Opinion
Civil No. 02-2499(DRD).
August 20, 2004
OPINION ORDER
Plaintiffs Esther Dávila Rivera, Rafael Vélez Rivera and the conjugal partnership constituted by them filed a Complaint against defendant Caribbean Refrescos Inc, hereinafter referred as Caribbean and/or defendants, pursuant to American Disabilities Act (A.D.A), Age Discrimination on Employment Act (A.D.E.A.), Title VII of the Civil Rights Act, Family Medical Leave Act (FMLA), Puerto Rico's Law 100, 29 L.P.R.A. § 146 et seq, Puerto Rico's Law 44, 1 L.P.R.A. § 501 et seq and Articles 1802 and 1803 of the Puerto Rico's Civil Code, 31 L.P.R.A. 5141 and 5142. Plaintiffs sustained that defendant discriminated against Esther Dávila based on her age, sex and disability.
Pending before the Court is Defendant's Motion for Summary Judgment (Docket No. 30). Defendants sustain that although Esther Dávila is not considered disable under A.D.A. defendants always complied with the special accommodations requested by her. Defendants further aver that plaintiffs failed to establish a discrimination prima facie case and failed to establish an adverse employment action. Plaintiffs opposed defendants' Motion for Summary Judgment (Docket Nos. 38 and 39). As a preliminary matter, the Court considered a Motion for Strike (Docket No. 41) filed by the defendants against plaintiffs' filed opposition for not complying with the maximum page constraints required by the Court in its Management Order. Plaintiffs were ordered to re-file their opposition after proper pruning to comply with the Court's Management Order as to the maximum pages authorized in submitted motions for summary judgment(Docket No. 52).
After defendants' Motion for Summary Judgment was referred to Magistrate Judge Vélez-Rivé for a report and recommendation (Docket No 54), defendants filed a Motion for Leave to File Supplementary Motion for Summary Judgment, and submitted their supplemental motion, memorandum and statement of uncontested facts (Docket Nos. 55, 56, 57 and 58.) The Magistrate Judge granted said request (Docket No. 59).
Plaintiffs re-filed their now twenty five page Opposition to Defendants' Motion for Summary Judgment (Docket No. 61) and defendants filed yet another Motion to Strike (Docket No. 63). Defendants alleged that plaintiffs failed to comply with the Court's order. Defendants sustained that in order to reduce the forty three page opposition to twenty five pages, with minimal editions, plaintiffs simply reduced the font and expanded the margins. The Magistrate Judge found that the second opposition again failed to comply with the Court's order. The Magistrate concluded that the plaintiffs' second opposition was the same as the one returned by the Court "but for several paragraphs and footnotes which were removed". Further, she determined that the new opposition "[was] in a minute condensed font with expanded margins making the reading of the document unbearable."Although plaintiffs alleged that the document is in Abadi Condensed Light 12 point font, the Magistrate concluded that the font is much smaller than the alleged. In sum, the Magistrate found that plaintiffs had "blatantly tried to bypass the Court's April 20, 2004 Order and the requirements of the Local Rules."Accordingly, the Magistrate granted defendants' Motion to Strike (Docket No. 63) and deemed the Summary Judgment unopposed.
After examining defendants' unopposed Motion for Summary Judgment the Magistrate Judge concluded that plaintiffs failed to establish a prima facie case as to disability and age discrimination. Accordingly, the Magistrate recommended that, as to plaintiffs claims under A.D.A. and A.D.E.A., defendants' Motion for Summary Judgment be granted. Further, the Magistrate recommended that all causes of action arising from Puerto Rican Law 100, Law 44 and Articles 1802 and 1803 of the Civil Code of Puerto Rico be dismissed without prejudice. As to plaintiffs' Family Medical Leave Act claim the Magistrate concluded that defendants did not interfere with plaintiffs' medical plan. Accordingly, the Magistrate recommended that this cause of action also be dismissed. In sum, the only cause of action that survived defendants' Motion for Summary Judgment is the alleged sex discrimination since defendants failed to request brevis disposition as to this claim.
Both parties filed their objections to the Magistrate's Report and Recommendation (Docket No. 65). Defendants limited their objection to the Magistrate's failure to dismiss plaintiffs' sex discrimination claim under Title VII (Docket No. 66). Defendants admitted that they failed to address said claim, however, they now request that the same be dismissed with prejudice. First, they sustain that their failure responded to inadvertence since their purpose in filing their motion was the summary disposition of the entire case. Second, they contend that to the extent that the Court adopts the Magistrate findings, said conclusions would necessarily lead to the dismissal of plaintiffs' sex discrimination claim. Defendants argue that since the Magistrate concluded that the plaintiffs failed to establish that she suffered an adverse employment action and, consequently, her A.D.A. and A.D.E.A. claim should be dismissed, the same disposition should follow with her sex discrimination claim.
Defendants sustained that inadvertently, they failed to address this claim in their Motion for Summary Judgment.
On the other hand, plaintiffs filed their objections to the Magistrate's Report and Recommendation (Docket No. 67). Plaintiffs, first sustain that the Magistrate Judge abused her discretion when she granted defendants' Motion to Strike and deemed defendants' Motion for Summary Judgment as unopposed. Second, plaintiffs allege that the Magistrate abused her discretion when she allowed defendants to file an untimely supplemental motion for summary judgment and considered the same notwithstanding that the same, in conjunction with the first motion filed by defendants, surpassed the twenty five page limit.
As to the Magistrates' conclusions on the merits, plaintiffs object to the Magistrate's finding that plaintiff had to affirmatively allege the specific major life activity that is substantially limited by her disability in order to be protected by A.D.A. Plaintiffs further sustain that since the Magistrate deemed the summary judgment unopposed the she failed to consider material facts that were in controversy and precluded the Court from the issuance of summary disposition.
The Court is not persuaded by plaintiffs' arguments and, for the reasons stated below, the Court accepts and adopts the Magistrate's recommendation. Accordingly, defendants' Motion for Summary Judgment is GRANTED. Consequently, Plaintiffs' A.D.A., A.D.E.A. and F.M.L.A. claims are hereby DISMISSED WITH PREJUDICE. State claims pursuant to Law 44, Articles 1802 and 1803 are DISMISSED WITHOUT PREJUDICE. The Court explains.
I.
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); FED.R.CIV.P. 72(b); Rule 72(a), Local Rules, District of Puerto Rico. See Mathews v. Weber, 423 U.S. 261 (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 Local Rule 72(d); FED.R.CIV.P. 72(b). 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.
The "written objections shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the legal basis for such objections." Local Rule 72 (d). Provided that plaintiffs, have objected the Magistrate's determination, the Court shall make a de novo determination of the Magistrate's Report and Recommendation.
II. Summary Judgment Standard
Summary judgment is a procedural device designed to screen out cases that present no trial worthy issues. See McCarthy v. N.W. Airlines, Inc., 56 F.3d 313, 314-15 (1st Cir., 1995). Plumley v. Southern Container Inc., 303 F.3d 364, 368-69 (1st Cir., 2002).The role of summary judgment is to look behind the facade of the pleadings and assay the parties' proof in order to determine whether a trial is required. McIntosh v. Antonino, 71 F.3d 29, 33 (1st Cir., 1995).
In conventional summary judgment practice, the moving party has the initial responsibility of suggesting the absence of a genuine issue of material fact. Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 227-28 (1st Cir., 1992). The moving party bears the two-fold burden of showing that there is "no genuine issue as to any material facts," and that he is "entitled to judgment as a matter of law." Vega-Rodríguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir., 1997). That requires supporting the motion, by affidavits, admissions, or other materials of evidentiary quality, as to issues on which the movant bears the burden of proof. McIntosh v. Antonino, 71 F.3d at 33. A fact is "material" if it potentially could affect the suit's outcome.Cortés-Irizarry v. Corporación Insular, 111 F.3d 184, 187 (1st Cir., 1997). An issue concerning such a fact is "genuine" if a reasonable fact finder, examining the evidence and drawing all reasonable inferences helpful to the party resisting summary judgment, may resolve the dispute in that party's favor. Id. Summary judgment is appropriate only if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
Once the movant has fulfilled this obligation, the burden shifts to the summary judgment target to demonstrate that a trial worthy issue exists. Suárez v. Pueblo Int'l Inc., 229 F.3d 49, 53 (1st Cir., 2000). Nonetheless, "[i]f the adverse party does not [file an opposition], summary judgment, if appropriate, shall be entered against the adverse party." FED. R. CIV. 56(e). Emphasis added. However, the First Circuit has made clear that failure to timely oppose a motion for summary judgment, does not, in itself, justify entry of summary judgment against that party. Therefore, a district court is nonetheless "obliged to consider the motion on merits, in light of the record as constituted, in order to determine whether judgment would legally be appropriate." Kelly v. United States, 924 F.2d 355, 358 (1st Cir., 1991); see also Lopez v. Corporacion Azucarera de Puerto Rico, 938 F.2d 1510, 1517 (1st Cir., 1991) (before granting an unopposed summary judgment motion, the court must inquire whether the moving party has met its burden to demonstrate undisputed facts entitling it to summary judgment as a matter of law); De la Vega v. San Juan Star ___ F.3rd ___ (1st Cir., 2004) ( 2004 WL 1730135) (the Court must entertain the merits of a Rule 56 motion and may not grant the motion as a sanction for not opposing the request.)
After reviewing defendants' Motion for Summary Judgment the Court finds the following factual landscape.
III. Uncontested Facts
1. Esther Dávila Rivera, hereinafter Dávila, was born on November 17, 1952.
2. On August 12, 1974, she started working for Caribbean Refrescos Inc. Dávila worked first as a legal secretary and then as an Administrative Assistant II at the Finance Department until the ceasing of her employment.
3. On April 12, 1999, José Martínez, hereinafter Martínez, became manager of the Finance Department of Caribbean and, as such, he was Dávila's supervisor.
4. On or around May or June of 2000, Dávila underwent therapies to treat a condition of carpal tunnel syndrome, hereinafter CTS.
5. On June 2000, Dávila's scheduled was modified from 9:00 to 5:00 to 8:30 to 4:30 in order to allow her to go to her therapies and comply with her job responsibilities.
6. On or around June 2000, Dávila informed Martínez that she needed surgery. Martínez told Dávila to inform him about the date of the surgery in advance.
7. On or around the first week of December, Dávila informed Martínez that her surgery was scheduled for December 14, 2000.
8. On December 7, 2000, Dávila requested a vacation leave from December 14 to December 28, 2000. Said request was approved.
9. On December 14, 2000, Dávila underwent surgery in her right hand
10. On January 18, 2001, Dr. Angel Pérez Toro, Dávila's rehabilitation physician, certified that Dávila had completed her rehabilitation as to her carpal tunnel syndrome and stated that she would be fit to return to work on January 22, 2001.
11. Dávila returned to the job on January 22, 2001. She submitted a CTS functional capacity form where Dr. Pérez Toro informed that from January 22 to February 12, 2001 she should only perform sedentary duties. Dr. Pérez Toro further stated that she had no limitations as to her fine and gross hand dexterity. However, Dávila had a restriction as to lifting or carrying more than five pounds.
12. At her return, Dávila was instructed to digitally scan certain documents.
13. On January 24, 2001, Dávila went to Caribbean's medical dispensary. Nurse Daisy Meléndez noticed that Dávila's right hand was swollen. She informed nurse Rosario of her finding. Dr. Canales, Caribbean's in house physician, recommended Dávila to wear a hand brace at work.
14. On January 29, 2001, Dr. Canales saw Dávila in a follow up visit and noted that the swelling had disappeared.
15. On February 27, 2001, Dávila was referred to the State Insurance Fund and was placed on a short term disability leave. Dávila admitted that she was aware that she had a year long reserve. During her stay, Caribbean send her all the forms required to apply for a long term disability leave. Dávila completed the forms and send them to NATLSCO, the company that managed Caribbean's long term disability plan.
16. After sending the application, Dávila was notified that the same was received. She never called to inquire as to the status of her application. Dávila's long term disability was denied by NATLSCO on November, 2001. Caribbean was not involved in said decision. However, the notification was sent to the wrong address and, hence, was not received by Dávila. Dávila found out of said denial on or around February, 2002. Notwithstanding, NATLSCO allowed her to appeal the decision. Said appeal was denied.
17. On or around February 2002, Dávila was called by Soraida Nieves who informed her that her reserve period of one year from her short term disability leave was about to expire. Through a letter dated February 27, 2002, Dávila was informed that her year long reserve period had ended.
18. Upon Dávila's ceasing to work for Caribbean, Ms. Evelyn Leal assumed the vast majority of Dávila's responsibilities. Ms. Leal was born on April 9, 1954.
IV. Magistrate's Recommendation
The Magistrate Judge first addressed plaintiffs claim that she had been discriminated due to her disability. Dávila claims that she suffers from CTS and that when she returned from her surgery Caribbean failed to accommodate her. She claims that Caribbean failed to assigned her to sedentary duties as recommended by her physician and, consequently, she developed a major depression. In sum, Dávila claims that her CTS and her depression limited one or more life activities.
After a full analysis of the A.D.A. and the jurisprudence interpreting said statute, the Magistrate concluded that Dávila did not qualify as an individual with disability warranting the protection of the ADA. The Magistrate found that Dávila did not suffer from any physical or mental impairment which substantially limited any major life activity. Since the parties did not dispute Dávila's CTS or even her depression, the mayor issue addressed by the Magistrate was if, in fact, said conditions substantially limited Dávila in a mayor life activity. The Magistrate concluded that since Dávila failed to identify any major life activity which was substantially affected by her condition of CTS or her depression she failed to establish that she was disabled as defined by the A.D.A. Although plaintiffs failed to allege which major life activity was affected the Magistrate analyzed how the disabilities substantially affected Dávila's work. The Magistrate noted that in their Amended Complaint plaintiffs stated that even without the reasonable accommodation Dávila was able to perform the essential functions of her position as an Administrative Assistant II in the Finance Department. Accordingly, the Magistrate concluded that Dávila failed to establish that due to her condition her ability to work was seriously affected. Further, the Magistrate found that Dávila only established that she had difficulty in performing one of her tasks, scanning. This fact alone, concluded the Magistrate, failed to reach the threshold to enable a finding that plaintiffs' condition amounted to a disability that substantially limits her capacity to work. Hence, the Magistrate found that plaintiffs failed to provide the Court with any evidence to support their allegation that Dávila should be considered as disabled under A.D.A. Furthermore, the Magistrate concluded that Dávila's condition was neither permanent nor a long term condition since her medical certificate only ordered her sedentary work for three weeks and authorized her return to work effective on January 22, 2001. Moreover, Dávila had no limitations as to her fine and gross hand dexterity, accordingly, her functional capacity was unaffected. Therefore, the Magistrate concluded that Dávila had no limitations as to the duties she could perform with her hands. In sum, the Magistrate found that Dávila's CTS limitation was not substantial in nature. As to Dávila's depression the Magistrate concluded that Dávila failed to establish the effect that said condition had over any major life activity. Accordingly, the Magistrate determined that a reasonable jury, based on the evidence proffered, could not conclude that Dávila was substantially limited in a major life activity by any of the alleged conditions. Hence, Dávila failed to qualify as a disable person, as defined by the statute, to warrant protection under A.D.A.
The Magistrate noted that plaintiffs raised in their second opposition to the Motion for Summary Judgment that her life activity of lifting and carrying five to ten pounds was burdened. However, said allegation was not raised in the Complaint. The Magistrate concluded that the Court should not allow plaintiff to bring new never before raised allegations and previously unmentioned major life activities that were hereto before not alleged. The Court agrees. Further, said second opposition was stricken from the record.
Since she is not entitled to the protection, her accommodation claim must be dismissed. However, the Magistrate concluded that Caribbean afforded her appropriate accommodations for her condition. The Magistrate found that at the moment that she complained of pain in her hand, the in house physician ordered her to use a hand brace, and she continued doing their job. Dávila, substantially, never complained again and was able to perform her duties. As to the depression condition, the Magistrate concluded that Dávila never requested any reasonable accommodation for said condition. This conclusion was not objected by the plaintiffs.
Finally, the Magistrate Judge concluded that assuming that Dávila would have established the first prong of her prima facie case of discrimination (that is, that she is an individual with disability that warrants the protection of A.D.A.) Dávila failed to establish an employment adverse action or the third prong of the prima facie case. The Magistrate concluded that Dávila knew when she went on leave on February 27, of 2001 that her reserve period lasted one year. Said benefits expired while waiting for a determination as to her application for long term disability benefits. The Magistrate concluded that since the date when her benefits were to expire, she failed to return to her job within said period and voluntarily decided to wait for the decision as to her application for long term benefits. Hence, Dávila is responsible for letting her benefits expire without returning to her job and, as a consequence, losing her job. Accordingly, the Magistrate concluded that Dávila suffered no adverse employment action. Since Dávila does not qualify as disabled as defined by the statute and, further, she failed to establish a prima facie case, the Magistrate recommended that summary judgment as to plaintiffs' A.D.A. claim be granted.
Although said decision was issued on November 2001, plaintiff was not notified until after her short term leave expired since the first notification was sent to the wrong address.
The Magistrate then addressed plaintiffs' A.D.E.A. claim. The Magistrate noted that Dávila's age discrimination claim is based on the fact that at the time of the relevant period she was over forty years old. Accordingly, it is unquestioned that Dávila falls under the protected class. However, the Magistrate concluded that since she did not suffer an adverse employment action, she failed to establish a prima facie case and therefore her A.D.E.A. claim should be dismissed. Furthermore, the Magistrate noted that Dávila's replacement was insignificantly younger (18 months younger than plaintiff). Hence, the Magistrate found that Dávila's' replacement's age is not enough to support a prima facie case of age discrimination. This conclusion was not objected by the plaintiffs. Accordingly, and in absence of plain error, Douglas v. United Service Auto Association, 79 F3d 1415, 1419 (5th Cir., 1996), the Court hereby ADOPTS the Magistrate's conclusion. Hence, plaintiffs claim of action pursuant to A.D.E.A. is hereby DISMISSED.
A "prima facie case requires evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion. In the age discrimination context, such an inference cannot be drawn from the replacement of one worker with another worker insignificantly younger". O'Connor v. Consolidated Coin Cateres Corp. 517 US 308, 312-313 (2000).Williams v. Raytheon, 220 F.3d 16, 20 (1st Cir., 2000) (age difference of three years between the terminated employee and his replacement was insufficient to support a prima facie presumption of age discrimination in violation of ADEA.)
Since Caribbean failed to request the dismissal of plaintiffs' sex discrimination claim the Magistrate did not consider said claim. However, the Magistrate emphasized, as to said cause of action, that there was no adverse employment action.
As to the state law claims the Magistrate concluded that because this is not a diversity jurisdiction case, the jurisdiction of the federal court to entertain state law claims depended on the presence of, at least, one substantial federal claim law suit. Since federal jurisdiction depended on the federal claims that were recommended should be dismissed, the Magistrate considered that the state claims be dismissed without prejudice.
The Court notes that the sex discrimination claim pursuant to Title VII survived defendant's summary judgment since defendants failed to request the Court for brevis disposition as to this claim. Accordingly, the state law claim of discrimination pursuant to Law No. 100 could still be address by this Court pursuant to supplemental jurisdiction.
Finally, the Magistrate addressed plaintiffs Family Medical Act (F.M.L.A.) claim. The Magistrate first discussed defendants' claim that the action pursuant to the F.M.L.A. was time barred. The Magistrate concluded that since plaintiffs' F.M.L.A. claim was based on a telephone conversation Yolanda Rosario had with Dávila's husband on March 7, 2001, and the original complaint was filed on October 4, 2002, before the two year statute of limitations elapsed, the same was not time barred. The Magistrate recognized that it was not until the amended complaint was filed that plaintiffs first assert a F.M.L.A. claim, after the statute of limitations had expired. However, since the F.M.L.A. claim arose from the same conduct, transaction or occurrence set forth on the original complaint, the Magistrate concluded that, pursuant to Rule 15(c)(2), the amendment relates back to the date of the original pleading within the two years statute of limitations. The Magistrate then proceeded to analyze the merits of plaintiffs' F.M.L.A. claim.
As to plaintiffs' claim that defendant breached its obligation under F.M.L.A., the Magistrate concluded that since on February 10, 2004 the Court ruled (Docket No. 45) that Caribbean provided a twelve week medical leave and afforded forty additional weeks prior to dismissal and plaintiffs did not present any evidence to contradict the Court's ruling, the F.M.L.A. claim as to this allegation was unwarranted. The Magistrate Judge refrained from revisiting the issue. However, the Magistrate noted that the Court, in said occasion, did not dismiss plaintiffs' F.M.L.A. claim because it determined the Amended Complaint established sufficient factual allegations from which a violation of the F.M.L.A. could be discerned, i.e unwarranted interference with her medical coverage. (Docket No. 45). Caribbean now contends that Dávila's F.M.L.A. should be dismissed since she never lost her private medical coverage while employed at Caribbean and hence there was no interference with Dávila's medical coverage. The Magistrate concluded that Dávila never lost medical coverage while employed at Caribbean nor did she lose her private medical treatment as a result of Yolanda Rosario's telephone call from March 7, 2001. At the time of this call, Dávila was being treated by the State Insurance Fund. Rosario's telephone call's purpose was to inform Dávila of her medical insurance policy regarding paying for expenses incurred for an illness covered by workers compensation fund since Dávila was receiving treatment from the State Insurance Fund for the same medical condition she was visiting Dr. Nuñez. Rosario informed Dávila that Cigna would not cover her visits to a private physician while she was undergoing treatment at the State Insurance Fund for the same condition. Hence, the call was not to deny any benefits but to forewarn Dávila as to the policy of the health insurance as to the payment of treatment already covered by the State Insurance Fund. Further, the Magistrate found that after her discharge from the State Insurance Fund, Dávila used her medical insurance in connection with her emotional condition. Finally, the Magistrate found that upon the expiration of Dávila's leave in February of 2002, Caribbean sent her a letter advising her of her rights under COBRA. Dávila further admitted benefitting from Caribbean's health insurance. For all the abovementioned reasons, the Magistrate found that, as to February 2002, Dávila had medical insurance. Accordingly, the Magistrate concluded that Dávila failed to establish a claim pursuant to F.M.L.A. and recommended that the motion summary judgment as to this claim be granted and plaintiffs' F.M.L.A. claim be dismissed. Since the plaintiffs failed to object to the Magistrate's recommendation, the Court, in absence of plain error, ADOPTS the Report and Recommendation of the Magistrate Judge. 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 to legal conclusions of a magistrate judge);Nettles v. Wainwright, 677 F.2d 404, 410 (5ht 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"). Hence, plaintiffs' claim pursuant to F.M.L.A. is hereby DISMISSED.
She started treatment at the State Insurance Fund on February 26, 2001 and was discharged on May 7, 2001.
Cigna (health insurance for Caribbean employees including Dávila) does not provide coverage over expenses incurred by the insured for an illness covered by any workers compensation or similar statute.
Caribbean's employees health provider.
V. Plaintiffs Objections and Analysis
First, plaintiffs object the Magistrate decision to strike plaintiffs' opposition, deeming the motion for summary judgment as unopposed. Plaintiffs sustain that, as ordered by the Court, they pruned their opposition and with the elimination of several paragraphs and footnotes they re-filed the same as a twenty five page document. Further, plaintiffs sustain that they used a 12 point font letter as required by Local Rule 7.1 (e). Plaintiffs affirm that the Magistrate Judge's recommendation if adopted will prevent them from due process of law because of a mere unsubstantiated belief that plaintiffs' opposition does not comply with the Order Setting Initial Scheduling and Case Management Conference (Docket No. 6).The Court has examined plaintiffs' opposition. However, the Court must agree with the Magistrate finding that the "minute condensed font with expanded margins mak[es] the reading of the document unbearable." Accordingly, the Magistrate's decision to strike the same is hereby ADOPTED. Hence, in the Court's de novo review of defendant's summary judgment the same shall be considered unopposed.
Second, plaintiffs sustain that the Magistrate Judge erred when she allowed defendants to file an untimely supplemental motion for summary judgment and considered defendants' supplemental motion for summary judgment notwithstanding the fact that the same, in conjunction with the first motion filed by defendants, would have more than the twenty five page limit. The Court disagrees.
When defendants filed their Motion for Summary Judgment the Court had not yet decided defendants' Motion to Dismiss as to plaintiffs' F.M.L.A. claim. For this reason, defendants failed to include the same in its request for brevis disposition. After considering defendants' request the Court denied said Motion to Dismiss (Docket No. 45). Although the Court concluded that defendants provided Dávila the required leave prior to her dismissal, the Court did not dismiss the claim because it harbored doubts as to any interference of Caribbean with Dávila's medical insurance. As a result, defendants filed a supplement motion for summary judgment requesting the dismissal of the F.M.L.A. claim. The Court considers that the Magistrate did not abuse her discretion when she allowed defendants to file the Supplement Motion for Summary Judgment. The same consists of only seven pages and since plaintiffs' opposition to the original motion for summary judgment was already filed when the supplemental motion was filed, plaintiffs had the opportunity to oppose the supplemented motion in a separate motion. The Court hereby ADOPTS the Magistrate's decision to accept defendants' supplemental motion for summary motion.
Plaintiffs had previously opposed defendants' Motion for Summary Judgment when the supplemental motion was filed. See Docket No. 38. Accordingly, plaintiffs could have opposed the supplemental motion, in a separate document. The forty three page rejected opposition could not and did not address the issue raised in the supplemental motion since the same was filed before the supplemental motion. Plaintiffs had to re-file, after proper pruning, a twenty five page opposition to defendants' first motion for summary judgment (pursuant to the Court's Order issued on April 20, 2004 (Docket No. 52)) and a second opposition to defendants' supplemental motion for summary judgment. The Court did not expect plaintiffs to oppose two motions in only one twenty five page document. In fact neither did plaintiffs, since in their opposition they did not address the supplemental motion.
Third, plaintiffs assert that the Magistrate erred in concluding that plaintiffs had to affirmatively allege in the Complaint the specific major life activity that is substantially affected by Dávila's condition. Further, plaintiffs allege that the Magistrate erroneously stated that plaintiffs mentioned for the first time that Dávila's condition affected her ability to lift in the second opposition to the motion for summary judgment. Plaintiffs further assert that the Magistrate erroneously assumed that working was the major life activity that was substantially limited.
As to their allegation that the Magistrate erred in determining that plaintiffs had to allege the specific major life activity that is substantially affected by Dávila's condition, plaintiffs sustain that the jurisprudence as to the A.D.A.'s pleading standards is not definite in requiring plaintiffs to specifically alleged which life activity is substantially limited by the condition. Plaintiffs assert that as long as the complaint notifies the defendant of the claimed impairment, the substantially limited major life activity need not to be specifically identified in the pleadings. The Court disagrees.
The plaintiffs find support for the contention that there is no clear decision as to the need to include in the pleadings the major life activity that is substantially affected in the following cases: Moore v. Cook Count Hospital, 1997 WL 529550 at 2 (N.D. Ill) (finding minimal allegations in complaint sufficient to survive motion to dismiss "despite her failure to plead explicitly that the alleged disability substantially limits on one or more life activities"); Addriacchi v. City of Chicago, 1996 WL 685458 at 2 (N.D. Ill) (upholding completely conclusory complaint because the conclusory statements are sufficient in a complaint as long as they placed the defendant on notice of the plaintiff's claim.)
On the other hand, other district courts have arrived at the opposite conclusion. For example contradictory determinations were made in Dikcis v. Indopco Inc. 1997 WL 211218 at 6 (N.D., Ill) (granting motion to dismiss complaint because plaintiff did not plead "that his depression `substantially limited' one or more of his `major life activity'" and Fedor v. Illinois Department of Employment Security, 955 F. Supp. 891, 893 (N.D. Ill. 1996) (Plaintiff "never states that his impairment substantially limits a major life activity such as working, which he must do to plead disability discrimination under the ADA."). It is important to note that in these two cases the courts were addressing motions to dismiss. In fact in Fedor v. Illinois Department of Employment Security, supra, the district court made the distinction that since they were at the motion to dismiss pursuant rule 12(b)(6) stage and not considering a motion for summary judgment, the court was to decide based only on the pleadings. Id. In the instant case, however, the case is no longer at the motion to dismiss stage. Pending before the Court is defendants' summary judgment motion where the Court must look behind the facade of the pleadings and assay the parties' proof in order to determine whether a trial is required. McIntosh v. Antonino, 71 F.3d at 33.
A.D.A. is the federal civil rights statute, enacted "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1); Jacques v. Clean up Group, 96 F.3d 506, 510 (1st Cir., 1996); Katz v. City Metal Co. Inc, 87 F.3d 26, 30 (1st Cir., 1996); Grenier v. Cyamid Plastics Inc., 70 F.3d 667, 671 (1st Cir. 1995). In the employment context, the A.D.A. prohibits discrimination against a qualified individual with a disability because of the disability of such individual 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." 42 U.S.C. § 12112(a); Katz v. City Metal Co. Inc, 87 F.3d at 30; Grenier v. Cyanamid Plastics, Inc., 70 F.3d at 671. In an effort to eliminate discrimination against individuals with disabilities, the statute prohibits employers from discriminating against "a qualified individual with a disability because of the disability." Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 14 (1st Cir., 1997).
To establish a claim of disability discrimination under the A.D.A., a plaintiff must first demonstrate, that she is disabled within the meaning of the Act. That is, she has to establish a physical or mental impairment that substantially limits one or more of her major life activities. Further, she has to show that she has a record of such impairment or that she is being regarded as having such an impairment. See, Bailey v. Georgia-Pacific Corporation, 306 F.3d 1162, 1166 (1st Cir. 2002); 42 U.S.C. § 12102(2); Carroll v. Xerox, 294 F.3d 231, 237 (1st Cir. 2002).
A three-part analysis is applied when considering, whether the plaintiff has a physical or mental impairment that substantially limits one or more of her major life activities. First, the Court must consider whether plaintiff's condition constitutes a mental or physical impairment. Second, the Court shall identify the life activity upon which plaintiff relies, and must determine whether it constitutes a major life activity under the ADA. Third, the Court must ask whether the impairment substantially limited the major life activity. Bragdon v. Abbott, 524 U.S. 631 (1998); Carroll v. Xerox Corp., 294 F.3d 231, 238 (1st Cir., 2002); Toyota Motor Mfg. Inc. v. Williams, 534 U.S. 184, (2002); Lebron-Torres v. Whitehall Labs., 251 F.3d 236, 239-240 (1st Cir. 2001). "Major life activities are only those that are of central importance to daily life." Toyota Motor Mfg. v. Williams, 534 U.S. at 197-198. "[A]n individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." Id., at 198.
Whether a person has a disability under the ADA is an individualized inquiry, Sutton v. United Air Lines, 527 U.S. 471, 483(1999), and the plaintiff has the burden of establishing each of the above referred elements(one of the elements being a limit to a major life activity). Bailey v. Georgia-Pacific Corporation, 306 F.3d at 1167. The determination of whether an individual has a disability is based on the effect of that impairment on the life of the individual, taking into consideration that some impairments may be disabling for particular individuals but not for others. 29 C.F.R. § 1630, App. at 402; Katz v. City Metal Co. Inc, 87 F.3d at 32; quoting Chandler v, City of Dallas, 2 F.3d 1385, 1396 (5th Cir. 1995) (recognizing that "the effect of a given type of impairment . . . can vary widely from individual to individual").
Considering that the ADA defines "disability" "with respect to an individual," 42 U.S.C. § 12102(2), "makes clear that Congress intended the existence of a disability to be determined in such a case-by-case manner". Toyota Mfg. Inc v. Williams, 534 U.S. at 198; Sutton, 527 U.S. at 483;Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999);Bragdon, 52 U.S. at 641-642.
"Merely having an impairment does not make [an individual] disabled for purposes of the ADA." Toyota Mfg. Inc v. Williams, 534 U.S. at 195. In the same manner, the Supreme Court has also stated that not all physical impairments rise to the level of disability under the statute. Albertson's, Inc. v. Kirkinburg, 527 U.S. 555, 565-566 (1999). Further, "[i]t is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of an impairment." Toyota Mfg. Inc v. Williams, 534 U.S. at 198. Rather in the opposite, ADA mandates individuals "claiming the Act's protection . . . to prove a disability by offering evidence that the extent of the limitation in terms of their own experience . . . is substantial." Id., quoting, Albertson's, Inc. v. Kirkinburg, 527 U.S. at 567. An individual must proffer evidence from which a reasonable inference can be drawn that a major life activity is substantially limited Gillen v. Fallon Ambulance Service 283 F.2d 11, 24 (1st Cir., 2002) citing Snow v. Ridgeview Med. Center 128 F.3d at 1207 (8th Cir., 1997).
In the instant case, the plaintiff failed to alleged in the complaint which major life activity was substantially affected by her impairment, the Magistrate concluded that by failing to alleged which major life activity was substantially affected either by her depression or her CTS, Dávila failed to establish that she was qualified as an individual with a disability warranting the protection of the statute. The plaintiff sustains that there is no clear decision as to the need to include in the pleadings the major life activity that is substantially affected. However, at this time, the Court is at the summary judgment stage and the Court must look behind the facade of the pleadings and assay the parties' proof in order to determine whether a trial is required. McIntosh v. Antonino, 71 F.3d at 33. Plaintiff failed to proffer evidence from which a reasonable inference can be drawn that her CTS substantially limited a major life activity. Further, the Magistrate concluded and the plaintiff failed to object, that plaintiffs failed to establish an adverse employment action necessary to establish, as with the A.D.E.A. claim, the third prong of the McDonnell Douglas burden shifting framework. In sum, for the reasons aforementioned plaintiffs failed to establish a prima facie case of discrimination. First, they failed to demonstrate that Dávila is a covered individual pursuant to the A.D.A. failing to establish the first prong of the prima facie case. Further, they failed to establish the occurrence of any adverse employment action suffered by plaintiff, hence, failed to establish the third prong of the prima facie case. Accordingly, defendants' request for the dismissal of plaintiffs' A.D.A. claim is hereby GRANTED. Hence, plaintiffs' claim pursuant to the A.D.A. is hereby DISMISSED.
In their opposition, which was stricken from the record by the Court, plaintiffs affirmed that they established that Dávila was restricted to lift more than five pounds from January 22, 2001 until February 23, 2001 (a month). This fact is undisputed since defendants provided the medical certificate. Accordingly, they sustain that lifting is the major life activity Guillen v. Fallon Ambulance Service, 283 F.3d at 21 affected by her CTS. However, the Court in Guillen after determining that lifting was a major life activity proceeded to determine if the appellant was substantially limited in this major life activity. In reversing the district court, the First Circuit emphasized that cases used by the district court to support its conclusion that restrictions on lifting were not an indicative of a disability, i.e. Snow v. Ridgeview Medical Center, 128 F3d 1201, 1207 (8th Cir., 1997) (holding that a restriction on lifting more than twenty five pounds is insufficient to constitute a disability within the meaning of ADA) were inapposite in said case. "A missing hand is a more profound impairment than a simple inability to lift objects over a certain weight.". Guillen v. Fallon Ambulance Service, 283 F.3d at 23. Accordingly, the Court found that the appellant's lack of a hand (the plaintiff was born with a deformed left arm that ended a few inches below the elbow) would substantially limit her ability to lift. In contrast inToyota Mfg. Inc v. Williams, the Supreme Court was unwilling to find that plaintiff's impairment could be considered disabling as a matter of law since plaintiff's particular form of carpal tunnel syndrome permitted her to engage in a wide range of manual tasks. Toyota Mfg. Inc v. Williams, 534 U.S. at 694. Although in the stricken opposition plaintiffs claims that the lifting restriction would not allow her to perform the simple tasks as lifting a stapler, in her amended complaint plaintiffs stated that with or without reasonable accommodation plaintiff was able to perform the essential functions of her position (Docket No. 21 ¶ 49). As an Administrative Assistant her functions included: house keeping of the finance area, distribution of all incoming mail, maintenance of the conference room, photocopies, security access, purchase of materials, office supplies, refreshment supplies and maintenance of general equipment, computer work, typing, control of vacation records, keeping minutes, organizing activities, the typing and distribution of monthly reports. Further, Dávila's CTS did not affect her gross and fine hand movements. Accordingly, as inToyota Mfg. Inc v. Williams, Dávila's condition allowed her to engage in a wide range of manual tasks.
VI. Sex Discrimination Claim pursuant to Title VII.
Plaintiff failed to object to the Magistrate reiterated conclusion that even if plaintiff was a disabled individual pursuant to A.D.A. (which she was not) or even if she had established that in fact she was substituted with a significantly younger employee in order to establish two prongs of the A.D.E.A. prima facie case (which she did not), plaintiffs failed to establish a prima facie case either under A.D.A. or A.D.E.A. since plaintiff failed to establish that she suffered an adverse employment action.Title VII of the Civil Rights of 1964 makes unlawful for an employer to discriminate against an employee because of such individual's race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2(a)(1). Title VII proscribes that it is an unlawful act for an employer to discharge an individual because of such individual's sex. See 42 U.S.C. § 2000e-2(a)(1); Vera Lozano v. International Broadcasting, 50 F.3d 67 (1st Cir., 1995).
To establish a prima facie case of sex discrimination under the McDonnell Douglas framework the plaintiff has to establish that: (1) she is within the protected class; (2) that she was qualified for the position, (3) that she suffered an adverse employment action; and (4) that she was substituted by someone with the same qualifications. Cumpiano v. Banco Santander de Puerto Rico, 902 F.2d 148, 152 (1st Cir. 1990); Lipsett v. University of Puerto Rico, 864 F.2d 881, 899 (1st Cir. 1988).
In the instant case, the Magistrate concluded that Dávila did not suffer an employment action when she was informed that her short term disability benefits had expired. An employee who goes on disability leave and whose benefits run out does not suffer an adverse employment for purposes of prima facie case under A.D.A. Estades Negroni v. Associates Corp of North America, 208 F.Supp 2d 144, 149 (D.P.R., 2002). Hence, when Dávila allowed her short term benefits run out while waiting for the answer to her request of long term benefits without returning to her job, she caused, with her inaction, the loss of her employment. Accordingly, the Magistrate concluded that Dávila was not terminated from her employment and thus failed to establish the third prong of the prima facie McDonnell Douglas framework. However, since Caribbean failed to request summary disposition as to plaintiffs' Title VII claim the Magistrate refrained from recommending the dismissal of the same.
Recently affirmed by the First Circuit on July 28, 2004, 2004WL 1678109, ___ F.3d ___ (1st Cir., 2004).
On its Limited Objection to U.S. Magistrate Judge's Report and Recommendation (Docket No. 66) Caribbean requested the dismissal of the sex discrimination claim under Title VII. Caribbean argues that according to the Magistrate's findings plaintiffs failed to establish the third prong of the prima facie discrimination case, the adverse employment action. Hence, adopting said findings would necessarily lead to the dismissal of plaintiffs' Title VII claim.(Docket No. 66). Plaintiffs did not reply to this request. Plaintiffs are hereby ORDERED TO SHOW CAUSE within the TEN DAYS as to why this Court should not dismiss the sex discrimination claim due to their failure to establish that Dávila suffered an adverse employment action.
Defendant shall be granted FIVE DAYS to respond. NO EXTENSIONS SHALL BE GRANTED.
VII. Conclusion
The Court finds that the Magistrate did not abuse her discretion by accepting defendants' supplemental motion for summary motion and when she struck from the record plaintiffs' opposition deeming defendants' motion as unopposed. Further, for the reasons aforementioned the Court hereby ORDERS as follows:
Plaintiffs' claim of action pursuant to A.D.A. is hereby DISMISSED WITH PREJUDICE;
Plaintiffs' claim of action pursuant to A.D.E.A. is hereby DISMISSED WITH PREJUDICE;
Plaintiffs' claim pursuant to F.M.L.A. is hereby DISMISSED WITH PREJUDICE;
Plaintiffs' claims of action pursuant to Puerto Rico's Law 44, 1 L.P.R.A. § 501 et seq and Articles 1802 and 1803 fo the Puerto Rico's Civil Code, 31 L.P.R.A. 5141 and 5142 are hereby DISMISSED WITHOUT PREJUDICE.
The Court will refrain from issuing a partial judgment at this time. The First Circuit strongly disfavors partial judgments as they foster piecemeal appeals. See Nichols v. Cadle Co., 101 F.3d 1448, 1449 (1st Cir. 1996) ("piecemeal appellate review invites mischief. Because the practice poses a host of potential problems we have warned, time and again, that Rule 54(b) should be used sparingly."); Zayas-Green v. Casaine, 906 F.2d 18, 21 (1st Cir. 1990) ("This final judgment rule . . . furthers `the strong congressional policy against piecemeal review.'" Id. (quoting In re Continental Investment Corp., 637 F.2d 1, 3 (1st Cir. 1980)); Comite Pro Rescate De La Salud v. Puerto Rico Aqueduct and Sewer Authority, 888 F.2d 180, 183 (1st Cir. 1989); Consolidated Rail Corp v. Fore River Ry. Co., 861 F.2d 322, 325 (1st Cir. 1988); Spiegel v. Trustees of Tufts Coll., 843 F.2d 38, 43 (1st Cir. 1988); Santa Maria v. Owens-Ill., Inc., 808 F.2d 848, 854 (1st Cir. 1986)); see also United States v. Nixon, 418 U.S. 683, 690 (1974).
Plaintiff is hereby ORDERED to SHOW CAUSE within the next TEN DAYS as to why her sex discrimination claim pursuant to Title VII should not be dismissed for failure to establish a prima facie case.
Puerto Rico's Law 100, 29 L.P.R.A. § 146 et seq dismissal depends on the Court's determination as to plaintiffs' Title VII claim. Should the federal claim be dismissed the local claim shall be dismissed without prejudice. Rodriguez v. Doral, 57 F.3d 1168, 1177 (1st Cir., 1995) quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).
IT IS SO ORDERED.