Ilarraza-Rodriguez v Commonwealth of Puerto Rico, et al
Filing
43
OPINION AND ORDER granted 34 Motion for Leave to File Spanish Language Documents; noted 40 Motion Submitting Certified Translations; granted 32 35 Motions for Summary Judgment. Signed by Judge Carmen C. Cerezo on 3/17/2017. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LUIS ILARRAZA-RODRIGUEZ
Plaintiff
vs
COMMONWEALTH OF PUERTO
RICO; PUERTO RICO
DEPARTMENT OF JUSTICE;
CESAR MIRANDA-RODRIGUEZ, in
his official capacity as Secretary of
the Puerto Rico Department of
Justice; MARITIME TRANSPORT
AUTHORITY; DEPARTMENT OF
TRANSPORTATION AND PUBLIC
WORKS
Defendants
CIVIL 15-3167CCC
OPINION AND ORDER
On December 29, 2015, plaintiff Luis Ilarraza (Ilarraza) filed a Complaint
(d.e.
1)
alleging
that
defendants
Commonwealth
of
Puerto
Rico
(“Commonwealth”), the Puerto Rico Department of Justice (“DOJ”), the
Honorable Cesar Miranda in his official capacity as Secretary of the DOJ
(“Miranda”), the Puerto Rico Department of Public Transportation (“DPT”), and
the Puerto Rico Maritime Transport Authority (“MTA”) violated his right to
reasonable accommodation under the American with Disabilities Act (“ADA”),
42 U.S.C. §§ 12101 et seq.; and the Federal Rehabilitation Act of 1973
(“Rehabilitation Act”), 29 U.S.C. §§ 701 et seq.; and also seeking monetary and
injunctive relief under 42 U.S.C. § 1983 (“Section 1983”) for the defendants’
alleged violations of the Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution. Additionally, plaintiff brought supplemental
claims alleging that defendants’ conduct had infringed Article 1802 of the Civil
Code of Puerto Rico, 31 L.P.R.A. §§ 5141–5142. On September 16, 2016,
CIVIL 15-3167CCC
2
defendants Commonwealth, DOJ, Miranda and DPT moved for summary
judgment (d.e. 32) seeking the dismissal of plaintiff’s federal claims on various
grounds. On September 19, 2016, defendant MTA also moved for summary
judgment (d.e. 35), which the other defendants joined on September 26, 2016
(d.e. 37). Both motions for summary judgment remain unopposed by the
plaintiff. Finding that there is no genuine issue as to any material fact and that
the moving parties are entitled to a judgment as a matter of law, we now
GRANT both motions for summary judgment.
I.
FACTUAL BACKGROUND
The Court has gathered the following facts from the Statement of
Uncontested Material Facts in Support of Motion for Summary Judgment filed
by defendants Commonwealth, DOJ, Miranda and DPT (docket entry 33) and
the MTA (docket entry 36), both of which remain uncontroverted by the plaintiff1
and are deemed admitted. See Local Rule 56(e).2 (“Facts contained in a
supporting or opposing statement of material facts, if supported by record
citations . . ., shall be deemed admitted unless properly controverted.”)
Plaintiff Ilarraza was appointed in a regular position as Maritime
Transportation Supervisor with the MTA effective on July 1, 2004. Prior to his
appointment in a regular position as Maritime Transportation Supervisor,
plaintiff had temporary appointments since March 5, 2003 that were renewed
periodically.
1
Although plaintiff moved for an extension of time until October 26, 2016
to file his opposition (d.e. 38), he never did.
2
Defendants’ Motion Requesting Leave to File Documents in Spanish
Pending Their Certified Translation (d.e. 34) is GRANTED. Their Motion
Submitting Certified Translations (d.e. 40) is NOTED.
CIVIL 15-3167CCC
3
On March 25, 2014, Dr. Walter Pagán-Agostini, psychiatrist, issued a
reasonable accommodation request on behalf of plaintiff, which was addressed
to Mrs. Gladys Fuentes (Fuentes), MTA’s Human Resources Director,
requesting his relocation to a service zone where he did not have to travel long
distances. In tandem with this request, Dr. Pagán-Agostini recommended the
maintenance area in the San Juan area in Isla Grande or the Central Offices
located in Minillas Tower. On April 1, 2014, Fuentes issued a communication
to plaintiff, entitled “request for reasonable accommodation,” acknowledging
receipt of the documents submitted by him including the medical certificate
issued by Dr. Pagán-Agostini. In said communication, Fuentes notified plaintiff
that he had been given an official form of the agency, a request for medical
information, and was informed that once he completed said documentation he
should submit it to the Office of Human Resources Fuentes further informed
plaintiff that his request for reasonable accommodation would remain pending
until he submitted he documentation requested, with the objective of
completing the process established by the Authority for the evaluation of
reasonable accommodation requests.
On July 18, 2014, Mary K. Vidal, a psychologist, filled out the MTA’s form
requesting medical information to carry out the reasonable accommodation
process. In said form, Dr. Vidal stated that plaintiff suffered from an unspecified
mood disorder and that his health condition began on February 17, 2014. The
symptoms reported by her as being experienced by plaintiff were “motor skill
coordination somewhat sluggish, light difficulties in memory, loss of interest in
pleasurable activities, . . . presently sedentary, does not participate in house
chores and responsibilities.” She recommended that in order for plaintiff to
maximize the clinical benefits of his treatment he should continue to be
CIVIL 15-3167CCC
4
assigned to work in the Hato Rey area, where he was assigned as of that
moment, and that no employees that had been previously involved in situations
against him be placed in his same work shift.
On August 28, 2014, plaintiff filled out the form provided by the MTA to
request reasonable accommodation, where he stated that he had previously
requested reasonable accommodation for the same condition that he was
requesting it at that moment. He further explained on the form that his prior
request was the document sent by psychiatrist Dr. Pagán-Agostini requesting
reasonable accommodation consisting in not traveling long distances, on
account of his condition and the medications prescribed.
On the form
submitted on August 28, 2014, the duties that plaintiff claimed he could not
perform were, among others, the reconciliation of ticket sales, manual
destruction of the tickets, supervision of personnel with whom he had conflicts,
and night shifts because he could not drive and he was taking medications at
specific hours to sleep.
On October 10, 2014, MTA’s Employee Assistant Program Coordinator,
Karenly Ruiz-Reyes (Ruiz-Reyes), sent a written communication to Milka M.
Sierra-Castro (Sierra), Human Resources Analyst, asserting that on August 22,
2014, plaintiff was referred to the Employee Assistant Program (PAE by its
Spanish acronym) for a medical occupational evaluation as a requirement for
a reasonable accommodation. The communication issued by Ruiz-Reyes to
Sierra further related that plaintiff had previously been summoned to appear at
the Human Resources Office on August 28, 2014 when he was referred to
attend the Employee Assistant Program of Inspira on September 3, 2014.
There, Mrs. Lucery Medina, a psychologist, evaluated plaintiff, and diagnosed
him with moderate major depression making the following recommendations:
CIVIL 15-3167CCC
5
(1) he could perform the essential duties of his position with the following
reasonable accommodation: in a smaller station or office with fewer personnel
working at the site; a reduction in tasks that required a high concentration level
such as reconciliation [of ticket sales]; and (2) to continue with the psychiatric
and psychological treatment.
On October 15, 2014, MTA’s Executive Director, Jose A. Ruiz-García
(Ruiz-García), issued a memorandum notifying the agency’s personnel that the
Martín Peña Channel had to be temporarily closed due to a hydrocarbon spill,
not caused or imputable to the Authority, but which would keep the Hato Rey
route and station out of service and inoperative while the pertinent agencies
and entities completed the cleaning works. As a result of said temporary
closing of the Martin Peña Channel, all personnel assigned to the Hato Rey
station, including plaintiff, were required to report to work at the Cataño station,
during the same shifts that they had assigned according to their work schedule.
On October 28, 2014, Sierra addressed a communication to plaintiff through
Fuentes, the Human Resources Manager, stating that the analysis regarding
his request for reasonable accommodation was completed and that they were
recommending that the necessary adjustments be made to allow him to
continue performing the duties of the position he held as Maritime
Transportation Supervisor. She noted in her communication that Inspira’s
psychologist, Lucery Medina, had determined that plaintiff could perform the
essential functions of his position with the following accommodations: in a
smaller station or office with fewer personnel working at the site, with a
reduction in tasks that required a high concentration level such as
reconciliation of ticket sales. She further noted that as the job description of
the position of Maritime Transportation Supervisor did not require him to do the
CIVIL 15-3167CCC
6
reconciliation of ticket sales, the recommended accommodation for a reduction
of such duties was not applicable to him. As to the accommodation of placing
plaintiff in a smaller station or office where fewer personnel worked, Sierra
informed the plaintiff that they were recommending to Mr. Carlos Lopez Roman
(Lopez) to evaluate it based on the current needs of services by the
Metropolitan Ferries Service, inasmuch as plaintiff’s position was an
operational one with rotating shifts.
On October 28, 2014, Sierra and Fuentes addressed a communication
to
Special Aid
Lopez
regarding
plaintiff’s
request
for reasonable
accommodation, where they informed him that their office had evaluated said
request and that plaintiff could perform the essential duties of his position in a
smaller station or office where fewer personnel worked. They asked Lopez to
evaluate said accommodation given that plaintiff’s position was an operational
one with rotating shifts and that such adjustment should be made based on the
current needs of the Metropolitan Boating Service division. They further asked
Lopez to make the necessary adjustments in order to provide the plaintiff with
a job environment that would satisfy his needs.
On November 12, 2014, at the MTA’s San Juan site, plaintiff was
required to submit a urine sample as part of a random drug test being
administered to employees of that location.
He provided the sample to
Phamatech, Inc., through its collector Juan Howe (Howe), M.A., SAP and
Dr. Carlos Robles (Dr. Robles) as the Medical Review Officer (MRO). The
sample was identified with the number 1000520364. On November 17, 2014,
Phamatech, Inc., issued its report on the random urine test identified with the
number 1000520364 which corresponded to the plaintiff. Said sample tested
positive to cocaine metabolites and benzoylecgonine. On December 15, 2014,
CIVIL 15-3167CCC
7
Dr. Robles, as the Medical Review Officer, issued a report on the urine test
collected on November 12, 2014 from plaintiff as donor, confirming a positive
result to cocaine and stating that the donor (i.e. plaintiff) had been given the
opportunity to discuss the result, and no legitimate medical explanation was
found.
On December 16, 2014, Howe issued a confidential communication to
the MTA’s Executive Director, Ruiz Garcia, informing him that on November 12,
2014, plaintiff had participated in the random tests for detection of controlled
substances and that he had tested positive to cocaine. Howe further reported
that given the positive result to cocaine and plaintiff’s employment in a position
classified as sensitive, he was unfit to continue performing his duties and could
not drive official vehicles of the MTA. He recommended the Executive Director
to take action in accordance with the applicable regulations of the MTA.
On December 17, 2014, plaintiff filed a discrimination charge in the Equal
Employment Opportunity Commission claiming that the MTA as his employer
had discriminated against him because of his disability and had not provided
him the reasonable accommodation previously requested.
On December 24, 2014, plaintiff was provided with a copy of the notice
of administrative charges filed against him on account of the positive result to
cocaine in the random drug test, which was issued on December 22, 2014, and
signed by Executive Director Ruiz Garcia. Plaintiff had previously
acknowledged on March 4, 2003 the receipt of a document outlining the public
policy of the Commonwealth and its Ports Authority which guaranteed a
workplace free of drugs. As reflected in the December 22, 2014 letter informing
plaintiff of the administrative charges, the disciplinary sanctions, established
in MTA’s regulations for the violation imputed to him on account of his positive
CIVIL 15-3167CCC
8
result to cocaine in the random drug test, range from a written admonishment
to suspension and termination from employment.
Upon receipt of the
communication, plaintiff was suspended from employment but not from salary
until an informal administrative hearing set for January 12, 2015 could be held.
Said hearing was convened as scheduled. On January 14, 2015 Human
Resources Manager Fuentes informed the plaintiff that his suspension from
employment would continue until a final adjudication was made on his case.
On January 21, 2015, examining officer Juan Carlos Villafañe-Conde issued
a report where he found
that the position held by plaintiff of Maritime
Transportation Supervisor was classified as sensitive as it entailed the
transport of passengers and that he had tested positive to cocaine on the
random drug test performed on November 12, 2014.
He, therefore,
recommended to the Executive Director that, pursuant to MTA’s regulations,
plaintiff be terminated from his employment.
On February 6, 2015, MTA’s Executive Director Ruiz-García issued a
letter to plaintiff informing him that after reviewing the report of the examining
officer he agreed with the recommendation that he be terminated from
employment on account of having tested positive to cocaine in a random drug
test, in violation to the personnel norms and regulations of the MTA. As a
result, plaintiff was terminated from his employment with the MTA on
February 17, 2015.
II.
STANDARD OF REVIEW
Summary judgment is appropriate “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
CIVIL 15-3167CCC
9
party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The
burden is on the moving party to establish the lack of a genuine, material,
factual issue, Finn v. Consolidated Rail Corp., 782 F.2d 13, 15 (1st Cir. 1986),
and the Court must view the record in the light most favorable to the
nonmovant, according the nonmovant all beneficial inferences discernable from
the evidence, Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
Summary judgment is proper when, after adequate time for discovery, the party
against whom judgment is sought fails to show sufficient basis for the
establishment of an essential element of its case. Kauffman v. Puerto Rico Tel.
Co., 841 F.2d 1169, 1172 (1st Cir. 1988) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 332, 106 S.Ct. 2548, 2557 (1986) and Moody v. Maine Central
R.R. Co., 823 F.2d 693, 694 (1st Cir. 1987)).
III.
DISCUSSION
Eleventh Amendment/sovereign immunity
Movants first aver that plaintiff’s claim against them for monetary relief
under the ADA is barred by the Eleventh Amendment. They are right. Title I
of the ADA generally prohibits an employer from discriminating against an
employee with a disability. 42 U.S.C. § 12112(a). The ADA also imposes on
employers an affirmative duty to offer reasonable accommodation to an
impaired, but otherwise qualified individual. Calero–Cerezo v. U.S. Dept. of
Justice, 355 F.3d 6, 20 (1st Cir. 2004). ADA’s Title V, in turn, prohibits
discrimination “against any individual because such individual has opposed any
act or practice made unlawful [by its provisions].” 42 U.S.C. § 12203(a). But
“[t]he Eleventh Amendment bars private money damages actions for state
violations of ADA Title I . . .;” Tennessee v. Lane, 541 U.S. 509,
CIVIL 15-3167CCC
10
124 S.Ct. 1978, 158 L.Ed. 2d 820 (2004). And this bar has been extended to
claims under ADA’s Title V predicated on alleged violations of its Title I. See
Demshki v. Monteith, 255 F.3d 986, 988–89 (9th Cir. 2001). Therefore, all of
the defendants, which include the Commonwealth and various of its
instrumentalities, are immune to the monetary claims raised by plaintiff under
ADA’s Title I and V. Torres–Alamo v. Puerto Rico, 50 F.3d 20 (1st Cir. 2007).
See also Montalvo–Padilla v. Univ. of P.R., 492 F.Supp. 2d 36,
43 (D.P.R. 2007) (holding that “the protection afforded by the [Eleventh]
Amendment extends not only to the states themselves, but also to their
instrumentalities and government officials acting in that capacity.”).
In light of the above, plaintiff’s claim for monetary relief under the ADA
is ORDERED DISMISSED, with prejudice.
Injunctive relief under the ADA and injunctive and monetary relief
under the Rehabilitation Act.
Regarding plaintiff’s claims for injunctive relief under the ADA and his
claims for injunctive and monetary relief under the Rehabilitation Act, these fail
on the merits. We note at the outset that claims under the ADA and the
Rehabilitation Act are analyzed using the same standards since both statutes
contain similar language and are “quite similar in purpose and scope.”
McPherson v. Mich. High Sch. Athletic Ass’n, Inc., 119 F.3d 453, 459–60
(6th Cir. 1997); see also Phelps v. Optima Health, Inc., 251 F.3d 21, 23 fn. 2
(1st Cir. 2001), Oliveras-Sifre v. Department of Health, 214 F.3d 23, 25, n. 2
(1st Cir. 2000), EEOC v. Amego, Inc., 110 F.3d 135, 143 (1st Cir. 1997). To
state a claim under the ADA (and, ergo, under the Rehabilitation Act), plaintiff
must plausibly plead that he: (1) was disabled; (2) was able perform the
essential functions of his job, with or without an accommodation; and (3) was
CIVIL 15-3167CCC
11
discharged because of his disability. Roman–Oliveras v. P.R. Elec. Power
Auth., 655 F.3d 43, 48 (1st Cir. 2011) (internal citations omitted).
As the undisputed facts clearly establish, once plaintiff requested a
reasonable accommodation based on his mental condition from his employer
MTA, the agency immediately started the process to attend his needs. When
plaintiff completed the paperwork required by MTA, he was duly evaluated by
a contracted psychologist, who issued recommendations as to reasonable
accommodations that would also allow him to perform the essential duties of
his position. Said recommendations were adopted, and the agency began to
implement them. While immersed in said process, however, plaintiff tested
positive to cocaine in a random drug test which thwarted the entire process.
Given the seriousness of this conduct, which violated the agency’s zero
drug-tolerance policy and contravened the sensitivity of his position,
administrative charges were filed against plaintiff which eventually led to his
termination from employment effective on February 17, 2015.
Plaintiff’s
positive testing to cocaine, in fact, rendered him ineligible to qualify as an
“individual with a disability” under the ADA which excludes from said
classification a person that “is currently engaging in the illegal use of drugs,
when the covered entity acts on the basis of such use." 42 U.S.C. § 12114(a);
see also Jones v. City of Boston, 752 F.3d 38, 58 (1st Cir. 2014). In sum, the
evidence on record clearly establishes that plaintiff was not discharged
because of his disability but rather for having used controlled substances
during his employment in violation of MTA’s regulations.
Plaintiff’s retaliation claims under both statutes are similarly meritless.
To prove retaliation, a plaintiff must establish that (1) he engaged in protected
conduct; (2) he experienced an adverse employment action; and (3) there was
CIVIL 15-3167CCC
12
a causal connection between the protected conduct and the adverse
employment action. Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994).
The protected conduct here would be his filing of a discrimination charge
before the Equal Employment Opportunity Commission on December 17, 2014,
and the adverse action would be his termination from employment on February
17, 2015.
But plaintiff has failed to establish that there was a causal
connection between the protected conduct and the adverse employment
action.
What the evidence does show is that his termination was a
consequence of his having tested positive to cocaine on November 12, 2014,
which led to the December 16, 2014 recommendation by Howe to MTA’s
Executive Director Ruiz-Garcia that administrative charges be filed against
plaintiff and which resulted in the commencement of a disciplinary process
against him. There is simply no evidence that plaintiff’s termination was in
retaliation for his filing of a discrimination charge on December 17, 2014.
Accordingly, and for the reasons stated, plaintiff’s claims for injunctive
relief under the ADA and for injunctive and monetary relief under the
Rehabilitation Act are ORDERED DISMISSED, with prejudice.
Equal protection claims under Section 1983.
As to this claim, plaintiff merely alleged in his Complaint that “Defendant’s
(sic) actions constitute unlawful and unreasonable discrimination against
disabled individuals which is expressly prohibited by the Equal Protection
Clause to the Fourteenth Amendment of the Constitution of the United States,
the ADA and the Rehabilitation Act.” and “unlawful retaliation which is
expressly prohibited by the Equal Protection Clause to the Fourteenth
Amendment of the Constitution of the United States, the ADA, and the
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13
Rehabilitation Act.” (d.e. 1, p. 4, paragraphs 2-3). He further averred that “her
(sic) claims for monetary relief under the Equal Protection Clause are
enforceable under 42 U.S.C. § 1983.” Id., at paragraph 5.
Section 1983 creates no independent substantive rights, but rather,
provides a cause of action by which individuals may seek money damages for
governmental violations of rights protected by federal law. Albright v. Oliver,
510 U.S. 266, 271 (1994); Cruz–Erazo v. Rivera–Montanez, 212 F.3d 617, 620
(1st Cir. 2000). To state a claim pursuant to Section 1983, plaintiffs must show
that: (i) the conduct complained of has been committed under color of state
law; (ii) this conduct worked a denial of rights secured by the Constitution or
laws of the United States, and (iii) defendants’ alleged conduct was causally
connected to plaintiff’s deprivation.
Gutiérrez-Rodríguez v. Cartagena,
882 F.2d 553, 558 (1st Cir. 1989).
The Equal
Protection Clause of the Fourteenth Amendment
“contemplates that similarly situated persons are to receive substantially similar
treatment from their government.” Tapalian v. Tusino, 377 F.3d 1, 5
(1st Cir. 2004). A plaintiff alleging an equal protection violation must, therefore,
show that, “compared to others similarly situated, [he] was selectively
treated . . . based on impermissible considerations such as race, religion, intent
to inhibit or punish the exercise of constitutional rights, or malicious or bad faith
intent to injure a person.” Barrington Cove Ltd. P'ship v. R.I. Hous. & Mortgage
Fin. Corp., 246 F.3d 1, 7 (1st Cir. 2001). A necessary element in an equal
protection claim is proof of intent to discriminate. Rivera v. Puerto Rico
Aqueduct & Sewers Auth., 33 F.3d 183, 192 (1st Cir. 2003); Soto v. Flores,
103 F.3d 1056, 1067 (1st Cir. 1997).
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The only claim that could be deciphered from plaintiff’s pleadings under
the Equal Protection Clause cannot withstand defendants’ motions for
summary judgment for the same reasons associated with the ADA and
Rehabilitation Act claims analysis. As an Equal Protection plaintiff, he must
prove that the defendants acted with discriminatory intent. But, as noted above
in the discussion of those claims, the evidence on record shows otherwise.
The inadequacy of plaintiff’s ADA and Rehabilitation Act claims establishes the
inadequacy of his § 1983 claim. Thus, plaintiff’s equal protection claim under
section 1983 is ORDERED DISMISSED, with prejudice.
Supplemental Claims
Since all of plaintiffs’ federal claims have been dismissed, the Court
declines to exercise supplemental jurisdiction over plaintiff’s claims under
Article 1802 of the Civil Code of Puerto Rico.
See Rivera v. Murphy,
979 F.2d 259, 264 (1st Cir. 1992) (quoting Cullen v. Mattaliano,
690 F. Supp. 93 (D. Mass. 1988) (“[I]t is the settled rule in this Circuit that in a
non-diversity case, where pendent state claims are joined with a federal cause
of action and that federal cause of action is [dismissed] . . . the pendent state
claims should be dismissed.”).
IV.
CONCLUSION
For the foregoing reasons, the Motion for Summary Judgment filed by
defendants Commonwealth, DOJ, Miranda and DPT (d.e. 32) and the Motion
for Summary Judgment filed by defendant MTA (d.e. 35) are both GRANTED.
Accordingly, plaintiff’s claims brought pursuant to the ADA, the Rehabilitation
Act and Section 1983 are DISMISSED WITH PREJUDICE. As the Court
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declines to exercise supplemental jurisdiction over plaintiff’s claims under
Puerto Rico law, those are DISMISSED WITHOUT PREJUDICE.
SO ORDERED.
At San Juan, Puerto Rico, on March 17, 2017.
S/CARMEN CONSUELO CEREZO
United States District Judge
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