Meléndez-Santana v. Puerto Rico Ports Authority

Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1422
ROBERTO MELÉNDEZ-SANTANA; JESSICA GONZÁLES-ORTIZ,
Plaintiffs, Appellants,
v.
PUERTO RICO PORTS AUTHORITY, ISRAEL ORTIZ-DE-JESÚS; MANUEL
VILLIZÀN-LING-LONG,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., District Judge]
Before
Lynch, Chief Judge,
Selya, Circuit Judge,
and Schwarzer,*District Judge.
Rafael A. Oliveras López De Victoria on brief for appellant.
Martha L Martínez Rodríguez, and Manuel A. Núñez Law Offices
on brief for appellee the Puerto Rico Ports Authority.
Maite D. Oronoz-Rodriguez, Acting Solicitor General, and Irene
S. Soroeta-Kodesh, Assistant Solicitor General, on brief for
appellees Israel Ortiz-De-Jesús and Manuel Villazàn-Ling-Long.
October 16, 2008
*
Of the Northern District of California, sitting by designation.
Schwarzer, District Judge, Plaintiffs Roberto Meléndez-
Santana and his wife Jessica González-Ortiz appeal the district
court’s summary judgment for the defendants, the Puerto Rico Ports
Authority (“PRPA”), Israel Ortiz-de-Jesús, and Manuel Villazán-
Ling-Long, dismissing Meléndez-Santana’s action for violation of
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq., and for breach of contract. Because Meléndez-Santana has
failed to establish that he was a qualified individual under the
ADA, or that the contract claim is properly before us, we affirm
the judgment of the district court.
I. Factual and Procedural History
The material facts are undisputed. Mr. Meléndez-Santana
began working for the PRPA in 1993 as a security supervisor. From
1994 to 1998, he served as an assistant and bodyguard to the
Executive Director of the PRPA. In 1998, Meléndez-Santana was
transferred to the International Airport where he again served as
a security supervisor. The essential duties of a security
supervisor include regular contact with the public and other
employees, as well as: (i) inspection of all services rendered by
guards and other employees in the security area; (ii) periodic
inspections of security areas; (iii) enforcing the security rules
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and recommending necessary measures; and (iv) communicating with
different security areas, local police and federal authorities.
After the terrorist attacks on September 11, 2001, security
procedures at the airport were altered, and employees were required
to work extended rotating shifts that included night duty. In
February 2002, Meléndez-Santana requested reassignment because the
night time shifts were difficult for him. He was transferred to
the Maritime Division effective June 10, 2002, but he was
dissatisfied with the new assignment because it involved similar
duties and hours.
In July 2002, Meléndez-Santana’s doctor certified that he
was unable to work due to severe depression and anxiety that
limited his concentration and made him unstable and aggressive. He
went on leave for approximately ten months. During that time, in
September 2002, he applied for Social Security Disability Insurance
benefits, claiming total disability.
Meléndez-Santana returned to work on May 5, 2003,
reporting to the Maritime Division. He brought a certificate from
his family doctor dated May 1, 2003, stating that he could not work
rotating night time shifts, and could not work in security. He
requested changes in his duties as a reasonable accommodation based
on his condition, in accordance with PRPA procedures. The PRPA
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referred him for medical evaluation to determine if he was eligible
for a reasonable accommodation and temporarily assigned him to work
as a security supervisor in the PRPA’s main office until the
evaluation process was completed. This position required only day
shifts, and consisted of lighter duties than his job in the
Maritime Division.
On May 14, 2003, Dr. López Cumpiano, a psychiatrist,
examined Meléndez-Santana in the course of the reasonable
accommodation evaluation process. In his report, Dr. Cumpiano
concluded that Meléndez-Santana still suffered from mental illness
and was not able to perform any of the essential duties of his job,
with or without accommodation. This report was sent to the PRPA on
June 3, 2003.
On June 2, 2003, Meléndez-Santana got into an argument
with his supervisor, Manuel Villazàn-Ling-Long, who informed
Meléndez-Santana that he was no longer assigned to the PRPA
headquarters. When he was ordered to report to the San Juan Harbor
to begin a rotating shift that initially would go from 2:00 to
10:30 pm, he became very upset. He felt that the night time shifts
aggravated his mental illness and prevented him from taking
sleeping medication prescribed by his doctor. He left PRPA
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headquarters, did not report that evening to the Harbor, and did
not return to work at the PRPA.
On December 1, 2004, he filed this action in the district
court alleging violations of the ADA and Title VII of the Civil
Rights Act of 1964, and various state law claims. On January 22,
2007, the district court granted summary judgment to the defendants
on the ADA claim, dismissed the Title VII claim sua sponte under
Fed. R. Civ. P. 12(b)(6), and declined to exercise supplemental
jurisdiction over the state law claims. This timely appeal
followed.
II. Discussion
A. The Americans with Disabilities Act
We review a summary judgment de novo drawing all
reasonable inferences in favor of the non-moving party. Thompson
v. Coca-Cola Co. 522 F.3d 168, 175 (1st Cir. 2008).
The district court found that Meléndez-Santana failed to
establish a prima facie case of disability discrimination under the
ADA. To make out a prima facie case, Meléndez-Santana had to prove
1) that he suffered from a disability within the meaning of the
ADA; 2) that he could nonetheless perform the essential functions
of the job with or without reasonable accommodation; and 3) that
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his employer discharged or took an adverse employment action
against him in whole or in part because of his disability. Orta-
Castro v. Merck, Sharp & Dohme Química P.R., Inc. 447 F.3d 105, 111
(1st Cir. 2006). The district court found that Meléndez-Santana
suffered a disability within the meaning of the ADA, and that
finding is not in dispute. The district court concluded, however,
that he was not a qualified individual under the ADA because he did
not establish that he was able to perform the essential functions
of the job even with reasonable accommodation.
Upon Meléndez-Santana's return to work in May 2003 after
his ten-month medical leave and in the course of the reasonable
accommodation evaluation process, he was examined by Dr. López
Cumpiano, the designated examiner. Dr. López Cumpiano determined
that Meléndez-Santana was unable to perform any task with or
without accommodation. His report was forwarded to the Social
Security Administration, which determined that Meléndez-Santana was
unable to perform the duties of his position or any other job and
granted him Social Security Disability Insurance benefits.
Meléndez-Santana has offered no evidence that calls into
question the finding of total disability. Moreover, his receipt
of Social Security Disability Insurance benefits placed on him the
burden of proffering a sufficient explanation for the contradiction
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between his total disability claim and his ADA claim which would
allow a reasonable jury to conclude that the plaintiff could
perform the essential functions of his job with or without
accommodation. Cleveland v. Policy Mgmt. Sys., 526 U.S. 795, 807
(1999). No such explanation has been offered.
Because the undisputed evidence shows that Meléndez-
Santana is not able to perform the essential functions of his job
with or without accommodation, he has failed to establish a prima
facie case under the ADA. Summary judgment was properly granted on
the ADA claim.
B. Breach of Contract Claim
For the first time on appeal, Meléndez-Santana asserts
a claim that PRPA breached a reasonable accommodation agreement, a
claim neither pleaded in the complaint nor raised in the court
below. "Under the familiar raise-or-waive rule, legal theories not
asserted in the lower court cannot be broached for the first time
on appeal." Goodwin v. C.N.J., Inc.,436 F3d 44, 51 (1st Cir.
2006).
Even were we to consider this claim, it is clear that
when Meléndez-Santana returned to work on May 5, his assignment to
work as safety supervisor at the Main Office was only temporary,
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while his request for reasonable accommodation was being evaluated.
There is no evidence of any agreement between him and PRPA to
provide a reasonable accommodation.
AFFIRMED.
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