Cortés-Rivera v. Department of Corrections & Rehabilitation , 626 F.3d 21 ( 2010 )

United States Court of Appeals
For the First Circuit
No. 09-1858
ENRIQUE CORTÉS-RIVERA,
Plaintiff, Appellant,
v.
DEPARTMENT OF CORRECTIONS AND REHABILITATION OF THE COMMONWEALTH
OF PUERTO RICO; MIGUEL PEREIRA-CASTILLO, in his individual and
official capacity as Secretary of the Department of Corrections
and Rehabilitation of Puerto Rico; CORRECTIONAL HEALTH SERVICES
CORPORATION,
Defendants, Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Wilma E. Reverón-Collazo, with whom Nora Vargas Acosta was on
brief, for appellant.
Néstor J. Navas-D'acosta, with whom Carmen Lucía Rodríguez
Vélez was on brief, for appellee Correctional Health services
Corporation.
Michelle Camacho-Nieves, with whom Irene S. Soroeta-Kodesh,
Leticia Casalduc-Rabell, and Zaira Z. Girón-Anadón were on brief,
for appellees Department of Corrections and Rehabilitation of the
Commonwealth of Puerto Rico and Miguel Pereira-Castillo.
November 16, 2010
LYNCH, Chief Judge. Enrique Cortés-Rivera, a doctor,
appeals from a grant of summary judgment entered by the district
court on his claim that his contract to provide medical services
was illegally terminated. Cortés-Rivera worked as an independent
contractor in Puerto Rico's Department of Corrections and
Rehabilitation (DOCR) between 2002 and 2007. He alleges that DOCR
and its managing corporation, the Correctional Health Services
Corporation (CHSC), discriminated and retaliated against him on the
basis of disability in violation of Title I of the Americans with
Disabilities Act (ADA), Section 504 of the Rehabilitation Act
(§ 504), and Puerto Rico state law.
The district court treated Cortés-Rivera's pleading,
styled as a motion to oppose CHSC's summary judgment motion, as
untimely. The main thrust of Cortés-Rivera's case was that he was
an employee of CHSC and DOCR for purposes of his Title I and § 504
claims, not an independent contractor. In granting summary
judgment for CHSC and DOCR, the district court made three holdings:
(1) Cortés-Rivera was not an employee of CHSC or DOCR for purposes
of the ADA, (2) Cortés-Rivera neither objected to a magistrate
judge's conclusion that his non-employee status precluded his
reasonable accommodation claims under § 504 nor adequately
presented this issue to the district court, and (3) Cortés-Rivera
had failed to raise a federal retaliation claim. The district
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court declined to exercise supplemental jurisdiction over Cortés-
Rivera's state-law claims. We affirm.
I.
A general practitioner, Cortés-Rivera began working for
DOCR in 2002. In a pair of service contracts entered that year, he
agreed to provide emergency room and ambulatory services to the
prison population at Guayama Correctional Facility. Cortés-Rivera
entered a superseding service contract on July 1, 2006. In this
contract, set to expire on June 30, 2007, Cortés-Rivera agreed to
provide ambulatory services for DOCR. In a letter dated November
15, 2006, DOCR terminated this contract early, effective January 8,
2007. Cortés-Rivera entered a final service contract with DOCR on
February 20, 2007, which expired about four months later on June
30, 2007.
During the course of these contracts, between January and
March 2006, Cortés-Rivera was diagnosed with Guillain-Barre
syndrome. Guillain-Barre syndrome is a rare autoimmune disorder in
which the body's immune system attacks part of the peripheral
nervous system. It leads to varying degrees of physical weakness
and, in some cases, paralysis. There is no known cure for the
disorder, though therapies may lessen its severity and accelerate
recovery. Cortés-Rivera's Guillian-Barre syndrome led to complete
paralysis of his left leg and foot. The parties do not contest
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that Cortés-Rivera qualifies as an individual with a disability
within the meaning of federal disability laws.
Also during the course of Cortés-Rivera's contracts, DOCR
entered into an agreement with another entity, CHSC, providing that
CHSC would manage DOCR's Correctional Health Program. Under the
agreement, CHSC assumed full supervisory authority over employees
and contractors of DOCR. The contract provided that employees and
contractors of DOCR would remain such until their relationship with
DOCR was either terminated or modified. This contract entered
force in 2005 and remained in force through the expiration of
Cortés-Rivera's last service contract.
In a letter dated September 19, 2006, Cortés-Rivera
requested accommodations to address difficulties he had in
accessing punch clocks used to measure attendance and timeliness at
the correctional facility. This request was denied in a September
27, 2006, letter from the Clinical Services Director of the
Correctional Health Program. The letter stated that Cortés-Rivera
was not a regular employee and thus did not have the privileges of
such employees. The letter nonetheless recommended that Cortés-
Rivera's supervisor consult with him about placing him in one of
two particular areas of the facility that would be more accessible.
Cortés-Rivera was subsequently placed in one of those areas.
In a letter dated October 23, 2006, the chief executive
officer of CHSC notified the secretary of DOCR, Miguel Pereira-
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Castillo, that layoffs would be necessary to address a projected
budget deficit for DOCR. He requested that DOCR cancel six of its
professional service contracts, including Cortés-Rivera's. The
officer wrote that one of the professionals rendered services that
were no longer necessary. He wrote that the remaining five
professionals, including Cortés-Rivera, were selected because they
had the least seniority in the institution where they rendered
services. On November 15, 2006, Pereira-Castillo notified Cortés-
Rivera that his contract would be terminated effective January 8,
2007. DOCR nonetheless entered a subsequent contract with Cortés-
Rivera on February 20, 2007, effective until June 30, 2007.
On November 20, 2007, Cortés-Rivera filed a complaint
alleging disability discrimination and retaliation. As to
discrimination, Cortés-Rivera claimed that the defendants denied
his request for reasonable accommodation and terminated his
contract in violation of Title I of the ADA and § 504. As to
retaliation, he made two claims, asserting that they were made
under Puerto Rico state law. First, he asserted that the early
termination of his July 31, 2006, contract was in retaliation for
his accommodation request. Second, he asserted that the defendants
refused to alter his February 20, 2007, contract because he filed
claims concerning the prior termination with the Equal Employment
Opportunity Commission (EEOC). Cortés-Rivera also alleged
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discrimination and various common law claims in tort and contract
under Puerto Rico state law.
Adopting the recommendations of a magistrate judge, the
district court granted summary judgment to the defendants. As a
preliminary matter, the district court held that Cortés-Rivera did
not timely oppose CHSC's motion for summary judgment. On the
merits of the joint motion for summary judgment, the district court
made three holdings: (1) Cortés-Rivera was not an employee of DOCR
or CHSC under Title I of the ADA, (2) Cortés-Rivera failed to
object to the magistrate's conclusion that his non-employee status
barred his reasonable accommodation claim under § 504 and failed to
adequately contest the issue in the district court, and (3) Cortés-
Rivera did not raise a federal retaliation claim. The district
court declined to exercise supplemental jurisdiction over Cortés-
Rivera's state claims in the absence of a valid federal claim.
II.
On appeal, Cortés-Rivera challenges both the district
court's finding that he did not timely oppose CHSC's summary
judgment motion and the district court's three holdings on the
merits. As to the timeliness of his opposition to summary
judgment, he argues that the district court abused its discretion
given the purported seriousness of its holding and the
reasonableness of his reading of the deadline. As to the three
claims on the merits, Cortés-Rivera argues that (1) he is an
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employee of DOCR and CHSC for purposes of Title I of the ADA, (2)
he may bring an employment discrimination claim under § 504 even if
he does not qualify as an employee under Title I of the ADA, and
(3) he raised federal retaliation claims for purposes of Fed. R.
Civ. P. 8.
We first address Cortés-Rivera's claim concerning the
timing of his opposition to CHSC's summary judgment motion. We
then turn to his three claims on the merits of CHSC's and DOCR's
joint motion for summary judgment.
A. Timeliness of Opposition to Summary Judgment
We review a district court's finding that a party failed
to timely oppose summary judgment for abuse of discretion. United
States v. Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995). We will
only find an abuse of discretion if there is "an unreasoning and
arbitrary insistence upon expeditiousness in the face of a
justified request for delay." Id. (quoting Morris v. Slappy, 461
U.S. 1, 11-12 (1983)) (internal quotation marks omitted).
Only in "rare cases" have we found that a district court
abused its discretion in refusing to grant an extension of time.
Perez-Cordero v. Wal-Mart Puerto Rico, 440 F.3d 531, 534 (1st Cir.
2006). We have granted relief, however, when a litigant was
"reasonably surprised" by a court's deadline or "the events leading
to the contested decision were unfair." Id. (collecting cases).
Cortés-Rivera claims that he was "gravely surprised" by the
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relevant deadline and recites this court's observation in Perez-
Cordero that "[i]n most cases, a party's failure to oppose summary
judgment is fatal to its case," id.Cortés-Rivera's claim of surprise by this deadline makes
little sense. He argues that the district court should have given
him an extension, though he did not seek one, because it previously
extended a deadline for DOCR. He also implies that he should have
been awarded an extension so that he could oppose both CHSC's
motion for summary judgment and DOCR's motion for summary judgment
at the same time. As the district court held, "[a]ssumptions can
be perilous, as they were here." Cortes-Rivera v. Dep't of Corr.
& Rehab. of the Commonwealth of Puerto Rico, 617 F. Supp. 2d 7, 22
(D.P.R. 2009).
Nor is there any substantive unfairness. The claims
contained in CHSC's and DOCR's motions for summary judgment are
nearly identical. Cortés-Rivera does not purport to raise a
material fact on this appeal relevant to CHSC's motion but not
DOCR's motion. The only factual issue he argues is in dispute
concerns whether Cortés-Rivera was an employee of either CHSC or
DOCR; the relevant facts are essentially the same for both
defendants. The district court did not abuse its discretion in
finding his filing was late.
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B. Challenge to Grant of Summary Judgment
We review grants of summary judgment de novo, drawing all
reasonable inferences in favor of the non-moving party. Sullivan
v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009). Summary
judgment is appropriate when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of
law. Foley v. Town of Randolph, 598 F.3d 1, 5 (1st Cir. 2010). We
ignore "conclusory allegations, improbable inferences, and
unsupported speculation." Sullivan, 561 F.3d at 14 (quoting
Prescott v. Higgins, 538 F.3d 32, 39 (1st Cir. 2008)) (internal
quotation marks omitted).
1. The Independent Contractor Issue
Cortés-Rivera's claim that the district court erred in
concluding that he was not an employee of DOCR or CHSC for purposes
of Title I of the ADA warrants little discussion. Cortés-Rivera
presents no argument to support this claim beyond the bald
assertion that he raised a material fact as to his employment
status before the district court. Issues "adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived." United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990). We deem this issue waived.
2. We Decline to Reach the § 504 Claim
Cortés-Rivera's second claim fails for much the same
reason. He argues that employment discrimination claims under
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§ 504 are not limited by the definition of employee in Title I of
the ADA. To address this claim would require that we interpret a
provision added to § 504 after Congress passed the ADA. That
provision, 29 U.S.C. § 794(d), states that "[t]he standards used to
determine whether this section has been violated in a complaint
alleging employment discrimination under this section shall be the
standards applied under title I of the [ADA]" and various
miscellaneous provisions of the ADA "as such sections relate to
employment."
This court has not addressed whether 29 U.S.C. § 794(d)
requires that plaintiffs alleging employment discrimination under
§ 504 meet the ADA's definition of employee. The four circuits
that have considered this issue are split. The Sixth and Eighth
circuits have held that 29 U.S.C. § 794(d) does require that
plaintiffs alleging employment discrimination under § 504 meet the
ADA's definition of employee. Wojewski v. Rapid City Reg'l Hosp.,
Inc., 450 F.3d 338, 345 (8th Cir. 2006); Hiler v. Brown, 177 F.3d
542, 544-45 & n.5 (6th Cir. 1999). The Ninth and Tenth circuits
have held that 29 U.S.C. § 794(d) only requires that plaintiffs
alleging employment discrimination under § 504 meet the definitions
of workplace discrimination set out in the ADA. Fleming v. Yuma
Reg'l Med. Ctr., 587 F.3d 938, 941-46 (9th Cir. 2009), Schrader v.
Fred A. Ray M.D., P.C., 296 F.3d 968, 972-75 (10th Cir. 2002).
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Noting that Cortés-Rivera failed to object to the
magistrate judge's application of the Eighth Circuit's decision in
Wojewski,1 the district court declined to entertain the objection.
It also admonished Cortés-Rivera for his failure to present a clear
legal argument on this question of statutory interpretation.
Notwithstanding this, the district court said it agreed with the
Eighth Circuit's reasoning in Wojewski.
We decline to address the issue both because it was
neither preserved nor adequately presented in the district court
and because it is not adequately presented on appeal. Important
issues of statutory interpretation require adequate briefing in all
levels of the federal court system, and here we have none.
In the district court, Cortés-Rivera neither adequately
objected to the magistrate judge's recommendation nor adequately
briefed the issue for the district court's consideration. The
magistrate judge faced a dispute over whether CHSC and DOCR were
recipients of federal financial assistance and therefore subject to
1
The district court made this conclusion explicit with
respect to Cortés-Rivera's objection to the magistrate judge's
recommendation regarding CHSC's motion for summary judgment. It
was not so explicit with respect to Cortés-Rivera's objection to
the magistrate judge's recommendation regarding DOCR's motion, but
it held that Cortés-Rivera presented "the same objection . . . with
regard to the first report and recommendation" concerning CHSC's
motion for summary judgment. Cortés-Rivera's objection to the
magistrate judge's report concerning DOCR's motion was slightly
more developed than his objection to the report concerning CHSC's
motion, but it still did not raise a specific objection to the
magistrate judge's application of Wojewski.
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§ 504. Rather than decide this issue, the magistrate judge stated
that even if CHSC and DOCR did receive federal funds, no § 504
claim was stated under the reasoning of Wojewski. Cortés-Rivera
made no specific objection to this, as the district court noted.
Beyond that, in his argument before the district court, Cortés-
Rivera only referenced Wojewski to argue that he was an employee,
not a contractor. He made, at most, only a cursory and implicit
argument that even if he was a contractor, Wojewski was wrongly
decided.
This is a double default. First, Cortés-Rivera's failure
to object to the magistrate's interpretation constitutes waiver.
Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998).
Given adequate notice, "a party's failure to assert a specific
objection to a report and recommendation irretrievably waives any
right to review by the district court and the court of appeals."
Id. Second, Cortés-Rivera failed to adequately brief the issue to
the district court. See Castillo v. Matesanz, 348 F.3d 1, 12 (1st
Cir. 2003). That the district court stated that it viewed Wojewski
as correct does not require that we exercise our discretion to
forgive this double default. See Gonzalez v. El Dia, Inc., 304
F.3d 63, 74 n.9 (1st Cir. 2002).
Cortés-Rivera also has not adequately presented this
claim on appeal, so it is triply gone. See F.T.C. v. Direct Mktg.
Concepts, Inc., No. 09-2172, 2010 WL 4118643, at * 4 (1st Cir. Oct.
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21, 2010). We do not even know whether this case actually would
require that we resolve this issue if we had adequate briefing.
Even if it did so require, Cortés-Rivera merely seeks to
distinguish Wojewski on its facts and states that § 504 does not
include a definition of "employee" like the ADA. The statement
that § 504 does not include a definition of "employee" ignores the
very question purportedly raised in this appeal: whether 29 U.S.C.
§ 794(d) incorporates the definition of "employee" in the ADA.2
3. Retaliation
Next, Cortés-Rivera argues that he raised a federal
retaliation claim on the face of his complaint. Cortés-Rivera
invokes the liberal pleading requirements set out in Fed. R. Civ.
P. 8 as well as this court's decision in Morales-Vallellanes v.
Potter, 339 F.3d 9 (1st Cir. 2003). The plaintiff in Morales-
Vallellanes alleged discrimination and retaliation but "fail[ed] to
cite any statutory basis for relief." Id. at 14. The parties
disputed whether he had raised a Title VII claim in addition to a
claim under a collective bargaining agreement. Given "both the
substance and structure" of the complaint, we held that the
plaintiff had pleaded both claims under Rule 8. Id. at 15.
2
Cortés-Rivera's assertion about the absence of a
definition of "employee" in § 504 as originally adopted gestures
toward an argument about the broader purpose of that provision and
its relationship with the ADA. We decline, however, the invitation
to "make [Cortés-Rivera's] argument for him." Mulvihill v. Top-
Flite Golf Co., 335 F.3d 15, 28 (1st Cir. 2003).
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The structure and substance of the complaint in this case
dictate a different conclusion. Cortés-Rivera divided his
complaint into several counts. The first alleged discrimination
under Title I of the ADA. The second alleged discrimination under
§ 504. The third, in question here, alleged acts committed "with
retaliatory animus, thus in violation to [sic] the Puerto Rico Laws
115, and Law 426 of November 2000, and constitut[ing] a tort under
the Civil Code of Puerto Rico 31 L.P.R.A. section 1802, and the
Constitution of the Commonwealth of Puerto Rico." Three additional
counts alleged various claims under Puerto Rico state law.
The plain language of Count Three states that Cortés-
Rivera's retaliation claims arose under state law, not federal law.
In Count Three, Cortés-Rivera only alleged violations of Puerto
Rico state law. Count Three alleged retaliation resulting from
Cortés-Rivera's choice to "exercise[] his right under the
American[s] with Disabilities Act and the Rehabilitation Act to
file a complaint before the EEOC and for joining a civil action."
This language about the ADA and § 504, which also appears in
similar terms in the background to the complaint, merely states a
rationale for the retaliatory conduct Cortés-Rivera alleges. It
does not assert a legal basis for that claim.3
3
In Morales-Vallellanes v. Potter, 339 F.3d 9 (1st Cir.
2003) we deemed it relevant that the complaint was "replete with
references to plaintiff's EEO initiatives." Id. at 15. Cortés-
Rivera notes that his complaint also contains references to the
EEOC process. The complaint made the above claims about the source
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The structure of the complaint reinforces Count Three's
plain language. Each count of the complaint clearly states the
statutes under which its claims purport to arise. Aside from an
overlap between two counts alleging torts under Puerto Rico state
law, each count invokes a different statutory basis for the claims
stated therein. The complaint divides Cortés-Rivera's
discrimination claims under the ADA, § 504, and Puerto Rico state
law into three separate counts. Indeed, the complaint confines its
claims under the ADA to Count One and its claims under § 504 to
Count Two. To interpret Count Three to include retaliation claims
under the ADA, § 504, and Puerto Rico state law would disrupt the
internal logic present in the remainder of the complaint.
Cortés-Rivera cannot raise a federal retaliation claim if
that claim was not present in his complaint. His subsequent
references to a purported federal retaliation claim do not alter
this result. The "fundamental purpose of our pleadings rules is to
protect a defendant's 'inalienable right to know in advance the
nature of the cause of action being asserted against him.'" Ruiz
Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 85 (1st Cir. 2008)
(quoting Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1171 (1st
Cir. 1995)). Neither DOCR nor CHSC moved for summary judgment
of the alleged retaliation, as well as two assertions by way of
background that Cortés-Rivera filed complaints with the EEOC for
both discrimination and retaliation. For reasons outlined below,
however, these statements do not outweigh the substance and
structure of the remainder of the complaint.
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against Cortés-Rivera's purported federal retaliation claim. The
magistrate judge's opinion did not recognize the possibility that
such a claim existed. Before the district court and this court,
Cortés-Rivera has identified a purported federal retaliation claim
to evade CHSC's and DOCR's argument that he has failed to present
a valid federal claim. "Faced with a well-reasoned and convincing
motion for summary judgment," he has "shifted legal theories and
sought to re-characterize [his] Complaint in a way that might parry
[the defendants'] blow." Id. Our pleading requirements are not
designed to reward such efforts. Cortés-Rivera pled the claim as
a state-law claim and the district court, having dismissed the
federal claims, permissively dismissed the pendent state claims.
III.
The judgment of the district court is affirmed.
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