2005 | Cited 0 times | D. Puerto Rico | September 20, 2005


Before the Court is Defendant's motion for summary judgment(Docket # 26). Plaintiff filed an opposition to said motion(Docket # 36). Defendant replied (Docket # 50 & 56) and Plaintiffsur-replied (Docket # 64). The Court then referred this case toMagistrate-Judge Gustavo A. Gelpí for a Report andRecommendation (Docket # 76). On June 29, 2005 Magistrate Gelpíissued his report, recommending that Defendant's motion forsummary judgment be granted in its entirety and Plaintiff'sclaims under the Americans with Disabilities Act,42 U.S.C. §§ 12101 et seq. ("ADA") be dismissed with prejudice (Docket #84).1 Plaintiff then filed an objection to theMagistrate's Report and Recommendation (Docket # 85) andDefendant replied (Docket # 88). After reviewing the Magistrate'sfindings, the parties' filings and the applicable law, the Courtwill APPROVE and ADOPT the Magistrate's Report andRecommendation. Accordingly, the Court will GRANT Defendant'smotion for summary judgment.

Factual Background

Plaintiff worked for Defendant from October 15, 1990 until hisdismissal on July 1, 2002 (Docket # 1 ¶ 7). During his employment Plaintiff waspromoted on several occasions (Docket # 1 ¶¶ 8-10). However,Plaintiff avers that in March of 2002 he was diagnosed withherniated discs and a severe major depression (Docket # 1 ¶ 11).As a result of Plaintiff's alleged disability, Plaintiff contendsto have been demoted, mocked by supervisors and co-workers,denied reasonable accommodation, harassed, and ultimatelydischarged from employment (Docket # 1 ¶¶ 15-31). Consequently,Plaintiff filed the instant action seeking relief, among others,under the ADA.

Standard of Review

Pursuant to 28 U.S.C. §§ 636(b)(1)(B), Fed.R.Civ.P. 72(b)and Local Rule 72(a) for the District of Puerto Rico, a DistrictCourt may refer dispositive motions to a United States MagistrateJudge for a Report and Recommendation. See Alamo Rodríguez v.Pfizer Pharms., Inc., 286 F. Supp. 2d 144, 146 (D.P.R. 2003).The adversely affected party can "contest the Magistrate Judge'sreport and recommendation by filing objections `within ten daysof being served' with a copy of the order." United States ofAmerica v. Mercado-Pagán, 286 F. Supp. 2d 231, 233 (D.P.R.2003) (quoting 28 U.S.C. § 636(b)(1)). Aside from being filedin a timely manner, objections "shall specifically identify theportions of the proposed findings, recommendations or report towhich objection is made and the legal basis for such objection."Local Rule 72(d).

The scope of review of a Magistrate's recommendation is setforth in 28 U.S.C. § 636(b)(1)(c). This section provides that"[a] judge of the [district] court shall make a de novodetermination of those portions of the report or specifiedfindings or recommendations to which [an] objection is made."Id. The Court can "accept, reject, or modify, in whole or inpart, the findings or recommendations made by the magistrate,"however, if the affected party fails to timely fileobjections, "`the district court can assume that they have agreedto the magistrate's recommendation.'" Alamo-Rodríguez,286 F. Supp. 2d 144, 146 (D.P.R. 2003) (quoting Templeman v. Chris Craft Corp., 770 F.2d 245, 247(1st Cir. 1985)). Thus, no review is required of those issuesto which objections are not timely raised. Thomas v. Arn,474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); Borden v.Sec'y of Health & Human Servs., 836 F.2d 4, 6 (1st Cir.1987). In fact, a party who fails to file any objections to theMagistrate Judge's Report and Recommendation within ten days ofits filing waives his or her right to appeal from the districtcourt's order. Henley Drilling Co. v. McGee, 36 F.3d 143,150-51 (1st Cir. 1994); United States v. Valencia-Copete,792 F.2d 4, 5 (1st Cir. 1986); Davet v. Maccarone,973 F.2d 22, 30-31 (1st Cir. 1992) ("[f]ailure to raise objections tothe Report and Recommendation waives that party's right to reviewin the district court and those claims not preserved by suchobjection are precluded on appeal").

Applicable Law and Analysis

In his Report and Recommendation the Magistrate found thatPlaintiff could not establish that his impairment, to wit,depression and anxiety attacks, substantially limited a majorlife activity (Docket # 84 at p. 4). Specifically, the Magistratestated that Plaintiff's self-serving affidavit and failure topresent any medical evidence in support of his contention thathis impairment limited a major life activity doomed hisdiscrimination claim under the ADA (Docket # 84 at p. 5). TheMagistrate further found that Plaintiff's evidence was alsoinsufficient to prove that he was "regarded as" having animpairment that precluded him from performing his job (Docket #84 at pp. 5-6).

Plaintiff has presented several objections to the Magistrate'sReport: (1) Plaintiff provided sufficient medical evidence, Dr.Rodríguez Cay's medical records, to establish that he issubstantially limited from performing his daily activities; (2)Plaintiff's affidavit is sufficient, in itself, to create anissue of fact as to the effect that his impairments have on hismajor life activities; and (3) the Magistrate erred by notdiscussing the merits of Plaintiff's claim of discriminationstemming from Defendant's failure to provide reasonable accommodation (Docket # 85). We will address each of theseobjections in this same order.

1. ADA Claim

The ADA prohibits, inter alia, certain types ofdiscrimination in the workplace against an otherwise qualifiedindividual with a disability. A qualified individual with adisability is a person with a disability who can perform theessential functions of the job with or without reasonableaccommodation. 42 U.S.C. § 12111(8). In order to establish theexistence of a "disability" under the ADA, a plaintiff must showthat he has: (1) "a physical or mental impairment thatsubstantially limits one or more of the major life activities of[an] individual"; (2) "a record of such an impairment"; or (3) is"regarded as having such an impairment." 42 U.S.C. § 12102(2);see, Sullivan v. Neiman Marcus Group, Inc., 358 F.3d 110, 114(1st Cir. 2004). Plaintiff bears the initial burden ofestablishing that he is disabled within the meaning provided bythe ADA. Calero-Cerezo v. U.S. Dept. of Justice, 355 F.3d 6, 20(1st Cir. 2004)

Having failed to object to the Magistrate's finding that thereis nothing in the record suggesting that Defendant regardedPlaintiff as disabled, the Court need only consider whetherPlaintiff presented sufficient evidence to create an issue offact as to the existence of his impairments, the major lifeactivities affected by said impairments, and whether saidactivities are substantially limited as a result of saidimpairments. Julia v. Janssen, Inc., 92 F. Supp. 2d 25, 35(D.P.R. 2000) (stating that the Court's inquiry revolves aroundthree questions: (1) Does the claimant have a physical or mentalimpairment? (2) What is the life activity that claimant assertsis limited and is it a major life activity? (3) Does theimpairment substantially limit the major life activity?);Calero-Cerezo, 355 F.3d at 20 (stating that the burden is onthe plaintiff to establish these three elements); Sánchez v.ACAA, 247 F. Supp. 2d 61, 69 (D.P.R. 2003); Cruz-Carillo v. AMREagle, Inc., 148 F. Supp.2d 142, 144-45 (D.P.R. 2001) (applyingthis same standard). The Magistrate found that the evidence in the record showedthat Plaintiff's depression and anxiety attacks are impairmentsunder the ADA (Docket # 84 at p. 3). However, Plaintiff hasobjected to the Magistrate's finding that there was insufficientevidence in the record to substantiate Plaintiff's contentionthat said impairments substantially affect his major lifeactivities. Thus, in accordance with the above-stated standard,we review the Magistrate's finding in this respect de novo.

Plaintiff has alleged that the major life activities affectedby his impairments include working, sleeping, eating,concentrating, caring for personal hygiene, relating to otherpersons, cleaning, sustaining sexual relations, lifting, moving,pulling or pushing objects, moving or sitting down (Docket # 35,Ex. 1 at p. 3). However, upon reviewing the record as a whole,there a certain inconsistencies in Plaintiff's claims which areworth noting. The following are some examples: Plaintiff hasclaimed that one of the major life activities affected by hisimpairments is his ability to work. Nevertheless, in hisaffidavit Plaintiff clearly states that he "could perform thefunctions and duties of my position, and indeed performed thefunctions and duties of my position" (Docket # 35, Ex. 1 at p. 3)and in his deposition Plaintiff has testified under oath that heis currently working at the family's business, JM VendingMachines, Inc. (Docket # 27, Ex. B at p. 5). Plaintiff has alsoclaimed that his impairments have left him unable to drive, butat his deposition he testified to have driven to doctor'sappointments and that his doctor at no time has ordered him torefrain from driving (Docket # 35, Ex. 1 at p. 3 & Docket # 27,Ex. B at p. 89). Next, Plaintiff has claimed not to be able tolift, move, pull or push objects. However, he has testified underoath to have been shopping and fixing up (painting) his home(Docket # 35, Ex. 1 at p. 3 & Docket # 27, Ex. B at p. 147-48).

That said, however, we assume for the purposes of this Opinionthat Plaintiff's asserted major life activities fall within thedefinition provided by the ADA and that these have in fact been somewhat affected by his alleged impairments.However, Plaintiff would still need to present evidencesuggesting that said major life activities are substantiallyaffected in order for Plaintiff to be "disabled" under the ADA.Toyota, 524 U.S. at 690 ("Merely having an impairment does notmake one disabled for purposes of the ADA." Plaintiff must alsodemonstrate that the impairment limits a major life activity andthat said limitation is substantial.); Soler-Román,283 F.3d at 22 ("The ADA addresses substantial limitations on major lifeactivities, not utter inabilities.") (internal quotationsomitted).

"Substantially limited" has been defined by EEOC's regulationsto mean: "[u]nable to perform a major life activity that theaverage person in the general population can perform"; or"[s]ignificantly restricted as to the condition, manner, orduration under which an individual can perform a particularmajor life activity as compared to the condition, manner, orduration under which the average person in the generalpopulation can perform that same major life activity."29 C.F.R. § 1630.2(j)(1)(ii) (emphasis added). To make this determination,the Court looks at the nature and severity of the impairment, itsduration or expected duration, and the permanent or long termimpact resulting from the impairment. 29 C.F.R. § 1630.2(j)(2).Thus, this inquiry requires an individualized analysis of theeffects of the claimed impairments on the individual's lifeactivities since "what disables one person does not necessarilydisable another." Heisler v. Metro. Council, 339 F.3d 622,627-30 (8th Cir. 2003); Sánchez, 247 F. Supp. 2d at 69(D.P.R. 2003) (stating that "to be substantially limiting, `[t]heimpairment's impact must . . . be permanent or long term")(quoting Toyota Motor Mfg., Ky., Inc. v. Williams,534 U.S. 184, 198 (2002)); Soler-Román v. Hosp. San Pablo, Inc.,283 F.3d 11, 22 (1st Cir. 2002) ("the EEOC's emphasis oncondition, manner or duration in contrasting how a disabledperson performs an activity and how a member of the generalpublic performs that same activity dovetails with thisformulation") (internal quotations omitted). Plaintiff contendsthat Dr. Rodríguez Cay's progress notes along with his affidavit are sufficient evidence to create an issue of factin this respect. We disagree. Let us explain.

First, we examine Plaintiff's medical evidence with respect tohis depression and anxiety attacks. Plaintiff's medical evidenceconsists of the following documents: (1) Dr. Rodríguez-Cay'sprogress notes of Plaintiff's psychiatric treatment from August1997 until December 1992 (Docket # 81, Ex. 1), (2) a Claimant'sReport with Plaintiff's medical certificate dated May 27, 2002(Docket # 69, Ex. IX), (3) a referral in May 10, 2002 to Dr.Calderín at the Instituto Panamericano of Caguas for evaluationdue to symptoms of depression and anxiety (Docket # 69, Ex. VII),and (4) a certification from the First Hospital Panamericanocertifying Plaintiff's admission to said institution fortreatment between March 22, 2002 and April 8, 2002 (Docket # 69,Ex. VIII). There is no question that these exhibits documentPlaintiff's unfortunate condition of depression and anxiety. TheMagistrate agreed in this respect. However, none of theseexhibits provide more information than a diagnosis of depressionand in no way evidence that said depression substantially limitsnor limited any of Plaintiff's major life activities. Thus,Plaintiff's medical evidence is completely devoid of anyreference as to the effect that Plaintiff's depression has had,if any, on his major life activities as required by the ADA, orthat Plaintiff's depression is more disabling to him than thesame diagnosis on any other person in the general population.Toyota, 534 U.S. at 691-92 (merely submitting evidence of amedical diagnosis is insufficient to prove the extent of thelimitation imposed on a major life activity); Soler-Román,283 F.3d at 23-4 (a plaintiff cannot rely on diagnosis alone,specific information about the nature of the impairment and itseffect is needed); Calef v. Gillet Co., 322 F.3d 75, 83-86(1st Cir. 2003) (stating that evidence of life experience andmedical assessment showing substantial limitation is needed,merely pointing to diagnosis in not enough and failure to presentevidence that plaintiff could not perform some usual activitycompared with the general population, or that he had a continuing inability to handle "stress" at all times is fatal fora plaintiff's case). Accordingly, we find that Plaintiff'smedical evidence simply states his diagnosis and treatment andhold that said evidence does not provide the Court with anyspecific information as to how said diagnosis substantiallyaffects his major life activities.

Plaintiff's next piece of evidence is his affidavit listing themajor life activities which have been allegedly affected by hisdepression and anxiety attacks (Docket # 35 at pp. 3 & 20). Insaid statement, Plaintiff has again failed to describe orprovide any specific information on the effects, let alone the"substantial" effects, that his diagnosis has or has had on hismajor life activities. Conclusory allegations, without more, aresimply not enough to shoulder the weight of defeating summaryjudgment in this respect, specially when, at this juncture,Plaintiff has the burden of proof. Collado v. United ParcelServ., Inc., 419 F.3d 1143 (11th Cir. 2005) (holding that aplaintiff's testimony which fails to suggest that he is"significantly restricted" in comparison to the average person inthe population is insufficient to create an issue of fact as towhether his diabetes substantially limits his ability to eat);Cruz-Carillo, 148 F. Supp.2d at 145 (holding that"[plaintiff's] testimony, without more, is not enough to shoulderhis burden of showing a substantial limitation"); Heisler v.Metro. Council, 339 F.3d 622, 627-30 (8th Cir. 2003)(holding that a major depressive disorder is a mental impairmentbut that a plaintiff's mere assertions and conclusory statementsregarding the impact that said depression has on her major lifeactivities, without more, are insufficient to create an issue offact as to the impact that said disorder has on her major lifeactivities). Accordingly, the record being completely devoid ofthe severity of Plaintiff's impairment in comparison to thegeneral population, Plaintiff has failed to establish that he isdisabled within the meaning provided by the ADA.

Next, Plaintiff has objected to the Magistrate's allegedfailure to address his ADA claim for Defendant's failure toprovide reasonable accommodation. In his complaint, Plaintiff alleges two incidents of discrimination, to wit, thedenial of a reasonable accommodation and his termination. The ADArequires employers to provide "reasonable accommodations to theknown physical or mental limitations of an otherwise qualifiedindividual with a disability who is an applicant or employee,unless such covered entity can demonstrate that the accommodationwould impose an undue hardship." Toyota, 534 U.S. at 193(quoting 42 U.S.C. § 12112(b)(5)(A) (1994 ed.)). Thespecifications of the prima facie proof vary depending on thenature of the discrimination claim. McDonnell Douglas Corp. v.Green, 411 U.S. 792, 802 n. 13 (1973). In general, however, tostate a prima facie case of disability discrimination, theplaintiff must show (1) that he has a disability within themeaning of the ADA; (2) that, with or without reasonableaccommodations, he can perform the essential functions of theposition he holds; and (3) that he was discriminated againstbecause of his disability. Ward v. Mass. Health ResearchInstitute, Inc., 209 F.3d 29, 33 (1st Cir. 2000);Quiñones-Vázquez v. Salvation Army, Inc.,240 F. Supp. 2d 150, 153 (D.P.R. 2003) (stating that "the burden of proof on allthree prongs is on the plaintiff"); Steward v. Happy Herman'sCheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997);Pritchard v. S. Co. Servs., 92 F.3d 1130, 1132 (11th Cir.1996) amended on reh'g, 102 F.3d 1118 (11th Cir. 1996). Itfollows that in order to have an actionable claim ofdiscrimination for failure to provide reasonable accommodation,Plaintiff would have had to establish first his disability withinthe meaning of the ADA. Having found that Plaintiff failed topresent sufficient evidence to create an issue of fact as to hisstatus of "disabled" within the ADA, the Magistrate's analysisrightfully concluded. Plaintiff simply failed to providesufficient evidence as to the first prong of his prima faciecase. Thus, we find no fault with the Magistrate's Report in thisrespect. Accordingly, Defendant's motion for summary judgment isGRANTED and Plaintiff's ADA claims will be DISMISSED WITHPREJUDICE.

2. Supplemental Law Claims Having dismissed all of Plaintiff's federal claims againstDefendant, we will similarly dismiss Plaintiff's Commonwealth lawclaims. See Newman v. Burgin, 930 F.2d 955, 963 (1st Cir.1991) ("[t]he power of a federal court to hear and to determinestate-law claims in non-diversity cases depends upon the presenceof at least one `substantial' federal claim in the law suit.").Accordingly, Plaintiff's supplemental law claims will beDISMISSED WITHOUT PREJUDICE.


The Court has reviewed the objected portions of theMagistrate's Report and Recommendation de novo and has decidedto APPROVE and ADOPT it as our own. Consequently, Defendant'smotion for summary judgment is GRANTED. Plaintiff's ADA claimwill be DISMISSED WITH PREJUDICE. Plaintiff's supplemental lawclaims under the laws of the Commonwealth of Puerto Rico againstDefendant will be DISMISSED WITHOUT PREJUDICE. Judgment shallbe entered accordingly.


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