Petition for Writ of Certiorari — Pedro Bustillo-Formoso, Petitioner v. Million Air San Juan Corporation, et al.

Supreme Court briefDec 5, 2017

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CONTENTS OF APPENDIX

Appendix A: Opinion of the United States Court of

Appeals for the First Circuit (August 9, 2017),

Bustillo-Formoso v. Million Air San Juan

Corporation, 2017 WL 3411809 (1st Cir., 2017) . . . 24

Appendix B: Opinion of the United States District

Court for the District of Puerto Rico (July 26, 2016),

Bustillo-Formoso v. Million Air San Juan

Corporation , __ F.Supp3d __, 2016 WL 4014583, (D.

Puerto Rico, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Appendix C: Order of the United States Court of

Appeals for the First Circuit denying Rehearing en

banc (September 12, 2017) . . . . . . . . . . . . . . . . . . . 51

Appendix D: Constitutional Provision and Statute

Involved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Appendix E: Amended Petition for Rehearing en

banc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

Appendix F:

FAA’s Dr. John V. Barson, DO

Applicant Notes (sealed – not in electronic copy) . . 70

Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 16-2076

PEDRO BUSTILLO-FORMOSO,

Plaintiff, Appellant,

MILLION AIR SAN JUAN CORPORATION;

THOMAS HILL, individually and as President of

Million Air San Juan Corporation,

Defendants, Appellees, JANE DOE; JOE DOE,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Bruce J. McGivern, U.S. Magistrate Judge]

Before Torruella, Selya, and Kayatta, Circuit Judges.

Javier A. Morales Ramos on brief for appellant.

Luis M. Rodríguez-López and Guzmán & RodríguezLópez Law Office on brief for appellees.

August 9, 2017

KAYATTA, Circuit Judge. Plaintiff Pedro

Bustillo-Formoso ("Bustillo") worked as an airplane

pilot for defendant Million Air San Juan Corporation

("Million Air"). In 2012, Bustillo filed charges against

Million Air with the United States Equal

Employment Opportunity Commission and the

Antidiscrimination Unit of the Puerto Rico

Department of Labor, claiming that Million Air was

discriminating against him because of his age. In at

least one of those filings, Bustillo sought

"[c]ompensation for damages, sufferings, and mental

anguishes for [him] and [his] family."

Upon being notified of Bustillo's charges,

Million Air told Bustillo that, because of his

allegation of "damages, sufferings, and mental

anguishes," the company was grounding him until he

could obtain medical certification showing that he

was still "fit to fly." Bustillo continued to receive his

salary while he was grounded. When Bustillo went to

meet with the doctor to whom Million Air had

referred him, Bustillo refused to be examined

because the doctor did not agree to place certain

limitations on the examination. Among the requested

limitations was a demand that the doctor not disclose

his opinion of Bustillo's psychological condition to

Million Air. Soon thereafter, Million Air fired

Bustillo.

Bustillo later filed suit in the United States

District Court for the District of Puerto Rico, alleging

claims under the

Age Discrimination in Employment Act ("ADEA"), 29

U.S.C. §§ 621–634, the Americans with Disabilities

Act ("ADA"), 42 U.S.C. §§ 12101–12213, Puerto Rico

Law 44, P.R. Laws Ann. tit. 1, §§ 501–511b, Puerto

Rico Law 100, id. tit. 29, §§ 146–151a, and Puerto

Rico Law 115, id. tit. 29, §§ 194–194b. After full

discovery, the parties cross-moved for summary

judgment. The magistrate judge, sitting as the

district court without objection by the parties,

granted summary judgment to Million Air.

On appeal, Bustillo argues primarily that his

claim for "[c]ompensation for damages, sufferings,

and mental anguishes for [him] and [his] family" did

not justify Million Air's demand that he obtain

medical certification that he was fit to fly. Rather,

Bustillo contends, Million Air's demand was a form of

retaliation, a pretext for his later termination, and,

in any event, insufficiently limited in scope.

The problem for Bustillo is that he did not

adequately argue any of the foregoing to the

magistrate judge. On the question of retaliation, his

opposition to Million Air's summary judgment

motion merely stated the following:

1) Bustillo engaged in conduct protected

under the ADEA - filing the Age Discrimination

Charges;

2) Bustillo was thereafter subjected to an adverse

employment action - suspension, grounding; and,

3) That a causal connection existed between the

protected conduct and the adverse action.

Accordingly, the magistrate judge found that Bustillo

"failed to develop an argument for his ADEA

retaliation claim." With regard to pretext, Bustillo

provided only the unsupported assertion that

Million Air "offered a pretextual reason for an

adverse employment action." Yet, as the magistrate

judge correctly noted, such "conclusory arguments do

not hold water at this stage of the proceedings." And

finally, as the magistrate judge so found in assessing

Bustillo's claim regarding the scope of the medical

examination, Bustillo did not even "elaborate on the

respects in which the requested medical examination

was overbroad." Given Bustillo's failure below not

only to tender any developed argument to support his

assertions, but also to point to even a single piece

of relevant evidence in the record, we decline to

address his challenges to the medical referral on

appeal. See Rockwood v. SKF USA Inc., 687 F.3d 1, 9

(1st Cir. 2012) ("[A]rguments not raised in the

district court cannot be raised for the first time on

appeal." (quoting Sierra Club v. Wagner, 555 F.3d

21, 26 (1st Cir. 2009))); Rocafort v. IBM Corp., 334

F.3d 115, 121 (1st Cir. 2003) ("Passing reference to

legal phrases and case citation without developed

argument is not sufficient to defeat waiver.").

Bustillo's appellate brief also challenges the

magistrate judge's determination that Bustillo

otherwise failed to

support or develop his various claims for relief.

However, our own review of the record confirms that

Bustillo has not advanced his claims in a manner

that would have allowed the magistrate judge to

understand and evaluate whatever evidence it was

that Bustillo had in mind, much less to conclude that

a reasonable jury could find in his favor. See Chiang

v. Verizon New Eng. Inc., 595 F.3d 26, 34 (1st Cir.

2010) ("To defeat a summary judgment motion, a

party 'must do more than simply show that there is

some metaphysical doubt as to the material facts.'"

(quoting Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986))); Rocafort, 334 F.3d

at 121.

We therefore affirm the dismissal of Bustillo's

claims.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

Civ.No. 14-1420(BJM)

PEDRO BUSTILLO-FORMOSO,

Plaintiff,

MILLION AIR SAN JUAN CORP., et al.,

Defendants.

OPINION AND ORDER

Pedro Bustillo-Formoso (“Bustillo”) brought

this action against Million Air San Juan Corp.

(“Million Air”) and Thomas Hill (“Hill”), in his

individual capacity and as president of Million Air,

alleging a violation of the Americans with

Disabilities Act (“ADA”), 42 US.C. § 12101 et seq.;

the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621 et seq.; and three statelaw provisions.1 The parties filed cross-motions for

summary judgment, Docket Nos. 81, 82, 86, 87, and

opposed each other’s motions. Docket Nos. 106, 109.

The case is before me on consent of the parties.

Docket No. 11.

For the reasons set forth below, Million Air’s

motion is GRANTED, and Bustillo’s motion is

DENIED.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when the

movant shows “there is no genuine dispute as to any

Law 44, P.R. Laws Ann. tit. 1, § 501 et seq.; Law 100, P.R.

Laws Ann. tit. 29, § 146 et seq.; and Law 115, P.R. Laws Ann.

tit. 29, § 194 et seq.

material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is

“genuine” only if it “is one that could be resolved in

favor of either party.” Calero-Cerezo v. U.S. Dep’t of

Justice, 355 F.3d 6, 19 (1st Cir. 2004). A fact is

“material” only if it “might affect the outcome of the

suit under the governing law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). The moving

party bears the initial burden of “informing the

district court of the basis for its motion, and

identifying those portions” of the record materials

“which it believes demonstrate the absence” of a

genuine dispute of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986).

The court does not act as trier of fact when

reviewing the parties’ submissions and so cannot

“superimpose [its] own ideas of probability and

likelihood (no matter how reasonable those ideas

may be) upon” conflicting evidence. Greenburg v.

P.R. Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir.

1987). Rather, it must “view the entire record in the

light most hospitable to the party opposing summary

judgment, indulging all reasonable inferences in that

party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112,

115 (1st Cir. 1990). The court may not grant

summary judgment “if the evidence is such that a

reasonable jury could return a verdict for the

nonmoving party.” Anderson, 477 U.S. at 248. But

the nonmoving party “must do more than simply

show that there is some metaphysical doubt as to the

material facts,” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986), and may not

rest upon “conclusory allegations, improbable

inferences, and unsupported speculation.” MedinaMuñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8

(1st Cir. 1990).

BACKGROUND

Except where otherwise noted, the following

facts are drawn from the parties’ Local Rule 562

submissions.3

Million Air is a Puerto Rico corporation that

manages privately owned airplanes and employs

pilots to fly those airplanes. DSF ¶¶ 1–4. In May

2010, Million Air acquired Propilot, Inc. (“Propilot”),

a Puerto Rico corporation that provided piloting

services for privately owned airplanes and that has a

Federal Aviation Administration (“FAA”) certificate

allowing charter flights. DSF ¶¶ 11, 19. Million Air

took over Propilot’s operations and does business

with Propilot’s FAA certificate to provide charter

flights. DOSF ¶ 6. Hill is Million Air’s President, and

Local Rule 56 is designed to “relieve the district court of any

responsibility to ferret through the record to discern whether

any material fact is genuinely in dispute.” CMI Capital Market

Inv. v. Gonzalez-Toro, 520 F.3d 58, 62 (1st Cir. 2008). It

requires a party moving for summary judgment to accompany

its motion with a brief statement of facts, set forth in numbered

paragraphs and supported by citations to the record, that the

movant contends are uncontested and material. D.P.R. Civ. R.

56(b), (e). The opposing party must admit, deny, or qualify those

facts, with record support, paragraph by paragraph. Id. 56(c),

(e). The opposing party may also present, in a separate section,

additional facts, set forth in separate numbered paragraphs. Id.

56(c). While the “district court may forgive a party’s violation of

a local rule,” litigants ignore the Local Rule “at their peril.”

Mariani-Colón v. Dep’t of Homeland Sec. ex rel. Chertoff , 511

F.3d 216, 219 (1st Cir. 2007).

Defendants’ Statement of Facts (“DSF”), Docket No. 84;

Plaintiff’s Statement of Facts (“PSF”), Docket No. 87;

Defendants’ Opposing Statement of Facts (“DOSF”), Docket No.

105; and Plaintiff’s Opposing Statement of Facts (“POSF”),

Docket No. 110.

Jessiemar Campos (“Campos”) is the company’s

secretary. DOSF ¶¶ 4–5. Bustillo began his

employment with Propilot in 2001 and became a fulltime employee in 2002. DOSF ¶¶ 7–8. Bustillo was

born in 1957, and was at least 40 years old while

employed by Propilot and Million Air. DOSF ¶ 7.

Since December 2009, Bustillo was assigned to

fly a Gulfstream 200 (“G-200”) owned by Nelson

Menda (“Menda”). DOSF ¶ 13. Two pilots were

assigned to fly this airplane: one served as the pilotin-command4 (“PIC”) and the other as the second-incommand (“SIC”). DOSF ¶ 13. Bustillo was paid

$68,000 per year to be the G-200’s SIC. DOSF ¶¶ 13,

14. Joseph Cruz (“Cruz”), a pilot younger than

Bustillo, was assigned to be the airplane’s PIC.

DOSF ¶ 13. Cruz and Bustillo maintained their

respective positions on the G-200 when Million Air

took over Propilot’s operations. DSF ¶ 34; POSF ¶

34. In March 2010, Bustillo obtained the PIC rating

for the G-200 (a rating that was valid for one year),

and thereafter flew as the G-200’s PIC on certain

occasions. DOSF ¶¶ 15–17. Million Air did not assign

him to that position and did not pay him an

increased salary for flying as the G-200’s PIC on

those occasions. DOSF ¶ 18.

In March 2011, Million Air did not send

Bustillo to re-obtain the PIC rating for the G-200;

instead, he was sent to re-train in an airplane, a

King Air B-350 (“B-350”), that he had previously

An FAA regulation defines “pilot in command” as “the person

who: (1) Has final authority and responsibility for the operation

and safety of the flight; (2) Has been designated as pilot in

command before or during the flight; and (3) Holds the

appropriate category, class, and type rating, if appropriate, for

the conduct of the flight.” 14 C.F.R. § 1.1.

flown while working for Propilot. DSOF ¶¶ 8, 20–22.

In July 2011, Hill (who was born in 1965 and is

approximately eight years younger than Bustillo)

received training to be the G-200’s PIC. DSOF ¶¶ 24,

26. Hill claims he received that training because, as

Million Air’s President, he tries to receive training on

all airplanes operated by Million Air. DOSF ¶ 24.

On April 23, 2012, Hill informed Bustillo that

Menda was considering the possibility of selling the

G-200. POSF ¶ 105. Menda sold the G-200 on May

31, 2012. DSF ¶ 106; Docket No. 105-2 at ¶ 6.5 After

the G-200 was sold, Cruz’s employment with Million

Air was terminated, and Million Air required

Bustillo to use his accumulated vacation time until

Million Air found another airplane for him to fly.

DOSF ¶ 31; DSF ¶ 229 n.18; DOSF ¶ 43; Docket No.

86-3 at 5. In June and July 2012, Million Air flew the

G-200 four more times before the airplane was

finally delivered to an aviation broker in Georgia.

POSF ¶ 108; DOSF ¶¶ 35, 36; Docket No. 105-2 at ¶¶

9–12. The two flights in June 2012 were made by Hill

and Million Air’s pilot Jorge Echegoyen

(“Echegoyen”), and the two flights in July 2012 were

made by Hill and Million Air’s pilot Carlos Santos

(“Santos”). POSF ¶¶ 35–37.

With the loss of the G-200, Hill believed there

was no position for Bustillo to fill because other

pilots were assigned to the remaining airplanes in

Million Air’s fleet, because each airplane requires

specific training, and because Bustillo did not have

Bustillo contends that Million Air relies on Hill’s affidavit to

establish that Menda sold the airplane in May 2012, that this

statement is hearsay, and that Million Air has not presented

business records or an affidavit subscribed by Menda. POSF ¶¶

106, 115. Menda’s affidavit is available at Docket No. 105-2.

the required flight training for some of the airplanes.

DSF ¶¶ 120–121. While Bustillo acknowledges that

he lacked training for some of the airplanes and that

some of the positions on the other airplanes were

filled by other pilots, he claims Million Air could

have sent him to another location to be re-trained.

POSF ¶ 113. Million Air claims it did not do so, or

conduct that training in-house, because the training

was expensive. DSF ¶ 122. Ultimately, Bustillo

identified no vacant position on an airplane that he

could have flown with the training he had during the

months of June to August 2012. See POSF ¶ 113.

And while he claims that he was displaced by

younger pilots, he admitted that he cannot

“remember the alleged pilots who displaced him” or

“their salaries.” POSF ¶¶ 175, 176

When Bustillo returned from his vacation

around September 2012, Hill assigned Bustillo to fly

a Piper Cheyenne II (“Cheyenne II”), a new airplane

that Million Air received that month. DSF ¶ 51;

POSF ¶ 52. Bustillo was paid the salary he received

for flying the G-200 until August 31, 2012, and

thereafter began receiving a salary of $40,000 per

year. DOSF ¶ 39. On September 18, Bustillo filed an

age-discrimination charge with the Puerto Rico

Antidiscrimination Unit (“ADU”). DOSF ¶ 41. In that

discrimination charge, Bustillo stated that he

requested compensation for damages, suffering, and

“mental anguish” suffered by him and his family.

Docket No 112-1 at ¶ 3. On September 21, Million

Air informed Bustillo that he would be sent to

Florida to receive flight training for the Cheyenne II.

DOSF ¶ 59. The training was paid for by the

airplane’s owner, Bustillo attended the training on

October 2, and Bustillo received a certificate to fly

the Cheyenne II on October 5. DOSF ¶¶ 61, 62;

POSF ¶ 55.

On October 6, Million Air was notified of the

discrimination charge that Bustillo filed on

September 18. POSF ¶ 202. Three days later, Hill

prohibited Bustillo from flying until an independent

medical examiner determined that he was fit to fly

passengers on a commercial basis. Docket No. 112-3.

In the October 9 letter, Hill stated that this action

was taken because Bustillo said in the ADU

discrimination charge that he had “suffered

‘damages, suffering, and mental anguish’” and that

such allegations were “extremely serious and

worrisome for the industry in which [they] work,

where [they] have to maintain at all times the safety

of [the] passengers.” Docket No. 112-3. Million Air

continued paying Bustillo during the time he was not

permitted to fly for the company. DSF ¶ 62; POSF ¶

62.

On October 10, Bustillo filed a charge with the

ADU in which he alleged that Million Air was

retaliating against him on account of the September

18 age-discrimination charge. Docket No. 112-2. On

October 19, Bustillo was informed that arrangements

had been made for him to meet with Dr. Victor Llado

(“Dr. Llado”), an occupational and forensic

psychiatrist who would conduct the independent

medical examination. POSF ¶ 63. Bustillo filed

another complaint with the ADU on October 23,

alleging that Million Air had taken further

retaliatory action by requiring him to meet with an

independent medical examiner. Docket No. 112-4.

On October 24, Bustillo visited Dr. Llado and

brought a letter written by Bustillo’s attorney. DOSF

¶ 81. Dr. Llado refused to accept the letter, but

Bustillo informed Dr. Llado of the letter’s

instructions: Dr. Llado was not to question Bustillo

“about events having taken place at work,” and no

medical or psychological information was to be

disclosed to Million Air. DOSF ¶ 81. Dr. Llado

refused to limit his examination or otherwise abide

by the attorney’s instructions, and so Bustillo refused

to submit to the independent medical examination.

DOSF ¶ 81. After this incident, Million Air did not

request a meeting with Bustillo, nor did Bustillo

request one with Hill. DOSF ¶ 82.

On November 1, 2012, Hill terminated

Bustillo’s employment with Million Air, and cited his

refusal to submit to the independent medical

examination as the reason for his termination.

Docket No. 112-9. Hill, who alone made the decision

to terminate Bustillo, explained in Bustillo’s

termination letter that the owner of the Cheyenne II

was ready to use the airplane, that the owner of that

airplane had paid for Bustillo’s training for that

aircraft, and that Million Air was going to incur

additional expenses to find another pilot who could

fly the airplane. Docket No. 112-9; POSF ¶ 169. On

November 8, Bustillo filed another complaint with

the ADU. Docket No. 112-8.

When Bustillo was terminated, Million Air

employed the following pilots: Hill, Juan Castellanos

(“Castellanos”),6 Hugo Capo (“Capo”), Echegoyen,

Ernesto Vázquez, Santos, and Jose Febres. DSF ¶

114; PSF ¶ 114. After Bustillo’s termination, several

pilots were hired: Jorge Racines was hired in

Bustillo claims that on one occasion, Castellanos said that

Bustillo “is not carrying the bags” because “he’s a senior

citizen.” DSF ¶¶ 209–12; POSF ¶¶ 209–12.

December 2012 to fly a Citation Encore, Iván Ocasio

was hired in October 2013 to fly a Cessna Caravan,

and Roberto Molina was hired in July 2014 to fly a B350. DSF ¶¶ 177–81. Bustillo claims other pilots

were hired, but does not identify the airplanes they

were hired to fly. POSF ¶ 177.

On November 29, 2012, Carlos Lopez Lay

(“Lay”), president of G-200, LLC, purchased a G-200

(“G-200 II”). Lay previously told Hill that he

intended to purchase a G-200, but told Hill from

June to November 2012 that he was unsure whether

he would actually purchase the G-200. Docket No.

105-3 ¶ 12. After Lay purchased the G-200 II, he

hired Million Air to provide its piloting services.

Docket No. 105-3 ¶ 15. Million Air’s first flight for

the G-200 II was on November 29, 2012. Docket No.

150-3 ¶ 16.

DISCUSSION

Million Air contends it is entitled to summary

judgment on all of Bustillo’s claims. Docket Nos. 81,

82. Bustillo opposed Million Air’s motion, and moved

for an entry of summary judgment in his favor.

Docket Nos. 86, 109. At the outset, I note that

Bustillo’s motion and opposition were quite

conclusory and largely provided rule statements

without applying the law to the circumstances of this

case. See Docket Nos. 86, 109.7

As the First Circuit has repeatedly admonished, “[i]t is not

enough merely to mention a possible argument in the most

skeletal way, leaving the court to do counsel’s work, create the

ossature for the argument, and put flesh on its bones.”

Ledesma-Sanchez v. Lynch, 797 F.3d 131, 134 (1st Cir. 2015)

(quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)

(citation omitted)); see also Muniz-Cabrero v. Ruiz, 23 F.3d 607,

609 (1st Cir. 1994) (“A party opposing a summary judgment

I. ADA

Bustillo contends Million Air violated the

ADA, as it allegedly regarded him as being disabled

by referring him to an independent medical

examiner. He also argues that Million Air

impermissibly terminated him after he asked that

the medical examination be limited in the manner

requested by his attorney. Docket No. 109 at 4. “To

establish a prima facie case of disability

discrimination under the ADA, a plaintiff must

prove: (1) that she was ‘disabled’ within the meaning

of the ADA; (2) that she was able to perform the

essential functions of her job with or without

accommodation; and (3) that she was discharged or

adversely affected, in whole or in part, because of her

disability.” Ruiz Rivera v. Pfizer Pharm., LLC, 521

F.3d 76, 82–83 (1st Cir. 2008). “For purposes of the

ADA, one is considered disabled if she (a) has a

physical or mental impairment that substantially

limits one or more of her major life activities; (b) has

a record of such an impairment; or (c) is regarded as

having such an impairment.” Id. “The regarded as

prong of the ADA exists to cover those cases in which

‘myths, fears and stereotypes’ affect the employer’s

treatment of an individual.”8 Id. (internal quotations

motion must inform the trial judge of the reasons, legal or

factual, why summary judgment should not be entered. If it

does not do so, and loses the motion, it cannot raise such

reasons on appeal.”).

I note that Bustillo does not identify the specific impairment

within the meaning of the ADA that Million Air allegedly

perceived him to have. See Bailey v. Georgia-Pac. Corp., 306

F.3d 1162, 1169 (1st Cir. 2002) (“A plaintiff claiming that he is

‘regarded’ as disabled cannot merely show that his employer

perceived him as somehow disabled; rather, he must prove that

omitted).

The ADA “expressly allows examinations or

inquiries as to whether an employee has a disability

or as to the severity of a disability, if such

examinations/ inquiries are job-related and

consistent with business necessity.” Tice v. Ctr. Area

Transp. Auth., 247 F.3d 506, 514 (3d Cir. 2001)

(citing 42 U.S.C. §12112(d) (4)(A)). The Third Circuit

has held that “a request for an [independent medical

examination] that complies with the statutory

restrictions will never, in the absence of other

evidence, be sufficient to demonstrate that an

employer ‘regarded’ the employee as substantially

limited in a major life activity, simply because an

examination that is ‘job-related’ and ‘consistent with

business necessity’ must, at minimum, be limited to

an evaluation of the employee’s condition only to the

extent necessary under the circumstances to

establish the employee’s fitness for the work at

issue.” Tice, 247 F.3d at 515.

In this case, Bustillo has admitted that

airplane pilots work in positions that affect public

safety, that a pilot is prohibited from flying if he is

suffering from a mental or physical condition that

would disqualify him to fly, that a medical

examination to ensure a pilot is fit to fly is “directly

related” to the job, and that employers of pilots (like

Million Air) are responsible for ensuring that their

pilots are fit to fly. POSF ¶¶ 235, 236, 240, 242.

Notwithstanding these admissions, Bustillo argues

that he “rightfully requested a limitation to the scope

of the medical examination.” Docket No. 86 at 14.

the employer regarded him as disabled within the meaning of

the ADA”).

Because the limitation Bustillo sought to impose on

the independent medical examiner––that no medical

or psychological information was to be disclosed to

Million Air––would prevent Million Air from

receiving information on matters directly related to

Bustillo’s ability to perform safely the job of an

airplane pilot, Bustillo’s argument lacks merit. See

Conroy v. N.Y. State Dep’t of Corr. Servs., 333 F.3d

88, 97–98 (2d Cir. 2003) (Business necessities that

permit an independent medical examination “may

include ensuring that the workplace is safe and

secure.”). And while Bustillo also contends that

Million Air “did not limit the scope of the

examination,” he does not elaborate on the respects

in which the requested medical examination was

overbroad. Docket No. 109 at 4. Thus, summary

judgment in Million Air’s favor is granted on

Bustillo’s ADA claims.9

II. ADEA

Bustillo has brought four claims under the

ADEA, alleging a discriminatory termination, a

hostile work environment, retaliation, and disparate

treatment.

A. Discrimination

Bustillo contends he was terminated on

account of his age. Docket No. 86 at 7. “In a wrongful

discharge case under the ADEA, the plaintiff bears

the burden of proving that her age was the

While Bustillo also includes a half-page statement on the

framework for an ADA retaliation claim, he makes no argument

as to why he is entitled to summary judgment on that claim.

See Docket No. 86 at 12; Docket No. 109 at 4. Nor does he

develop an argument for entering summary judgment in his

favor for the ADA discrimination claim. See Docket No. 86 at

12; Docket No. 109 at 4.

‘determinative factor’ in her discharge, that is, that

she ‘would not have been fired but for [her] age.’” Del

Valle-Santana v. Servicios Legales De P.R., Inc., 804

F.3d 127, 129 (1st Cir. 2015), cert. denied, No. 159091, 2016 WL 1682756 (U.S. June 27, 2016). In the

absence of direct evidence of discrimination, the

“plaintiff must first make out a prima facie case for

age discrimination by showing that (i) she was at

least 40; (ii) her work was sufficient to meet the

employer's legitimate expectations; (iii) her employer

took adverse action against her; and (iv) either

younger persons were retained in the same position

upon her termination or the employer did not treat

age neutrally in taking the adverse action.” Del

Valle-Santana, 804 F.3d at 129–30.

If the employee’s prima facie case is satisfied,

a “rebuttable presumption of discrimination” arises

and “the burden shifts to the employer to articulate a

legitimate, nondiscriminatory reason for dismissing

the employee.” Id. at 130. “If the employer does so,

the presumption vanishes and the burden shifts once

again. This time, the plaintiff is required to show

that the employer’s proffered reason is but a pretext,

and ‘that age was the but-for cause of the employer’s

adverse action.’” Id. (quoting Vélez v. Thermo King

de P.R., Inc., 585 F.3d 441, 447–48 (1st Cir. 2009)).

In this case, Million Air concedes that Bustillo

was at least 40 and that Bustillo suffered an adverse

action when his employment was terminated in

November 2012. Docket No. 82 at 8. Million Air

contends, however, that Bustillo is unable to

establish the other two elements of his prima facie

case. Id. Million Air also argues that it fired Bustillo

for a legitimate business reason unrelated to his age:

Bustillo’s refusal to submit to an independent

medical examination prevented Million Air from

allowing him to fly, required Million Air to find

another pilot to fly the ready-to-use Cheyenne II, and

imposed additional costs on Million Air. Docket No.

82 at 9–15.

Even assuming Bustillo could establish a

prima facie case of age discrimination under the

ADEA, he has failed to present sufficient evidence

from which a reasonable jury could find that Million

Air’s legitimate business reason for terminating him

was a pretext for age discrimination. See Adamson v.

Walgreens Co., 750 F.3d 73, 79 (1st Cir. 2014) (“it is

‘expeditious and appropriate’ to assume prima facie

case was made where primary focus of dispute [is]

whether proffered reasons for termination were

pretextual”) (quoting Gomez-Gonzalez v. Rural

Opportunities, Inc., 626 F.3d 654, 662 (1st Cir.

2010)). To resist summary judgment, Bustillo argues

that “[t]here has been: suspicious timing, ambiguous

statements, behavior toward or comments directed at

others in the protected group, and other bits and

pieces from which an inference of discriminatory

intent might be drawn.” Docket No. 109 at 2. These

conclusory arguments do not hold water at this stage

of the proceedings, for “a party resisting summary

judgment . . . must identify and allege specific facts

showing a genuine issue for trial.” Colantuoni v.

Alfred Calcagni & Sons, Inc., 44 F.3d 1, 6 (1st Cir.

1994).

And while Bustillo claims that he was

reassigned to a Cheyenne II while younger pilots

were being trained for a G-200 that Million Air was

expecting, this claim mischaracterizes the record

evidence. Docket No. 86 at 6–7. The record evidence,

even when read in the light most favorable to

Bustillo, reveals that Menda sold the G-200 in May

2012. After that G-200 was sold, it is undisputed that

Million Air did not have another G-200 in its fleet

until late November 2012. And while Lay, the

purchaser of the G-200 II, had informed Hill that he

was considering the possibility of purchasing a G200, Lay had also notified Hill from June to

November 2012 that he was unsure whether he

would actually purchase the airplane. Without a G200 for Bustillo to fly, and without Bustillo having

the necessary qualifications in June 2012 to fly an

airplane in which a pilot position was vacant, Million

Air asked Bustillo to use his accumulated vacation

time. Upon his return in September 2012, Bustillo

was assigned to the new airplane Million Air

received that month––the Cheyenne II.

Moreover, while Bustillo suggests that he

perceived himself as fit to fly and so Hill’s decision to

require an independent medical examination was

unsound, these points do not establish pretext. See

Ponte v. Steelcase Inc., 741 F.3d 310, 323 (1st Cir.

2014) (to show pretext, it is insufficient for “a

plaintiff to ‘impugn the veracity’ of the employer’s

proffered reason”); Thompson v. Coca-Cola Co., 522

F.3d 168, 177 (1st Cir. 2008) (“If there is no proof of

discriminatory animus on the part of a

decisionmaker, a plaintiff must show more than that

the decisionmaker’s perception was incorrect”);

Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 (1st Cir.

1991) (“Courts may not sit as super personnel

departments, assessing the merits-or even

rationality-of employers’ nondiscriminatory business

decisions.”).

And even if Castellanos’s single remark (i.e.,

that Bustillo could “not carry the bags” because he

was a “senior citizen”) were considered in this

context, the probativeness of this remark is quite

circumscribed because it was not made by the person

who decided to terminate Bustillo (i.e., Hill), and

because Bustillo is unable to identify the

approximate date when the remark was made. See

Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 36

(1st Cir. 2001) (while “‘stray remarks’ may be

material to the pretext inquiry, their probativeness is

circumscribed if they were made in a situation

temporally remote from the date of the employment

decision, or . . . were not related to the employment

decision in question, or were made by

nondecisionmakers”) (internal quotations omitted).

Because Bustillo has proffered insufficient facts––

supported by evidence––that would allow a

reasonable jury to find that Million Air’s reason for

firing him was pretextual, summary judgment is

granted for Million Air on the ADEA discriminatory

termination claim.

B. Retaliation

The complaint alleges that Bustillo was

terminated for engaging in protected conduct. Docket

No. 1 at 20. An ADEA retaliation claim that rests on

indirect evidence follows “the same framework” used

to assess an age discrimination claim, “‘albeit with

slight modifications’ to account for the retaliation

claim’s distinct focus.” Soto-Feliciano v. Villa Cofresi

Hotels, Inc., 779 F.3d 19, 30 (1st Cir. 2015) (quoting

Mesnick, 950 F.2d at 827). To establish a prima facie

case of retaliation under the ADEA, a plaintiff must

show that “(i) he engaged in ADEA-protected

conduct, (ii) he was thereafter subjected to an

adverse employment action, and (iii) a causal

connection existed between the protected conduct

and the adverse action.” Soto-Feliciano, 779 F.3d at

30. “If the plaintiff makes a prima facie showing of

impermissible retaliation, then, at the second stage,

as in the discrimination context, the burden of

production shifts to the defendant. To meet that

burden, the defendant must offer a legitimate, nonretaliatory reason for the adverse employment

action.” Id. If the defendant does so, “then the

inquiry moves to the third and final stage. At this

stage, ‘the plaintiff must assume the further burden

of showing that the proffered reason is a pretext

calculated to mask retaliation.’” Id. at 30–31 (quoting

Harrington v. Aggregate Indus.–Ne. Region, Inc., 668

F.3d 25, 31 (1st Cir. 2012)).

In this case, while Million Air conceded that

Bustillo has suffered an adverse action, Bustillo

made no effort to identify the protected conduct in

which he engaged. And while the record undoubtedly

reveals that he engaged in protected activity by filing

at least one discrimination charge with the ADU,

Bustillo does not develop an argument for a causal

connection. Bustillo’s reference to “suspicion timing”

in his brief might refer to an argument about the

temporal proximity between his protected conduct

and his termination, but Bustillo does not develop

that specific argument in either his motion for

summary judgment or his opposition. Docket No. 109

at 2.

His failure to do so is particularly troublesome

in this case because there are arguably three

protected activities––the September 18 ADU charge,

the October 10 ADU charge, or the October 23 ADU

charge––which could buttress the temporalproximity calculus in Bustillo’s alleged retaliatory

termination. See, e.g., Jones v. Bernanke, 557 F.3d

670, 680 (D.C. Cir. 2009) (parties litigated the

protected activity that provided the starting point for

the temporal-proximity calculus). Because Bustillo

has failed to develop an argument for his ADEA

retaliation claim, summary judgment is granted for

Million Air on this claim.

To be sure, even if Bustillo had established a

prima facie case of retaliation under the ADEA,

summary judgment would still be appropriate

because Million Air has tendered a legitimate,

nonretaliatory reason for his termination and

Bustillo has failed to proffer sufficient facts from

which a reasonable jury could find that Million Air’s

proffered reason is a pretext for retaliation. See SotoFeliciano, 779 F.3d at 32 (where the employer’s

legitimate, nonretaliatory reason “is the same one”

given in response to the plaintiff’s prima facie

showing of age discrimination, the “issue comes

down, once again, to pretext and the true motivation

for” the adverse action).

C. Hostile Work Environment

Bustillo claims he was subjected to an agebased hostile work environment. The First Circuit

has “recognized hostile work environment claims

under the ADEA.” Collazo v. Nicholson, 535 F.3d 41,

44 (1st Cir. 2008) (citing Rivera–Rodriguez v. Frito

Lay Snacks Caribbean, 265 F.3d 15, 24 (1st Cir.

2001)). “To prove a hostile-work-environment claim,

a plaintiff must provide sufficient evidence from

which a reasonable jury could conclude that the

offensive conduct is severe and pervasive enough to

create an objectively hostile or abusive work

environment and is subjectively perceived by the

victim as abusive.” Rivera–Rodriguez, 265 F.3d at 24

(internal quotations omitted). “When assessing

whether a workplace is a hostile environment, courts

look to the totality of the circumstances, including

the frequency of the discriminatory conduct; its

severity; whether it is threatening or humiliating, or

merely an offensive utterance; and whether it

unreasonably interferes with the employee’s work

performance.” Id.

In this case, Bustillo cites to a single remark

made by Castellanos, Million Air’s Chief of

Operations: that Bustillo could not “carry the bags”

because he was a “senior citizen.” Even if this

remark was in bad taste, the single and isolated

remark, which can reasonably be characterized as

teasing, was insufficient to create a hostile work

environment. See, e.g., Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998) (“simple teasing, . . .

offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory

changes in the ‘terms and conditions of

employment.’”) (internal citation and quotations

omitted). And while Bustillo also claims that his

firing, failure to promote, and other discrete acts

created a hostile work environment, claims based on

discrete acts are “different in kind” from hostile work

environment claims. See Nat’l R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 115 (2002); Johnson v.

Univ. of P.R., 714 F.3d 48, 53 (1st Cir. 2013) (

“Discrete acts and hostile work environment claims

are ‘different in kind,’ because hostile work

environment claims by their nature involve repeated

conduct and a single act of harassment may not be

actionable on its own.”) (internal citations omitted);

Davila-Feliciano v. P.R. State Ins. Fund Corp., 754 F.

Supp. 2d 351, 365 (D.P.R. 2010) (“discrete acts [are]

not components of a hostile work environment”).

Thus, summary judgment is granted on Bustillo’s

ADEA hostile work environment claim.10

III. State-Law Claims

Bustillo claims Million Air violated Puerto

Rico Law 44, P.R. Laws Ann. tit. 1, § 501 et seq;

Puerto Rico Law 100, P.R. Laws Ann. tit. 29, § 146 et

seq.; and Puerto Rico Law 115. P.R. Laws Ann. tit.

29, § 194 et seq. In support of these claims, Bustillo

relies on the same arguments he made for the ADA

and ADEA claims. Docket No. 86 at 14.

Law 44 is “Puerto Rico’s counterpart to the

ADA.” Salgado-Candelario v. Ericsson Caribbean,

Inc., 614 F. Supp. 2d 151, 175 (D.P.R. 2008); see also

Gonzalez v. El Dia, Inc., 304 F.3d 63, 74 n.8 (1st Cir.

2002) (“Law 44 claim . . . is coterminous with [an]

ADA claim”) (citing Acevedo Lopez v. Police Dep’t of

P.R., 247 F.3d 26, 29 (1st Cir. 2001)). Because “the

elements of proof for a claim under Law 44 are

essentially the same as those for establishing a claim

under the ADA,” Salgado–Candelario, 614 F. Supp.

2d at 175, and because summary judgment is

appropriate as to Bustillo’s ADA claim, the Law 44

claim is also dismissed. See Gonzalez, 304 F.3d at 74

n.8.

Law “100, like the ADEA, ‘provides a cause[ ]

of action in favor of those persons who suffer

discrimination in their employment because of their

age. However, [the statutes] differ with regard to the

burden[s] of proof that they impose upon the

employer and the employee,’ under certain

While Bustillo provides a short rule statement for the ADEA

disparate treatment claim, he fails to develop an argument for

that claim. Docket No. 86 at 7–8. Accordingly, the ADEA

disparate treatment claim is also dismissed.

circumstances.” Alvarez-Fonseca v. Pepsi Cola of P.R.

Bottling Co., 152 F.3d 17, 27 (1st Cir. 1998) (quoting

Soto v. Hotel Caribe Hilton, No. RE–93–603, ––– P.R.

Dec. ––––, ––––, 1994 WL 909663, at 4 (Oct. 17,

1994)). “The most important difference between Law

100 and the ADEA is that when the Law 100

presumption has been triggered, it shifts not only the

burden of production, but also the burden of

persuasion, from the employee to the employer.”

Alvarez-Fonseca, 152 F.3d at 27. But even under the

Law 100 framework, the “Law 100 plaintiff is . . . in

[the] same situation as an ADEA plaintiff after the

defendant has articulated a legitimate, nondiscriminatory reason for its actions.” Id. As

discussed within the context of Bustillo’s ADEA

claims, Million Air has articulated a legitimate

business reason for firing Bustillo that is neither

retaliatory nor related to his age. Because Bustillo

relies on the same arguments he made for his ADEA

claims, and because summary judgment was granted

on those claims, the Law 100 claim is also dismissed.

The “analytical principles” for a Law 115 claim

and an ADEA claim “are substantially the same.”

Mojica v. El Conquistador Resort & Golden Door Spa,

714 F. Supp. 2d 241, 262 (D.P.R. 2010) (summary

judgment denied on both Law 115 claim and ADEA

claim). Because summary judgment is appropriate as

to Bustillo’s ADEA retaliation claim, it is also

appropriate as to his Law 115 claim

CONCLUSION

For the foregoing reasons, Million Air’s motion

is GRANTED, and Bustillo’s motion is DENIED. All

claims are DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

In San Juan, Puerto Rico, this 26th day of July

2016.

S/Bruce J. McGiverin

BRUCE J. MCGIVERIN

United States Magistrate Judge

United States Court of Appeals

For the First Circuit

_____________________

No. 16-2076

PEDRO BUSTILLO-FORMOSO

Plaintiff - Appellant

MILLION AIR SAN JUAN CORPORATION;

THOMAS HILL, individually and as President

of Million Air San Juan Corporation

Defendants - Appellees

JANE DOE; JOE DOE

Defendants

__________________

Before

Howard, Chief Judge,

Torruella, Lynch, Selya, Thompson,

Kayatta and Barron, Circuit Judges.

__________________

ORDER OF COURT

Entered: September 12, 2017

Pursuant to First Circuit Internal Operating

Procedure X(C), the petition for rehearing en banc

has also been treated as a petition for rehearing

before the original panel. The petition for rehearing

having been denied by the panel of judges who

decided the case, and the petition for rehearing en

banc having been submitted to the active judges of

this court and a majority of the judges not having

voted that the case be heard en banc, it is ordered

that the petition for rehearing and petition for

rehearing en banc be denied.

By the Court:

/s/ Margaret Carter, Clerk

Constitutional Provision and Statute Involved

A. U.S. Constitution, Article 1 - The Legislative

Branch, Section 8 - Powers of Congress:

The Congress shall have Power To lay and collect

Taxes, Duties, Imposts and Excises, to pay the Debts

and provide for the common Defence and general

Welfare of the United States; but all Duties, Imposts

and Excises shall be uniform throughout the United

States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and

among the several States, and with the Indian

Tribes;

To establish an uniform Rule of Naturalization, and

uniform Laws on the subject of Bankruptcies

throughout the United States;

To coin Money, regulate the Value thereof, and of

foreign Coin, and fix the Standard of Weights and

Measures;

To provide for the Punishment of counterfeiting the

Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts,

by securing for limited Times to Authors and

Inventors the exclusive Right to their respective

Writings and Discoveries;

To constitute Tribunals inferior to the supreme

Court;

To define and punish Piracies and Felonies

committed on the high Seas, and Offenses against

the Law of Nations;

To declare War, grant Letters of Marque and

Reprisal, and make Rules concerning Captures on

Land and Water;

To raise and support Armies, but no Appropriation of

Money to that Use shall be for a longer Term than

two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of

the land and naval Forces;

To provide for calling forth the Militia to execute the

Laws of the Union, suppress Insurrections and repel

Invasions;

To provide for organizing, arming, and disciplining,

the Militia, and for governing such Part of them as

may be employed in the Service of the United States,

reserving to the States respectively, the Appointment

of the Officers, and the Authority of training the

Militia according to the discipline prescribed by

Congress;

To exercise exclusive Legislation in all Cases

whatsoever, over such District (not exceeding ten

Miles square) as may, by Cession of particular

States, and the acceptance of Congress, become the

Seat of the Government of the United States, and to

exercise like Authority over all Places purchased by

the Consent of the Legislature of the State in which

the Same shall be, for the Erection of Forts,

Magazines, Arsenals, dock-Yards, and other needful

Buildings; And

To make all Laws which shall be necessary and

proper for carrying into Execution the foregoing

Powers, and all other Powers vested by this

Constitution in the Government of the United States,

or in any Department or Officer thereof.

B. 42 United States Code § 12112:

Discrimination

(a) General rule

No covered entity shall discriminate against a

qualified individual on the basis of disability in

regard to job application procedures, the hiring,

advancement, or discharge of employees, employee

compensation, job training, and other terms,

conditions, and privileges of employment.

(b) Construction

As used in subsection (a), the term “discriminate

against a qualified individual on the basis of

disability” includes—

(1) limiting, segregating, or classifying a job

applicant or employee in a way that adversely affects

the opportunities or status of such applicant or

employee because of the disability of such applicant

or employee;

(2) participating in a contractual or other

arrangement or relationship that has the effect of

subjecting a covered entity’s qualified applicant or

employee with a disability to the discrimination

prohibited by this subchapter (such relationship

includes a relationship with an employment or

referral agency, labor union, an organization

providing fringe benefits to an employee of the

covered entity, or an organization providing training

and apprenticeship programs);

(3) utilizing standards, criteria, or methods of

administration—

(A) that have the effect of discrimination on the

basis of disability; or

(B) that perpetuate the discrimination of

others who are subject to common administrative

control;

(4) excluding or otherwise denying equal jobs or

benefits to a qualified individual because of the

known disability of an individual with whom the

qualified individual is known to have a relationship

or association;

(5) (A) not making reasonable accommodations

to the known physical or mental limitations of an

otherwise qualified individual with a disability who

is an applicant or employee, unless such covered

entity can demonstrate that the accommodation

would impose an undue hardship on the operation of

the business of such covered entity; or

(B) denying employment opportunities to a job

applicant or employee who is an otherwise qualified

individual with a disability, if such denial is based on

the need of such covered entity to make reasonable

accommodation to the physical or mental

impairments of the employee or applicant;

(6) using qualification standards, employment

tests or other selection criteria that screen out or

tend to screen out an individual with a disability or a

class of individuals with disabilities unless the

standard, test or other selection criteria, as used by

the covered entity, is shown to be job-related for the

position in question and is consistent with business

necessity; and

(7) failing to select and administer tests

concerning employment in the most effective manner

to ensure that, when such test is administered to a

job applicant or employee who has a disability that

impairs sensory, manual, or speaking skills, such

test results accurately reflect the skills, aptitude, or

whatever other factor of such applicant or employee

that such test purports to measure, rather than

reflecting the impaired sensory, manual, or speaking

skills of such employee or applicant (except where

such skills are the factors that the test purports to

measure).

(1) In general

It shall not be unlawful under this section for

a covered entity to take any action that constitutes

discrimination under this section with respect to an

employee in a workplace in a foreign country if

compliance with this section would cause such

covered entity to violate the law of the foreign

country in which such workplace is located.

(2) Control of corporation

(A) Presumption

If an employer controls a corporation whose

place of incorporation is a foreign country, any

practice that constitutes discrimination under this

section and is engaged in by such corporation shall

be presumed to be engaged in by such employer.

(B) Exception

This section shall not apply with respect to the

foreign operations of an employer that is a foreign

person not controlled by an American employer.

paragraph, the determination of whether an

employer controls a corporation shall be based on—

(i) the interrelation of operations;

(ii) the common management;

(iii) the centralized control of labor

relations; and

(iv) the common ownership or financial

control, of the employer and the corporation.

(d) Medical examinations and inquiries

(1) In general

The prohibition against discrimination as

referred to in subsection (a) shall include medical

examinations and inquiries.

(2) Preemployment

(A) Prohibited examination or inquiry

Except as provided in paragraph (3), a covered

entity shall not conduct a medical examination or

make inquiries of a job applicant as to whether such

applicant is an individual with a disability or as to

the nature or severity of such disability.

(B) Acceptable inquiry

A covered entity may make preemployment

inquiries into the ability of an applicant to perform

job-related functions.

(3) Employment entrance examination A covered

entity may require a medical examination after an

offer of employment has been made to a job applicant

and prior to the commencement of the employment

duties of such applicant, and may condition an offer

of employment on the results of such examination,

if—

(A) all entering employees are subjected to

such an examination regardless of disability;

(B) information obtained regarding the

medical condition or history of the applicant is

collected and maintained on separate forms and in

separate medical files and is treated as a confidential

medical record, except that—

(i) supervisors and managers may be

informed regarding necessary restrictions on the

work or duties of the employee and necessary

accommodations;

(ii) first aid and safety personnel may be

informed, when appropriate, if the disability might

require emergency treatment; and

(iii) government officials investigating

compliance with this chapter shall be provided

relevant information on request; and

only in accordance with this subchapter.

(4) Examination and inquiry

(A) Prohibited examinations and inquiries

A covered entity shall not require a medical

examination and shall not make inquiries of an

employee as to whether such employee is an

individual with a disability or as to the nature or

severity of the disability, unless such examination or

inquiry is shown to be job-related and consistent

with business necessity.

(B) Acceptable examinations and inquiries

A covered entity may conduct voluntary

medical examinations, including voluntary medical

histories, which are part of an employee health

program available to employees at that work site. A

covered entity may make inquiries into the ability of

an employee to perform job-related functions.

Information obtained under subparagraph (B)

regarding the medical condition or history of any

employee are subject to the requirements of

subparagraphs (B) and (C) of paragraph (3).

No. 16-2076

________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

________________________________

PEDRO BUSTILLO-FORMOSO

Plaintiff - Appellant

MILLION AIR SAN JUAN CORPORATION;

THOMAS HILL, individually and as President of

Million Air San Juan Corporation

Defendants - Appellees

JANE DOE; JOE DOE

Defendants

________________________________

AMENDED PETITION FOR

REHEARING EN BANC

________________________________

JAVIER A. MORALES RAMOS

P.O. BOX 362677

SAN JUAN, PR 00936-2677

TEL. (787) 356-4616

ATTORNEY FOR APPELLANT

PEDRO BUSTILLO-FORMOSO

TO THE HONORABLE COURT:

APPEARS NOW Appellant Pedro BustilloFormoso, and by these means petitions this

Honorable Court of Appeals for rehearing en banc of

the Opinion dated 08/09/2017:

Appellant Bustillo believes this Honorable

Court has overlooked or misapprehended his ADA

claims related to 42 U.S.C.A. §12112(d)(4).

Regarding same, we note that the Opinion, at page 4,

states: “And finally, as the magistrate judge so found

in assessing Bustillo's claim regarding the scope of

the medical examination, Bustillo did not even

"elaborate on the respects in which the requested

medical examination was overbroad."”

A simple review of the District Court’s decision

shows otherwise. First, we note that Dr. Llado’s

statement (Appendix for Appellant, at 248-249)

demonstrates the “overbroadness” of the

examination. This is a fact found by the Magistrate

Judge himself: “Dr. Llado refused to limit his

examination or otherwise abide by the attorney’s

instructions ...” Opinion and Order, DE 160, p. 6;

Addendum 01. The factual finding of lack of

limitations is correct, the dismissal of Bustillo’s ADA

claims constituted reversible error. The law requires

Defendants to show compliance with the ADA, the

burden is not on appellant Bustillo.

Bustillo’s arguments submitted to the

Magistrate Judge on the issue of the limitation of the

medical exam were clear and direct. The law requires

a “fitness for duty” exam, and anything that goes

beyond that is illegal. This Honorable Court of

Appeals failed to note the arguments submitted to

the Magistrate Judge:

As can be seen by the facts presented,

and sustained with proper documentation,

Defendants did not have a valid reason to

ground Bustillo. A mere request for emotional

damages in accordance with standard legal

practice does not mean that a person has a

mental condition that incapacitates him/her.

Furthermore, Defendants terminated Bustillo

with knowledge about his concerns, and

knowing that he had not refuse to be

evaluated but required limitations as to the

scope of the exam, a right recognized by the

law. He also had the right to be informed

about what information was going to be issued

to his employer and how said information was

going to be safeguarded.

The First Circuit has recognized that a

plaintiff may recover for damages stemming

from violation of this section; and, that several

circuit courts have held that §12112(d)(2)

provides a separate cause of action, this cause

of action being irrespective of the plaintiff's

disability status. See: Martino v. Forward, Air,

Inc., 609 F.3d 1, 4 (1st Cir., 2010)(Noting:

Harrison v. Benchmark Elecs. Huntsville, Inc.,

593 F.3d 1206, 1213-14 (11th Cir., 2010);

Murdock v. Washington, 193 F.3d 510, 512

(7th Cir., 1999); Fredenburg v. Contra Costa

County Dep't of Health Servs., 172 F.3d 1176,

1182 (9th Cir., 1999); and, Griffin v. Steeltek,

Inc. (“Griffin I”), 160 F.3d 591, 594 (10 Cir.,

1998).

There is no doubt that an employer

may, under certain circumstances, seek

evaluation of a employee; however, the

rationale behind such referral must be based

on objective evidence, such as when the

employer reasonably perceives the person “to

be mildly paranoid, hostile, or oppositional” or

an “employee who was hostile, made threats,

and was insubordinate.” See: Owusu-Ansah v.

Coca-Cola Co., 715 F.3d 1306, 1311 (11th Cir.,

2013)(citing Watson v. City of Miami Beach,

177 F.3d 932 (11th Cir., 1999); and, Williams

v. Motorola, Inc., 303 F.3d 1284 (11th Cir.,

2002).

Even when an employer has a

reasonable basis for seeking a medical

evaluation of an employee, said evaluation

must be limited in scope. Note:

discussing

return-to-duty

examinations

and

periodic

examinations, the EEOC's Compliance

Manual stresses that the scope of the

exams be limited in scope to

determining whether the employee is

currently able to perform the essential

functions of his or her job. The EEOC

explains that if an employer has a

reasonable belief that an employee's

present ability to perform essential job

functions will be impaired by a medical

condition or that s/he will pose a direct

threat due to a medical condition, the

employer may make disability-related

inquiries or require the employee to

submit to a medical exam. “Any

inquiries or examination, however, must

be limited in scope to what is needed to

make an assessment of the employee's

ability to work. Usually, inquiries or

examinations related to the specific

medical condition for which the

employee took leave will be all that is

warranted. The employer may not use

the employee's leave as a justification

for making far-ranging disabilityrelated inquiries or requiring an

unrelated medical examination.” EEOC

Compliance Man. (BNA), 902:0190

(November, 2002).

Scott v. Napolitano, 717 F.Supp.2d 1071,

1083 (S.D. Cal., 2010).

Note:

These disability-related inquiries were

not narrowly tailored to evaluate

whether Plaintiff could perform the

essential functions of the job and

violated 42 U.S.C. §12112(d)(4)(A) and

the Rehabilitation Act. Therefore,

Plaintiff's

motion

for

summary

judgment is granted as to this claim.

717 F.Supp.2d at 1085-86.

In this case, Plaintiff Bustillo was

referred to an open ended medical

examination, and defendants did not limit the

scope of the examination. Plaintiff was

terminated because he rightfully requested a

limitation to the scope of the medical

examination. Summary judgment is proper as

to his 42 U.S.C.A. §12112(d)(4) claim.

Motion for Summary Judgment, DE 86 (Emphasis

Ours).11

The Magistrate Judge was placed on notice

that Bustillo sought limitations to the examination

required by Defendants. The exam was not narrowly

tailored to evaluate whether Plaintiff could perform

the essential functions of the job. Defendants’ failure

to narrowly tailor the exam to a fitness

determination triggers and supports Bustillo’s 42

U.S.C.A. §12112(d)(4) claim. The burden to show

compliance with the law is not on Bustillo, but on

Defendants.12

The Magistrate Judge also had before him

Bustillo’s specific response regarding the baseless

On October 6, Million Air was notified of the

discrimination charge that Bustillo filed on September 18.

POSF ¶ 202. Three days later, Hill prohibited Bustillo from

flying until an independent medical examiner determined that

he was fit to fly passengers on a commercial basis. Docket No.

112-3. In the October 9 letter, Hill stated that this action was

taken because Bustillo said in the ADU discrimination charge

that he had “suffered ‘damages, suffering, and mental anguish’”

and that such allegations were “extremely serious and

worrisome for the industry in which [they] work, where [they]

have to maintain at all times the safety of [the] passengers.”

Docket No. 112-3.

Opinion and Order, DE 160, p. 5; Addendum 01 (Emphasis

Ours).

As to the burden on the employer to show compliance with

the ADA, note the 2nd and the 8th Circuits agreement: “To

demonstrate compliance with §12112(d)(4)(A), the employer

bears the burden to show the asserted “business necessity” is

vital to the business and the request for a medical examination

or inquiry is no broader or more intrusive than necessary.

Conroy v. N.Y. State Dep't of Corr. Servs., 333 F.3d 88, 97-98

(2d Cir.2003).” Thomas v. Corwin, 483 F.3d 516, 527 (8 Cir,

2007)(Emphasis Ours).

referral without objective evidence of any

psychological problem, and the lack of limitations to

the examination (that by law should be specifically

tailored to a fit for duty exam). Note:

Bustillo claims that Defendants used

the request for compensation for emotional

damages as an excuse to fire him because of

his age. While doing this Defendants violated

the ADA insofar they violate 42 USC

§12112(d)(2) which provides a separate cause

of action irrespective of the plaintiff's

disability status. Employers may refer an

employee for evaluation without violating the

ADA, but such referral must be based on

objective evidence; and even then, when an

employer has a reasonable basis for seeking a

medical evaluation of an employee, said

evaluation must be limited in scope. In this

case Defendants did not give Dr. Lladó

information about how to limit his exam; nor

did they assure Bustillo about how his medical

information was to be handled.

Opposition to Defendants’ Motion for Summary

Judgment, DE 109, p. 3-4.

It should be noted that Defendants did not

present any objective evidence that would support

the pilot’s grounding, nor the referral to a

psychiatrist.13 This Honorable Court has given a

Whether a required mental health evaluation is “job-related

and consistent with business necessity” is assessed under an

objective standard. See Tice v. Ctr. Area Transp. Auth., 247

F.3d 506, 518 (3d Cir.2001). A business necessity must be based

on more than “mere expediency,” and will be found to exist

where the employer can “identify legitimate, nondiscriminatory

reasons to doubt the employee's capacity to perform his or her

carte blanche for employers to ground pilots without

cause. The grounding of a pilot for participating in a

legal process against his employer (where one of the

remedies is compensation for emotional damages),

and the employer’s routine referral of said pilot for

an unlimited medical examination because the pilot

made a general claim for emotional damages - in the

absence of objective findings, cannot and should not

be allowed. The legal standard allows for referrals

only when there is an objective basis to question the

employee’s ability to fulfill the requirements of

his/her position. Anything short of said standard

would be arbitrary and capricious. The burden to

show compliance with the ADA is on Defendants,

who have not met said burden in this case.

Bustillo’s Motion for Summary Judgment (DE

86) and his Opposition to Defendants’ Motion for

Summary Judgment (DE 109) presented his

position. The Magistrate Judge was cognizant of

Bustillo’s position and found as follows:

On October 24, Bustillo visited Dr.

Llado and brought a letter written by

Bustillo’s attorney. DOSF ¶ 81. Dr. Llado

refused to accept the letter, but Bustillo

informed Dr. Llado of the letter’s instructions:

Dr. Llado was not to question Bustillo “about

events having taken place at work,” and no

medical or psychological information was to be

disclosed to Million Air. DOSF ¶ 81. Dr. Llado

refused to limit his examination or otherwise

duties.” See Conroy v. N.Y. State Dep't of Corr. Servs., 333 F.3d

88, 97, 98 (2d Cir.2003); see also Thomas v. Corwin, 483 F.3d

516, 527 (8th Cir.2007). Coursey v. University of Maryland

Eastern Shore, 577 Fed.Appx. 167, 173 (4th Cir., 2014).

abide by the attorney’s instructions, and so

Bustillo refused to submit to the independent

medical examination. DOSF ¶ 81. After this

incident, Million Air did not request a meeting

with Bustillo, nor did Bustillo request one

with Hill. DOSF ¶ 82.

Opinion and Order, DE 160, p. 6; Addendum 01.

The physician “refused to limit his

examination or otherwise abide by the attorney’s

instructions, and so Bustillo refused to submit to the

independent medical examination.” Id. Bustillo

refused a limitless exam. Defendants did not prove

compliance with the ADA.14

The law requires that an examination be job

related, consistent with business necessity, and be

limited to an evaluation of the employee's condition

only to the extent necessary under the circumstances

to establish the employee's fitness for the work at

issue. The psychiatrist received no legal instruction

from Defendants on how to proceed; would not be

restrained by a lawyer’s letter; and, would not limit

the exam to fitness for duty. Here lies the gist of the

§12112(d)(4) claim.

The fact that Bustillo “opposed any act or

practice made unlawful by this chapter” (42 U.S.C. §

12203(a)) triggers the ADA retaliation claim. Bustillo

opposed the baseless referral to the independent

examiner, and the fact that the exam was not

narrowly tailored for fitness for duty. Bustillo was

Note, again: “The employer shoulders the burden of proving

the job relatedness and business necessity justifying a medical

examination or disability-related inquiry. Thomas v. Corwin,

483 F.3d 516, 527 (8th Cir.2007).” Bates v. Dura Automotive

Systems, Inc., 767 F.3d 566, 581 (6th Cir., 2014).

terminated because he opposed these practices. Note:

“On November 1, 2012, Hill terminated Bustillo’s

employment with Million Air, and cited his refusal to

submit to the independent medical examination as

the reason for his termination. Docket No. 112-9.”

Opinion and Order, DE 160, p. 6; Addendum 01

(Emphasis Ours).

Aside from not being supported by Bustillo’s

circumstances – he had recently passed the FAA

required medical examination, and had trained in

CONUS with success - any medical inquiry required

by Defendants had to be limited in scope as a matter

of law. Defendants did not produce nor have

presented to this Honorable Court any evidence as to

limitations to the exam, to tailor said exam narrowly

to the question of fitness for duty. Finally, Bustillo

was terminated because he opposed Defendants’

actions in violation of the ADA.

As a matter of law, Defendants’ position - as

recounted by the Magistrate Judge in his Opinion

and Order - is unsupportable. Termination because

of the invocation of a legal right is improper. Our

arguments and references, as presented at pages 1627 of the Brief for Appellant, should be reviewed by

this Honorable Court. The granting of rehearing en

banc on this issue is proper. The practice under

scrutiny - grounding of a pilot and automatic referral

to a psychiatrist because of a general emotional claim

for damages in an EEOC process – should not be

allowed. Placing the burden on appellant to show

how the limitation violates the ADA is contrary to

the law and the caselaw of the circuits cited herein;

the burden is on the employer to demonstrate with

objective evidence the business necessity and the

limitations to the scope of the medical exam. It is bad

precedent to allow employers to ground pilots for

having alleged general emotional damages, when

there is no objective evidence of unfitness to fly, or

other proper cause.

WHEREFORE it is respectfully requested that

rehearing en banc be granted. It is requested that

the practice of referral for medical examination for

making general emotional claims in EEOC

proceedings - in the absence of objective findings, not

be allowed to be construed as an excuse for automatic

referral to psychiatrists, nor to take adverse actions

against employees who invoke the ADA’s provisions

herein involved. Summary judgment should be

entered, in these issues and as a matter of law, in

favor of Bustillo.

I HEREBY CERTIFY that on this date, I

electronically filed the foregoing document with the

Clerk of the Court CM/ECF system which will send

notification of such filing to the attorneys of record.

RESPECTFULLY SUBMITTED.

In San Juan, Puerto Rico, this August 16th,

2017.

S/ Javier A. Morales-Ramos

JAVIER A. MORALES-RAMOS

P.O. BOX 362677

SAN JUAN, PR 00936-2677

TEL. (787) 356-4616

ATTORNEY FOR APPELLANT

PEDRO BUSTILLO

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.