                   Not for Publication in West’s Federal Reporter

             United States Court of Appeals
                          For the First Circuit

No. 07-1422

           ROBERTO MELÉNDEZ-SANTANA; JESSICA GONZÁLES-ORTIZ,
                        Plaintiffs, Appellants,

                                        v.

      PUERTO RICO PORTS AUTHORITY, ISRAEL ORTIZ-DE-JESÚS; MANUEL
                          VILLIZÀN-LING-LONG,

                          Defendants, Appellees.



             APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF PUERTO RICO

               [Hon. Jaime Pieras, Jr., District Judge]


                                 Before
                          Lynch, Chief Judge,
                         Selya, Circuit Judge,
                     and Schwarzer,*District Judge.




     Rafael A. Oliveras López De Victoria on brief for appellant.
     Martha L Martínez Rodríguez, and Manuel A. Núñez Law Offices
on brief for appellee the Puerto Rico Ports Authority.
     Maite D. Oronoz-Rodriguez, Acting Solicitor General, and Irene
S. Soroeta-Kodesh, Assistant Solicitor General, on brief for
appellees Israel Ortiz-De-Jesús and Manuel Villazàn-Ling-Long.


                              October 16, 2008




*
    Of the Northern District of California, sitting by designation.
           Schwarzer, District Judge, Plaintiffs Roberto Meléndez-

Santana and his wife Jessica González-Ortiz appeal the district

court’s summary judgment for the defendants, the Puerto Rico Ports

Authority (“PRPA”), Israel Ortiz-de-Jesús, and Manuel Villazán-

Ling-Long, dismissing Meléndez-Santana’s action for violation of

the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et

seq., and for breach of contract.       Because Meléndez-Santana has

failed to establish that he was a qualified individual under the

ADA, or that the contract claim is properly before us, we affirm

the judgment of the district court.



                  I. Factual and Procedural History

           The material facts are undisputed. Mr. Meléndez-Santana

began working for the PRPA in 1993 as a security supervisor.        From

1994 to 1998, he served as an assistant and bodyguard to the

Executive Director of the PRPA.       In 1998, Meléndez-Santana was

transferred to the International Airport where he again served as

a   security   supervisor.   The   essential   duties   of   a   security

supervisor include regular contact with the public and other

employees, as well as: (i) inspection of all services rendered by

guards and other employees in the security area; (ii) periodic

inspections of security areas; (iii) enforcing the security rules

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and recommending necessary measures; and (iv) communicating with

different security areas, local police and federal authorities.

After   the    terrorist   attacks   on   September       11,    2001,    security

procedures at the airport were altered, and employees were required

to work extended rotating shifts that included night duty.                      In

February 2002, Meléndez-Santana requested reassignment because the

night time shifts were difficult for him.             He was transferred to

the   Maritime    Division   effective       June   10,    2002,    but    he   was

dissatisfied with the new assignment because it involved similar

duties and hours.

              In July 2002, Meléndez-Santana’s doctor certified that he

was unable to work due to severe depression and anxiety that

limited his concentration and made him unstable and aggressive. He

went on leave for approximately ten months.               During that time, in

September 2002, he applied for Social Security Disability Insurance

benefits, claiming total disability.

              Meléndez-Santana   returned      to   work    on     May   5,   2003,

reporting to the Maritime Division.          He brought a certificate from

his family doctor dated May 1, 2003, stating that he could not work

rotating night time shifts, and could not work in security. He

requested changes in his duties as a reasonable accommodation based

on his condition, in accordance with PRPA procedures.                     The PRPA

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referred him for medical evaluation to determine if he was eligible

for a reasonable accommodation and temporarily assigned him to work

as a security supervisor in the PRPA’s main office until the

evaluation process was completed.              This position required only day

shifts, and consisted of lighter duties than his job in the

Maritime Division.

              On May 14, 2003, Dr. López Cumpiano, a psychiatrist,

examined     Meléndez-Santana       in     the     course   of     the        reasonable

accommodation evaluation process.                 In his report, Dr. Cumpiano

concluded that Meléndez-Santana still suffered from mental illness

and was not able to perform any of the essential duties of his job,

with or without accommodation.            This report was sent to the PRPA on

June 3, 2003.

             On June 2, 2003, Meléndez-Santana got into an argument

with   his   supervisor,      Manuel      Villazàn-Ling-Long,           who     informed

Meléndez-Santana      that    he   was    no     longer   assigned       to    the   PRPA

headquarters.     When he was ordered to report to the San Juan Harbor

to begin a rotating shift that initially would go from 2:00 to

10:30 pm, he became very upset.           He felt that the night time shifts

aggravated     his   mental   illness      and     prevented      him    from     taking

sleeping     medication   prescribed       by     his   doctor.         He    left   PRPA



                                         - 4 -
headquarters, did not report that evening to the Harbor, and did

not return to work at the PRPA.

            On December 1, 2004, he filed this action in the district

court alleging violations of the ADA and Title VII of the Civil

Rights Act of 1964, and various state law claims.                   On January 22,

2007, the district court granted summary judgment to the defendants

on the ADA claim, dismissed the Title VII claim sua sponte under

Fed. R. Civ. P. 12(b)(6), and declined to exercise supplemental

jurisdiction     over   the   state   law     claims.        This    timely   appeal

followed.



                               II.    Discussion

                 A.   The Americans with Disabilities Act

            We   review   a   summary    judgment       de    novo    drawing    all

reasonable inferences in favor of the non-moving party.                   Thompson

v. Coca-Cola Co. 522 F.3d 168, 175 (1st Cir. 2008).

            The district court found that Meléndez-Santana failed to

establish a prima facie case of disability discrimination under the

ADA. To make out a prima facie case, Meléndez-Santana had to prove

1) that he suffered from a disability within the meaning of the

ADA; 2) that he could nonetheless perform the essential functions

of the job with or without reasonable accommodation; and 3) that

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his employer discharged or took an adverse employment action

against him in whole or in part because of his disability.   Orta-

Castro v. Merck, Sharp & Dohme Química P.R., Inc. 447 F.3d 105, 111

(1st Cir. 2006).   The district court found that Meléndez-Santana

suffered a disability within the meaning of the ADA, and that

finding is not in dispute. The district court concluded, however,

that he was not a qualified individual under the ADA because he did

not establish that he was able to perform the essential functions

of the job even with reasonable accommodation.

          Upon Meléndez-Santana's return to work in May 2003 after

his ten-month medical leave and in the course of the reasonable

accommodation evaluation process, he was examined by Dr. López

Cumpiano, the designated examiner.    Dr. López Cumpiano determined

that Meléndez-Santana was unable to perform any task with or

without accommodation.   His report was forwarded to the Social

Security Administration, which determined that Meléndez-Santana was

unable to perform the duties of his position or any other job and

granted him Social Security Disability Insurance benefits.

           Meléndez-Santana has offered no evidence that calls into

question the finding of total disability.    Moreover, his receipt

of Social Security Disability Insurance benefits placed on him the

burden of proffering a sufficient explanation for the contradiction

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between his total disability claim and his ADA claim which would

allow a reasonable jury to conclude that the plaintiff could

perform   the   essential   functions    of   his   job   with   or   without

accommodation.    Cleveland v. Policy Mgmt. Sys., 526 U.S. 795, 807

(1999). No such explanation has been offered.

           Because the undisputed evidence shows that Meléndez-

Santana is not able to perform the essential functions of his job

with or without accommodation, he has failed to establish a prima

facie case under the ADA. Summary judgment was properly granted on

the ADA claim.



                     B.   Breach of Contract Claim

           For the first time on appeal, Meléndez-Santana asserts

a claim that PRPA breached a reasonable accommodation agreement, a

claim neither pleaded in the complaint nor raised in the court

below. "Under the familiar raise-or-waive rule, legal theories not

asserted in the lower court cannot be broached for the first time

on appeal."      Goodwin v. C.N.J., Inc.,436 F3d 44, 51 (1st Cir.

2006).

           Even were we to consider this claim, it is clear that

when Meléndez-Santana returned to work on May 5, his assignment to

work as safety supervisor at the Main Office was only temporary,

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while his request for reasonable accommodation was being evaluated.

There is no evidence of any agreement between him and PRPA to

provide a reasonable accommodation.



AFFIRMED.




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