Ramos-Echevarria v. Pichis, Inc.

United States Court of Appeals
For the First Circuit

No. 10-1522

PEDRO L. RAMOS-ECHEVARRÍA, GLADYS RODRIGUEZ-GALARZA,
CONJUGAL PARTNERSHIP RAMOS-RODRIGUEZ,

Plaintiffs, Appellants,

v.

PICHIS, INC. d/b/a PICHIS HOTEL AND CONVENTION CENTER,
JOHN DOE, RICHARD ROE, INSURANCE COMPANY,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Dominguez, U.S. District Judge]

Before

Thompson, Selya and Dyk*
Circuit Judges.

Juan R. Rodríguez, with whom Rodriguez Lopez Law Offices,
P.S.C. was on brief, for appellants.
Manuel Núñez-Aragunde, with whom Martha L. Martínez Rodríguez
and Manuel A. Núñez Law Offices were on brief, for appellee.

October 21, 2011

*
Of the Federal Circuit, sitting by designation.
 THOMPSON, Circuit Judge. Appellant Pedro Ramos-

Echevarría claims that his employer, Pichis Inc. d/b/a Pichis Hotel

and Convention Center (Pichis), discriminated against him because

of his medical condition - epilepsy - in violation of federal and

state statutes including the Americans With Disabilities Act (ADA),

42 U.S.C. § 12101 et seq. The district judge entered summary

judgment in favor of Pichis, and Ramos-Echevarría appealed.

Finding no error, we affirm.

BACKGROUND

As is required when reviewing an order granting summary

judgment, we view the facts in the light most favorable to the

nonmoving party. See, e.g., Penn-Am. Ins. Co. v. Lavigne, 617 F.3d

82, 84 (1st Cir. 2010).

Ramos-Echevarría suffers from epilepsy. He takes

medication to control his condition. On average, he experiences

between nine and sixteen focal seizures - which he refers to as

“episodes” - each week. During a typical episode, he sees an

“aura” before his body begins convulsing for about eight to fifteen

seconds; he does not lose consciousness. His cognitive abilities

are also impaired during the episode, and sometimes for a short

time afterwards.

Ramos-Echevarría has worked for Pichis as a part-time

kitchen assistant since 1999, assisting the chef with food

preparation. Since 2002, he has held a similar second job at

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another restaurant, Palacio Chino. Ramos-Echevarría informed

Pichis about his illness at the time he was hired by referencing it

on his job application.1 For the most part, his illness has not

affected his job performance.

Between three and six times each year, his episodes are

so severe that he has to leave work. But usually when he

experiences an episode at work, he simply stops moving until the

convulsions are over. He either stabilizes himself or is able to

notify his co-workers and they make sure he does not fall. Ramos-

Echevarría has never experienced an episode while working on a hot

surface. If he is working with a knife when he sees the aura, he

drops the knife until the convulsions are over. Once the

convulsions stop, he returns to work as soon as he is able.

Within the first week of his employment at Pichis, Ramos-

Echevarría experienced an episode. As Ramos-Echevarría tells it,

shortly thereafter Luis Emmanuelli, Sr. (Emmanuelli), who owns

Pichis, called Ramos-Echevarría into his office at 8:30 one morning

and told him that although he was an excellent worker, he could not

continue working there “because of [his] condition.” Emmanuelli

told Ramos-Echevarría that he had to leave the premises. Ramos-

Echevarría verbally requested a reasonable accommodation, but he

1
Despite Ramos-Echevarría’s disclosure claim, the copy of
the job application in the record does not include any reference to
his medical condition.

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did not present medical documents in making the request.2 Sticking

by his decision to terminate Ramos-Echevarría, Emmanuelli

responded, “no, there’s no reasonable accommodation for you, or for

anybody else.”

Ramos-Echevarría walked to the gate outside and then

returned to Pichis and asked for a letter stating the reason for

his dismissal. Emmanuelli’s assistant told him to come back at

11 a.m.

When Ramos-Echevarría returned later that day, he spoke

with Luisito Emmanuelli (Luisito), Emmanuelli’s son. Luisito told

Ramos-Echevarría that Pichis had “reconsidered taking you back,

because you’re an excellent worker,” and that he could continue

working for Pichis if he got a statement from his doctor confirming

that his medical condition did not prevent him from performing his

job duties. Ramos-Echevarría got a medical certificate from his

doctor stating that his condition “does not prevent his working; he

should not drive a car, climb up to high places without protection,

[use] instruments that may be harmful to his health” and provided

it to Pichis. Pichis re-hired Ramos-Echevarría, and he has

continued to work there as a part-time kitchen assistant ever since

producing the medical certificate. Throughout his employment,

2
Ramos-Echevarría later testified that the accommodation
he sought was to be moved to a housekeeping or maintenance
position, although it is unclear whether he communicated that to
Emmanuelli.

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Ramos-Echevarría has continued to suffer from seizures. Pichis has

never denied him medical assistance.

Ramos-Echevarría claims that he verbally requested full-

time employment from Pichis but did not get it. He also asserts

that Luisito told him that he would never be authorized to work

full-time because of his epilepsy. He further contends that while

he has been working for Pichis, other people - who were hired after

him - were given additional hours or increased to full-time

positions. Pichis counters that it did not increase Ramos-

Echevarría’s hours because business was slow.

How We Got to This Point

Ramos-Echevarría filed a complaint with the Equal

Employment Opportunity Commission (EEOC), alleging that Pichis

discriminated against him because of his medical condition. On

August 23, 2006, the EEOC issued Ramos-Echevarría a Notice of Right

to Sue under 29 C.F.R. § 1601.28.

In 2006, Ramos-Echevarría sued Pichis3 in the District of

Puerto Rico, alleging violations of Puerto Rico law and federal law

3
Ramos-Echevarría also sued “John Doe” and “Richard Roe,”
whom he identified as “those persons who are in any way responsible
for the events that gave rise to this claim,” and “insurance
companies of all the defendants.” Ramos-Echevarría did not serve
the complaint on any other defendant or move to substitute actual
defendants for the fictional parties, so the case proceeded with
Pichis as the sole defendant.

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including the ADA,4 Title VII,5 and 42 U.S.C. § 1983.6 Ramos-

Echevarría’s primary contention was that during his tenure, he was

not promoted or offered a full-time position, while other employees

hired after him were promoted to full-time. He also complained of

several more minor actions that he argues were discriminatory -

that he never received a performance evaluation; that he worked

through meal breaks for which he was not paid; that he was excluded

from an employee meeting; that he once received a written warning

for beginning his shift half-an-hour early; and that Pichis created

a hostile work environment.

Pichis moved for summary judgment. A magistrate judge

issued a report and recommendation proposing that the district

court (1) grant summary judgment in favor of Pichis on Ramos-

Echevarría’s claims under the ADA; (2) dismiss Ramos-Echevarría’s

Title VII and section 1983 claims for failure to state claims

because those statutes do not encompass claims based on

4
The ADA prohibits employers from discriminating against
qualified individuals on the basis of disability in regard to the
terms, conditions and privileges of employment. 42 U.S.C. § 12112
(a) (1990).
5
Title VII prohibits employers from discriminating against
individuals “because of such individual’s race, color, religion,
sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a).
6
Section 1983 provides a cause of action against those
who, acting under color of state law, violate federal law. 42
U.S.C. § 1983; see also Rodríguez-Cirilo v. García, 115 F.3d 50, 52
(1st Cir. 1997).

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disability;7 and (3) dismiss without prejudice his claims arising

under Puerto Rico law. Over Ramos-Echevarría’s objections, the

district court adopted the report and recommendation in toto. This

appeal followed.

ANALYSIS

Disability Claim

We review the district court’s order granting summary

judgment de novo. Penn-Am. Ins. Co., 617 F.3d at 84. We affirm if

the record, viewed in the light most favorable to the nonmoving

party, shows no genuine issue of material fact and that the moving

party is entitled to judgment as a matter of law. Id. A party

alleging discrimination may not rest on allegations made in the

pleadings, but instead must point to specific evidence supporting

his claim. See Soto-Ocasio v. Fed. Express Corp., 150 F.3d 14, 18

(1st Cir. 1998).

The ADA was enacted for “the elimination or reduction of

physical and social structures that impede people with some

present, past, or perceived impairments from contributing,

according to their talents, to our Nation’s social, economic and

civil life . . . .” Tennessee v. Lane, 541 U.S. 509, 536 (2004)

(Ginsburg, J., concurring). It prohibits an employer from

discriminating against a qualified person with a disability in

regard to “job application procedures, the hiring, advancement, or

7
Ramos-Echevarría does not pursue these claims on appeal.

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discharge of employees, employee compensation, job training, and

other terms, conditions, and privileges of employment” because of

his or her disability or perceived disability. 42 U.S.C.

§ 12112(a) (1990).

To prevail on a disability discrimination claim, a

plaintiff must show by a preponderance of the evidence that he (1)

has a disability within the meaning of the ADA; (2) is qualified to

perform the essential functions of the job, with or without

reasonable accommodations; and (3) was subject to an adverse

employment action based in whole or part on his disability. See

Soto-Ocasio, 150 F.3d at 18; Jacques v. Clean-Up Group, Inc., 96

F.3d 506, 511 (1st Cir. 1996). He may prove his case by presenting

direct evidence of discrimination or he may prove it indirectly “by

using the prima facie case and burden shifting methods that

originated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . .

(1973).” Jacques, 96 F.3d at 511 (quoting Katz v. City Metal Co.,

87 F.3d 26, 30 n.2 (1st Cir. 1996)) (internal quotation marks

omitted). The McDonnell Douglas analysis requires the plaintiff to

offer evidence sufficient to establish that he “(i) has a

disability within the meaning of the [ADA]; (ii) is qualified to

perform the essential functions of the job, with or without

reasonable accommodations; (iii) was subject to an adverse

employment action by a company subject to the [ADA]; (iv) was

replaced by a non-disabled person or was treated less favorably

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than non-disabled employees; and (v) suffered damages as a result.”

Id. If he establishes a prima facie case, the burden shifts to the

employer to articulate a legitimate, non-discriminatory reason for

its action. Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91,

99 (1st Cir. 2007); see also McDonnell Douglas Corp., 411 U.S. at

802. If the employer offers a non-discriminatory reason, the

burden then shifts back to the plaintiff to show that the

employer’s justification is mere pretext cloaking discriminatory

animus. Freadman, 484 F.3d at 99. Our review of the record

indicates that Ramos-Echevarría’s case stumbles at the very first

step – making out a prima facie case showing that he has a

disability as that term is used in the ADA.

Under the ADA, a disability is a physical or mental

impairment that substantially limits one or more of an individual’s

major life activities. 42 U.S.C. § 12102(2)(A) (1990). Disability

may also be established by having a record of such an impairment or

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

§§ 12102(2)(B), (C) (1990); see also Santiago Clemente v. Exec.

Airlines, Inc., 213 F.3d 25, 30 (1st Cir. 2000). Ramos-Echevarría

contends that he actually has an impairment and that he also has a

record of such an impairment. He does not argue that Pichis

regarded him as having such an impairment.

We apply a three-part analysis to determine whether an

impairment qualifies as a disability under the ADA. See Bragdon v.

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Abbott, 524 U.S. 624, 631 (1998); Carroll v. Xerox Corp., 294 F.3d

231, 238 (1st Cir. 2002). First, the plaintiff must establish that

he suffers from a physical or mental impairment.8 Carroll, 294

F.3d at 238. Second, he must demonstrate that it affects life

activities that are “major,” i.e., “of central importance to daily

life.” Id. Major life activities are basic activities of daily

life that an average person in the general population can perform

with little or no difficulty – “functions such as caring for

oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i)

(1991). Finally, he must show that the impairment “substantially

limits” the identified major life activity. Carroll, 294 F.3d at

238 (citing Lebrón-Torres v. Whitehall Labs., 251 F.3d 236, 239-40

(1st Cir. 2001)).

In assessing whether someone is disabled under the ADA,

we must consider the impairment’s effect on the particular

individual. Katz, 87 F.3d at 32. The limitation caused by the

impairment must be permanent or long-term. Toyota Motor Mfg., Ky.,

Inc. v. Williams, 534 U.S. 184, 198 (2002); see also 29 C.F.R.

8
The EEOC defines an impairment as “[a]ny physiological
disorder or condition, cosmetic disfigurement, or anatomical loss
affecting one or more of the following body systems: neurological,
musculoskeletal, special sense organs, respiratory (including
speech organs), cardiovascular, reproductive, digestive, genito-
urinary, hemic and lymphatic, skin, and endocrine; or any mental or
physiological disorder, such as mental retardation, organic brain
syndrome, emotional or mental illness, and specific learning
disabilities.” 29 C.F.R. § 1630.2(h) (1991).

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§§ 1630.2(j)(2)(ii), (iii) (1991). Evidence of a medical diagnosis

of impairment, standing alone, is insufficient to prove a

disability. See Toyota Motor Mfg., Ky., Inc., 534 U.S. at 198.

What is required is evidence showing that the impairment limits

this particular plaintiff to a substantial extent. See Carroll,

294 F.3d at 238 (quoting Toyota Motor Mfg., Ky., Inc., 534 U.S. at

691-92) (internal quotation marks omitted).

Step 1: Whether There is an Impairment

The parties concede that Ramos-Echevarría suffers from an

impairment - epilepsy - so we proceed to examine the second and

third factors in the disability analysis.

Step 2: Whether The Impairment Affects a Major Life Activity

Establishing disability under the ADA is an

individualized inquiry. See Carroll, 294 F.3d at 238. To prevail,

a plaintiff must show that his impairment affects a major life

activity. Id. Courts have required the plaintiff to specify the

major life activity in which he claims to be substantially limited.

See, e.g., Berry v. T-Mobile USA, Inc., 490 F.3d 1211, 1216 (10th

Cir. 2007); Sinkler v. Midwest Prop. Mgmt. Ltd. P’ship, 209 F.3d

678, 683 (7th Cir. 2000).

Ramos-Echevarría argues that his impairment – epilepsy –

affects a major life activity – his ability to work. He contends

that he cannot perform this major life activity or that he is

substantially limited in performing it, as compared to the average

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person in the general population. Working can be considered a

major life activity. 29 C.F.R. § 1630.2(i) (1991). Yet, other

than showing that he has to stop working temporarily when he has an

episode, Ramos-Echevarría has introduced no evidence showing any

particular way in which his illness affects his ability to work.

Although his medical certificate indicates that he cannot perform

certain activities (driving, climbing without protection, and using

certain instruments), he is not required to engage in any of those

tasks in the course of his work as a kitchen assistant.

Ramos-Echevarría also failed to introduce evidence that

his impairment affects a major life activity outside of the

workplace. He testified that he engages in a typical daily

routine. For example, he discussed playing at the park with

children, completing regular household chores, and even remodeling

his house (with the exception that he was unable to climb up to put

a parapet on the house). Similarly, Ramos-Echevarría’s medical

certificate does not show that his epilepsy affects any major life

activities. Other jurisdictions have held that on their own,

driving a car and climbing heights are not major life activities.

See, e.g., Kellogg v. Energy Safety Servs. Inc., 544 F.3d 1121,

1126 (10th Cir. 2008) (driving is not a major life activity under

the ADA); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 758

n.2 (5th Cir. 1996) (“Climbing is not such a basic, necessary

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function . . . [as] to qualify as a major life activity under the

ADA.”).

With this in mind, we proceed to the third step in the

disability analysis - whether Ramos-Echevarría’s epilepsy

substantially limits his ability to work.

Step 3: Whether the Impairment “Substantially Limits”
the Identified Major Life Activity

To satisfy the third element in a disability analysis

under the ADA, a plaintiff must “prove a disability by offering

evidence that the extent of the limitation in terms of [his] own

experience . . . is substantial.” Albertson’s, Inc. v.

Kirkingburg, 527 U.S. 555, 567 (1999).

The EEOC defines “substantially limits” as “[u]nable to

perform a major life activity that the average person in the

general population can perform”; or “[s]ignificantly 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.”9 29

C.F.R. § 1630.2(j)(1)(ii) (1991). As applied to working, the EEOC

9
Although Congress amended the ADA in 2008 to include a
more liberal standard for “disability,” ADA Amendments Act of 2008,
Pub. L. No. 110-325, § 3, 122 Stat. 3553-55 (2008), those
amendments became effective on January 1, 2009 and do not apply
retroactively. Thornton v. United Parcel Serv., 587 F.3d 27, 34
n.3 (1st Cir. 2009). The events in this case occurred before
January 1, 2009, so we apply the more restrictive standard in
effect at that time.

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defines “substantially limits” as “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. The inability to

perform a single, particular job does not constitute a substantial

limitation . . . .” 29 C.F.R. § 1630.2(j)(3)(i) (1991); Toyota

Motor Mfg., Ky., Inc., 534 U.S. at 200 (citing Sutton v. United

Airlines, Inc., 527 U.S. 471, 492 (1999)).

In evaluating a plaintiff’s claim, we must consider

available corrective or mitigative measures. “To be sure, a person

whose physical or mental impairment is corrected by mitigating

measures still has an impairment, but if the impairment is

corrected it does not ‘substantially limit’ a major life activity.”

Sutton, 527 U.S. at 482. Accordingly, we must assess whether

Ramos-Echevarría is substantially limited under the ADA while he is

taking medication to control his epilepsy.

Ramos-Echevarría himself provides perhaps the key

evidence showing that his epilepsy does not substantially limit his

ability to work. Although he testified in his deposition that a

couple of times each year he experiences such severe seizures that

he has to leave work, when asked, he testified that his medical

condition does not significantly affect his work: “No, it doesn’t

limit me, but rather . . . I stop for a moment and go back to the

activity I was . . . engaged in, again.” He further testified that

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he has never applied for Social Security benefits “[b]ecause I feel

capable to work. If the time ever comes when I feel disabled, and

truly am unable to work, then I’ll apply.”

In addition to Ramos-Echevarría’s testimony, other

evidence shows that he is not substantially limited in his ability

to work. The medical certificate that Ramos-Echevarría gave to

Pichis states that his epilepsy does not impede him from working.

Even though it also says that he should not use certain

instruments, Ramos-Echevarría admits that he routinely works with

knives and ovens in the workplace and has not experienced any

problems. Moreover, Emmanuelli and Luisito told Ramos-Echevarría

that he was an “excellent worker.” Furthermore, since 2002, he has

held a second job at another restaurant, Palacio Chino.

Ramos-Echevarría, nevertheless, attempts to show that his

epilepsy substantially limits him from working in a substantial

class or broad range of jobs. He cites statistics showing that a

diagnosis of epilepsy is relatively rare and that the Center for

Disease Control and Prevention of the United States Department of

Health and Human Services characterizes epilepsy as a “chronic

disease.” He notes that he requires medication, that he sometimes

requires medical treatment and hospitalization for his seizures,

and that he cannot drive, climb ladders, or handle certain tools.

From this, he contends that he is substantially limited in

performing a broad class of jobs compared to the average person in

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the general population. See Carroll, 294 F.3d at 239 (considering

whether plaintiff can show he is significantly restricted in his

ability to perform “a class of jobs” or a “broad range of jobs in

various classes”) (internal quotation marks omitted).

Although Ramos-Echevarría’s epilepsy clearly affects his

life, the evidence in the record falls short of showing that it

substantially limits him from working in any broad class of jobs or

any broad range of jobs in various classes. See id. at 240. The

record contains no expert vocational testimony or labor market

statistics supporting Ramos-Echevarría’s contention that his

epilepsy substantially limits him from performing jobs other than

his own. See id. “[A] conclusory allegation without evidentiary

support” is insufficient to carry Ramos-Echevarría’s burden of

establishing a prima facie case. See id.

The evidence in the record, including Ramos-Echevarría’s

own statements, plainly reveals that he is not substantially

limited - as that term is defined in the ADA - in his ability to

work or in other major daily life activities.

Record of Impairment

Relying upon an alternative point of entry in the ADA,

Ramos-Echevarría claims that he has a record of a substantially

limiting impairment. 42 U.S.C. § 12102(2)(B) (1990). The EEOC

defines an individual with a record of such an impairment as

someone who has “a history of, or has been misclassified as having,

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a mental or physical impairment that substantially limits one or

more major life activities.” 29 C.F.R. § 1630.2(k) (1991). The

“record” provision in the ADA protects “those who have recovered or

are recovering from substantially limiting impairments from

discrimination based on their medical history.” Román-Oliveras v.

P.R. Elec. Power Auth., No. 09-1503, 2011 WL 3621548, at *4 (1st

Cir. Aug. 18, 2011) (citing Bailey v. Georgia-Pac. Corp., 306 F.3d

1162, 1169 (1st Cir. 2002)).

Ramos-Echevarría points to his medical records showing

that he has received medical treatment for his seizures in support

of his argument that he has a “record of impairment.” However,

these records (many pages of which are illegible or written only in

Spanish, and all of which appear to be irrelevant, given that

Ramos-Echevarría’s diagnosis and medications are not disputed) do

not suggest that his epilepsy has ever substantially limited him in

working or in performing any other major life activities. Thus,

although Ramos-Echevarría has a record of having epilepsy, he does

not have a record of an impairment that substantially limits his

ability to perform a major life activity. Therefore, he is not

entitled to relief under the “record of impairment” prong of the

ADA. See Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1132

(10th Cir. 2003) (employee who had been completely unable to work

for a short time did not qualify for relief based on a “record of

impairment”); Rakity v. Dillon Cos., 302 F.3d 1152, 1159 (10th Cir.

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2002) (supermarket employee with substantial limitations in his

ability to perform manual tasks including lifting and reaching did

not qualify for relief based on a “record of impairment”).

Because Ramos-Echevarría failed to establish that he

falls within the ADA’s provisions, we need not address whether

Pichis discriminated against him because of an impairment or record

of impairment. Similarly, we do not need to consider Pichis’

alternative argument that Ramos-Echevarría’s claims are time-

barred.

Supplemental Jurisdiction

In addition to his federal claims, Ramos-Echevarría

asserts state-law claims against Pichis. After concluding that

there was no triable federal cause of action, the district court

chose not to exercise supplemental jurisdiction and dismissed

without prejudice the claims based on Puerto Rico law.

We review a district court’s unwillingness to exercise

supplemental jurisdiction for abuse of discretion. Newman v.

Burgin, 930 F.2d 955, 963 (1st Cir. 1991). The district court has

considerable authority whether to exercise this power, considering

factors such as judicial economy, convenience, fairness to

litigants, and comity. Id.

When a plaintiff’s anchor claim is a federal cause of

action and the court unfavorably disposes of the plaintiff’s

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federal claim at the early stages of a suit, well before trial, the

court generally dismisses any supplemental state-law claims without

prejudice. Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1177

(1st Cir. 1995); see also Martinez v. Colon, 54 F.3d 980, 990 (1st

Cir. 1995) (affirming dismissal without prejudice of pendent claims

when the district court determined “far in advance of trial that no

legitimate federal question existed”). We affirm the basis of the

district court order granting summary judgment on Ramos-

Echevarría’s federal claim and conclude that the district court did

not abuse its discretion in dismissing Ramos-Echevarría’s state-law

claims without prejudice.

CONCLUSION

Based on a record that reveals no material factual

dispute as to whether Ramos-Echevarría is disabled within the

meaning of the ADA, the district court properly granted summary

judgment in favor of Pichis on his ADA claim. After disposing of

this claim, the district court acted within its discretion in

dismissing without prejudice his state-law claims. Accordingly, we

affirm the district court judgment.

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