Rosado v. Am. Airlines

743 F.Supp.2d 40

David ROSADO, Plaintiff,

v.AMERICAN AIRLINES, Defendant.

Civil No. 09–1418 (FAB).

United States District Court, D. Puerto Rico.

Oct. 14, 2010.

Jorge R. Roig–Colon, Gonzalez & Roig, Kendys Pimentel–Soto, San Juan, PR, for Plaintiff.Juan F. Santos–Caraballo, Schuster & Aguilo LLP, James D. Noel III, McConnell Valdes, Maralyssa Alvarez–Sanchez, San Juan, PR, Phv Grace M. Mora, Phv Juan C. Enjamio, Hunton & Williams LLP, Miami, FL, for Defendant.

OPINION AND ORDER

BESOSA, District Judge.

October 9, 2009, plaintiff David Rosado (“Rosado”) filed an amended complaint against defendant American Airlines (“American”), alleging violations of: (1) the Americans with Disabilities Act (“ADA”) and its local counterpart, Puerto Rico Law 44; (2) local statutes prohibiting gender-based discrimination and harassment in the workplace, Puerto Rico Laws 100 and 17, respectively; (3) the local prohibition on wrongful discharge, Puerto Rico Law 80; and (4) the Puerto Rico Civil Code for breach of confidentiality. (Docket No. 53 at 1–2.) On June 25, 2010, American moved for summary judgment. (Docket No. 62.) Rosado opposed the motion for summary judgment on August 3, 2010, (Docket No. 69), and American replied to the opposition on August 20, 2010 (Docket No. 80). For the following reasons, the Court GRANTS American's motion for summary judgment.

UNCONTESTED FACTS

Rosado began working for American Airlines on June 12, 1985, as a Fleet Service Clerk in the cargo department at the Luis Muñoz Marin Airport in San Juan, Puerto Rico. (Docket No. 64–2 at 2.) Rosado's supervisors testified that throughout his career, he was an excellent, intelligent employee. (Docket Nos. 74–12 at 3; 74–13 at 15; 74–14 at 10; 74–16 at 6.)

As of 2005, a Fleet Service Clerk's responsibilities included “handling of items on and off aircraft, carts, containers, and trucks; transporting items between terminals and aircraft; receiving, delivering, weighing and documenting of cargo in a cargo specific facility (warehouse) or a loading dock area.” (Docket No. 64–2 at 8.) A Fleet Service Clerk's responsibilities may also include other, less physically demanding tasks, such as handling mail. (Docket No. 74–12 at 5–6.) A Clerk's responsibilities were assigned to him or her based on a bidding system that operated by way of seniority. Id.

According to Veraliz Mila (“Mila”), American Airlines's Human Resources Senior Specialist for Operation Support in San Juan and Miami, American is required by Federal law and by its own internal standards to operate with the highest degree of care for the safety of the traveling public. (Docket No. 64–2 at 3.) Mila stated that one way American ensures these standards is by maintaining and enforcing a drug and alcohol free workplace. Id.

A. Rosado's Mental Illness and Cocaine Addiction History

According to files maintained by the Manager for American's Employee Assistance Program (“EAP”), Eleonora Campolieto (“Campolieto”), on October 15, 1996, Rosado was removed from service due to his cocaine addiction. (Docket No. 64–1 at 10–11.) He was voluntarily admitted to Mount Sinai Medical Center's Addiction Treatment Program in Miami, Florida, on October 23, 1996, and was discharged from the inpatient program on October 29, 1996. Id. With the assistance of the EAP, Rosado then enrolled in an outpatient treatment program at Integrated Healthcare Systems in San Juan, Puerto Rico, where he continued to receive treatment on an outpatient basis. Id. at 13–15. He was released to return to work on November 21, 1996. Id. According to Campolieto, EAP assists employees to obtain treatment for drug and alcohol dependency and other personal problems that affect an employee's health and job performance. (Docket No. 64–1 at 6.) Maintaining the employee's confidentiality and anonymity is important to the program, so employees are comfortable requesting assistance without disclosing the nature of their problem to colleagues or supervisors. Id.

Rosado agreed to be placed on a drug recovery program through American's Drug Recovery Monitoring IVRS System; on November 26, 1996, he signed an agreement for aftercare treatment in order to ensure his continuing recovery. (Docket No. 64–1 at 17–18.) Pursuant to that agreement, Rosado agreed to maintain complete abstinence from alcohol and/or any drug, except as authorized by American's Medical Department. Id. He also voluntarily agreed to submit to random drug testing. Id. Rosado's agreement also included a provision stating that his failure to comply could result in his removal from service without pay for medical reasons; he signed a waiver of his rights under applicable federal and/or state disability laws or regulations to challenge his medical removal from service for violation of the agreement. Id. On January 30, 1997, Rosado voluntarily informed American that he had suffered a relapse. Id. at 20. According to the EAP document regarding Rosado's relapse, Rosado was again placed into the outpatient program. Id. According to an EAP evaluation report, Rosado relapsed again in August of 1998 and requested EAP's assistance. Id. at 22.

On October 13, 1998, Rosado tested positive for cocaine during a random drug test. (Docket No. 64–2 at 3.) On November 11, 1998, American terminated Rosado's employment for violating Rule 33 of American's Rules of Conduct, which states, inter alia, that possessing or using a narcotic either on duty or off duty, except in accordance with medical authorization, is prohibited. Id.

On or about November 3, 1998, Rosado was admitted to First Hospital Panamericano in San Juan, Puerto Rico for cocaine and alcohol dependencies and depression. (Docket Nos. 64–7 at 10, 77–1.) On November 19, 1998, Rosado and American entered into an Agreement for Conditional Reinstatement (“Agreement”) which stated the terms and conditions upon which Rosado's continued employment at American would be based. (Docket No. 64–3 at 10.) As part of the Agreement, Rosado agreed to submit to any procedure requested by management, including a breathalyzer or urinalysis test, deemed appropriate, which would have bearing on his compliance with the Agreement. Id. Additionally, Rosado signed an undated Letter of Resignation, which would be implemented by American if Rosado's breached the Agreement. Id.

At the end of 1998 and the beginning of 1999, Rosado divorced his wife and was diagnosed with HIV. (Docket No. 64–5.) In early 2000, Rosado entered into a romantic relationship with Jorge Mendez–Torres (“Torres”). Id.

In December of 2007, Rosado again solicited assistance from American's EAP to help him overcome his recent cocaine binge. (Docket No. 64–1 at 25.) At American's request, Rosado checked himself into a drug treatment and recovery program at Conifer Park in New York City. (Docket Nos. 64–1 at 25; 64–7 at 1.) Rosado's medical records from Conifer Park state that he reported being “out of control”, having “started to use on the job”, and wanting “a clean and sober life.” (Docket No. 64–7 at 1.) On March 25, 2008, Rosado returned to work. (Docket No. 64–1 at 27.) In April of 2008, EAP union representative Manny Diaz (“Diaz”) contacted Campolieto to inform her that Rosado had relapsed in his drug use and had spent $500 on cocaine in the previous few days. Id. at 29. Campolieto advised Rosado he should call in sick the next day and consult with Vivian Rodriguez (“Rodriguez”) regarding an aftercare follow up plan. Id. On June 26, 2008, Rosado signed another agreement for an aftercare treatment plan, which stated that he would agree to submit to any required medical tests and that he agreed to maintain complete abstinence from alcohol and drugs. Id. at 31. By signing the agreement, Rosado understood that his failure to comply with the agreement could result in removal from service without pay for medical reasons. Id.

In July of 2008, Rosado was tested by American's medical personnel to determine the effects of his medications on his cognitive functioning. (Docket No. 74–25.) The report submitted by the medical personnel indicated that Rosado “likely has the basic skills necessary to perform his job duty.” Id.

B. Rosado's Re–Testing Incident and Aftermath

On August 29, 2008, Rosado was selected for a random drug test; the results of which were returned “diluted”. (Document Nos. 74–2 at 34; 74–3 at 46–47.) On September 17, 2008, EAP Manager Campolieto received notification that Rosado's last drug test results were diluted and he needed to be retested immediately. (Docket No. 64–6 at 18–19.) On the morning of Sept. 18, 2008, Campolieto informed Rosado of the diluted results of the previous test, and told him that he had to report for a drug test. (Docket No. 74–2 at 36–40.) Rosado had not been previously required to submit to a drug test within a time constraint shorter than his full shift of work. Id. at 34–36. When Rosado failed to appear for the test immediately, Campolieto called Rosado again and informed him that he had to report for the drug test within thirty minutes. Id. at 39–40. Rosado failed to appear for the drug test within the time allotted. Id. at 48; (Docket No. 64–6 at 13–16.) Rosado was then removed from service. (Docket No. 64–6 20–61, 45–49, 50.)

On September 18, 2008, Mildred Fuentes, (“Fuentes”), Cargo Manager at American, contacted Rosado, informing him that he was to report to a meeting on September 19,2008 to discuss the status of his suspension. (Docket Nos. 64–6 at 28; 74–3 at 5.) Rosado failed to attend this meeting, and called Fuentes later in the day to notify her that he was not feeling well. (Docket Nos. 64–6 at 30–32; 74–3 at 6.) Fuentes told Rosado to appear for a meeting on September 22, 2008. (Docket No. 74–3 at 6–7.) Fuentes also sent Rosado a letter directing him to appear for a meeting in her office at 11:00 a.m. on September 22, 2008, the failure of which would be considered insubordination. (Docket No. 64–3 at 15.) The letter further stated that...