Lopez Mulero v. Valez Colon, Civil No. 05-2346 (DRD).

• Decision Date: 30 March 2007
• Docket Number: Civil No. 05-2346 (DRD).
• Citation: 490 F.Supp.2d 214
• Parties: Edwin LOPEZ MULERO, Plaintiff, v. Hon. Sonia VELEZ COLON, et als., Defendants.
• Court: U.S. District Court — District of Puerto Rico

Page 214

490 F.Supp.2d 214

Edwin LOPEZ MULERO, Plaintiff, v. Hon. Sonia VELEZ COLON, et als., Defendants.

Civil No. 05-2346 (DRD).

United States District Court, D. Puerto Rico.

March 30, 2007.

COPYRIGHT MATERIAL OMITTED

Bamily Lopez-Ortiz, Lopez Toro, Law and Notary Offices, San Juan, PR, for Plaintiff.

Jose Enrico Valenzuela-Alvarado, Department of Justice Office of the Solicitor General, Valerie Maldonado-Rivera, Department of Justice, San Juan, PR, Vivian Gonzalez-Mendez, Harold A. Frye-Maldonado, P.R. Dept. of Justice, Fed. Lit., San Juan, PR, for Defendants.

ORDER

DOMÍNGUEZ, District Judge.

Pending before the Court is defendants' Motion to Dismiss (Docket No. 16), of plaintiffs claims under Title I of the American with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Plaintiff failed to timely reply to defendants' dismissal request. This matter was referred to the United States Magistrate Judge McGiverin ("Magistrate") for report and recommendation (Docket entries No. 38 and 39). By order of the Court, however, plaintiff submitted additional documentary evidence, such as the complaint filed with the Equal Employment Opportunity Commission ("EEOC"), and the "right to sue" letter issued by the EEOC¹ (Docket No. 44). The Report and Recommendation was filed on February 27, 2007 (Docket No. 46). In the Report and Recommendation, the Magistrate recommended that defendants' motion to dismiss be granted. As of this date, no objections have been filed, thus, the Court deems this matter submitted. For the reasons set forth below, the Report and Recommendation issued by the Magistrate is adopted in toto.

Standard of Review

The district court may refer dispositive motions to a United States Magistrate Judge for a report and recommendation. 28 U.S.C. § 636(b)(1)(B); Rule 72(b) of the Federal Rules of Civil Procedure ("Fed. R.Civ.P."); Local Civil Rule 72(a) of the Local Rules of the United' States District Court for the District of Puerto Rico ("L.Civ.R."). See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). An adversely affected party may contest the Magistrate's report and recommendation by filing its objections within ten (10) days after being served a copy thereof. See Fed.R.Civ.P. 72(b) and L.Civ.R. 72(d). Moreover, 28 U.S.C. § 636(b)(1) (1993), in pertinent part, provides that:

Within ten days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.

(Emphasis ours).²

"Absent objection, ... [a] district court ha[s] a right to assume that [the affected party] agree[s] to the magistrate's recommendation." Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, "failure to raise objections to the Report and Recommendation waives that party's right to review in the district court, and those claims not preserved by such objections are precluded on appeal." Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir. 1992). See also Sands v. Ridefilm Corp., 212 F.3d 657, 663 (1st Cir.2000); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in magistrate's recommendation, as well as magistrate's failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that "[o]bjection to a magistrate's report preserves only those objections that are specified"); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, "however he was not entitled to a de novo review of an argument never raised"). See also United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980).

In the instant case, an opposition to the Magistrate Judge's Report and Recommendation was not filed. Thus, the Court, in order to accept the unopposed Report and Recommendation, needs only satisfy itself by ascertaining that there is no "plain error" on the face of the record. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1419 (5th Cir.1996)(en banc)(extending the deferential "plain error" standard of review to the unobjected legal conclusions of a magistrate judge); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982)(en banc )(appeal from district court's acceptance of unobjected findings of magistrate judge reviewed for "plain error"); Nogueras-Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001)("Court reviews [unopposed] Magistrate's Report and Recommendation to ascertain whether or not the Magistrate's recommendation was clearly erroneous")(adopting the Advisory Committee note regarding Fed.R.Civ.P 72(b)); Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa. 1990)("when no objections are filed, the district court need only review the record for plain error").

As previously explained, since the Magistrate Judge's Report and Recommendation is unopposed, this Court has only to be certain that there is no "plain error" as to the Magistrate Judge's conclusions, in order to adopt the same. After a careful analysis, the Court finds no "plain error" and agrees with the Magistrate's conclusions. We would reach the same decision even if the Report and Recommendation had been timely objected.

Analysis

In the instant case, Plaintiff did not object the Magistrate Judges's Report and Recommendation (Docket No. 46). After careful review and in absence of plain error, the Court ACCEPTS, ADOPTS and INCORPORATES by reference, the Magistrate's Report and Recommendation (Docket No. 19), to the instant Order. The Court agrees in toto with the Magistrate's conclusions: (a) the complaint is timely, as plaintiff filed the complaint within the 90 day period from the notice of the "right to sue" letter;³ (b) the complaint fails to state a claim under ADA against the defendants in their individual capacities, as personal liability is not allowed under the ADA; (c) the complaint fails to state a claim as to the defendants in their official capacities, as the claims are barred by the sovereignty provision of the Eleventh Amendment;⁴ (d) the complaint fails to request an injunctive relief to stop the alleged discrimination, only monetary damages were requested; (e) money damages under Title I of the ADA are not recoverable in an action brought by state employees against the State, as monetary recovery is barred by the Eleventh Amendment; and (f) this Court's ruling to decline to exercise its supplemental jurisdiction over plaintiff's state law claims, as plaintiff has not been able to show that there are grounds for a federal claim.

Although the Court finds no plain error in the Magistrate's Report and Recommendation, the Court expands the analysis on the ADA provisions. This addendum, however, will not alter the conclusions and recommendations made by the Magistrate, as to the dismissal of the instant action.

The ADA is an important piece of federal legislation directed to protect a private individual with a disability from any type of discrimination in the work environment. As stated by the Magistrate, the complaint is silent as to who is the employer, and on which capacity the defendants are being sued.

The ADA lacks a definition of "who is an employee beyond the circular provision that an `employee' is `an individual employed by an employer.' 42 U.S.C. § § 2000e(f), 12111(4). Indeed, the Supreme Court has noted that `employee' does not have `some intrinsically plain meaning.'" (Citation omitted). De Jesus v. LTT Card Services, Inc., et al., 474 F.3d 16, 21 (1st Cir.2007). For example, "the mere fact that an individual is on the payroll is not necessarily dispositive of his or her status as an employee." Id.

A determination of who is the employer and who is the employee, for discrimination purposes, is crucial when determining personal liability, if any. In Contreras Bordallo, et al. v. Banco Bilbao Vizcaya de Puerto Rico, et al., 952 F.Supp. 72, 73-74 (D.P.R.1997), citing Colon Hernandez v. Wangen, 938 F.Supp. 1052, 1064-1065 (D.P.R.1996), we discussed who is an employer, and quoted Judge Laffitte's analysis on who is an employer under the ADA and the Civil Rights Act:

The overall language of Title VII, the Legislative history, and the Civil Rights Act of 1991 demonstrate that Congress used the word "agent" in the definition of "employer" to incorporate the doctrine of respondeat superior into the law [citations omitted]. There is absolutely no mention in the statute language or in the legislative history of Title VII's application to individual defendants (footnote omitted). As it was with other civil rights statutes such as Section 1981, Congress would have included individuals like supervisors as potential liable parties ... Finally the language of the Civil Rights Act reflects Congress' pellucid desire to protect small corporate entities from the burdens of litigating discrimination lawsuits (footnote omitted). It shields all defendants with lower than fifteen employees from liability, 42 U.S.C. § 1931a(a)(3) (1994). Moreover, for defendants with more than fourteen employees, it limits the amount for compensatory and punitive damages recoverable proportionally to the number of total employees. Id. Once again as with Title VII, there was absolutely no discussion of expanding liability to include individual defendants (footnote omitted). Indeed it would be nothing short of bizarre if Congress placed such heightened...