motion for Summary Judgment raised other grounds
for the relief sought, such as failure to exhaust, we need not discuss them
insofar as we conclude that Jiménez cannot avail himself of the remedies
under the ADA.

JIMENEZ-JIMENEZ v. CASINO DEL SOL

Page 35

or practice made unlawful by [the ADA] or because such
individual made a charge ... under [the ADA].” 42 U.S.C. §
12203(a). ADA retaliation claims are analyzed within the
same framework employed for retaliation claims under Title
VII. Soileau, 105 F.3d at 16.
To establish a prima facie case of retaliation under the
ADA, a plaintiff must show: (1) protected employee activity;
(2) adverse action by the employer either after or
contemporaneous with the employee's protected activity; and
(3) a causal connection between the employee's protected
activity and the employer's adverse action. Soileau, 105 F.3d at
16.
It is undisputed that Jiménez engaged in protected
conduct, 20 and that he resigned. Although resigning is not
considered an adverse employment action, Jiménez avers that
his resignation is actually a constructive discharge.

20 The First Circuit has held that requesting an accommodation, even
without the filing of a formal charge, is behavior protected from
retaliation. Wright, 352 F.3d at 477 (citing Benoit v. Technical Mfg. Corp., 331
F.3d 166, 177 (1st Cir. 2003)).

JIMENEZ-JIMENEZ v. CASINO DEL SOL

Page 36

To establish his claim of constructive discharge in
violation of Title VII, Jiménez must prove that “(1) he she
suffered harassment or discrimination so intolerable that a
reasonable person in the same position would have felt
compelled to resign ...; and (2) his reaction to the workplace
situation…

was

reasonable

given

the

totality

of

circumstances... .” Pennsylvania State Police v. Suders, 542 U.S.
129, 139 (2004).
Even though we have searched the record thoroughly, we
fail to find a basis for Jiménez’ claim of constructive discharge.
For instance, there is no controversy as to the fact that
Jiménez’ salary or benefits were not reduced. “Salary
considerations are important in determining whether a job
transfer can support a claim of constructive dismissal.”
Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 26 (1st Cir.
1997)(citation omitted). Furthermore, Jiménez merely makes
reference to “being admonished for trying to protect his
health,” see Docket No. 9 at ¶18(f), and points to several
comments regarding his intolerance of strong odors; see

JIMENEZ-JIMENEZ v. CASINO DEL SOL

Page 37

Jimenez’ Separate Statement of Additional Facts, Docket No.
57-1, at ¶¶ 16-17; Jiménez’ Declaration at ¶¶ 40-42. In
addition, the Amended Complaint does not set forth specific
instances for workplace harassment that rise to the level of
pervasiveness needed to succeed on a hostile work
environment claim.
As IHG correctly points out, Jiménez has not established
that his working conditions were so “difficult and
unpleasant” that a reasonable person in that position would
have had no choice but to resign. See De La Vega v. San Juan
Star, Inc., 377 F.3d 111, 117 (1st Cir. 2004)(quoting Lee–Crespo v.
Schering–Plough Del Caribe, Inc., 354 F.3d 34, 45 (1st Cir.2003)).
After all, “[i]t is not enough that the plaintiff suffered ‘the
ordinary slings and arrows that workers routinely encounter
in a hard, cold world.’” Id.
The Court also fails to see the causal connection between
Jiménez’ separation from his job and his request for
accommodation. Even viewing the record in the light most
favorable to Jiménez, no reasonable juror could find that IHG

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Page 38

constructively discharged Jiménez in retaliation for his EEOC
charge, or for his requests for reasonable accommodation.
(3) Supplemental Claims
Because the Court finds that plaintiff’s federal claims do
not survive summary judgment, the state law claims are
dismissed as well.
IV. Conclusion
For the reasons stated herein, we grant IHG’s Motion for
Summary Judgment at Docket No. 44.
IT IS SO ORDERED AND ADJUDGED.
In San Juan, Puerto Rico, this 30th day of November, 2017.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE