Lutgardo Acevedo López; Migdalia Fuentes-Cabán; Conjugal Partnership Acevedo-Fuentes v. Police Department of the Commonwealth of Puerto Rico

United States Court of Appeals
For the First Circuit
No. 00-1093
LUTGARDO ACEVEDO LÓPEZ; MIGDALIA FUENTES-CABÁN; CONJUGAL PARTNERSHIP
ACEVEDO-FUENTES,
Plaintiffs, Appellants,
v.
POLICE DEPARTMENT OF THE COMMONWEALTH OF PUERTO RICO; HÉCTOR QUILES,
IN HIS PERSONAL AND OFFICIAL CAPACITY; PEDRO TOLEDO, IN HIS PERSONAL
AND OFFICIAL CAPACITY; JOHN DOE, IN HIS PERSONAL AND OFFICIAL
CAPACITY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S.District Judge]
Before
Torruella, Chief Judge,
Lipez, Circuit Judge,
and García-Gregory,* District Judge.
Antonio Bauzá Torres, for appellants.
Leticia Casalduc-Rabell, Assistant Solicitor General, with
whom Gustavo A. Gelpí, Solicitor General, Department of Justice, and
Rosa N. Russe-García, Deputy Solicitor General, were on brief for
appellees.

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April 26, 2001
* Of the District of Puerto Rico, sitting by designation.

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1 The statute prohibits discrimination against qualified
individuals with disabilities who can perform the essential functions
of a job, with or without reasonable accommodation. See 42 U.S.C. §
12112(a). The protection covers the hiring, promotion, or discharge of
employees, as well as employee compensation, occupational training, and
other terms, conditions and privileges of employment. See id.
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LIPEZ, Circuit Judge. After resigning because of his
employer's failure to accommodate his back condition, Lutgardo Acevedo
López sued the Police Department of Puerto Rico, alleging disability
discrimination under the Americans with Disabilities Act (ADA), 42
U.S.C. §§ 12101-12771, and Puerto Rico law, 31 P.R. Laws Ann. § 1541.
Specifically, Acevedo sued under Title I of the ADA, which authorizes
money damages for illegal employment actions.1 The statute prohibits
discrimination against qualified individuals with disabilities who can
perform the essential functions of a job, with or without reasonable
accommodation. See 42 U.S.C. § 12112(a). The protection covers the
hiring, promotion, or discharge of employees, as well as employee
compensation, occupational training, and other terms, conditions and
privileges of employment. See id.
On December 6, 1999, the district court granted summary
judgment against Acevedo, dismissing the ADA claim with prejudice, and
the pendant Puerto Rico law claims without prejudice. See Acevedo-
López v. Police Dep't of Puerto Rico, 81 F. Supp. 2d 293, 297 (D.P.R.
1999). The court found that Acevedo had failed to establish a prima
facie case of disability discrimination, concluding that he did not

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have a disability within the meaning of the Act, see Bragdon v. Abbott,
524 U.S. 624 (1998), because the alleged major life activity that was
impaired, driving, "is simply not on par with those basic, essential
human functions that are within the contemplation of the ADA."
Acevedo-López, 81 F. Supp. 2d at 297. We affirm the district court's
summary judgment ruling on a different ground -- Puerto Rico's Eleventh
Amendment immunity from suit for money damages under the ADA.
I.
Acevedo López commenced service in the Puerto Rico police
department in April 1993. In October 1994, Acevedo hurt his back while
making an arrest, which resulted in a diagnosis of spondylolysis, a
condition causing pain, inflammation, spasms and stiffness in the lower
back. Although he was treated for his injury and returned to work, he
relapsed in 1997 and sought medical treatment. Acevedo stopped working
from November 13, 1997 to June 10, 1998, when a state insurance fund
physician found him to be in good condition once again.
When Acevedo reported back to work, he notified the police
department that his disability prevented him from traveling long
distances by car. Acevedo requested transfer to a precinct closer to
his home near Moca (a similar reassignment request had been granted in
1994). Nonetheless, the police department assigned Acevedo to Arecibo,
which is about one hour by car from his home. Because Acevedo felt he
could not make this commute without discomfort, he submitted his

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resignation on June 12, 1998. Six months after Acevedo's resignation,
the state insurance fund issued a certificate stating that Acevedo
should avoid long trips due to his back condition. He filed this
lawsuit on March 26, 1999.
II.
Eleventh Amendment immunity can be raised at any time because
of its jurisdictional implications. See Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 99 n.8 (1984). In the appeal to this court,
the Police Department of Puerto Rico raised the Eleventh Amendment
immunity issue for the first time. See U.S. Const. Amend. XI. The
police department is an entity of the Commonwealth of Puerto Rico.
"Puerto Rico, despite the lack of formal statehood, enjoys the shelter
of the Eleventh Amendment in all respects." Ramírez v. Puerto Rico
Fire Service, 715 F. 2d 694, 697 (1st Cir. 1983); see also Figueroa-
Rodriguez v. Aquino, 863 F.2d 1037, 1044 (1st Cir. 1988). Recognizing
that the issue of whether a state could be sued by an individual for
damages under the ADA was before the Supreme Court, we issued an order
on December 18, 2000, following oral arguments, staying the case until
a decision was rendered.
The Supreme Court decided University of Alabama Board of
Trustees v. Garrett, 121 S.Ct. 955 (2001), on February 21, 2001,
holding that suits in federal court by state employees to recover money
damages for a state's non-compliance with Title I of the ADA are barred

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by the Eleventh Amendment. It reached this conclusion by invalidating
the abrogation of the states' immunity by Congress pursuant to § 5 of
the Fourteenth Amendment. See id. at 967-68.
In the wake of Garrett, we directed the parties to submit
supplemental briefs assessing its impact on this case. The police
department asserts that the Supreme Court's ruling bars "[p]laintiff-
appellant's claim that the Puerto Rico Police Department did not
accommodate his alleged disability" under Title I of the ADA and that
the district court's dismissal of the suit must be affirmed. Acevedo
argues that his suit survives because, based on the Commonwealth's own
disability discrimination law, Law 44, Puerto Rico has waived its
immunity from suit under the ADA.
"The Court has held that, absent waiver by the State or valid
congressional override, the Eleventh Amendment bars a damages action
against a State in federal court." Kentucky v. Graham, 473 U.S. 159,
169 (1985). The test for finding that a state has waived its Eleventh
Amendment immunity is a stringent one. See Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 241 (1985). A state's consent to suit in the
federal courts must be "unequivocally expressed." Pennhurst, 465 U.S.
at 99. It must be "stated by the most express language or by such
overwhelming implications from the text as [will] leave no room for any
other reasonable construction." Edelman v. Jordan, 415 U.S. 651, 673
(1974) (quotations omitted). Furthermore, "in order for a state

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statute or constitutional provision to constitute a waiver of Eleventh
Amendment immunity, it must specify the state's intention to subject
itself to suit in federal court." Atascadero, 473 U.S. at 241.
Given these rigid requirements, we are not remotely persuaded
that Law 44 of Puerto Rico, codified at 1 P.R. Laws Ann. § 501, et.
seq., constitutes a waiver of Eleventh Amendment immunity from suit
under the ADA. While the Commonwealth prohibits employment
discrimination on the basis of disability in a similar fashion as the
ADA, there is no specific language indicating that Puerto Rico intends
to make itself subject to damages suits in federal court for
disability-based employment discrimination. Because Congress did not
have valid authority to abrogate the states' immunity and because
Puerto Rico has not waived its claim to Eleventh Amendment immunity,
the Title I ADA claim for employment discrimination against the Police
Department of Puerto Rico cannot survive.
III.
This suit included actions against three officers of the
Puerto Rico Police Department in their personal, as well as official,
capacities. However, the basis for this personal capacity claim was
never articulated in the plaintiff's briefs, at oral argument, or in
his supplemental brief filed after Garrett. Because this personal
capacity claim is completely undeveloped, we will not consider it. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues

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adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.") We simply note that we
have not resolved the question of whether personal capacity suits can
be sustained under the ADA. However, several other circuit courts and
three district courts within this circuit have held "that individuals
are not subject to suit under [] the ADA." See Quiron v. L.N. Violette
Co., Inc., 897 F. Supp. 18, 19 (D. Me. 1995); Vicenty Martell v. Estado
Libre Asociado de P.R., 48 F. Supp. 2d 81, 87 (D.P.R. 1999); Miller v.
CBC Companies, Inc., 908 F. Supp. 1054, 1065 (D.N.H. 1995); see also
Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir. 1999);
EEOC v. AIC Security Investigations, 55 F.3d 1276, 1282 (7th Cir.
1995).
IV.
For the reasons stated, we affirm the district court's grant
of summary judgment and its dismissal of Acevedo's ADA claim against
the Police Department of Puerto Rico.
Affirmed.

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