UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, OFFICE OF THE SECRETARY, on behalf of Carlo Gimenez Bianco, Petitioner, v. CASTILLO CONDOMINIUM ASSOCIATION, Respondent.
Nos. 14-2139, 15-1223
United States Court of Appeals, First Circuit
May 2, 2016
To sum up, Massachusetts courts recognize limitations on the protection afforded to at-will employees under the public policy exception. And the Massachusetts cases warn that the public policy exception is purposely circumscribed, so that the general rule preserving employer prerogative does not morph into an edict requiring just cause to terminate an at-will employee. See, e.g., King, 638 N.E.2d at 492; Mercado, 928 N.E.2d at 983. Because the district court adhered to the line drawn in the state court decisions, its ruling on the common law claim also stands.
AFFIRMED.
Christopher Chen-Hsin Wang, Attorney, United States Department of Justice, Civil Rights Division, with whom Vanita Gupta, Principal Deputy Assistant Attorney General, and Sharon M. McGowan, Attorney, were on brief, for Secretary of the United States Department of Housing and Urban Development.
Before HOWARD, Chief Judge, TORRUELLA and SELYA, Circuit Judges.
SELYA, Circuit Judge.
This case involves a man, his dog, and a condominium association‘s “no pets” rule. Like so many cases, it turns chiefly on the standard of review. After delineating that standard (a matter of first impression in this circuit), inspecting the record through that lens, and applying the applicable law, we deny the condominium association‘s petition for judicial review of a final order of the Secretary of the United States Department of Housing and Urban Development (HUD). We simultaneously grant the Secretary‘s cross-petition for enforcement of his order.
This case rests on a statutory foundation: the Fair Housing Act (the Act),
Pertinently, the Act outlaws discrimination in connection with the terms, conditions, or privileges of housing. See
II. PRIOR PROCEEDINGS
In 2010, the Castillo Condominium Association (the Association) learned that Carlo Gimenez Bianco (Gimenez), a condominium resident, was keeping a dog on the premises and warned him by letter that it would fine him unless he removed the dog from his unit. In response, Gimenez, an individual who suffers from anxiety and depression, promptly advised the board of directors, in writing, that he planned to keep his emotional support dog in his condominium unit and that he was entitled to do so under federal law. Although Gimenez accompanied this letter with a note from his treating psychiatrist, the Association did not relax its “no pets” bylaw. As a result of the conflict (as the Secretary found), Gimenez was eventually forced to vacate and sell the unit that had been his home for some 15 years.
Gimenez lodged a complaint of disability discrimination with HUD. Following an investigation and an agency determination of reasonable cause, HUD filed a charge of discrimination against the Association.2 See
A four-day evidentiary hearing ensued before an administrative law judge (ALJ). Gimenez, his treating psychiatrist (Dr. Pedro Fernandez), and his primary-care physician (Dr. Roberto Unda Gomez) all testified that Gimenez suffered from a disability—an anxiety disorder and chronic depression—and that his symptoms were ameliorated by the presence of an emotional support dog. The Association presented both lay and expert evidence in opposition. On July 17, 2014, the ALJ issued a recommended decision concluding that the Association had not violated the Act because Gimenez had failed to prove by a preponderance of the evidence that he had a mental impairment warranting a reasonable accommodation in the form of a companion animal.
Under the regulatory regime, the ALJ‘s recommended decision could be appealed to the Secretary. See
Having found the Association liable for discrimination, the Secretary remanded the case to the ALJ for an initial determination of damages and civil penalties. See
Displeased by virtually every aspect of the Secretary‘s final order, the Association filed a timely petition for judicial review. See
III. STANDARD OF REVIEW
Under the Administrative Procedure Act (APA), a reviewing court may set aside a final agency order if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
This familiar standard has a twist, however, in cases in which the hearing officer and the ultimate decisionmaker have differing views of the material facts. This case is emblematic of such a situation: though the ALJ was the initial decisionmaker and the one who actually saw and heard the witnesses, the Secretary is the ultimate decisionmaker. As such, the Secretary is empowered to “affirm, modify or set aside, in whole or in part, the initial decision, or remand the initial decision for further proceedings.”
Although this court has not had occasion to speak to the ramifications of such a paradigm, the case law elsewhere indicates that a more granular level of scrutiny should apply. We agree that such a nuanced approach is desirable—and we adopt it.
We hold that where, as here, the Secretary rejects the factual findings of an ALJ, a reviewing court must first make certain that the Secretary has adequately articulated his reasons for overturning the ALJ‘s findings. See Aylett v. Sec‘y of HUD, 54 F.3d 1560, 1561, 1567 (10th Cir.1995). The court must then proceed to ask whether those articulated reasons derive adequate support from the administrative record. See id. at 1561. Although this heightened level of scrutiny does not alter the substantial evidence standard of review in any fundamental respect, it requires us to apply that standard with special rigor, particularly with regard to credibility determinations. See Garcia v. Sec‘y of Labor, 10 F.3d 276, 280 (5th Cir.1993); see also Earle Indus., Inc. v. NLRB, 75 F.3d 400, 404 (8th Cir.1996) (noting that a reviewing court “examine[s] the [Secretary‘s] findings more critically” when the Secretary and ALJ disagree). It is with this nuanced standard of review in mind that we turn to the Association‘s asseverational array.
IV. DISCUSSION
We divide our analysis into three segments. First, we confront the Association‘s claims that the Secretary‘s final order is not supported by substantial evidence in the record. Second, we explore the Association‘s assertion that the charging party‘s complaint is barred by res judicata. Third, we address the Association‘s plaint that the Secretary‘s final order is tainted by procedural error.4
This case is fact-intensive, and it would serve no useful purpose for us to chronicle every piece of evidence. For present purposes, it suffices to say that we have examined the record with care and have given especially exacting scrutiny to the issue of disability (the principal issue on which the Secretary and the ALJ diverged).
The Secretary‘s decision ultimately rests on his determination that the Association violated the Act. Though the proof is conflicted at several points, we conclude that substantial evidence supports the Secretary‘s finding that the Association‘s refusal to allow Gimenez to keep an emotional support dog in his condominium unit as a reasonable accommodation for his disability was unlawful. That refusal made Gimenez‘s home unavailable to him as a practical matter and, thus, violated the Act. See
To make out a prima facie case for failure to provide a reasonable accommodation, the charging party (here, Gimenez) had to show that he was a person with a disability, that the Association knew or should have known that he was a person with a disability, that his emotional support dog was reasonable and necessary to afford him an equal opportunity to use and enjoy his dwelling, and that the Association nonetheless refused to provide a reasonable accommodation. See Astralis Condo. Ass‘n, 620 F.3d at 67. Here, ample evidence demonstrates these four key showings. First, Gimenez‘s own testimony, substantiated by the testimony of Dr. Fernandez and Dr. Unda, warranted a finding that Gimenez, who suffered from anxiety and chronic depression, was a person with a disability within the purview of the Act. Second, the evidence is virtually incontrovertible that the Association knew (or at least had notice) that Gimenez suffered from a disability. Third, substantial evidence supports a finding that Gimenez told the Association that he would need a reasonable accommodation (an exception to the “no pets” bylaw so that he could keep a dog in his condominium unit) in order to allow him an equal opportunity to use and enjoy his abode. Fourth, the record makes manifest that the Association informed Gimenez that he could not keep his dog in his unit. No more was exigible: based on these supportable findings, the Secretary acted well within the scope of his authority both in concluding that the Association‘s refusal to grant an accommodation made Gimenez‘s home unavailable to him (thus, compelling him to move out in order to keep his emotional support dog) and in concluding that these actions constituted unlawful discrimination.5
To be sure, the Secretary reached these conclusions only after rejecting the ALJ‘s central factual finding: that Gimenez did not suffer from a disability. But the Secretary did not reject that finding lightly. To the contrary, he gave specific and plausible reasons for declining to follow the ALJ—reasons that find adequate purchase in the record. See Aylett, 54 F.3d at 1561, 1567.
To begin, the ALJ discounted Gimenez‘s own testimony, apparently because he concluded that an individual cannot supply key testimony verifying his own disability status. Yet, our research suggests the opposite. See
Next, the Secretary disagreed with the ALJ‘s assessment of Dr. Fernandez‘s testimony. Dr. Fernandez is a practicing psychiatrist who had treated Gimenez for years and who strongly confirmed the existence of the claimed disability. The ALJ seems to have given no weight to the doctor‘s testimony for two primary reasons: first, the ALJ cited the personal friendship between Gimenez and Dr. Fernandez; and second, the ALJ was skeptical of the fact that Dr. Fernandez had not charged Gimenez for treatment. But the Secretary gave cogent reasons for disagreeing with the ALJ‘s assessment. As for the friendship between Gimenez and Dr. Fernandez, the Secretary explained that HUD and DOJ have made pellucid that verification of a person‘s disability can come from any reliable third party who is in a position to know about the individual‘s disability—a category into which Dr. Fernandez surely fit. See
Finally, the Secretary credited the testimony of Dr. Unda—a witness whom the ALJ had disregarded altogether. Dr. Unda‘s testimony confirmed both Gimenez‘s autobiographical account of his struggles with anxiety and depression and Dr. Fernandez‘s diagnosis. That Dr. Unda is not himself a psychiatrist does not, as the ALJ intimated, preclude reliance on his testimony about his patient‘s mental state. See, e.g., Sprague v. Bowen, 812 F.2d 1226, 1231-32 (9th Cir.1987); Alvarado v. Weinberger, 511 F.2d 1046, 1049 (1st Cir.1975) (per curiam).
Based on his evaluation of the testimony, the Secretary concluded that Gimenez had what amounted to a lifelong history of
To say more on this point would be supererogatory. We hold both that the Secretary adequately articulated his reasons for scrapping the ALJ‘s “no disability” finding and that his conclusion that the Association had violated the Act is supported by substantial evidence in the record as a whole.7
B. Res Judicata.
The Association argues that, regardless of the merits, the charge against it ought to have been dismissed on the ground of res judicata. Some additional background is helpful in order to put this argument in perspective.
Prior to filing his complaint with HUD, Gimenez protested the “no pets” bylaw to the Puerto Rico Department of Consumer Affairs (familiarly known by its Spanish acronym, DACO). That protest went nowhere: DACO upheld the Association‘s right to include a “no pets” provision in its bylaws and to enforce such a provision. The Association says that DACO‘s dismissal of the plaintiff‘s complaint should be given preclusive effect. Both the ALJ and the Secretary disagreed. So do we.
In Puerto Rico, the doctrine of res judicata is codified by statute. Under that statute, “it is necessary that, between the case decided by the sentence and that in which the same is invoked, there be the most perfect identity between the things, causes, and persons of the litigants, and their capacity as such.”
“A party asserting claim preclusion under Puerto Rico law must establish that: (i) there exists a prior judgment on the merits that is ‘final and unappealable‘; (ii) the prior and current actions share a perfect identity of both ‘thing’ and ‘cause‘; and (iii) the prior and current actions share a perfect identity of the parties and the capacities in which they acted.” García Monagas v. De Arellano, 674 F.3d 45, 51 (1st Cir.2012). The second of those elements is not satisfied here8 and, accordingly, res judicata does not apply.
The Puerto Rico Condominium Act sets out an administrative process, available to DACO, that is confined to the promulgation of condominium rules and enforcement of those rules. See
C. Motion in Limine.
The Association also challenges a pretrial ruling of the ALJ (implicitly upheld by the Secretary). This ruling denied the Association‘s motion to exclude the expert testimony and written report of Gimenez‘s treating psychiatrist, Dr. Fernandez. This challenge is futile.
To begin, the Association has waived this challenge by failing to develop it in this court. Before us, the Association merely mentioned the argument in the most skeletal terms. This constituted a waiver: it is a “settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990).
Nor does the Association‘s bare reference to pages in the appendix cure this omission. A party cannot force an appellate court to rummage through papers filed below in order to ascertain the structure and substance of that party‘s arguments. See Giragosian v. Bettencourt, 614 F.3d 25, 30 (1st Cir.2010) (deeming impuissant party‘s attempt to rely on arguments made only in district court filings).
In all events, the Association‘s claim has little force. Dr. Fernandez‘s expert testimony rests on a solid foundation: he is a practicing psychiatrist who has treated Gimenez since 1997. Furthermore, his testimony is highly relevant: it goes directly to the pivotal issues in the proceeding (Gimenez‘s claimed disability and his need for an emotional support dog). An agency has wide discretion in determining what individuals are competent to testify as experts in an administrative proceeding and what expert opinion testimony is admissible in such a proceeding. See SeaWorld of Fla., LLC v. Perez, 748 F.3d 1202, 1214 (D.C.Cir.2014); cf. Diefenbach v. Sheridan Transp., 229 F.3d 27, 30 (1st Cir.2000) (discussing trial judge‘s broad discretionary power in determining admissibility of expert testimony). The record in this case, fairly read, offers no reason to think that this wide discretion was somehow exceeded.9
V. CONCLUSION
We need go no further. For the reasons elucidated above, we deny the Association‘s petition for review and grant the Secretary‘s cross-petition for enforcement of his order. Costs shall be taxed in favor of the Secretary.
So Ordered.