Ramos-echevarrÍa v. Pichis Inc. D/b/a Pichis Hotel, Civil No. 06-2180 (DRD).

• Decision Date: 22 March 2010
• Docket Number: Civil No. 06-2180 (DRD).
• Citation: 698 F.Supp.2d 262
• Parties: Pedro L. RAMOS-ECHEVARRÍA, et al., Plaintiff(s),v.PICHIS, INC. d/b/a Pichis Hotel and Convention Center, et al., Defendant(s).
• Court: U.S. District Court — District of Puerto Rico

698 F.Supp.2d 262

Pedro L. RAMOS-ECHEVARRÍA, et al., Plaintiff(s),v.PICHIS, INC. d/b/a Pichis Hotel and Convention Center, et al., Defendant(s).

Civil No. 06-2180 (DRD).

United States District Court,

D. Puerto Rico.

March 22, 2010.

Juan Ramon Rodriguez-Lopez, Rodriguez Lopez Law Office, Ponce, PR, for Plaintiff(s).

Martha L. Martinez-Rodriguez, Manuel A. Nunez Law Office, San Juan, PR, for Defendant(s).

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

DANIEL R. DOMINGUEZ, District Judge.

Pending before the Court are the following motions: (a) Defendant's Motion For Summary Judgment And Memorandum Of Law In Support Thereof (Docket No. 24) of plaintiffs' complaint under the American with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”); Title VII [42 U.S.C. § 2000e (2000) ]; 42 U.S.C. § 1983; Articles 1802 and 1803 of the Puerto Rico Civil Code, 31 L.P.R.A. §§ 5141, 5142; “the Puerto Rico Law against discrimination;” (Docket No. 1, ¶¶ 1-3); and “violation to the Commonwealth of Puerto Rico Labor Laws and Federal Labor Laws” (Docket No. 1, ¶¶ 1-3); and (b) plaintiffs' Response In Opposition For Summary Judgment (Docket No. 31). The matter was referred to the United States Magistrate Judge López (“Magistrate Judge”) for report and recommendation (Docket entries No. 41 and 42).

The Magistrate Judge entered a Report and Recommendation (Docket No. 55), wherein he recommended that defendant's motion for summary judgment be granted with prejudice as to the claims under the ADA; the claims under Title VII, 42 U.S.C. § 2000e, and 42 U.S.C. § 1983; any and all remaining federal claims should be dismissed with prejudice. Finally, all state claims were recommended to be dismissed without prejudice. See Docket No. 55, page 16. The Magistrate Judge granted the parties ten (10) days to object. See Docket No. 55. The record shows that plaintiffs filed a timely objection to the Report and Recommendation. See Docket No. 59. Defendant's moved timely for leave to reply, which was granted. See Docket entries No. 60 and 76. The undersigned further inquired from plaintiffs certain specific information, such as, a copy of the Right to Sue Letter, as well as proof of Ramos-Echevarría's receipt of the EEOC letter for procedural purposes. See Docket entries No. 61-71. For the reasons set forth below, the Report and Recommendation issued by the Magistrate Judge is hereby adopted in toto, except as clarified and supplemented herein.

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

Within ten days ¹ 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.

However, “[a]bsent objection by the plaintiffs, [a] district court ha[s] a right to assume that [a 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, “[f]ailure 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 objection are precluded on appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992). See also Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir.1994) (holding that specific 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 generally 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). Hence, the standard for review of an objected report and recommendation is de novo review of those matters properly objected. See Borden v. Secretary of H.H.S., 836 F.2d at 6. The Court, therefore proceeds, as the Report and Recommendation has been objected, to review the Report and Recommendation of the Magistrate Judge de novo, as to those parts that have been objected. Borden v. Secretary of H.H.S., supra.

The Summary Judgment Standard

Generally, “[s]ummary judgment is proper where ‘the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c).’ ” Richardson v. Friendly Ice Cream Corporation, 594 F.3d 69, 74 (1st Cir.2010). See also Celotex Corp. v. Catrett, 477 U.S. 317, 324-325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Thompson v. Coca-Cola, Co., 522 F.3d 168, 175 (1st Cir.2008); Rodríguez-Rivera, et al. v. Federico Trilla Regional Hospital of Carolina, et al., 532 F.3d 28, 30 (1st Cir.2008). “The object of summary judgment is ‘to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.’ ” Dávila v. Corporación de Puerto Rico Para La Difusión Pública, 498 F.3d 9, 12 (1st Cir.2007), citing from Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir.2004) (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.1992)). In Dávila, the Circuit Court held:

For this purpose, an issue is genuine if a reasonable jury could resolve the point in favor of the nonmoving party. Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir.2000). By like token, a fact is material if it has the potential to determine the outcome of the litigation. See Calvi v. Knox County, 470 F.3d 422, 426 (1st Cir.2006). Where, as here, the nonmovant has the burden of proof and the evidence on one or more of the critical issues in the case “is ... not significantly probative, summary judgment may be granted.” Acosta, 386 F.3d at 8 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

When reviewing de novo, the court “must scrutinize the evidence in the light most agreeable to the nonmoving party, giving that party the benefit of any and all reasonable inferences.” Noviello v. City of Boston, 398 F.3d 76, 84 (1st Cir.2005), citing Cox v. Hainey, 391 F.3d 25, 27 (1st Cir.2004). See also Richardson v. Friendly Ice Cream Corporation, 594 F.3d at 74. “[T]he nonmovant bears ‘the burden of producing specific facts sufficient to deflect the swing of the summary judgment scythe.’ ” Noviello, 398 F.3d at 84, citing Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir.2003). See also, Dávila, 498 F.3d 9. “Those facts, typically set forth in affidavits, depositions, and the like, must have evidentiary value; as a rule, ‘[e]vidence that is inadmissible at trial, such as, inadmissible hearsay, may not be considered on summary judgment.’ ” Noviello, 398 F.3d at 84, citing Vázquez v. López-Rosario, 134 F.3d 28, 33 (1st Cir.1998); accord Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). “The evidence presented by the non-moving party may not be ‘conclusory allegations, improbable inferences, [or] unsupported speculation.’ ” Torres-Negrón v. Merck & Company, Inc., et al., 488 F.3d 34, 39 (1st Cir.2007), citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). Based on these premises, the Court proceeds with the analysis.

Analysis

This is a case under the ADA and Title VII, 42 U.S.C. § 2000e (2000); 42 U.S.C. § 1983, wherein an employee, plaintiff Pedro L. Ramos-Echevarría (hereinafter “Ramos-Echevarría”), claims discriminatory treatment by his employer, defendant Pichis, Inc. d/b/a Pichis Hotel and Convention Center (hereinafter “Pichis”). In a nutshell, Ramos-Echevarría alleges that he has not been considered for a full time position because he suffers from epilepsy.

Disability under the American with Disabilities Act

Pursuant to the provisions of the ADA, disability of an individual is “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102(2)(A) (1990). “Major Life Activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” See Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, 29 C.F.R. § 1630.2(i) (1991). The ADA's definition of disability also accepts an individual “being regarded [by the employer] as having such an impairment.” 42 U.S.C. § 12102(2)(C).

When considering a question of physical disability under the ADA, the Court will examine whether the plaintiff has established his or her discrimination claim under the ADA on physical disability grounds. The Court finds that Jacques v. Clean-Up...