Ramos–echevarrÍa v. Pichis Inc. D/B/A Pichis Hotel

• Decision Date: 21 October 2011
• Docket Number: No. 10–1522.,10–1522.
• Citation: 659 F.3d 182,44 NDLR P 52,25 A.D. Cases 545
• Parties: Pedro L. RAMOS–ECHEVARRÍA, Gladys Rodriguez–Galarza, Conjugal Partnership Ramos–Rodriguez, Plaintiffs, Appellants,v.PICHIS, INC. d/b/a Pichis Hotel and Convention Center, John Doe, Richard Roe, Insurance Company, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

659 F.3d 182

25 A.D. Cases 545

44 NDLR P 52

Pedro L. RAMOS–ECHEVARRÍA, Gladys Rodriguez–Galarza, Conjugal Partnership Ramos–Rodriguez, Plaintiffs, Appellants,

v.PICHIS, INC. d/b/a Pichis Hotel and Convention Center, John Doe, Richard Roe, Insurance Company, Defendants, Appellees.

No. 10–1522.

United States Court of Appeals, First Circuit.

Heard July 27, 2011.Decided Oct. 21, 2011.

Juan R. Rodríguez, with whom Rodriguez Lopez Law Offices, P.S.C. was on brief, for appellants.Manuel Núñez–Aragunde, with whom Martha L. Martínez Rodríguez and Manuel A. Núñez Law Offices were on brief, for appellee.Before THOMPSON, SELYA and DYK ^* Circuit Judges.THOMPSON, Circuit Judge.

Appellant Pedro Ramos–Echevarría claims that his employer, Pichis Inc. d/b/a Pichis Hotel and Convention Center (Pichis), discriminated against him because of his medical condition—epilepsy—in violation of federal and state statutes including the Americans With Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. The district judge entered summary judgment in favor of Pichis, and Ramos–Echevarría appealed. Finding no error, we affirm.

BACKGROUND

As is required when reviewing an order granting summary judgment, we view the facts in the light most favorable to the nonmoving party. See, e.g., Penn–Am. Ins. Co. v. Lavigne, 617 F.3d 82, 84 (1st Cir.2010).

Ramos–Echevarría suffers from epilepsy. He takes medication to control his condition. On average, he experiences between nine and sixteen focal seizures—which he refers to as “episodes”—each week. During a typical episode, he sees an “aura” before his body begins convulsing for about eight to fifteen seconds; he does not lose consciousness. His cognitive abilities are also impaired during the episode, and sometimes for a short time afterwards.

Ramos–Echevarría has worked for Pichis as a part-time kitchen assistant since 1999, assisting the chef with food preparation. Since 2002, he has held a similar second job at another restaurant, Palacio Chino. Ramos–Echevarría informed Pichis about his illness at the time he was hired by referencing it on his job application.¹ For the most part, his illness has not affected his job performance.

Between three and six times each year, his episodes are so severe that he has to leave work. But usually when he experiences an episode at work, he simply stops moving until the convulsions are over. He either stabilizes himself or is able to notify his co-workers and they make sure he does not fall. Ramos–Echevarría has never experienced an episode while working on a hot surface. If he is working with a knife when he sees the aura, he drops the knife until the convulsions are over. Once the convulsions stop, he returns to work as soon as he is able.

Within the first week of his employment at Pichis, Ramos–Echevarría experienced an episode. As Ramos–Echevarría tells it, shortly thereafter Luis Emmanuelli, Sr. (Emmanuelli), who owns Pichis, called Ramos–Echevarría into his office at 8:30 one morning and told him that although he was an excellent worker, he could not continue working there “because of [his] condition.” Emmanuelli told Ramos–Echevarría that he had to leave the premises. Ramos–Echevarría verbally requested a reasonable accommodation, but he did not present medical documents in making the request.² Sticking by his decision to terminate Ramos–Echevarría, Emmanuelli responded, “no, there's no reasonable accommodation for you, or for anybody else.”

Ramos–Echevarría walked to the gate outside and then returned to Pichis and asked for a letter stating the reason for his dismissal. Emmanuelli's assistant told him to come back at 11 a.m.

When Ramos–Echevarría returned later that day, he spoke with Luisito Emmanuelli (Luisito), Emmanuelli's son. Luisito told Ramos–Echevarría that Pichis had “reconsidered taking you back, because you're an excellent worker,” and that he could continue working for Pichis if he got a statement from his doctor confirming that his medical condition did not prevent him from performing his job duties. Ramos–Echevarría got a medical certificate from his doctor stating that his condition “does not prevent his working; he should not drive a car, climb up to high places without protection, [use] instruments that may be harmful to his health” and provided it to Pichis. Pichis re-hired Ramos–Echevarría, and he has continued to work there as a part-time kitchen assistant ever since producing the medical certificate. Throughout his employment, Ramos–Echevarría has continued to suffer from seizures. Pichis has never denied him medical assistance.

Ramos–Echevarría claims that he verbally requested full-time employment from Pichis but did not get it. He also asserts that Luisito told him that he would never be authorized to work full-time because of his epilepsy. He further contends that while he has been working for Pichis, other people—who were hired after him—were given additional hours or increased to full-time positions. Pichis counters that it did not increase Ramos–Echevarría's hours because business was slow.

How We Got to This Point

Ramos–Echevarría filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging that Pichis discriminated against him because of his medical condition. On August 23, 2006, the EEOC issued Ramos–Echevarría a Notice of Right to Sue under 29 C.F.R. § 1601.28.

In 2006, Ramos–Echevarría sued Pichis ³ in the District of Puerto Rico, alleging violations of Puerto Rico law and federal law including the ADA, ⁴ Title VII,⁵ and 42 U.S.C. § 1983.⁶ Ramos–Echevarría's primary contention was that during his tenure, he was not promoted or offered a full-time position, while other employees hired after him were promoted to full-time. He also complained of several more minor actions that he argues were discriminatory—that he never received a performance evaluation; that he worked through meal breaks for which he was not paid; that he was excluded from an employee meeting; that he once received a written warning for beginning his shift half-an-hour early; and that Pichis created a hostile work environment.

Pichis moved for summary judgment. A magistrate judge issued a report and recommendation proposing that the district court (1) grant summary judgment in favor of Pichis on Ramos–Echevarría's claims under the ADA; (2) dismiss Ramos–Echevarría's Title VII and section 1983 claims for failure to state claims because those statutes do not encompass claims based on disability; ⁷ and (3) dismiss without prejudice his claims arising under Puerto Rico law. Over Ramos–Echevarría's objections, the district court adopted the report and recommendation in toto. This appeal followed.

ANALYSIS

Disability Claim

We review the district court's order granting summary judgment de novo. Penn–Am. Ins. Co., 617 F.3d at 84. We affirm if the record, viewed in the light most favorable to the nonmoving party, shows no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id. A party alleging discrimination may not rest on allegations made in the pleadings, but instead must point to specific evidence supporting his claim. See Soto–Ocasio v. Fed. Express Corp., 150 F.3d 14, 18 (1st Cir.1998).

The ADA was enacted for “the elimination or reduction of physical and social structures that impede people with some present, past, or perceived impairments from contributing, according to their talents, to our Nation's social, economic and civil life....” Tennessee v. Lane, 541 U.S. 509, 536, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004) (Ginsburg, J., concurring). It prohibits an employer from discriminating against a qualified person with a disability in regard to “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment” because of his or her disability or perceived disability. 42 U.S.C. § 12112(a) (1990).

To prevail on a disability discrimination claim, a plaintiff must show by a preponderance of the evidence that he (1) has a disability within the meaning of the ADA; (2) is qualified to perform the essential functions of the job, with or without reasonable accommodations; and (3) was subject to an adverse employment action based in whole or part on his disability. See Soto–Ocasio, 150 F.3d at 18; Jacques v. Clean–Up Group, Inc., 96 F.3d 506, 511 (1st Cir.1996). He may prove his case by presenting direct evidence of discrimination or he may prove it indirectly “by using the prima facie case and burden shifting methods that originated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Jacques, 96 F.3d at 511 (quoting Katz v. City Metal Co., 87 F.3d 26, 30 n. 2 (1st Cir.1996)) (internal quotation marks omitted). The McDonnell Douglas analysis requires the plaintiff to offer evidence sufficient to establish that he “(i) has a disability within the meaning of the [ADA]; (ii) is qualified 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-disabled employees; and (v) suffered damages as a result.” Id. If he establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its action. Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 99 (1st Cir.2007); see also McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817. If the employer offers a non-discriminatory reason, the burden then shifts back to the plaintiff to show that the employer's justification is mere pretext cloaking discriminatory animus. Freadman, 484 F.3d at 99. Our review of the record indicates that Ramos–Echevarría's case stumbles at the very first step—making out a prima facie case showing that he has a...