Forestier Fradera v. Municipality of Mayagüez

United States Court of Appeals
For the First Circuit

No. 05-2238

ISRAEL FORESTIER FRADERA,

Plaintiff, Appellant,

v.

MUNICIPALITY OF MAYAGÜEZ; JOSÉ GUILLERMO RODRÍGUEZ,
in his official capacity as Mayor of Mayagüez;
ROBERTO PÉREZ COLÓN, in his official capacity as
President of the Municipal Assembly of Mayagüez;
JANE DOE; JOHN DOE,

Defendants, Appellees,

JOSÉ GUILLERMO RODRÍGUEZ, in his personal capacity;
ROBERTO PÉREZ COLÓN, in his personal capacity,

Defendants.

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

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

Before

Selya, Lynch, and Howard, Circuit Judges.

Israel Roldán González for appellant.
Vanesa Vicéns Sánchez, with whom Juan Rafael González Muñoz
and González Muñoz & Vicéns Sánchez were on brief, for appellees.

March 1, 2006
 LYNCH, Circuit Judge. Israel Forestier Fradera, a

municipal assemblyman, filed this lawsuit against the Municipality

of Mayagüez and certain municipal officials. He sought

compensatory damages, among other relief, for emotional pain and

suffering allegedly caused by the defendants' discrimination

against him because of his physical disability. The district court

dismissed the claims on summary judgment.

On appeal, Forestier attempts to raise an issue regarding

the availability of damages for emotional distress under Title II

of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-

12134 -- a question that this court has twice considered but not

fully resolved. See Nieves-Márquez v. Puerto Rico, 353 F.3d 108,

127 (1st Cir. 2003); Schultz v. Young Men's Christian Ass'n, 139

F.3d 286, 290-91 (1st Cir. 1999). We do not reach the damages

issue here, because we hold that there is no evidence from which a

reasonable factfinder could infer that Forestier suffered

discrimination on account of his disability.

I.

As a result of a car accident in 1970, Forestier suffers

from a gait-related impairment. He wears an orthopedic device and

requires the assistance of a cane when walking both short and long

distances. In the 1996 general elections in Puerto Rico, he was

elected as an assemblyman to the Municipal Assembly of Mayagüez

("Assembly"). He won reelection in 2000, and, as a member of the

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New Progressive Party (NPP), was one of only three Assembly members

who were not part of the Popular Democratic Party (PDP).

Meetings of the Assembly and its committees are held in

the Assembly Room, which is on the second floor of City Hall and,

until March 2003, accessible only via a stairway. Forestier has

attended those meetings in the second-floor Assembly Room on a

regular basis -- over four hundred times in all -- since the

beginning of his tenure. Climbing the stairs to reach the Assembly

Room caused him physical pain.

On March 17, 1997, Forestier requested from the Assembly

President, Roberto Pérez Colón, permission to move to a seat at the

rear of the Assembly Room, where he would have space to lean back,

stand up, or move about when sitting became too uncomfortable.

That request for a reasonable accommodation was readily granted.

At some point later in 1997, Forestier requested a second

accommodation from Pérez, in the form of the installation of an

elevator at City Hall.1 No progress was made. In a petition to

the Office of the Solicitor for Persons with Disabilities (OPPI) on

March 17, 1998, Forestier alleged that the Municipality took no

action on this request.

1
It is unclear from the record specifically when Forestier
made this request. His complaint alleges that he asked for the
elevator on March 17, 1997, but his deposition testimony indicates
that he made the request later, after he had asked for, and was
granted, permission to move to a seat at the rear of the Assembly
Room.

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 At an administrative hearing before the OPPI on November

14, 2000, the Municipality announced its intention to build an

elevator as part of a large-scale project to remodel City Hall and

agreed to present a report within thirty days on the status of the

project. The Municipality also agreed to start that very week on

accommodating a third request by Forestier: the installation of

handrails that would allow him to support himself as he walked up

the stairs to the second-floor Assembly Room.

When, as of January 11, 2001, the handrails had not been

installed, the OPPI submitted a motion to the examiner who had

presided over the November hearing, requesting that he order the

Municipality to comply with its earlier agreement to take immediate

steps to install the handrails. The examiner issued an

interlocutory order on January 18, 2001, requiring the Municipality

to report within ten days the status of both the handrail

installation and the remodeling project. Responding on January 30,

the Municipality stated that "all steps were taken to install the

handrails," and that, "after receiving various quotations," the

Municipality had contracted with a company. It explained "[t]hat

for reasons beyond our control and the ordinary procedure of these

projects, the handrails have not been able to be installed [yet]";

however, it assured the OPPI that the contractor had "informed us

that he expects to have [the handrails] installed by next week,"

and asked for a minimum of twenty days to come into full

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compliance. The handrails were finally installed in February 2001.

According to the defendants, sometime in 2001 or 2002,

the Municipality became concerned that the remodeling of City Hall

would take longer than expected. It installed a temporary elevator

for Forestier, which would be removed when the permanent elevator

is installed in the remodeled City Hall. The temporary elevator

was installed in March 2003.

In the interim, on February 27, 2002, Forestier filed

this suit, seeking injunctive relief and punitive and compensatory

damages pursuant to Title II of the ADA, see 42 U.S.C. § 12133, and

certain provisions of the Puerto Rico Civil Code, see P.R. Laws

Ann. tit. 1, §§ 501-511; id. tit. 31, § 5141. He named as

defendants the Municipality, as well as Pérez, the Assembly

President, and José Guillermo Rodríguez, the Mayor of Mayagüez, in

their official capacities.2 The defendants, his complaint alleged,

"act[ed] with malice and reckless indifference" to his rights by

failing to make the City Hall building -- and specifically the

Assembly Room -- accessible to him, thereby causing him to suffer

physical and emotional pain.

At the time Forestier filed his ADA complaint in court,

the temporary elevator had not yet been installed. At an initial

2
The complaint also named Pérez and Rodríguez in their
personal capacities. Those defendants moved on September 3, 2002
for dismissal of the claims against them in their personal
capacities. Forestier acquiesced to the motion, which the district
court granted on October 25, 2002.

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scheduling conference on December 18, 2002, the district court

instructed the defendants to notify the court before January 15,

2003 whether the installation was complete. After requesting a

continuance because "the installation of the elevator ha[d] not

been concluded due to the supplier's two week recess during the

holidays," the defendants informed the court on January 29, 2003

that the installation of the elevator was scheduled to begin on

February 1; Forestier confirmed that the elevator was installed as

of March 13.

This mooted Forestier's request for injunctive relief.

Consequently, at a January 8, 2004 pretrial conference, the

district court ordered the defendants to file a memorandum of law

addressing the only legal issue that, in the court's view, remained

unresolved in the case -- whether Forestier was entitled to

compensatory damages for his alleged emotional pain and suffering.3

In compliance with the order, on February 2, 2004, the

defendants submitted a memorandum, which was accompanied by two

exhibits, requesting that the court dismiss Forestier's complaint

on two grounds: first, that Forestier had failed to show that Title

II of the ADA provided for compensatory damages for emotional harm

in a case such as this one; and second, that Forestier had no

3
According to the defendants, Forestier conceded at the
pretrial conference that he was not entitled to punitive damages.
Forestier does not dispute this; on appeal, he claims only
entitlement to compensatory damages.

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viable Title II claim because he testified in his deposition that

political discrimination, not disability discrimination, motivated

defendants' alleged delay in installing the elevator. Forestier

filed a reply brief, which referred to defendants' exhibits, as

well as to five evidentiary proffers he made with his own filing.

The district court, treating the defendants' initial

filing as a motion to dismiss pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure, denied the motion on April 25,

2005, concluding that plaintiff's pleadings were sufficient to

survive a Rule 12(b)(6) challenge. The defendants filed a motion

for reconsideration.

On June 30, 2005, the court reconsidered its April 25

order. It agreed with defendants that "[o]nce extrinsic materials

were attached to their request [for dismissal], and referred to by

plaintiff[] in [his] opposition, the motion understood to be under

Rule 12(b)(6) was converted into one under Rule 56." Upon review

of the record in its entirety, the court granted defendants' motion

for reconsideration and for summary judgment and dismissed with

prejudice Forestier's federal claim. It also declined to exercise

supplemental jurisdiction over his claims under Puerto Rico law,

dismissing them without prejudice.

II.

Forestier makes two arguments on appeal. He first argues

that the district court abused its discretion in converting

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defendants' Rule 12(b)(6) motion into a summary judgment motion.

He then attacks, on the merits, the court's summary judgment

decision.

The first challenge is mentioned but not developed in his

brief. It thus amounts to waiver, and we do not address it.4 See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived.").

Turning to the merits of the summary judgment dispute, we

review a district court's grant of summary judgment de novo,

Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325,

329-30 (1st Cir. 2005), drawing all reasonable inferences in favor

of Forestier, the non-movant, Nadherny v. Roseland Prop. Co., 390

F.3d 44, 48 (1st Cir. 2004). "'Even in [disability] discrimination

cases where elusive concepts such as motive or intent are at

issue,' summary judgment is appropriate if the non-moving party

rests 'merely upon conclusory allegations, improbable inferences,

4
In any event, the rule is clear that "[i]f, on a [Rule
12(b)(6)] motion . . . , matters outside the pleading are presented
to and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in Rule 56,
and all parties shall be given reasonable opportunity to present
all material made pertinent to such a motion by Rule 56." Fed. R.
Civ. P. 12(b). Forestier invited the conversion by submitting
evidentiary proffers with his reply to defendants' memorandum. He
cannot now claim to have been caught unawares by the conversion.
See Vargas-Ruiz v. Golden Arch Dev., Inc., 368 F.3d 1, 3 n.2 (1st
Cir. 2004). He also had the opportunity to and did, in fact,
submit an opposition to the defendants' motion for
reconsideration/summary judgment.

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and unsupported speculation.'" Benoit v. Technical Mfg. Corp., 331

F.3d 166, 173 (1st Cir. 2003) (quoting Feliciano de la Cruz v. El

Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000)).

"Thus, to defeat a properly supported motion for summary judgment,

the nonmoving party must establish a trial-worthy issue by

presenting 'enough competent evidence to enable a finding favorable

to the nonmoving party.'" LeBlanc v. Great Am. Ins. Co., 6 F.3d

836, 842 (1st Cir. 1993) (quoting Goldman v. First Nat'l Bank of

Boston, 985 F.2d 1113, 1116 (1st Cir. 1993)).

Title II of the ADA provides that "no qualified

individual with a disability shall, by reason of such disability,

be excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity." 42 U.S.C.

§ 12132. The statute requires that public entities "take

reasonable measures to remove architectural and other barriers to

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accessibility."5 Tennessee v. Lane, 541 U.S. 509, 531-32 (2004)

(citing 42 U.S.C. § 12131(2)).

To survive summary judgment, a plaintiff claiming a

violation of Title II must produce evidence, sufficient to raise a

genuine issue of material fact, from which a reasonable factfinder

could conclude:

(1) that he is a qualified individual with a
disability; (2) that he was either excluded
from participation in or denied the benefits
of some public entity's services, programs, or
activities or was otherwise discriminated
against; and (3) that such exclusion, denial
of benefits, or discrimination was by reason
of the plaintiff's disability.

5
The Supreme Court recently noted that the "reasonable
accommodation requirement can be satisfied in a number of ways":

In the case of facilities built or altered
after 1992, the regulations require compliance
with specific architectural accessibility
standards. But in the case of older
facilities, for which structural change is
likely to be more difficult, a public entity
may comply with Title II by adopting a variety
of less costly measures, including relocating
services to alternative, accessible sites and
assigning aides to assist persons with
disabilities in accessing services. Only if
these measures are ineffective in achieving
accessibility is the public entity required to
make reasonable structural changes. And in no
event is the entity required to undertake
measures that would impose an undue financial
or administrative burden, threaten historic
preservation interests, or effect a
fundamental alteration in the nature of the
service.

Tennessee v. Lane, 541 U.S. 509, 532 (2004) (citations omitted)
(citing 28 C.F.R. § 35.150(a)(2), (a)(3), (b)(1); id. § 35.151).

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Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir. 2000)

(emphasis added).

Here, the district court granted summary judgment in

part6 because it found that on this record, Forestier could not

"prevail under the requirements set forth for [a Title II] claim."

The court determined that "even if [it] were to assume that

[Forestier] had a claim for compensatory damages," he had failed to

adduce evidence sufficient to allow a reasonable factfinder to

infer that he "was either excluded from participation in or denied

the benefits of some public entity's services, programs, or

activities[,] or was otherwise discriminated against." We affirm,

albeit on a slightly different ground. See Colburn, 429 F.3d at

330.

There is no dispute here that Forestier is a "qualified

individual with a disability" within the meaning of the ADA, 42

6
The court also held that Forestier had no claim for
emotional distress damages. It noted that although this circuit
has not definitively resolved the question whether compensatory
damages for emotional harm are available under Title II of the ADA,
we have held that, at a minimum, "such damages [are] not available
when there [is] no evidence of economic harm or animus toward the
disabled." Nieves-Márquez, 353 F.3d at 126-27 (citing Schultz, 139
F.3d at 290-91). Forestier, the court found, neither alleged
economic harm nor proffered evidence sufficient to show that
defendants discriminated against him on account of his disability.
On appeal, Forestier does not dispute that he failed to allege
economic harm, but he does argue that he is entitled to
compensatory damages for emotional pain and suffering because
defendants' delay in handling his requests for reasonable
accommodations was motivated by disability-based animus and
constituted intentional discrimination. Again, we do not reach
this issue of damages.

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U.S.C. § 12131(2). However, he has failed to make a sufficient

showing as to the third element of a Title II claim -- the

requirement that the defendants discriminated against him "by

reason of [his] disability." Id.

Forestier argues that the "time table of the facts of

this case establishes. . . intentional discrimination by Appellees

toward Appellant's disability." He emphasizes that despite the

Municipality's agreement at the November 2000 administrative

hearing to install the bannister and elevator, the handrail was not

installed until February 2001 and the temporary elevator was not

installed until March 2003, almost six years after he first

requested the accommodation from Pérez. Moreover, he argues that

the Municipality only took action when prompted by administrative

intervention or the threat of a federal lawsuit. From this,

Forestier suggests, a reasonable factfinder could infer that the

defendants acted with malice or reckless indifference amounting to

discrimination toward him on account of his disability.

The defendants admit that there was some delay in the

installation of the temporary elevator. They attribute that delay,

however, to "bureaucratic inertia," the inevitable complications

arising from a major, publicly funded construction project on a

historic building. They point out that when it became clear that

the installation of the permanent elevator was delayed along with

the renovation of City Hall, they offered to, and did, install a

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temporary elevator. That effort, too, was hampered by red tape.

They argue that no discriminatory action was ever taken against the

plaintiff.

Although a chronology of events may be helpful to show an

inference of discrimination, no such inference would be reasonable

on the record here. The record simply lacks any reasonable basis

for an inference that the delay in accomplishing the accommodation

-- that is, the installation of the elevator -- was because of

Forestier's disability. Not even Forestier's complaint alleges,

except in the most conclusory fashion, a connection between the

Municipality's delay in installing the elevator and any disability-

based animus on defendants' part.

There is a second reason Forestier's claim fails. He did

not merely fail to offer specific evidence of disability-based

discrimination. The record shows that he actually explicitly

disavowed the allegation. In his deposition testimony, Forestier

attributed defendants' delay in installing the elevator solely to

political discrimination on account of his membership in the

minority party, the NPP.7 When asked his opinion as to why

defendants' actions were discriminatory, Forestier replied:

A: Why was it discriminatory? Because it
so happens that the only Legislator that
arrived at this municipality to oversee the

7
Pérez is a member of the PDP, as presumably is Rodríguez,
although the latter's political affiliation is not documented in
the record.

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 Municipality of Mayagüez and the Mayor, was
yours truly.

Q: That is, that you understood that since
the beginning . . . when [the installation of
the elevator and handrail] started to be
delayed it was because you are an NPP?

A: Eh, of course!

Q: And you knew this at the time this
complaint was filed?

A: Well, of course.

He made no mention of animus toward him on account of his

disability.

The inherently weak and improbable inference of

disability-based animus is further weakened when put into context

against the rest of the record. The record shows that every

accommodation plaintiff asked for was granted: the defendants

timely relocated him to the rear of the Assembly Hall so that he

would be more comfortable; provided him, within a few months of

being asked to do so at the hearing, with the handrail on the

stairs to assist him while the elevator was in the process of being

installed; and installed a temporary elevator -- solely to

accommodate Forestier -- when it became clear that the installation

of the permanent elevator as part of the remodeling of City Hall

would take longer than expected. The district court accurately

noted that the "Municipality has shown a true good faith effort to

comply with the law by acceding to plaintiff's [every] request."

Plaintiff's "mere conclusory suspicion" to the contrary "is no

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substitute for specific evidence that discrimination [on account of

a prohibited category] was involved." Quinones v. Houser Buick,

No. 05-2246, 2006 WL 247893, at *5 (1st Cir. February 2, 2006).

We agree with the district court that summary judgment

was appropriate.

III.

We affirm. The parties shall bear their own costs.

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