Cortes-Rivera v. PR Department of Corrections, (1st Cir. 2010)

Text

---

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

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

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-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

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

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

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.

 

 

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

§ 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).

         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

§ 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.

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.

         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]

         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

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.

Footnotes

[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.

[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).

[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

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.

---