United States Court of Appeals
For the First Circuit
No. 05-1659
HÉCTOR A. RIVERA-GARCÍA; DELMA QUIÑONES;
CONJUGAL PARTNERSHIP RIVERA-QUIÑONES,
Plaintiffs, Appellants,
v.
SISTEMA UNIVERSITARIO ANA G. MÉNDEZ;
COLEGIO UNIVERSITARIO DEL ESTE;
ALBERTO MALDONADO, in his official capacity as
Chancellor of the Colegio Universitario del Este,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lynch, Circuit Judges.
Héctor J. Benítez Arraiza, with whom Llovet Zurinaga & López,
P.S.C. was on brief, for appellants.
José E. De La Cruz Skerrett, with whom De La Cruz Skerrett Law
Office, PSC was on brief, for appellees.
March 22, 2006
PER CURIAM. Professor Héctor Rivera-García ("Rivera")
was terminated on August 2, 1999 from his positions as Director of
the Department of Liberal Arts and faculty member at the Colegio
Universitario del Este ("University"), one of three private
universities comprising the Sistema Universitario Ana G. Méndez
(SUAGM). Rivera was terminated after a female secretary in his
Department filed a sexual harassment complaint against him and a
subsequent investigation by the University's administration
concluded that he had engaged in a pattern of sexual harassment
that included not only harassment of the complainant, but also
inappropriate comments directed toward at least two female
professors.
Rivera, together with his wife and conjugal partnership,
brought suit against the University, SUAGM, and Alberto Maldonado,
the University Chancellor, among others, challenging his
termination from employment and alleging that he was a victim of
disability discrimination, in violation of, inter alia, the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et
seq., the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the
Civil Rights Act of 1991, 42 U.S.C. § 1981(a), and Puerto Rico law.
Rivera, who suffered polio as a child, has difficulty walking. For
purposes of this opinion, we assume arguendo that he is disabled
within the meaning of the ADA.
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The district court entered summary judgment for
defendants on the ADA claim and related federal claims,1 dismissed
the federal claims against the individual defendants in their
personal capacities, and, declining to exercise pendent
jurisdiction, dismissed the state claims without prejudice.2 The
district court originally entered summary judgment on the ADA claim
on the reasoning that plaintiff had not made the threshold showing
that he was disabled or regarded as disabled -- that is, he had not
shown he suffered from a "substantial" limitation on his ability to
walk. See 42 U.S.C. § 12102(2)(A) (defining "disability" as "a
physical or mental impairment that substantially limits one or more
of the major life activities of [an] individual"); see also Calef
v. Gillette Co., 322 F.3d 75, 83-84 (1st Cir. 2003).
Plaintiffs filed a motion for reconsideration, which the
court construed as a motion to alter judgment. See Fed. R. Civ. P.
59(e). In a thoughtful opinion denying the motion for
reconsideration, the court supplemented its initial reasoning as to
summary judgment. It added the ground that even assuming Rivera
was disabled, plaintiffs still had not proffered sufficient
evidence to show that the defendants' articulated reason for
1
The court noted that the claims under the Civil Rights
Acts of 1964 and 1991 were linked to a violation of the ADA, and
that dismissal on summary judgment of Rivera's ADA claim would
amount to a dismissal of his remaining federal claims.
2
Plaintiffs do not appeal the court's dismissal of the
defendants in their individual capacities or of the state claims.
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terminating Rivera -- that he had violated SUAGM's sexual
harassment policy -- was a pretext and that the true reason was
disability discrimination.
Plaintiffs appeal both from the court's summary judgment
order and from the court's denial of their Rule 59(e) motion. We
review the former determination de novo, see Colburn v. Parker
Hannifin/Nichols Portland Div., 429 F.3d 325, 329 (1st Cir. 2005),
and the latter for abuse of discretion, see Arrieta-Colon v. Wal-
Mart P.R., Inc., 434 F.3d 75, 89 (1st Cir. 2006).
In analyzing plaintiffs' ADA claim, we employ, as did the
parties and the district court, a modified version of the framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Within this framework, plaintiffs must ultimately present
enough evidence to create a material issue of fact that defendants'
non-discriminatory justification for terminating Rivera -- that he
had committed sexual harassment -- is mere pretext and that the
actual reason for the adverse employment action was disability
discrimination. See Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100,
104-05 (1st Cir. 2005). Plaintiffs make three arguments to this
effect.
Their main argument is that the sexual harassment
investigation was a sham designed to get rid of Rivera for other
reasons. In support of this theory, plaintiffs allege: (1) that
when Chancellor Maldonado first informed Rivera that a complaint
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had been filed against him, the Chancellor suggested to Rivera that
he might want to resign; (2) that the University denied Rivera
procedural protections during the course of the sexual harassment
investigation; and (3) that the University terminated Rivera even
though lesser sanctions were available. The argument fails.
To begin, the Chancellor's statement is insufficient to
permit an inference that the sexual harassment finding was a
pretext; it is equally reasonable to view the statement as
practical advice to Rivera following a credible claim of harassment
by an employee.
The arguments Rivera makes of procedural irregularities
take license with -- and are contradicted by -- the record. We
will assume in Rivera's favor that a kangaroo proceeding, devoid of
any fairness, to evaluate a trumped-up sexual harassment charge
could, in an appropriate case, be shown to have produced a reason
for termination of employment that was a pretext. The record shows
that this is not what happened here: Rivera was permitted to
respond to the charges. The complainant and two female professors,
who in the course of the investigation revealed that Rivera had
also made inappropriate comments to them, testified of their own
knowledge about what Rivera had done. And Rivera's proffered
character witnesses, who had no personal knowledge of any of the
allegedly harassing incidents, were understandably excluded. There
is no basis in the evidence for Rivera's claim that the
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investigation procedures were so fundamentally unfair as to cast
doubt on the legitimacy of the outcome. Furthermore, even if there
had been mistakes as to procedure, and we see none, there is
absolutely no evidence that any errors were motivated by
discrimination against the disabled.
That other disciplinary measures for sexual harassment
were available does not make defendants' decision to terminate
Rivera a form of discrimination. Plaintiffs admitted at oral
argument that Rivera's employment could legally be terminated if he
was found to have engaged in sexual harassment; indeed, SUAGM's
sexual harassment policy plainly provided that "[a]ny person who
engages in behavior constituting sexual harassment . . . will be
subject to severe penalties, including dismissal . . . from the
institution." Moreover, Rivera has pointed to no evidence
indicating that defendants' choice of sanctions was motivated by
discriminatory animus.
Plaintiffs' secondary argument in support of their theory
that the sexual harassment investigation was mere pretext for
disability discrimination is the allegation that the University
failed to satisfy Rivera's earlier request for a reasonable
accommodation. Rivera alleges that he had sent a letter to
Chancellor Maldonado, requesting that meetings not be held on the
second floor of a building that had no elevator; Maldonado denies
ever having received this letter. We agree with the district court
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that Rivera did not provide sufficient evidence of his request or
of the University's purported failure to respond to such a
request.3
Finally, plaintiffs attempt to undermine the conclusion
that Rivera's employment was terminated because he engaged in
sexual harassment by pointing to the fact that Rivera was one of
three candidates considered in the fall of 1998 for the position of
Vice Chancellor of Academic Affairs at the University and did not
get the position; the University hired another candidate, and when
that candidate resigned, the University appointed someone else who
was not among the original pool of three.
Even if Rivera did not get the Vice Chancellorship
because of disability discrimination, a claim Rivera made only
after his employment was terminated almost a year later, that is
not sufficient to raise an issue of material fact that he was fired
for any reason other than the sexual harassment. In any event,
there is no evidence that he was denied employment opportunities
3
With their motion for reconsideration, plaintiffs
attempted to submit the letter Rivera allegedly sent to Maldonado.
The court declined to consider the letter, because plaintiffs
failed to submit it before judgment was entered. To the extent
that plaintiffs challenge this ruling on appeal, we hold that there
was no abuse of discretion in the district court's rejection of the
letter and of plaintiffs' motion to alter judgment on account of a
belated evidentiary proffer, especially where that evidence was
previously available and should have been submitted to the court
for timely consideration. See Aybar v. Crispin-Reyes, 118 F.3d 10,
16 (1st Cir. 1997) ("[Rule 59(e)] . . . does not allow a party to
introduce new evidence or advance arguments that could and should
have been presented to the district court prior to the judgment.").
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due to disability discrimination. When another candidate was
selected as Vice Chancellor, the University did not turn Rivera
away. Instead, knowing of his difficulty in walking, the
University hired him as a faculty member and as Director of the
Department of Liberal Arts, presenting him with a one-year
contract, beginning August 15, 1998 and ending July 31, 1999.
Further, in a letter dated May 28, 1999, mere days before the
sexual harassment allegation arose on June 1, 1999, the University
informed Rivera that it wished to extend his faculty appointment
for another two years, through August 2001. Nothing in the record
supports an inference that the reason for termination of Rivera's
employment was anything other than his own conduct in sexually
harassing women.4
Judgment for defendants is affirmed. Costs are awarded
to defendants.
4
We construe plaintiffs' allegations that the University
discriminated against Rivera by refusing to appoint him to the Vice
Chancellorship and by failing to provide him with reasonable
accommodations as arguments in support of the wrongful discharge
claim, and not as independent grounds for relief under the ADA. To
the extent that plaintiffs are advancing independent disparate
impact and failure to accommodate claims, their arguments are
desultory at best and amount to waiver. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (holding that "issues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived," because "a litigant
has an obligation to spell out its arguments squarely and
distinctly" (quoting Rivera-Gomez v. de Castro, 843 F.2d 631, 635
(1st Cir. 1988) (internal quotation marks omitted))).
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