OPINION AND ORDER
Defendant filed a motion for summary judgment on January 8, 2004, withcorresponding attachments and translations (Dockets No. 34, 40).Plaintiff filed his opposition on February 5, 2004 (Docket No. 42).Defendant's reply to plaintiff's opposition was submitted on February 12,2004 (Docket No. 44).
Succinctly, this action entails a claim under Americans withDisabilities Act1 filed by above plaintiff, a vessel captain workingfor the defendant, Puerto Rico Ports Authority hereinafter "PRPA"), whoholds a valid license from the United States Coast Guard to operatevessels, against defendant employer, the Puerto Rico Port Authority,indicating he was subject of discrimination and retaliation as a resultof an alleged disability. Defendant PRPA has claimed a supervisor, Mr.Jose Negron, made a preliminary assessment to temporarily removeplaintiff from his duties as a passenger ferryboat captain. His jobfunctions at the time were modified for security reasons after a medicalcertificate in plaintiffs record stated plaintiff was disabled and aftersubsequent requests by the defendant for medical information to inquireinto the severity of his condition were denied. Plaintiff has continuedworking with defendant, has suffered no economic loss, and has not beendemoted or discharged.
Defendant PRPA submitted that plaintiff has not established therequisites for aprima facie case under the Americans withDisabilities Act (hereinafter "ADA") for which summary judgment isprayed. It also submits that the employer's initial action to limitplaintiffs activities o be as a captain to protect the safety ofpassengers because of the emotional conditionPage 2certified by plaintiff's own physician did not entail that itviewed plaintiff as an individual with an impairment that limits a majorlife activity.
Defendant submits as uncontested material facts that plaintiff works asa passenger ferry captain for defendant, holding a license to operatevessels, which allows him to transport commuter passengers to and fromOld San Juan and the Catano terminals, in the northern part of the islandof Puerto Rico, crossing a major high traffic commercial port. Plaintifflived in the own of Mayaguez, at the farther West coast of the island ofPuerto Rico, and he decided to continue his university and graduatestudies, pursuing said studies in the west and south coast educationalfacilities, while he was working for the defendant employer. He studiedhis bachelor's degree in the Catholic University of Puerto Rico in Ponceand his law degree in 1996 at the Eugenio Maria de Hostos School of Lawin Mayaguez, Puerto Rico.
Plaintiff has an emotional condition, diagnosed as bipolar disorder,which is fully under control with medication. His physician hasconsidered he is competent to perform his duties as a captain with theuse of medication. After he was hospitalized for major depression in1995, and defendant having granted him a medical leave, plaintiffreturned to his regular functions. Defendant was aware of plaintiffsemotional condition while he was working and studying from 1995 through2000.2
Plaintiffs deposition testimony indicates he does not consider himselfto be disabled or to have a disability that impedes performance of hisjob as a captain nor requested in his application as a law student forany need of accommodation because of disability. The deposition testimonyalso shows that plaintiff indicated having no proof that the employerPRPA perceived him as being disabled3 nor that prior to hissupervisor, Mr. Negron, reassigning himPage 3because of the medical certificate he submitted, the employer PRPAhad taken any action because of a perceived disability.
From 1996 through 2001 plaintiff was dedicated, with defendant'sknowledge, to his work in San Juan, and to his study of law through hiscommute to Mayaguez, where he also held his residence.4 On April 13,2000, plaintiff provided a note from his doctor after being absent fromwork which stated he had been absent "because of labor pressures thatexacerbated his emotional condition" and that he was able to "return towork on his next shift, on April 16, 2000."
On April of 2000, plaintiffs immediate supervisor, Mr. Jose Negron, onaccount of said medical certificate, assigned him to auxiliary functionson the dock pending a medical evaluation. Defendant PRPA was apprised byMr. Negron of plaintiffs medical certificate and the diagnosis of anemotional condition on May 5, 2000. Plaintiff was temporarily reassignedin the dock to perform preventive maintenance to vessels, operatingvessels, and occasionally being a captain of empty vessels in lieu of hisregular schedule as captain of passenger ferryboats.
Plaintiff wrote a letter on June 1, 2000, in relation to hissupervisor's request for a medical evaluation as to his condition,refusing to submit to same on grounds that the labor agreement betweenthe Union and defendant employer would consider such a petition belated.
On September 19, 2002, plaintiffs physician, Dr. Carlos Aviles,submitted another medical certificate that was delivered to PRPAclarifying plaintiff's ability to work and execute his functions as acaptain, except in situations where, due to labor pressures, he wasrecommended rest.Page 4
Thereafter, the Executive Director of PRPA reviewed plaintiffssituation and determined that plaintiff should resume his regular dutiesas a captain of a passengers vessel.5
Plaintiffs opposition to summary judgment addresses for the most partthe provision under ADA that he deems applicable to his case insofar thatdefendant PRPA's acts show defendant have regarded him as a disabledperson when he was temporarily removed from his duties as a captainbecause of the medical certificate he submitted in April of 2000.Plaintiff also submits that his co-workers would make reference to hismental condition, by calling him names such as "Captain Mepsi" and "crazycaptain" and he complained to the Union about this situation.
The Americans With Disabilities Act prohibits covered employers from"discriminat[ing] against a qualified individual with a disabilitybecause of the disability of such individual in regard o job applicationprocedures, the hiring, advancement, or discharge of employees, employeecompensation, job training, and other terms, conditions, and privilegesof employment." 42 U.S.C. § 12112(a).
"Disability" therein is defined as: "a) a physical or mental impairmentthat substantially limits one or more of the major life activities of anindividual; b) a record of such an impairment; or c) being regarded ashaving such an impairment." 42 U.S.C. § 12102(2). To sustain a claimunder ADA, plaintiff must be able to demonstrate that his impairmentsubstantially limits one or more of his major life activities.Sullivan v. Neiman Marcus Group, Inc. 2004 WL 259069, (1st Cir.2004) citing also Toyota Motor Mfg., Kentucky, Inc. v.Williams, 534 U.S. 184, 195, 122 S.Ct. 681 2002); Lessard v.Osram Sylvania, Inc., 175 F.3d 193, 197 (1st Cir. 1999)(holding that "Under he ADA, not all impairments lead toprotection. Only those impairments which substantially limit a majorlife activity do so.") (citation omitted). Major life activities arethose activities that are of central importance to daily life."Toyota Motor Mfg., 534 U.S. at 197. These include, interalia,Page 5basic actions such as seeing, hearing, speaking, breathing,performing manual tasks, lifting, and reaching. 29 C.F.R. Pt. 1630, App.(2004). Sullivan v. Neiman Marcus Group, Inc., supra.
Additionally, to establish such a prima facie case under ADAplaintiff must show that either he suffers from a disability or wasregarded as person with disability. "Regard as" would entail that acovered entity mistakenly believes that a person has a physical or mentalimpairment that ubstantially limits one or more major life activities; ora covered entity mistakenly believes than an actual, non-limitingimpairment substantially limits one or more major life activities.Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.Ct. 2139(1999). If the plaintiff demonstrates a prima-facie case, theburden shifts to the defendant to articulate a legitimate,non-discriminatory reason for its challenged actions. Texas Dep't ofCmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089(1981).Rivera-Rodriquez v. Frito Lay Snacks Caribbean, 265 F.3d 15,26, (1st Cir. 2001).
The determination of whether a plaintiff has a disability within themeaning of the ADA must be made on a case-by-case basis. Americans withDisabilities Act of 1990, § 3(2), 42 U.S.C.A. § 12102(2);29C.F.R. § 1630.2(g). Calero-Cerezo v. U.S. Dept. ofJustice 355 F.3d 6 (1st Cir. 2004).
Plaintiff may utilize three methods to establish a claim of disability.See Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 511 (1st Cir.1996); Bailey v. Georgia-Pacific Corporation, 306 F.3d 1162,1167 (1st Cir. 2002). Of those plaintiff has, under the circumstantial orpreponderance of evidence approach, two methods of proving his ADA claim;the statutory framework method or the McDonnell Douglasburden-shifting framework. Alamo Rodriguez v. Pfizer PharmaceuticalInc. 286 F. Supp.2d 144, 153 (Dist. P.R. 2003). See alsoJohn F. Wagner, Ann. What Constitutes Substantial Limitation on MajorLife Activity of Working for Purposes of Americans with DisabilitiesAct (42 U.S.C.A. §§ 12101-12213), 141 A.L.R. Fed. 603.
In regard to plaintiffs claims that co-workers made comments on hiscondition that should be attributed to defendant, plaintiff has noevidence that these alleged comments did not bloomPage 6from any key decisionmaker or those in a position to influence thedecisionmaker.6 Mulero-Rodriguez v. Ponte, Inc.,98 F.3d 670, 675-76 (1st Cir. 1996). Statements made by "one who neithermakes nor influences [a] challenged personnel decision are not probative inan employment discrimination case." Medina-Munoz v. R.J. ReynoldsTobacco Co., 896 F.2d 5, 10 (1st Cir. 1990). See Santiago-Ramosv. Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000);Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 96-97(1st Cir.1996).
Additionally, even if plaintiff would be deemed to have established aprima facie case, the action would not prevail under theburden-shifting parameters of McDonnel Douglas Corp. v. Green,411 U.S. 792, 93 S.Ct. 1817 (1973). The employer's non-discriminatoryreason to temporarily reassign plaintiffs duties, while the medicalcondition shown in his medical certificate was clarified, because of thepotentiality of danger to ferry passengers and safety of the vessels sbona-fide. Plaintiff has not submitted any evidence to indicatethe reasons for the action taken were pretextual nor could establish sameby linking comments made by co-workers, at an undisclosed andundetermined manner, as the foundation for the employer's actions.Plaintiff has not proffered evidence from which a jury could concludethat defendant's stated reasons for he actions subject of the complaintwere in fact a pretext for discrimination.
The employer's burden under the ADA of articulating a legitimate,nondiscriminatory reason for its adverse employment decision entails onlya burden of production, not a burden of persuasion; the task of provingdiscrimination remains with the employee's at all times. Americans withDisabilities Act of 1990, § 2 et seq., 42 U.S.C.A.S 12101 etseq.,Marcano-Rivera v. Pueblo Intern., Inc., 232 F.3d 245 (1stCir. 2000).Page 7
It is of outmost importance to understand the ADA statutory scheme withits aim of protecting the disabled from discriminatory employment actionbased on stereotypes and fear. See H.R.Rep. No. 101-485, pt. 3, at 45(1990), reprinted in 1990 U.S.C.C.A.N. 445, 468; see alsoJacques. 96 F.3d at 511; E.E.O.C. v. Amego, Inc.110 F.3d 135, 142 (1st Cir. 1997). Still, there is an exception for defining adirect threat under the ADA as "a significant risk to the health orsafety of others that cannot be eliminated by a modification of policies,practices, or procedures or by the provision of auxiliary aids orservices". 42 U.S.C. § 12182(b)(3). See Abbott v.Bragdon, 163 F.3d 87, 88 (1st Cir. 1998) (involving Title IIIof the ADA) (noting the need to balance the interests of individuals withdisabilities against legitimate concerns for public safety).
The ADA's direct threat provision stems from the recognition of theimportance of prohibiting discrimination against individuals withdisabilities while protecting others from significant health and safetyrisks, resulting, for instance, from a contagious disease. SchoolBd. of Nassau Cty. v. Arline, 480 U.S. 273, 287, 107 S.Ct. 1123,1130-1131 (1987). The Highest court reconciled these objectives byconstruing the Rehabilitation Act not to require the hiring of a personwho posed "a significant risk of communicating an infectious disease toothers." Id., at 287, n. 16, 107 S.Ct, at 1131, n. 16. Congress amendedthe Rehabilitation Actand the Fair Housing Act to incorporate thislanguage. See 29 U.S.C. § 706(8)(D) (excluding individuals who wouldconstitute a direct threat to the health or safety of otherindividuals"); 42 U.S.C. § 3604(f)(9) (same). Congress later reliedon the same language in enacting the Americans with Disabilities Act. See28 C.F.R. pt. 36, App. B, p. 626 (1997) (ADA's direct threat provisioncodifies Arline). Because few, if any, activities in life arerisk free, Arline and the ADA do not ask whether a risk exists,but whether it is significant. Arline. supra, at 287,and n. 16,107 S.Ct., at 1131, and n. 16; 42 U.S.C. § 12182(b)(3).Bragdon v. Abbott. 524 U.S. 624, 649, 118 S.Ct. 2196, 22101998). See Dudley v. Hannaford Bros. Co. 333 F.3d 299, 308(1st Cir. 2003); Theriault v. Flynn, 162 F.3d 46, 48-49 (1stCir. 1998).Page 8
Plaintiffs argument that defendant's actions show this is a "perceivedto be disabled' case, submits no scintilla of proof in support that theacts were motivated by stereotypes about the disabled. See Calef v.Gillette Co., 322 F.3d 75, 87 (1st Cir. 2003). The plaintiff isrequired to establish that is a genuine issue of material fact. Evidencewhich is merely colorable or not significantly probative would not bedeemed sufficient. Anderson v. Liberty Lobby, Inc.477 U.S. 242, 249-250, 106 S.Ct. 2505, 2510-2511 (1986).
Similar to the case at bar, in Lessard v. Osram Sylvania,Inc., 175 F.3d 193 (1st Cir. 1999) an employer did not regard theemployee as being substantially limited in the major life activity ofworking when regarding him unable to perform a particular job and not asbeing unable to perform a class or broad range of jobs, when workeroffered no evidence that employer questioned his ability to work inanything other than a specific job.
Likewise, plaintiff herein submits no evidence that he was singled outsimply because he was a disabled individual when a concern was raisedthat his present condition, as certified by his own physician, mightreasonably lead to a concern in regard with his safe driving abilityof:ferry passengers vessels, much more so when seen in the light of thesupervisor's obligation to ensure safety on the vessels, passengers, andcrew. Theriault v. Flynn, 162 F.3d 46, 49 (1st Cir. 1998).
The summary judgment standard, under Fed.R.Civ.P.56, provides that thecourt should grant summary judgment "if the pleadings, depositions,answers to interrogatories, and admissions on file, together with theaffidavits, if any, show that there is no genuine issues as to anymaterial fact and that the moving party is entitled to judgment as amatter of law." Fed.R. Civ. R. 56(c). In Celotex Corp. v.Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986), the Supreme Courtheld that the party seeking summary judgment bears the initial burdendemonstrating that no genuine issue as to a material fact exists. Acontested fact is "material" when it has the potential to change theoutcome of the case. Vega-Rodriguez v. Puerto Rico Tel. Co.110 F.3d 174, 178 (1st Cir. 1997). There is no genuine issue for trial whenthe record, takenPage 9as a whole, could not lead a trier of fact to find for thenon-moving party. Matsushita Elec. Indus. Co. v. ZenithRadio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348 (1986).
To defeat summary judgment, the non-moving party must "presentdefinite, competent evidence to rebut the motion." Maldonado-Denisv. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994). Thenon-moving party must show that a trial-worthy issue exists and mustpoint to specific facts that demonstrate the existence of an authenticdispute. Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1stCir. 1991). "The mere existence of a scintilla of evidence isinsufficient to defeat a properly supported motion for summaryjudgment." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252,106 S.Ct. 2505 (1986). The Court may safely ignore "conclusoryallegations, improbable inferences, and unsupported speculation."Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8(1st Cir. 1990).
This Magistrate Judge thus rules that on grounds discussed above,defendant's request for summary judgment BE GRANTED and the complaint beherein DISMISSED as to claims under the Americans with Disabilities Act.
Insofar as state claims plaintiff submitted in the complaint, in 1990Congress enacted the provisions found in 28 U.S.C. § 1367 grantingfederal courts "supplemental jurisdiction" or what had formerly beenreferred to as "pendent jurisdiction" and "ancillary jurisdiction."Pursuant to same, "in any civil action over which the district courtshave original jurisdiction, the district courts shall have supplementaljurisdiction over all other claims that are so related to claims in theaction . . . that they form part of the same case and controversy."28 U.S.C. § 1367 (1993). See the Supreme Court's analysis in UnitedMine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130 (1966).
In Gibbs a federal court may exercise supplementaljurisdiction over a state claim whenever it is joined with a federalclaim and at these two claims "derive from a common nucleus of operativefact" as to which the plaintiff" would ordinarily be expected to try themboth in one judicial proceeding." Gibbs, 383 U.S. at 725, 86S.Ct. at 1138; Brown v. Trustees of BostonPage 10University. 891 F.2d 337, 356 (1st Cir. 1989). Thestatute expressly states that a district court may refuse to exercisethis jurisdiction if the state claim "substantially predominates over the;claim or claims over which the district court has original jurisdiction"or "the claim raises a novel or complex issue of state law."28 U.S.C. § 1367(c)(1), (c)(2). Still, the decision whether to exercisesupplemental jurisdiction is left to the broad discretion of the districtcourt and will be disturbed only upon finding an abuse of discretion. SeeNewman v. Burgin, 930 F.2d 955, 963 1st Cir. 1991)McCaffrey v. Rex Motor Transportation.Inc. 672 F.2d 246, 250(1st Cir. 1982). See also Vera-Lozano v. InternationalBroadcasting, 50 F.3d 67, 70-71 (1st Cir. 1995).
Thus, this Magistrate Judge declines to exercise pendant jurisdictionupon absence of a federal cause of action. In light of the abovediscussed, plaintiffs complaint is dismissed.
Judgement to be entered accordingly.
IT IS SO ORDERED.
1. 42 U.S.C. § 12102(2).
2. Plaintiff commenced work with defendant on February 1, 1991, ascaptain of vessels. He had shifts of seven (7) hours and was in charge oftwo (2) crew members, and of a maximum of one hundred and forty nine(149) passengers in each ferry ride.
3. Q. . . before being removed from your duties, what evidence do you have, what proof do you have or what experience did you have or how did you think that the Authority was treating you as a person, or perceived that you were a person with a disability? A I do not have evidence of that. Q So, you don't know if the, if the, the Ports Authority, prior to removing you from your duties, had, had perceived you as a person with a disability? A No, it would be speculative (Burnett's depo. p. 86)
4. Letter of Dr. Carlos A. Aviles indicated his personal activitiesconsisted of road traveling 980 miles per week, attending his lastsemester of law school, and working as a master in the Puerto Rico PortsAuthority. Plaintiff's deposition testimony is consonant with the roadtravel routine required to attend both work and post-graduatestudies.
5. Plaintiff indicated that Dr. Aviles' letter of February 22, 2001,attesting both as to his medical condition and as to his competency toexercise duties as a master that was addressed to the Coast Guard, wasnever provided to his employer PRPA. The employer, PRPA, was solelyprovided with the certificate of April 13, 2000, above described, andsubsequently with a clarifying certificate dated September 19, 2002.
6. A — I know they found out that there was a medical certificate for an emotional condition and that's how it came up . . . the psychiatric captain started to evolve, mari-trauma and all the other comments along those lines. Q — Who said that to you? A — My co-workers. Q — Were they fellow captains. A — No, co-workers in general, all of them. Mechanics, janitors, seamen, captains.