Pérez-Maspons v. Stewart Title P.R., Inc., CIVIL NO. 14-1636 (GAG)

• Decision Date: 16 September 2016
• Docket Number: CIVIL NO. 14-1636 (GAG)
• Citation: 208 F.Supp.3d 401
• Parties: Juan PÉREZ-MASPONS, Plaintiff, v. STEWART TITLE PUERTO RICO, INC., et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

208 F.Supp.3d 401

Juan PÉREZ-MASPONS, Plaintiff,

v.STEWART TITLE PUERTO RICO, INC., et al., Defendants.

CIVIL NO. 14-1636 (GAG)

United States District Court, D. Puerto Rico.

Signed September 16, 2016

Rosa M. Nogueras, Nogueras De Gonzalez Law Office, San Juan, PR, for Plaintiff.

Enrique R. Padro, Nicole Marie Rodriguez-Ugarte, Silva-Cofresi, Manzano & Padro, LLC, San Juan, PR, for Defendants.

OPINION AND ORDER

GUSTAVO A. GELPI, United States District Judge

Juan Pérez-Maspons ("Plaintiff") brings an employment discrimination action against Defendants Stewart Title Puerto Rico, Inc. ("STPR"), Stewart Title Guaranty Company ("STGC"), Stewart Title Company ("STC"), Stewart Information Services Corporation ("SISCO"), and Maritza Quezada ("Quezada") (collectively "Defendants"). (Docket No. 5 ¶¶ 19-25.) Plaintiff alleges Defendants discriminated against him because of his age and disability in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 -623 ("ADEA"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"); the Americans with Disabilities Act, 42 U.S.C § 12112(a) ("ADA"); and 42 U.S.C. § 1983. Plaintiff also invokes the Court's supplemental jurisdiction to bring various claims under Puerto Rico state law.¹ Id. ¶¶ 2, 7.

Presently before the Court is Defendants' Motion for Summary Judgment. (Docket No. 83.) Plaintiff responded in opposition. (Docket No. 92.) Then, Defendants replied, to which Plaintiff filed a sur-reply. (Docket No. 111; Docket No. 118.)

Defendants argue Plaintiff's ADEA discrimination and retaliation claims are time-barred, and alternatively, the evidence does not support either claim. (See Docket No. 83.) Defendants present two non-discriminatory, non-retaliatory justifications for their actions: (1) organizational changes affecting compensation and the delegation of work and (2) an age-neutral October 2013 Reduction-In-Force ("RIF"). After considering the motion, and all replies and responses thereto, the Court GRANTS in part and DENIES in part Defendants' Motion for Summary Judgment at Docket No. 83.

I. Preliminary Matters and Admissibility Objections

A. Local Rule 56(c)

As a threshold matter, the Court addresses preliminary objections. Defendants filed a Statement of Uncontested Material Facts in support of its summary judgment motion, listing 173 allegedly undisputed facts. (Docket No. 83–2.) Subsequently, Plaintiff filed a Response in Opposition to Defendants' Statement of Uncontested Material Facts. (Docket No. 92–1.) In this document, Plaintiff admitted, denied, and qualified Defendants' version of the facts. However, many of Plaintiff's responses failed to support the denial or qualification with proper citation to the record, as required by Local Rule 56(c). Additionally, while certainly not mandatory, Plaintiff elected not to provide a separate section of additional facts in his response to Defendants' Statement of Uncontested Material Facts, as permitted by Local Rule 56(c). Instead, Plaintiff's Response in Opposition to Defendants' Statement of Uncontested Material Facts relies primarily on admissibility objections to Defendants' evidence—and not on properly cited assertions of fact.

B. Sham Affidavit

Defendants' Statement of Uncontested Material Facts draws support in large part from an affidavit executed by Quezada. (See Docket No. 83–3.) Plaintiff objects, arguing the affidavit is a self-serving "sham affidavit" because it was created after the discovery period, executed the same day Defendants filed their motion, and contains facts allegedly contradicting Quezada's deposition testimony. (Docket No. 92–1 at 5–6.) Plaintiff requests the Court strike all facts supported by Quezada's affidavit. Id. at 6.

The sham affidavit doctrine forbids a party opposing summary judgment from submitting an affidavit contradicting prior testimony solely to create an issue of fact. Malavé – Torres v. Cusido , 919 F.Supp.2d 198, 203 (D.P.R.2013) ; see also Escribano – Reyes v. Prof'l Hepa Certificate Corp. , 817 F.3d 380, 387 (1st Cir.2016) (affirming the district court's decision to strike a sham affidavit and impose sanctions). However, the doctrine does not bar a party from "elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition." Id. ; see also Gillen v. Fallon Ambulance Serv. , 283 F.3d 11, 26 (1st Cir.2002) ("[a] subsequent affidavit that merely explains, or amplifies upon, opaque testimony given in a previous deposition is entitled to consideration in opposition to a motion for summary judgment."). The self-serving nature of the affidavit, alone, does not preclude the Court from considering at affidavit at summary judgment. See Malavé – Torres , 919 F.Supp.2d at 204 (compiling circuit precedents allowing self-serving affidavits as admissible evidence at summary judgment). Further, the Court need not specifically enumerate each contradiction between a party's prior testimony and the later filed affidavit in order to disregard the evidence. Orta – Castro v. Merck, Sharp & Dohme Química PR., Inc. , 447 F.3d 105, 110 (1st Cir.2006).

Defendants contend Quezada's affidavit clarifies, rather than contradicts, her deposition testimony. (Docket No. 111–1 at 13–14.) The Court agrees. Insomuch as Quezada testified at her deposition that she did not know the answer to certain questions, such as the details surrounding the acquisition of STPR or source of her paycheck, she uncovered the information after her deposition and supplemented her answers in the affidavit. (Docket No. 111–1 at 13.) For example, Quezada stated that "[t]hough [she] did not know for a fact the details for the purchase of STPR by STC at the time that [her] deposition was taken ... upon further investigation, [she] found more details as to the purchase and have come to learn that STC bought 51% of STPR's stock in 2001 and that, thereafter, in 2010, STC purchased the remaining ... stock." (Docket No. 83–3 ¶ 6.)

The Court finds Quezada's affidavit explains and elaborates on inconclusive answers given at the deposition. See Hernández – Loring v. Universidad Metropolitana , 233 F.3d 49, 54 (1st Cir.2000) (subsequent revised testimony due to lapse of memory and new sources of information did not constitute a contradiction warranting striking an affidavit.) Notably, Plaintiff has not identified any factual basis to show Quezada's affidavit contradicts her deposition testimony. Therefore, the Court deems the following facts from Defendants' Statement of Undisputed Material Facts as properly supported by the record: ¶¶ 1-2, 13, 18-20, 25, 28, 36, 42-43, 47-48, 62, 65, 87, 91-92, 97, 106, 116, 118 133-34, 137-39, 141-42 148-49, 152, 154, 157, 171-72. (See Docket No. 83–2).

C. Admissibility

Plaintiff also objects to the admissibility of STPR's financial statements, specifically Docket Nos. 83–14; 83–15; 83–16; 83–32; and 83-34. Plaintiff argues Quezada's affidavit fails to properly authenticate the financial statements because she did not prepare them and she lacks personal knowledge of the underlying information contained therein. (Docket No. 118–7 at 12, 17.) This argument fails.

Under the federal rules, "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible." FED. R. CIV. P. 56(c)(2). Rule 56(c)(2) requires "nothing more" than "an unsworn declaration under penalty of perjury" to authenticate certain business records. Francis v. Caribbean Transp. Ltd. , 882 F.Supp.2d 275, 278–79 (D.P.R.2012) ; see also Santos v. Nogueras , No. 11–1105 (MEL), 2012 WL 2871108, at *4 (D.P.R. July 12, 2012) ("evidence need not necessarily be presented in an admissible form at summary judgment, as long as the proponent shows that it can be presented in an admissible form at trial" with a statement that the exhibits "were in [the plaintiff's] personal knowledge and that she [could] properly identify and authenticate them at trial ...."). In her affidavit under penalty of perjury, Quezada stated STPR's financial statements were "true and accurate copies of the originals that are kept under [her] custody as Vice President and General Manager of STPR." (Docket No. 83–3 at 13.) Thus, Quezada's affidavit is sufficient to authenticate STPR's financial statements at the summary judgment stage.²

Lastly, the Court notes Plaintiff failed to provide proper record citations in denying Defendants' Statement of Uncontested Material Facts ¶¶ 78-81, 136, 160, 167-68, and 170. (See Docket No. 92–1 ¶¶ 78–81, 136, 160, 167-68, 170.) Therefore, Defendants' Statement of Uncontested Material Facts ¶¶ 78-81, 136, 160, 167-68, and 170 are deemed admitted. See FED. R. CIV. P. (56)(c)(1) ("[a] party asserting that a fact is genuinely disputed must support the assertion by citing to particular parts of materials in the record ...."); see also L. CIV. R.56(c), (e) ("[u]nless a fact is admitted, the opposing statement shall support each denial or qualification by a record citation .... the court may disregard any statement of fact not supported by a specific citation to record material ....").

II. Relevant Factual and Procedural Background

Plaintiff brings this claim following his termination as an insurance executive and underwriter after forty-four (44) years of employment at STPR. At the time of his termination, Plaintiff was seventy-eight (78) years old. (Docket Nos. 83–2 ¶ 3; 92-1 ¶ 3.) From 1977 until the date of his termination, Plaintiff held the position of Vice President. (Docket Nos. 83–2 ¶ 5; 92-1 ¶ 5.) As Vice President, Plaintiff underwrote title insurance policies and performed a variety of tasks related to the origination, investigation, and maintenance of title insurance policies. (Docket Nos. 83–2 ¶ 6; 92-1 ¶ 6.)

Beginning in 2001, STPR underwent a series of changes in ownership, governance, and organizational structure. In 2001, a different company, Stewart Title Company ("STC"), purchased fifty-one percent of the shares of STPR. (...