Santiago Clemente v. Executive Airlines

United States Court of Appeals
For the First Circuit

No. 98-1910

JAMIR SANTIAGO CLEMENTE,

Plaintiff, Appellant,

v.

EXECUTIVE AIRLINES, INC.,
d/b/a American Eagle,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

Before

Lynch, Circuit Judge,

Campbell, Senior Circuit Judge,

and O'Toole*, District Judge.

Enrique J. Mendoza-Méndez with whom Mendoza & Baco was on
brief for appellant.
Carmencita Velázquez-Márquez with whom Anita Montaner
Sevillano and McConnell Valdés were on brief for appellee.

*Of the District of Massachusetts, sitting by designation.
 May 24, 2000

CAMPBELL, Senior Circuit Judge. Plaintiff-appellant

Jamir Santiago Clemente brought this disability discrimination

action against her employer, defendant-appellee Executive

Airlines, Inc., d/b/a American Eagle ("American Eagle"). The

district court allowed American Eagle’s motion for summary

judgment on the ground that Santiago failed to adduce sufficient

evidence that she was disabled within the meaning of the

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“the

ADA"). We affirm.

I.

We describe the relevant facts appearing in the summary

judgment record in the light most favorable to the appellant.

See New York State Dairy Foods, Inc. v. Northeast Dairy Compact

Comm'n, 198 F.3d 1, 3 (1st Cir. 1999). Beginning December 1,

1991, Santiago was employed by American Eagle. She became a

flight attendant on November 30, 1994. On August 30, 1995, on

a flight sequence to St. Croix, Santiago complained of ear pain

and requested to be relieved from her schedule upon arrival in

San Juan.

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 The next day, Santiago awoke with bleeding and pain in

her ear. That day, her private physician diagnosed her with

otitis media (ear infection) and ordered her to rest. Santiago

went on sick leave from American Eagle. When her pain

persisted, Santiago sought emergency room care and then

treatment from Dr. Germán González, an ear, nose and throat

specialist. Dr. González diagnosed otitis media and sinusitis

(sinus infection). Upon his recommendation, on October 10,

1995, Santiago reported her ear problem as a work-related injury

to the State Insurance Fund ("SIF").

American Eagle permitted Santiago to take sick leave

from August 31, 1995, to early November, 1995. Following her

sick leave, Santiago returned to work with no medical

restrictions. She continued to experience pain, however,

particularly during non-pressurized cabin flights. On November

15, 1995, Santiago underwent an audiogram, a subjective hearing

test. This test indicated that she had a moderate hearing loss

in the right ear, but no hearing loss in the left ear. In

subjective hearing tests, the results depend upon the

individual’s verbal responses as to her perceptions of her

ability or inability to hear certain sounds. In objective

hearing tests, a physician determines hearing ability by

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observing the brain’s response to sound; self-reporting is not

a factor.

On December 5, 1995, Santiago sought additional

treatment from the SIF physician, Dr. Pichardo, who diagnosed

Santiago with acoustic trauma in her right ear and stated that

Santiago should fly only in planes with pressurized cabins in

order to "minimize the effect of pressure" in that ear.

Santiago gave Dr. Pichardo's recommendation to her supervisor,

Michelle Fajardo. Fajardo told her that the airline could not

assign her to work solely in pressurized cabins because the

relevant collective bargaining agreement precluded American

Eagle from altering Santiago’s flight sequences. Fajardo stated

that Santiago had two options: she could continue flying

without the requested accommodation, or she could resign.

American Eagle did not offer any other options at this time.

Other flight attendants who had requested accommodations due to

ear problems had been offered ground positions.

Following this conversation, Santiago continued to fly

on planes both with pressurized and unpressurized cabins. On

March 1, 1996, Dr. González noted that Santiago had recovered

from her otitis and sinusitis, but found that she had damage to

her inner ear, resulting in auditory loss in the right ear and

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other symptoms. He recommended that she not fly until her

condition improved.

On Santiago’s own initiative, she ceased flying on

March 19, 1996. A few days later, American Eagle referred her

to a company-appointed physician, Dr. Thomas Murphy. Dr. Murphy

stated that Santiago may have a fistula (an abnormal passageway)

producing chronic ear problems and that she “may not be able to

fly again.” He ordered that Santiago be temporarily removed

from flying duties until her condition stabilized. Subjective

hearing tests in or around April, 1996, reflected continued

hearing loss in Santiago’s right ear.

Around this time, American Eagle began searching for

a ground position for Santiago. Accordingly, in early April,

1996, Santiago was transferred to a temporary receptionist

position at the same salary level. In May, 1996, she became a

payroll clerk; in June, 1997, Santiago took a permanent position

as operational manager, earning a higher salary than she did as

a flight attendant. On or around June 19, 1996, a coworker

complained about Santiago’s "tone of voice," i.e. that she was

speaking too loudly. Ana Torres, the head of personnel,

suggested that Santiago be referred to a psychologist because

she ”had a problem of adaptation” to her hearing loss.

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 On May 21, 1996, Dr. González performed an exploratory

tympanotomy and closed a fistula. In July, 1996, he recommended

that Santiago use a hearing aid and that she avoid "constant

airplane flights." Additional subjective hearing tests around

that time reflected continued hearing loss in her right ear.

Santiago did not start using the hearing aid until sometime

after August 29, 1996.

On February 25, 1997, Santiago filed a complaint

alleging that her employer’s conduct violated the ADA, 42 U.S.C.

§ 12101 et seq., and Act Number 44 of July 2, 1985, P.R. Laws

Ann. tit. 1, § 501 (1982 & Supp. 1992) ("Puerto Rico

Disabilities Law"). In March, 1997, further subjective hearing

tests indicated that Santiago had moderate to severe hearing

loss in her right ear, while the left ear was normal.

In November, 1997, Santiago underwent objective hearing

tests for the first time, performed by otologist Dr. Fred

Telischi. These tests suggested that her hearing was within the

normal range in both ears. On January 21, 1998, she had

additional objective hearing tests performed at the request of

her expert witness, Dr. José Arsuaga, an ear, nose and throat

specialist. After the tests, Dr. Arsuaga opined that Santiago's

hearing capacity was within normal limits in both ears. He

concluded that while Santiago had suffered aerotitis (damage to

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the middle ear caused by ambient pressure changes) and possible

damage to the inner ear in 1995, she had recovered. Both

Telischi and Arsuaga stated that Santiago may have exaggerated

her responses in the earlier subjective audiology tests.

On February 17, 1998, Santiago moved for partial

summary judgment on the issue of liability, contending that

American Eagle had failed to timely provide a reasonable

accommodation and that this failure caused her hearing loss.

American Eagle opposed Santiago’s motion and cross-moved for

summary judgment. In its motion, American Eagle did not dispute

the facts presented by Santiago but set forth additional facts,

some of which concerned the temporary nature of her hearing

loss. Santiago opposed American Eagle’s cross-motion,

contending that some of the additional facts were disputed.1

On June 9, 1998, in a published opinion, the district

court allowed American Eagle’s motion for summary judgment. See

Santiago Clemente v. Executive Airlines, 7 F. Supp.2d 114

(D.P.R. 1998). The district court determined that Santiago did

not set forth sufficient evidence of a substantial limitation to

a major life activity. Hence, it concluded, she failed to prove

1To the extent that Santiago’s opposition to American
Eagle’s motion for summary judgment indicated factual
controversies, none are material to our disposition of this
appeal.

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an element of her prima facie case under the ADA: that her

impairment amounted to a disability. The court also dismissed

Santiago’s supplemental state law claim, without prejudice, for

lack of jurisdiction.

II.

This Court reviews orders for summary judgment de novo,

construing the record in the light most favorable to the

nonmovant and resolving all reasonable inferences in that

party's favor. See Houlton Citizens' Coalition v. Town of

Houlton, 175 F.3d 178, 184 (1st Cir. 1999). Santiago contends

that the district court did not properly construe the record in

her favor, leading it erroneously to the conclusion that her

condition did not constitute a disability.

The ADA prohibits an employer from discriminating

against a qualified individual on the basis of a disability.

See 42 U.S.C. § 12112(a). Here, Santiago alleges that American

Eagle failed reasonably to accommodate her alleged ear-related

disability. To survive American Eagle’s motion for summary

judgment, she must furnish "significantly probative evidence"

that, inter alia, she is a qualified individual with a

disability within the meaning of the ADA and that, despite

knowing of the disability, her employer did not reasonably

accommodate it. See Higgins v. New Balance Athletic Shoe, Inc.,

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194 F.3d 252, 264 (1st Cir. 1999); see also 42 U.S.C. §

12112(b)(5)(A) (under ADA, the term “discriminate” may include

not making reasonable accommodations to known physical or mental

limitations of otherwise qualified individual with disability).

Like the district court, we conclude that Santiago’s

ADA case founders for failure to show that she had a disability

as that term has been construed for purposes of the statute.

Not all physical impairments rise to the level of disability

under the ADA. See Albertsons, Inc. v. Kirkingburg, 119 S. Ct.

2162, 2168-69 (1999). Rather, the ADA defines the term

"disability" as (A) "a physical or mental impairment that

substantially limits one or more of the major life activities of

[an] individual," (B) "a record of such an impairment," or (C)

"being regarded as having such an impairment." 42 U.S.C. §

12102(2)(A)-(C).

A. Substantially limiting impairment

In contending that she qualifies for ADA protection

under 42 U.S.C. § 12102(2)(A), Santiago argues that her ear

problems, principally the temporary right-ear hearing loss,

substantially limited her major life activities of hearing,

speaking, and working. Whether an impairment substantially

limits one or more of an individual’s major life activities is

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determined in a three-step analysis. See Bragdon v. Abbott, 524

U.S. 624, 631 (1998). First, we consider whether Santiago’s ear

problems constituted a physical impairment. Second, we identify

the life activities upon which Santiago relies -- hearing,

speaking, and working -- and determine whether they constitute

major life activities under the ADA. Third, tying the two

statutory phrases together, we ask whether the impairment

substantially limited one or more of the activities found to

amount to major life activities. See id.

Read most favorably to Santiago, her evidence satisfies

the first two requirements of this analysis. Her ear problems

were an impairment under the relevant EEOC definitions, being a

“physiological disorder or condition” affecting “special sense

organs." See 29 C.F.R. § 1630.2(h)(1). And the three

activities claimed to have been impaired -- hearing, speaking,

and working -- are all explicitly recognized as "major life

activities" under EEOC regulations. See id. § 1630.2(i); see

also Colwell v. Suffolk County Police Dept., 158 F.3d 635, 642

(2d Cir. 1998), cert. denied, 526 U.S. 1018 (1999) (activities

listed in EEOC regulations are treated as major life activities

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per se, rather than as major life activities only to the extent

that they are shown to affect a particular ADA plaintiff).2

Where Santiago’s claim encounters difficulty is at the

third and final step of the analysis: her ear impairment was

not shown to have substantially interfered with her performance

of any of the identified major life activities. EEOC

regulations define "substantially limits" as:

(i) Unable to perform a major life activity
that the average person in the general
population can perform; or

(ii) Significantly restricted as to the
condition, manner or duration under which an
individual can perform a particular major
life activity as compared to the condition,
manner, or duration under which the average
person in the general population can perform
that same major life activity.

29 C.F.R. § 1630.2(j)(1). Among the relevant considerations are

(1) the nature and severity of the impairment; (2) the duration

or expected duration of the impairment; (3) the permanent or

long term impact, or the expected permanent or long term impact

of or resulting from the impairment. See id. § 1630.2(j)(2).

1. Hearing and speaking

2We look to the well-reasoned views of the agencies
implementing a statute, which "constitute a body of experience
and informed judgment to which courts and litigants may properly
resort for guidance." Bragdon, 524 U.S. at 642 (quoting
Skidmore v. Swift & Co., 323 U.S. 134, 139-140 (1944)).

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 Santiago has not provided evidence sufficient to

demonstrate that her claimed impairment substantially interfered

with hearing or speaking. The Supreme Court recently emphasized

that a court must determine on a case-by-case basis whether an

individual has offered sufficient evidence “that the extent of

the limitation in terms of [her] own experience . . . is

substantial.” Albertsons, 119 S. Ct. at 2169. As the EEOC

regulations instruct, we examine the evidence of the duration,

severity, and long-term impact of Santiago’s alleged

limitations. See 29 C.F.R. § 1630.2(j)(2).

As for duration, it is undisputed that Santiago’s

auditory problems were temporary and that her hearing is now

normal. Beginning in November, 1995, Santiago underwent

subjective tests. These reflected a hearing loss in her right

ear.3 By November, 1997, objective tests showed that her hearing

was normal in both ears and there is no evidence of hearing loss

beyond that time. Hence, a reasonable jury could conclude that,

at most, Santiago experienced moderate to severe hearing loss in

one ear for approximately two years.

3The pain and dizziness Santiago experienced from flying in
unpressurized cabins are not the basis for her ADA claim, which
focuses on her hearing loss.

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 It is true, as the district court acknowledged, that

the temporary nature of an impairment does not necessarily

preclude it from constituting a disability under the ADA:

Although short-term, temporary restrictions
generally are not substantially limiting, an
impairment does not necessarily have to be
permanent to rise to the level of a
disability. Some conditions may be
long-term or potentially long-term, in that
their duration is indefinite and unknowable
or is expected to be at least several
months. Such conditions, if severe, may
constitute disabilities.

Katz v. City Metal Co., Inc., 87 F.3d 26, 31 (1st Cir. 1996)

(citing 2 EEOC Compliance Manual, Interpretations (CCH) § 902.4,

¶ 6884, p. 5319 (1995)) (emphasis supplied).

It is debatable whether Santiago’s treating physicians

considered her ear-related impairment to be permanent, long-term

or potentially long-term. For example, in March, 1996, Dr.

González recommended that Santiago not fly "until" her condition

improved, and Dr. Murphy stated that Santiago should be

temporarily removed from flying duties until her condition

stabilized.

Even assuming that Santiago’s impairment was

potentially long-term, however, there is no evidence that the

temporary diminution in her right-ear hearing had a severe

impact on her functional ability to hear. See 29 C.F.R. §

1630.2(j)(2)(i). The record at most supports a possible finding

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that Santiago’s hearing loss was moderate to severe in one ear

only. An audiological evaluation summary dated March 3, 1997,

states that "Counseling [was] provided relative to impairments

associated with the unilateral hearing loss, namely, the

inability to perform sound localization, and difficulty with

speech discrimination in noisy environments." No evidence,

however, identifies the overall functional degree of loss

suffered by Santiago. See Albertsons, 119 S. Ct. at 2169 (fact

that plaintiff suffered monocular vision was, without more,

insufficient to establish disability). Nor is there evidence

that the hearing loss actually affected Santiago’s activities in

some specific way. See Still v. Freeport-McMoran, Inc., 120

F.3d 50, 52 (5th Cir. 1997) (where plaintiff offered no evidence

that he is unable to engage in any usual activity because of

blindness in one eye, major life activity of seeing is not

"substantially limited"). Given her normal hearing in one ear

and the existence of some residual hearing in the other, there

is insufficient basis, without more, for assuming a substantial

loss in overall hearing ability. In short, Santiago has not

adduced sufficient evidence that, compared to the average person

in the general population, she was significantly restricted in

her hearing. See Albertsons, 119 S. Ct. at 2168-69; 29 C.F.R.

§ 1630.2(j)(1).

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 The same is even more true with regard to the major

life activity of speaking. The record contains at most some

evidence suggesting that Santiago’s tone of voice may have been

affected by her impairment. This is inadequate, without more

and in light of the record discussed supra, for a reasonable

jury to conclude that her impairment substantially limited her

speaking. See Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499,

507 (7th Cir. 1998) (where there was no evidence that disorder

affected plaintiff’s ability to communicate generally, there was

no substantial interference with her ability to speak).

Moreover, Santiago points to no evidence of the actual or

expected long-term impact of her temporary hearing impairment.

See 29 C.F.R. § 1630.2(j)(2)(iii).

In sum, under the fact-specific analysis of the

duration, severity, and long-term impact of Santiago’s hearing

impairment mandated by the ADA, see Katz, 87 F.3d at 32, we

conclude that it cannot be reasonably construed to have

substantially limited her major life activities of hearing and

speaking.4

4
Santiago contends that American Eagle’s denial of her
request not to fly in unpressurized cabins caused her hearing
loss. Assuming that this contention is true, it reads the ADA’s
protections backwards. Santiago’s present claim of disability
focuses on her hearing loss. She does not contend that she had
that disability at the time of her request, nor is it readily
apparent that the pain and other side effects she then reported

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 2. Working

Similarly, Santiago did not adduce sufficient evidence

that her impairment substantially limited the major life

activity of working. EEOC regulations provide that this activity

is substantially limited only where an individual is

"significantly restricted in the ability to perform either a

class of jobs or a broad range of jobs in various classes as

compared to the average person having comparable training,

skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i) (1998). The

EEOC further identifies several factors that courts should

consider when determining whether an individual is substantially

limited in working, including "the number and types of jobs

utilizing similar training, knowledge, skills or abilities,

within [the] geographical area [reasonably accessible to the

individual], from which the individual is also disqualified."

Id. § 1630.2(j)(3)(ii)(B).

Hence, to be substantially limited in the major life

activity of working, Santiago must be precluded from more than

a particular job. See Murphy v. United Parcel Servs., Inc., 119

S. Ct. 2133, 2138 (1999); see also 29 C.F.R. § 1630.2(j)(3)(i).

from unpressurized flight were themselves disabilities within
the meaning of the ADA. See note 3, supra. An employer’s duty
to accommodate relates only to existing disabilities. See
Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 15 (1st Cir.
1997).

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Her temporary hearing loss, however, was not shown to have

interfered at all in carrying out the duties of a flight

attendant. Even if her impairment were defined more broadly --

i.e., as a condition precluding flight on non-pressurized

airplanes -- there is no evidence of how many jobs call for this

ability, or that she was precluded from any class of jobs.

Moreover, the record indicates that Santiago was qualified for

various ground positions at American Eagle, including

receptionist, payroll clerk, and operational manager. Indeed,

Santiago has successfully continued her employment at American

Eagle, and earns a higher salary than she did as a flight

attendant. As a matter of law, therefore, Santiago did not

establish that her impairment substantially limited her ability

to work. See Murphy, 119 S. Ct. at 2138-39.

Without evidence that Santiago’s impairment

substantially limited any of the three claimed major life

activities, the district court correctly concluded that her

claim could not survive summary judgment. “Absent a disability

. . . no obligations are triggered for the employer.” Soileau,

105 F.3d at 15.5

5In Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S.
Ct. 2139 (1999), the Supreme Court held that corrective and
mitigating measures must be considered in determining whether an
individual is disabled under the ADA. 119 S. Ct. at 2146.
Hence, courts must examine how an impairment affects a

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 B. Having a record of such impairment

Santiago also has not adduced sufficient evidence to

satisfy subpart (B) of 42 U.S.C. § 12102(2), in which a

disability is defined as "a record of such an impairment." To

have a record of such an impairment, a plaintiff must have a

history of, or been misclassified as having, an impairment that

substantially limited a major life activity. See 29 C.F.R. §

1630.2(k).

The regulations make clear that the recorded impairment

must be one that substantially limited a major life activity.

See id.; Sorensen v. University of Utah Hosp., 194 F.3d 1084,

1087 (10th Cir. 1999); Hilburn v. Murata Elec. N. Am., Inc., 181

F.3d 1220, 1229 (11th Cir. 1999). Santiago points to no

evidence of either a history or misdiagnosis of such an

impairment. Thus, her claim cannot proceed under subpart (B).

C. "Regarded as having such an impairment"

Santiago additionally contends that she is entitled to

relief under the ADA because American Eagle regarded her as

plaintiff's life activities in light of her attempts to correct
her impairment, including hearing aids. See id.; Higgins, 194
F.3d at 265; Ivy v. Jones, 192 F.3d 514, 516 (5th Cir. 1999).
Here, the district court did not have the benefit of the Sutton
opinion at the time it decided this case. Because we conclude
that Santiago’s impairment did not rise to the level of a
disability even in its unmitigated state, there is no need to
remand this issue for further consideration by the district
court in light of Sutton.

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having a substantially limiting impairment. EEOC regulations

define “is regarded as having such an impairment” as:

(1) Has a physical or mental impairment that
does not substantially limit major life
activities but is treated by a covered
entity as constituting such limitation;

(2) Has a physical or mental impairment that
substantially limits major life activities
only as a result of the attitudes of others
toward such impairment; or

(3) Has [no physical or mental impairment
within the meaning of the regulations] but
is treated by a covered entity as having a
substantially limiting impairment.

29 C.F.R. § 1630.2(l).

In support of her argument, Santiago points to the

following evidence: the company-appointed doctor’s diagnosis of

a possible fistula and recommendation that she not fly until her

condition stabilized; the head of personnel’s suggestion that

she see a psychologist because she ”had a problem of

adaptation”; and her use of a hearing aid. Dr. Murphy’s

statements do not, however, support a conclusion that Santiago

was treated by American Eagle as if she had a substantially

limiting impairment. Dr. Murphy simply stated that Santiago

“may have” a fistula, that she “may” not be able to fly again,

and that Santiago should be temporarily removed from flying

duties until her condition stabilized. His comments concerned

Santiago’s ability to fly in light of her symptoms. They did

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not concern her ability to perform major life activities, i.e.,

to hear, to speak, or to work in a class or range of jobs as

discussed supra.

Moreover, the record indicates that the comment about

Santiago’s problem of “adaptation” and her use of a hearing aid

did not occur until well after she had been transferred to a

permanent ground position. As discussed above, the claimed

disability must precede or at least be immediately related to

the request for accommodation. See note 4, supra. Santiago

cannot complain that she was treated by American Eagle as having

a substantially limiting impairment after having received the

accommodation she sought.

In sum, Santiago has not set forth sufficient evidence

of the existence of a disability under any of the criteria

prescribed by the statute and regulations. Because American

Eagle had no legal duty to Santiago under the ADA, we need not

consider any of the further issues raised by the parties.

Affirmed.

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