United States Court of Appeals
For the First Circuit
No. 09-1503
HÉCTOR LUIS ROMÁN-OLIVERAS, et al.,
Plaintiffs, Appellants,
v.
PUERTO RICO ELECTRIC POWER AUTHORITY (PREPA),
JAMES VÉLEZ, JULIO RENTA, et al.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Lipez, Circuit Judge,
Souter, Associate Justice,*
and Selya, Circuit Judge.
Juan R. Rodriguez, with whom Rodriguez Lopez Law Office,
P.S.C. was on brief, for appellant.
Marie L. Cortés-Cortés for appellee PREPA.
Rosa Elena Pérez-Agosto, with whom Irene S. Soroeta-Kodesh,
Solicitor General, Leticia M. Casalduc-Rabell, Deputy Solicitor
General, Zaira Z. Girón-Anadón, Deputy Solicitor General, and Rosa
Elena Pérez-Agosto, Assistant Solicitor General, were on brief, for
appellees Vélez and Renta.
August 18, 2011
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
LIPEZ, Circuit Judge. Appellant Héctor Luis Román-
Oliveras ("Román") claims that he was an exemplary employee at the
Puerto Rico Electric Power Authority ("the Authority" or "PREPA")
for more than two decades despite suffering from schizophrenia
throughout the period of his employment. In this action against
the Authority and two PREPA supervisors, he alleges that he was
inexplicably removed from his job in 2006, required to undergo
multiple medical evaluations, and prevented from resuming his
duties even though each evaluation pronounced him fit to work.
Román brought this action against the Authority and two PREPA
supervisors under federal and Commonwealth law, alleging violation
of his civil rights and unlawful discrimination on the basis of his
medical condition.1 The district court dismissed Román's complaint
in its entirety. It discerned no basis for relief under federal
law and, accordingly, declined to address the supplemental
Commonwealth claims.
Although we affirm the district court's rulings on most
of Román's claims, we vacate the dismissal of his claim against his
employer under the Americans with Disabilities Act ("ADA") because
the complaint plausibly depicts discrimination based on the
perception that Román is disabled. On an issue of first impression
1
Also listed as defendants were unnamed "responsible"
parties, including the named defendants' insurers. The complaint
identified Román's wife, the couple's conjugal partnership, and
Román's mother as co-plaintiffs. For convenience, we refer in our
analysis only to Román and the PREPA defendants.
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for our circuit, we conclude that Title I of the ADA does not
provide for liability against individuals who are not themselves
employers.2
I.
We recite the facts in the manner appropriate for
reviewing a dismissal under Federal Rule of Civil Procedure 12(b):
"[W]e 'assume the truth of all well-pleaded facts' in the
complaint," and draw all reasonable inferences in the plaintiff's
favor. Rivera v. Centro Médico de Turabo, Inc., 575 F.3d 10, 13
(1st Cir. 2009) (quoting Centro Medico del Turabo, Inc. v.
Feliciano de Melecio, 406 F.3d 1, 5 (1st Cir. 2005)).3
Before the events at issue in this litigation, Román had
worked successfully for PREPA for twenty-two years while receiving
regular psychiatric treatment for schizophrenia. The condition had
been diagnosed more than thirty years earlier. Román received
excellent evaluations and was always available for overtime work.
Beginning in 2005, Román's immediate superior, defendant James
2
Because reactivation of the ADA claim opens the door to
reinstatement of the supplemental Commonwealth claims, we also
vacate the portion of the court's judgment dismissing those claims.
See Sepúlveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 30
(1st Cir. 2010).
3
The district court relied on both Rule 12(b)(1) and Rule
12(b)(6) in dismissing appellant's various claims. The same
standard applies to both subsections. See McCloskey v. Mueller,
446 F.3d 262, 265-66 (1st Cir. 2006).
-3-
Vélez, and the plant superintendent, defendant Julio Renta,4 made
Román's life difficult in retaliation for his union activities and
role as a "leader of workm[e]n." Román's complaint states that the
PREPA supervisors harassed him, "making improper rude comments
against him, taking adverse person[ne]l action and fabricating
labor cases against him." The complaint accuses the defendants of
attempting on one occasion to transfer Román "without the benefit
of paying him [food] and car allowance" and of treating him
"differently from similarly situated individuals outside of his
protected group." The complaint further alleges that Vélez and
Renta used false information and "their official positions
improperly as employees and engineers of co-defendant PREPA" to
cause harm to Román.
On March 1, 2006, PREPA's social worker asked the
Authority's physician to bar Román from working until he was
evaluated by a psychiatrist, and PREPA thereafter did not allow him
to work. On April 24, the social worker received the psychiatric
report, which stated that Román could resume his duties. On May
23, PREPA "formally acknowledge[d]" the psychiatrist's report and
recommendation. Román, however, remained out of work,
involuntarily, despite the satisfactory report. On August 7,
PREPA's physician ordered "asbestos[] medical evaluations" of
4
The individual appellees identify "Renta" as "Rentas-Pujols"
in their brief. We use the name that appears in the court docket.
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Román. The resulting report stated that Román was "fit for duties
including as per his psychiatric condition."
Although PREPA's physicians recommended on October 17
that Román return to work, and he repeatedly asked to return,
defendant Renta requested additional medical evaluations on
November 13 and referred Román for an involuntary medical leave.
Román also was asked for the evaluations of his private doctors.
In January 2007, he submitted the requested medical certification
from his psychiatrist. Despite findings by "[a]ll of the doctors"
that Román was capable of resuming his work, defendants again
refused to allow him to do so, "changing the entire process of the
reinstallation of plaintff[']s duties."
Román was taken off PREPA's payroll in February 2007.
Although he alleges that he was terminated, he submitted an
employment certification in Spanish to the district court that,
according to the court, "reflects that Román had been on medical
leave, without pay, since February 10, 2007." The defendants
presented a translated employment certification stating that, as of
September 5, 2007, Román remained a PREPA employee "hold[ing] the
regular position of Central Power Plant Electrician II." The
complaint alleges, however, that Renta and Vélez ordered removal of
Román's personal items from the work area, removal of his name
from his locker, and reassignment of his toolbox to another
employee.
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Román filed a timely complaint with the Equal Employment
Opportunity Commission and subsequently filed this action, alleging
violations of the ADA, 42 U.S.C. §§ 12101-12213;5 Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17; the civil
rights provision codified at 42 U.S.C. § 1983; and Articles 1802
and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, §§
5141, 5142. He alleged that defendants' actions violated his civil
rights, created a hostile work environment, and subjected him to
"adverse actions because of his medical condition and active
participation with the Union."
Defendants moved for dismissal and, after an exchange of
updated pleadings, the district court dismissed with prejudice each
of the federal claims in plaintiff's Second Amended Complaint. The
court concluded that the hostile work environment claim was time-
barred, that Román failed to allege facts showing that he was
disabled within the meaning of the ADA, and that he had alleged
"neither . . . a specific violation of federal law nor any
independent facts" to support his section 1983 claim. Given the
deficiencies in the federal causes of action, the court declined to
exercise supplemental jurisdiction over the associated Commonwealth
claims and dismissed them without prejudice.
5
The complaint did not specify the title of the ADA under
which suit was brought, but the district court accepted the Title
I characterization adopted in plaintiff's opposition to defendants'
motion to dismiss. We do likewise.
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On appeal, appellant continues to press his ADA and
section 1983 claims, but implicitly in his brief and explicitly at
oral argument conceded the inadequacy of the complaint's Title VII
allegations. We therefore limit our discussion to the disability
and civil rights claims.6 Our review is de novo. See Coggeshall
v. Mass. Bd. of Registration of Psychologists, 604 F.3d 658, 662
(1st Cir. 2010) (applying de novo review to claims dismissed under
subsections (1) and (6) of Federal Rule of Civil Procedure 12(b)).
II.
A. Section 1983
Section 1983 does not provide "any substantive rights
independent of those already granted under federal law," Clark v.
Boscher, 514 F.3d 107, 112 (1st Cir. 2008), and a plaintiff seeking
to recover under that provision must therefore "identify the
specific constitutional [or statutory] right allegedly infringed,"
Albright v. Oliver, 510 U.S. 266, 271 (1994); see also Nieves v.
McSweeney, 241 F.3d 46, 53 (1st Cir. 2001). Appellant's complaint
lacks any such specificity. Although the complaint alleges that he
was treated differently from "similarly situated individuals
6
It is not clear from the complaint whether appellant's
hostile environment claim is disability-based or linked to his
union and other leadership activities. Its precise nature does not
in any event matter because appellant's brief does not address the
court's rejection of that claim and, accordingly, we deem it
waived. See Sepúlveda-Villarini, 628 F.3d at 28. Hence, in our
discussion of the ADA, we consider only the claim that Román was
unlawfully removed from his job on account of his disability.
-7-
outside of his protected group" – language evocative of an equal
protection claim – he has never asserted a violation of the Equal
Protection Clause of the Constitution.7
Nor does the complaint use the term "due process," which
Román now argues is the right underlying his section 1983 claim.
He maintains that the paragraphs in the complaint describing
PREPA's repeated refusal to reinstate him were sufficient to frame
a procedural due process violation because, in the words of the
complaint, the defendants "chang[ed] the entire process of the
reinstallation of plaintiff[']s duties."
The allegations concerning the "process" of his
reinstatement, however, establish the factual basis for his
disability discrimination claim, i.e., that he was repeatedly
forced to undergo medical evaluations and prevented from working
despite reports showing that his schizophrenia did not affect his
capacity to work. See infra Part II.B. Without more, those
allegations do not also signal a due process claim. Such a claim
requires a showing that the plaintiff was deprived of a protected
liberty or property interest without "adequate notice and an
opportunity to be heard 'at a meaningful time and in a meaningful
manner.'" Aponte-Rosario v. Acevedo-Vilá, 617 F.3d 1, 9 (1st Cir.
7
The district court noted that appellant's perfunctory
allegation that he experienced adverse treatment because of his
"active participation with the Union" may suggest a constitutional
claim, but any such cause of action was too insufficiently
developed to warrant consideration. We agree.
-8-
2010) (quoting Amsden v. Moran, 904 F.2d 748, 753 (1st Cir. 1990)).
Appellant's complaint does not identify a protectible interest, and
it says nothing about either lack of notice or the absence of a
meaningful opportunity to be heard.8
In effect, appellant asks that his section 1983 cause of
action be saved because the allegation of faulty procedures could
have supported a second, constitutional theory of recovery. The
due process theory was not articulated in the complaint, however,
and appellant thus failed with regard to this claim to comply with
the requirement of Federal Rule of Civil Procedure 8(a)(2) that
"every complaint contain 'a short and plain statement of the claim
showing that the pleader is entitled to relief.'" Ocasio-Hernández
v. Fortuño-Burset, 640 F.3d 1, 5 (1st Cir. 2011) (quoting Fed. R.
Civ. P. 8(a)(2)); id. (explaining that the Rule "requires
sufficient detail in the complaint to give a defendant fair notice
of the claim and the grounds upon which it rests"). We therefore
affirm dismissal of the section 1983 claim.
8
At oral argument, appellant's counsel asserted that Román
has a property interest in his job because he is a public employee.
Although Román alleged that PREPA is "a public corporation and
government agency," government employment does not always confer a
property interest and related procedural due process rights. See
Concepción Chaparro v. Ruiz-Hernández, 607 F.3d 261, 264 (1st Cir.
2010) ("In order for plaintiffs to have procedural due process
rights in their employment, each plaintiff must have had a
reasonable expectation, based on a statute, policy, rule, or
contract, that he or she would continue to be employed."). In
keeping with his failure to allege other elements of a due process
claim, Román did not allege a basis for a property interest in his
position.
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B. ADA
To state a claim of disability discrimination under Title
I of the ADA, Román needed to allege facts showing that (1) he was
disabled within the meaning of the Act; (2) he could perform the
essential functions of his job, with or without reasonable
accommodation, and (3) the employer took adverse action against
him, in whole or in part, because of his disability. Ruiz Rivera
v. Pfizer Pharm., LLC, 521 F.3d 76, 82 (1st Cir. 2008); Bailey v.
Ga.-Pac. Corp., 306 F.3d 1162, 1166 (1st Cir. 2002). An individual
is disabled for purposes of the ADA if he (1) has a physical or
mental impairment that substantially limits one or more major life
activities; (2) has a record of such an impairment; or (3) is
regarded as having such an impairment. Ruiz Rivera, 521 F.3d at
82; see also 42 U.S.C. § 12102(2) (2008).9
The district court concluded that Román had failed to
allege facts sufficient to establish that he was disabled under any
of the statute's three definitions. We agree that the complaint
falls short on the first two alternatives. As to the first option,
the district court correctly noted that Román did not allege that
schizophrenia substantially limited any aspect of his life,
9
The ADA Amendments Act of 2008, Pub. L. No. 110-325,
§ 2(a)(4)-(6), 122 Stat. 3553, which took effect January 1, 2009,
does not apply here, as the Act does not retroactively cover
activities that occurred before its passage. See Carreras v. Sajo,
Garcia & Partners, 596 F.3d 25, 33 n.7 (1st Cir. 2010). We
therefore rely on the pre-amendment statutory provisions and the
case law interpreting those provisions.
-10-
including his ability to work. Indeed, the thrust of appellant's
complaint is that he was fully capable of working, but was unfairly
denied the opportunity to do so "because of his medical condition."
He thus has not stated a claim of disability discrimination based
on the condition of schizophrenia itself.
For a similar reason, the district court correctly found
that Román's complaint failed to satisfy the "record of impairment"
prong of the disability definition. The "record" provision is
designed "to protect those who have recovered or are recovering
from substantially limiting impairments from discrimination based
on their medical history." Bailey, 306 F.3d at 1169. Thus, to
qualify for ADA coverage on the basis of this provision, Román
would need to show that in the past he had, "or has been
misclassified as having, an impairment that substantially limited
a major life activity." Id. Again, because Román has not alleged
substantial limitations as a result of schizophrenia, he failed to
state an ADA claim based on having a record of impairment.
Finally, the district court rejected appellant's
"regarded as" claim on the ground that he had "failed to allege
facts sufficient to show that defendants ever regarded Román's
schizophrenia as having a substantial impact on his work." To
prove a regarded as claim against his employer, a plaintiff
ordinarily must show either that the employer (1) "mistakenly
believes that [he] has a physical impairment that substantially
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limits one or more major life activities," or (2) "mistakenly
believes that an actual, nonlimiting impairment substantially
limits one or more major life activities." Sutton v. United Air
Lines, Inc., 527 U.S. 471, 489 (1999), superseded by statute, ADA
Amendments Act of 2008, Pub. L. No. 110-325, § 2(a)(4)-(6), 122
Stat. 3553; see also Ruiz Rivera, 521 F.3d at 83; Sullivan v.
Neiman Marcus Grp., Inc., 358 F.3d 110, 117 (1st Cir. 2004). We
focus on the second of these alternatives.10
To survive a motion to dismiss, a plaintiff must allege
"only enough facts to state a claim to relief that is plausible on
its face." Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007). "A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged." Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009). According to the allegations
in the complaint, Román was removed from his position and forced to
undergo multiple medical evaluations at the behest of the
defendants, and also was required to submit a medical certification
from his treating psychiatrist. Despite favorable test results
each time, defendants persisted in refusing to allow Román to work.
10
Appellees assert that Román failed to argue in his brief on
appeal that he was disabled under the "regarded as" prong and has
thus waived that issue. Although Román's entire brief is barely
adequate, we do not consider the claim waived. In addition, we see
no prejudice in reaching the issue; the district court addressed it
on the merits, as did appellees in their appellate briefing.
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Taken as true, these allegations, together with the
allegation that Román always performed his job well, readily
support three pertinent inferences: (1) defendants mistakenly
believed that Román's psychiatric condition substantially limited
his ability to do his job; (2) they refused to let him work based
on that erroneous, discriminatory judgment; and (3) they repeatedly
attempted to justify removing him from his job through the
psychiatric and other medical testing. To state a violation of the
ADA when the major life activity at issue is working, however,
Román must show "'not only that the employer thought that he was
impaired in his ability to do the job that he held, but also that
the employer regarded him as substantially impaired in "either a
class of jobs or a broad range of jobs in various classes as
compared with the average person having comparable training,
skills, and abilities."'" Ruiz Rivera, 521 F.3d at 83 (quoting
Sullivan, 358 F.3d at 117 (quoting Murphy v. United Parcel Serv.,
Inc., 527 U.S. 516, 523 (1999))).
Although the complaint does not explicitly assert that
PREPA had such a broad perception of Román's incapacity, the
allegations are sufficient to embrace that contention. According
to the complaint, PREPA removed Román from his position without any
meaningful effort to offer him alternative positions appropriate
for whatever limitations his employer attributed to him. Román
alleges one attempted transfer, but his objections to it – based on
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denial of food and travel allowance – suggest it was a temporary
relocation rather than reassignment to a new position deemed more
suitable for his abilities. In any event, given that the
disability at issue is a mental condition rather than a discrete
physical limitation, defendants' actions in removing Román and
repeatedly demanding psychiatric evaluations permit the inference
that defendants deemed him disqualified from a broad range of jobs.
Cf. Quiles-Quiles v. Henderson, 439 F.3d 1, 6-7 (1st Cir. 2006)
(concluding that supervisors' belief that plaintiff's mental
impairment posed a safety risk to coworkers, "preclud[ing] him from
holding most jobs in our economy," permitted jurors to find that
employer regarded him as disabled); Watts v. United Parcel Serv.,
378 F. App'x 520, 526 (6th Cir. 2010) (unpublished) ("When a
defendant flatly bars a plaintiff from working at any job at the
defendant's company, that is generally sufficient proof that the
employer regards the plaintiff as disabled in the major life
activity of working so as to preclude the defendant being awarded
judgment as a matter of law.").
Román has thus made a sufficient showing of disability
within the meaning of the ADA to survive defendants' motion to
dismiss. His allegations easily satisfy the other two pleading
prerequisites for his claim to proceed: that he could perform the
essential functions of his job and that PREPA took adverse action
against him, in whole or in part, because of his disability. We
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see no alternative view of the allegations that is "'just as much
in line' with innocent conduct" as with disability discrimination,
Ocasio, 640 F.3d at 11 (quoting Twombly, 550 U.S. at 554); see also
Iqbal, 129 S. Ct. at 1949, and Román has thus passed "the line
between possibility and plausibility" in asserting a regarded-as
violation of the ADA, Twombly, 550 U.S. at 557.
We hasten to add that we offer no view on the merits of
his claim. The question at this stage of the case is not "the
likelihood that a causal connection will prove out as fact."
Sepúlveda-Villarini, 628 F.3d at 30. Rather, "the standard is
plausibility assuming the pleaded facts to be true and read in a
plaintiff's favor." Id.; see also Twombly, 550 U.S. at 563 n.8
("[W]hen a complaint adequately states a claim, it may not be
dismissed based on a district court's assessment that the plaintiff
will fail to find evidentiary support for his allegations or prove
his claim to the satisfaction of the factfinder."). Here, the
pleaded facts support "[a] plausible but inconclusive inference" of
discrimination based on disability, Sepúlveda-Villarini, 628 F.3d
at 30, and Román is therefore entitled to proceed with his ADA
claim.
C. Individual Liability
Appellees Vélez and Renta argue that, regardless of our
view of the sufficiency of the ADA allegations, they should be
dismissed from the case because individuals are not subject to
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liability under Title I of the statute. They acknowledge that
neither we nor the Supreme Court has explicitly rejected individual
liability under the ADA, but point out that a number of other
circuits have taken that view.11 See Albra v. Advan, Inc., 490 F.3d
826, 830 (11th Cir. 2007); Walsh v. Nev. Dep't of Human Res., 471
F.3d 1033, 1037-38 (9th Cir. 2006); Fasano v. Fed. Reserve Bank of
N.Y., 457 F.3d 274, 289 (3d Cir. 2006); Corr v. MTA Long Island
Bus, 199 F.3d 1321, 1999 WL 980960, at *2 (2d Cir. Oct. 7, 1999)
(unpublished); Butler v. City of Prairie Vill., 172 F.3d 736, 744
(10th Cir. 1999); EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d
1276, 1282 (7th Cir. 1995). In addition, Vélez and Renta assert
that such a conclusion is the logical extension of our holding that
Title VII, an analogous statute, does not support personal capacity
claims. See Fantini v. Salem State Coll., 557 F.3d 22, 31 (1st
Cir. 2009).
We agree that the logic of Fantini is compelling here.
As other courts have observed, "[t]he statutory scheme and language
of [Title I of] the ADA and Title VII are identical in many
respects." Walsh, 471 F.3d at 1038; see also, e.g., AIC, 55 F.3d
at 1279-80. Both statutes direct their prohibitions to
11
As Vélez and Renta note, we previously declined to reach the
issue while noting that other circuits, as well as district courts
within this circuit, have held that individuals are not subject to
suit under the ADA. See Acevedo López v. Police Dep't of P.R., 247
F.3d 26, 29 (1st Cir. 2001).
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"employer[s],"12 and the ADA's definition of employer mirrors Title
VII's. Under both, an employer is "a person engaged in an industry
affecting commerce who has fifteen or more employees . . . and any
agent of such . . . person." 42 U.S.C. § 12111(5)(A) (ADA); see
also id. at § 2000e(b) (Title VII).
In Fantini, we recognized that Title VII's exemption for
small employers signified an intention not "'to burden small
entities with the costs associated with litigating discrimination
claims.'" 557 F.3d at 29 (quoting Miller v. Maxwell's Int'l Inc.,
991 F.2d 583, 587 (9th Cir. 1993)). We quoted the Ninth Circuit's
observation that "'[i]f Congress decided to protect small entities
with limited resources from liability, it is inconceivable that
Congress intended to allow civil liability to run against
individual employees.'" Id. (quoting Miller, 991 F.2d at 587).
Hence, we accepted that the statutory reference to "any agent" in
the definition of "employer" does not connote individual liability,
but "'simply . . . establish[es] a limit on an employer's liability
for its employees' actions.'" Fantini, 557 F.3d at 30 (quoting
Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180 (4th Cir. 1998));
see also Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996)
12
The ADA prohibits discriminatory conduct by a "covered
entity," 42 U.S.C. § 12112(a), and provides that "[t]he term
'covered entity' means an employer, employment agency, labor
organization, or joint labor-management committee," id. at
§ 12111(2). Title VII states, inter alia, that specified
discriminatory practices are unlawful "for an employer." 42
U.S.C. § 2000e-2(a).
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(noting that "the 'agent' language was included to ensure
respondeat superior liability of the employer for the acts of its
agents").
We also relied on precedent noting that changes to Title
VII's remedial scheme enacted in 1991 – applicable to the ADA as
well – bolstered the conclusion that individuals are not liable
under the statutes. Fantini, 557 F.3d at 31; see 42 U.S.C.
§ 1981a. Previously, the ordinary remedies available under Title
VII were limited to back pay and equitable relief, which
"'"typically are only obtainable from an employing entity, not from
a mere individual."'" Fantini, 557 F.3d at 31 (quoting Lissau, 159
F.3d at 181 (quoting AIC, 55 F.3d at 1281)). The 1991 amendments
added compensatory and punitive damages calibrated to the size of
the employer. The "sliding scale of liability," which ranges from
a maximum of $50,000 for companies that employ up to one hundred
workers and a maximum of $300,000 for companies that employ more
than 500 employees, 42 U.S.C. § 1981a(b)(3), "does not stipulate an
amount in cases where a plaintiff seeks to hold an individual
supervisor liable." Lissau, 159 F.3d at 181. Thus, we concluded
that neither the original remedial scheme nor the amendments
contemplated individual liability. See Fantini, 557 F.3d at 30-31;
see also AIC, 55 F.3d at 1281; Sheridan v. E.I. DuPont de Nemours
& Co., 100 F.3d 1061, 1077 (3d Cir. 1996) (en banc) (noting that
Congress's failure to state "the amount of damages, if any, that
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would be payable by individuals . . . strongly suggests that [it]
did not contemplate that such damages would be assessed against
individuals who are not themselves the employing entity").
We see no basis for reaching a different outcome under
Title I of the ADA. Indeed, given the parallel statutory language
and the identical 1991 amendment to the statutes' remedial
provisions, we think it apparent that Congress intended that these
two employment discrimination provisions be treated uniformly. We
thus agree with the virtually universal view that Title I of the
ADA, like Title VII of the Civil Rights Act, "'addresses the
conduct of employers only and does not impose liability on co-
workers.'" Fantini, 557 F.3d at 31 (quoting Powell v. Yellow Book
U.S.A., Inc., 445 F.3d 1074, 1079 (8th Cir. 2006)). Hence, the
claims against Vélez and Renta were properly dismissed.
III.
For the reasons we have discussed, we affirm the
dismissal of Román's claims under Title VII and 42 U.S.C. § 1983,
and we also affirm dismissal of the ADA claims against appellees
Vélez and Renta. Román has waived any challenge to the dismissal
of his hostile environment claim. We vacate the portion of the
district court's order dismissing the Title I ADA claim against
PREPA. Likewise, we vacate the dismissal of the pendent
Commonwealth claims, which the district court declined to hear in
the absence of any surviving federal claims.
So ordered. Costs to appellant.
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