United States Court of Appeals
For the First Circuit
____________________
No. 05-2500
ADA I. CARMONA-RIVERA,
Plaintiff, Appellant,
v.
COMMONWEALTH OF PUERTO RICO; DR. CÉSAR REY-HERNÁNDEZ; DEPARTMENT
OF EDUCATION; DR. ELSIE TRINIDAD; JOHN DOE, 04CV1318;
DOE-TRINIDAD CONJUGAL PARTNERSHIP; DR. EDNA ROSA-COLÓN,
Defendants, Appellees,
RAFAEL FELICIANO; FEDERACIÓN DE MAESTROS DE PUERTO RICO,
Defendants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
____________________
Before
Selya, Circuit Judge,
Hansen, Senior Circuit Judge*
and Lynch, Circuit Judge.
Julie A. Soderlund for appellant.
Julio Cesar Alejandro-Serrano, with whom Roberto Sánchez
Ramos, Secretary of Justice, Salvador Antonetti Stutts, Solicitor
General, Eduardo Vera Ramírez, Eileen Landrón Guardiola, and
Landrón & Vera, LLP, were on brief for appellees.
September 12, 2006
*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
HANSEN, Senior Circuit Judge. Ada I. Carmona-Rivera (Carmona)
filed suit for disability discrimination and retaliation against
the school that employs her, the Commonwealth of Puerto Rico, its
Department of Education (DOE), her union, and several individual
defendants. The parties entered into a partial settlement
agreement regarding Carmona's claims for injunctive relief. The
district court ultimately dismissed the remaining claims and
Carmona appeals. After careful review, we affirm.
I. FACTS
Carmona is a full-time, tenured visual arts teacher at the
María Bas Vázquez School in Bayamón, Puerto Rico. She suffers from
ulcerative colitis and chronic hemolytic anemia. Due to her
medical condition and surgeries, Carmona is permanently
incontinent, depends on prosthetic equipment for the disposal of
bodily waste, and is permanently disabled.
In 2000, Carmona made a request through the DOE for
accommodations for her disability at the Vázquez school.
Throughout the 2000-01 school year the school was undergoing
extensive construction activity, and the facilities and the
teaching and learning conditions for everyone in the school were
abnormal. Carmona's requests for accommodations included a first-
floor classroom, private bathroom facilities in which she could
maintain her prosthetic device, and an assigned parking space near
the school's entrance. Carmona contends that the school's
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director, Dr. Elsie Trinidad, was aware of Carmona's disability but
did nothing to assist her, and continued to treat her like everyone
else. Carmona filed workplace complaints against the DOE and Dr.
Trinidad for failure to accommodate, as she was required to do
under the terms of the collective bargaining agreement between her
union, Federación Maestros de Puerto Rico (FMPR), and the DOE.
Several of her claims were resolved, but even after a resolution by
the Puerto Rico Office of the Advocate for Persons with
Disabilities (known by its Spanish acronym, OPPI) that was signed
by all parties in May 2002, Carmona had yet to be assigned a
bathroom facility that met her asserted medical needs when she
filed this suit two years later. The OPPI resolution, which
adopted a settlement agreement between the DOE and Carmona,
required that Carmona be permanently provided a first-floor
classroom, a nearby bathroom, and be assigned a predetermined class
schedule. Carmona had been assigned a first-floor classroom in
January 2002.
By the start of the 2003-2004 academic year, Carmona still
lacked a private bathroom facility and an assigned parking space,
and Carmona claimed that the school and Dr. Trinidad had never
fully complied with the class scheduling requirements of the OPPI
resolution. Carmona then made six demands of Dr. Trinidad: 1) that
she be assigned an appropriate parking space, 2) that the bathroom
Carmona was assigned to use be kept clean and sanitary in order for
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Carmona to be able to maintain her prosthesis, 3) that no deduction
in salary be made for time Carmona spent on DOE activities, 4) that
the class scheduling requirements set forth in the OPPI settlement
be complied with, 5) that custodians be required to assist Carmona
with the moving of classroom furniture and equipment, and 6) that
Carmona be allowed to review her complete personnel file. Because
neither Dr. Trinidad nor the DOE had allegedly fully complied with
the mandates set forth in the OPPI resolution or addressed
Carmona's other new demands, Carmona filed suit on April 14, 2004,
against the DOE; the Secretary of the DOE, Dr. César Rey-Hernández;
the DOE's regional director, Dr. Edna Rosa-Colón; Dr. Trinidad; the
Commonwealth of Puerto Rico; Rafael Feliciano; and the FMPR
alleging violations of the Americans with Disabilities Act (ADA),
42 U.S.C. §§ 12131-12165; § 504 of the Rehabilitation Act, 29
U.S.C. §§ 701-796; Title VII of the Civil Rights Act, 42 U.S.C.
§§ 2000e-2000e-17; § 1983 of the Civil Rights Act; and Puerto Rico
law.
The district court approved a partial settlement agreement
between the parties on July 22, 2004, in which the school agreed to
build Carmona a private bathroom to be ready near the start of the
2004-2005 school year and agreed to reserve Carmona a parking space
near the school entrance. The court-approved settlement agreement
specifically stated that it resolved all of Carmona's claims for
injunctive relief. The school year began August 2, 2004, but
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because of delays in the delivery of required fixtures and
materials, and complications with obtaining approval of the
bathroom design, Carmona's bathroom was not ready for use until
August 17, 2004.
On March 31, 2005, the district court dismissed the claim
against FMPR for lack of jurisdiction, a ruling which Carmona does
not appeal. The district court also dismissed the Title VII and
ADA claims against Secretary Rey, Dr. Trinidad, and Dr. Rosa in
their personal capacities, and the § 1983 and Commonwealth law
claims against the DOE, the Commonwealth, and Secretary Rey, Dr.
Trinidad, and Dr. Rosa in their official capacities. On August 12,
2005, the district court granted the defendants' motion for summary
judgment on the remaining claims, finding that Carmona's Title I
ADA claims for monetary damages against the Commonwealth were
barred by the Eleventh Amendment, that the settlement agreement had
fully satisfied Carmona's claims for injunctive relief, that
Carmona had failed to establish a prima facie case of retaliation,
and that she had failed to provide specific evidence to support her
hostile work environment claim. Carmona appeals from only the
district court’s August 12 order.
II. Analysis
A. Title II
Carmona argues that she is entitled to monetary damages for
employment discrimination under Title II of the ADA because
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Eleventh Amendment immunity has been abrogated for such claims.1
The law in this circuit remains unclear as to whether Title II of
the ADA even applies to claims of employment discrimination. See
Currie v. Group Ins. Comm'n, 290 F.3d 1, 6 (1st Cir. 2002)
(recognizing divergent rulings among the circuits and district
courts on this issue).
We need not resolve that issue in this appeal because even if
an employment discrimination claim is cognizable under Title II and
even if the Commonwealth's Eleventh Amendment immunity has been
effectively abrogated as to such a claim, the type of damages
Carmona seeks would not be available. We have previously held that
under Title II, non-economic damages are only available when there
is evidence "of economic harm or animus toward the disabled."
Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 126-27 (1st Cir.
2003). At oral argument, Carmona conceded that she is not claiming
any economic damages, and thus she would need to demonstrate
intentional discriminatory animus to prevail. A review of the
record before us reveals no such evidence.
Carmona points to the length of the delay in meeting her
requests, even after they were approved and agreed upon, and the
school's failure explicitly to follow her doctor's recommended
1
The district court concluded that Carmona's Title I claims
for monetary relief were barred by Eleventh Amendment immunity, and
Carmona does not challenge this ruling on appeal. See Bd. of Trs.
of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001).
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accommodations as evidence of intentional discrimination, but these
actions in and of themselves do not show any intent to
discriminate. Merely labeling the delay as intentional
discrimination, without some modicum of evidence demonstrating an
actual discriminatory animus, is itself not enough. Schultz v.
Young Men's Christian Ass'n of the U.S., 139 F.3d 286, 291 (1st
Cir. 1998). The record is devoid of evidence or reasonable
inferences that these delays and failures to provide accommodations
that were acceptable to her were anything more than the result of
a slow-moving bureaucracy or that they were intentionally
undertaken by the defendants to purposefully discriminate against
Carmona because of her disability. See id. (holding that plaintiff
was not entitled to damages for emotional distress when there was
no allegation of economic loss and "not the slightest hint that
[the defendant] was prompted by malice or hostility toward [the
plaintiff] or toward the disabled"). Without some evidence of
intentional discrimination, Carmona cannot recover under Title II
for non-economic damages even if we were to determine that Title II
encompassed claims of employment discrimination and that Eleventh
Amendment immunity was effectively abrogated. While monetary
damages are not available to Carmona, injunctive relief would be;
however, she conceded at oral argument that her injunctive relief
claims had been satisfied. Accordingly we affirm the judgment of
the district court granting summary judgment as to Carmona's ADA
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claims.
B. Partial Settlement Agreement
Carmona conceded that she had been granted the injunctive
relief she requested under Title I of the ADA by the settlement
agreement. However, she argues that she is entitled to damages for
an alleged breach of the settlement agreement due to an asserted
delay in the completion of her bathroom facility from August 2 to
August 17. Carmona contends that the settlement agreement called
for the bathroom to be ready for her use by August 2, 2004, the
start of the school year, yet construction was not complete until
August 17, 2004. The language used in the court-approved
settlement agreement did not specify a date of completion for the
bathroom, the agreement stated only that the "bathroom will be
built some time at the beginning of the 2004-2005 school year that
starts August 2004."
Without determining whether or not the settlement agreement
had in fact been breached (a correct procedure in the summary
judgment context), the district court denied Carmona's claim for
damages based on the alleged breach because the monetary damages
she sought were not available under Title I. Carmona does not
address the district court's reasoning in her appeal, contending
instead only that any delay in completion of the bathroom was
unjustified and in breach of the settlement agreement.
The district court was correct that only injunctive relief is
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available under Title I. Garrett, 531 U.S. at 363 (holding that
Title I of the ADA does not abrogate a state's Eleventh Amendment
immunity and monetary damages are not available under Title I).
Thus, there was no error in the district court's judgment that
monetary damages were unavailable to Carmona under Title I for
breach of the settlement agreement.
C. Hostile Work Environment
Carmona's claim of a hostile work environment under Title VII,
the Rehabilitation Act, and the ADA was terminated by the district
court for failure to allege specific instances or facts to support
her claim. "We review the district court's order granting summary
judgment de novo, . . . [and] [w]e will affirm the order 'if there
is no genuine issue as to any material fact . . . and [the
defendants are] entitled to judgment as a matter of law.'" Pomales
v. Celulares Telefónica, Inc., 447 F.3d 79, 83 (1st Cir. 2006)
(quoting Fed. R. Civ. P. 56(c)).
In order for Carmona to succeed on her hostile work
environment claim, she must demonstrate "that the complained-of
conduct was so severe or pervasive that it altered the terms of her
employment." Id. "There is no mathematically precise test" we can
use to determine when this burden has been met, instead, we
evaluate the allegations and all the circumstances, considering
"the frequency of the discriminatory conduct; its severity; whether
it was physically threatening or humiliating, or a mere offensive
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utterance; and whether it unreasonably interfered with an
employee's work performance." Id. (internal quotation marks
omitted).
Carmona's main allegation is that the school and its
administration were rude and indifferent in their treatment of her
and her disability. However, we have previously held that
"rudeness or ostracism, standing alone, usually is not enough to
support a hostile work environment claim." Noviello v. City of
Boston, 398 F.3d 76, 92 (1st Cir. 2005). Carmona has provided no
evidence of ridicule, insult, or harassment such that a court could
find behavior on the part of the defendants that was "'objectively
and subjectively offensive, . . . [behavior] that a reasonable
person would find hostile or abusive.'" Id. (quoting Faragher v.
City of Boca Raton, 524 U.S. 775, 787 (1998)); see also De La Vega
v. San Juan Star, Inc., 377 F.3d 111, 118 (1st Cir. 2004) (holding
that general claims of "humiliating and discriminatory treatment"
did not provide evidence of harassment because they did not provide
specific evidence related to the kind of harassment or frequency or
the reasoning behind the alleged discriminatory treatment).
Likewise, her assertion that the bathroom facilities available to
her prior to August 2004 were unsanitary is not so severe as to
alter the terms of her employment and create a hostile environment.
Based on the record before us, the district court did not err in
its judgment concerning Carmona's hostile work environment claim.
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D. Retaliation
Carmona's final claim on appeal is that the district court
erred in granting summary judgment to the defendants on her
retaliation claim. See Pomales, 447 F.3d at 83 (standard of
review). We have held that to establish a claim of retaliation, a
plaintiff "must show that (i) she undertook protected conduct, (ii)
she suffered an adverse employment action, and (iii) the two were
causally linked." Noviello, 398 F.3d at 88 (stating the
requirements for retaliation actions under Title VII); see also
Wright v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003) (stating
the same requirements under ADA); Weber v. Cranston Sch. Comm., 212
F.3d 41, 48 (1st Cir. 2000) (noting that the Rehabilitation Act
prohibits retaliation). The district court held that there was no
evidence that the failure to provide Carmona the requested private
bathroom facilities constituted an adverse employment action or was
part of an effort to interfere with her ADA-related protected
activity.
After the oral argument in this case, the Supreme Court
decided Burlington Northern and Santa Fe Railway Company v. White,
No. 05-259, 2006 WL 1698953 (U.S. June 22, 2006), holding that the
anti-retaliation provision of Title VII "is not limited to
discriminatory actions that affect the terms and conditions of
employment." Id. at *7. Rather, "a plaintiff must show that a
reasonable employee would have found the challenged action
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materially adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination." Id. at *10 (internal marks omitted). This recent
refinement of the standard does not alter the outcome of the case
before us. The alleged retaliatory action must be material,
producing a significant, not trivial, harm. Id. Trivial actions
such as "petty slights, minor annoyances, and simple lack of good
manners will not [normally] create such deterrence." Id. "Context
matters," and "the standard is tied to the challenged retaliatory
act, not the underlying conduct that forms the basis of the Title
VII complaint." Id. at *11.
We turn to the retaliatory action alleged by Carmona and test
it against the revised standard. Carmona contends that the delay
by the defendants in satisfying her accommodation requests
constitutes an adverse harm. While the delay did not work a
material change in her employment conditions (because she did not
have access to a private bathroom or parking space prior to making
her requests), under the revised Burlington standard, the delay may
qualify as an adverse action. "The anti-retaliation provision
protects an individual . . . from retaliation that causes an injury
or harm." Id. at *10. While a delay in providing the
accommodations needed to meet a disability may cause a significant
injury or harm to a disabled person, the record in this case
discloses no such harm. Inconvenience, yes, but no actual harm.
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Additionally, as noted ante, Carmona has failed to provide any
evidence of a retaliatory intent associated with the delay in
implementing her requests, or any evidence which shows that the
delay was anything beyond that inherent in the workings of an
educational bureaucracy. There is no evidence in this record from
which a reasonable jury could conclude that the delays resulted
from either intentional discrimination or retaliatory behavior.
See Kosereis v. Rhode Island, 331 F.3d 207, 217 (1st Cir. 2003)
(finding no causal connection in retaliation claim and noting that
it is insufficient to merely state that claimant engaged in a
protected activity and then was disciplined); Randlett v. Shalala,
118 F.3d 857, 862 (1st Cir. 1997) ("[T]he adverse action must have
been taken for the purpose of retaliating. And to defeat summary
judgment, a plaintiff must point to some evidence of retaliation by
a pertinent decisionmaker."). Carmona's claims of retaliatory
delay also ignore the fact that despite its being under
construction for part of the time in dispute and operating under
abnormal conditions, the school made some attempt to accommodate
Carmona's needs, though the results were not to a level she deemed
satisfactory. The fact that Carmona was dissatisfied with the
extent of many of the early accommodations does not prove a
retaliatory intent on the part of the defendants. The fact remains
that the school took steps to meet her requests and did not
stonewall her. In addition, there is little indication that the
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actions of the defendants would have the chilling effect of
deterring others from filing their own requests for a needed
accommodation; Carmona's requests were ultimately approved and the
needed changes were made. The system worked, although without the
dispatch that Carmona desired.
Because Carmona has failed to establish a prima facie case of
retaliation, we affirm the district court's entry of judgment on
Carmona's retaliation claim.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
Affirmed.
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