Figueroa-Guzman et al v. Wyndham Grand Resort Rio Mar et al

2016 | Cited 0 times | D. Puerto Rico | March 14, 2016

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OPINION AND ORDER Before the Court is Motion for Summary Judgment, Docket # 50,

U.S.C. § 12102, et seq. (ADA), and his claims under Puerto and general torts statutes. Because Plaintiffs failed to establish prima facie claims for discrimination and retaliation under the ADA 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 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

recognize Docket # 50-15.

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 leave, Luis Acevedo 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 Wyndham 1

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 -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 t allegations are limited to discrimination and retaliation on an alleged disability theory. The Court sua sponte could possibly ser Villegas-Reyes v. Universidad Interamericana de P.R., 476 F. Supp. 2d 84, 92 (D.P.R. 2007) (dismissing sua sponte at the summary judgment stage were the complaint only alleged discrimination on the basis of age and disability).

Defendant filed a well-supported motion for summary judgment belated response, on the other hand, devoted less than a page to discussing the merits of his case.

II. Standard of Review

genuine dispute as to any material fact and the movant is entitled to judgment as a -finder could resolve in favor of either party and a material fact is one that could affect the Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015). At this stage, it is axiomati Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir. 1994), and must 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 Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st Cir. 2014)

Tropigas de P.R., Inc. v. Certain Underwriters at Llo , 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, Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir. 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

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- 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 Commonwealth law claims. See Gonzalez-De-Blasini v. 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- (quoting Rodríguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir. 1995))

The ADA forbids employers from discriminating against qualified persons in employee compensation, job training, and other terms, conditions, and privileges of

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

to perform the essential functions of the job, with or without reasonable accommodations; (iii) was subject to an adverse employment action by a company

subject to the [ADA]; (iv) was replaced by a non-disabled person or was treated less favorably than non- 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- employer offers a non-discriminatory reason, the burden then shifts back to the Id.

Wyndham further argues that unlike Title VII claims, where plaintiffs have to prove only that discrimination adverse action, see Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989), the ADA requires proof that but- action. It is true that in Serwatka v. Rockwell Automation, Inc., the Seventh Circuit held that under the 2008 version of the ADA 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 because of 557 U.S. 167, 176 (2009) means

that a plaintiff bringing a disparate treatment claim under that statute must prove that - . 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) but- 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

Trustees, Moraine Valley Cmty. Coll., 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 but-for standard [it] announced in Serwatka su Id. at 706. Likewise, this Court need not address this question now because, regardless of the standard applied, claims are doomed from the very admissions trump the first prong of a prima facie case establishing disability within the meaning of the ADA.

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 regarde 42 U.S.C. § 12102. To prove a substantial limit to a major life activity, ]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) t is insufficient...to merely submit evidence of a medical diagnosis of an impairment. ). At the summary judgment stage, Figueroa must produce sufficient ev profound enough and of sufficient duration, given 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

- 4 at 43. This is simply insufficient to establish liability under the statute. See Xerox Corp., 294 F.3d at 240 ( an ADA claim stating that a conclusory allegation without evidentiary support

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 Plai retaliation claim.

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, [,] 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 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, 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

Reynolds v. American National Red Cross, 701 F.3d 143, 154 (4th Cir. 2012) ( Filing 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.

Fieni v. Franciscan Care Ctr., 2011 WL 4543996 at *7 (E.D. statute suggests that [the applic compensation benefits] it is not prot ); Leavitt v. SW & B Construction Co., 766 F.Supp.2d 263, 286 (D. Me. 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 medical assistance from the SIF does not constitute protected conduct pursuant to the 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 basis of disabi (citing Valle-Arce, 651 F.3d at 198). However, they also correctly point out that the complaint does not assert 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 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 a response and thus, waived any arguments against them. See Zannino, 895 F.2d at 17.

IV.

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