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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