919 F.Supp.2d 198 (D.Puerto Rico 2013), Civ. 11-1432 (GAG), Malave-Torres v. Cusido

Docket Nº:Civil 11-1432 (GAG).
Citation:919 F.Supp.2d 198
Opinion Judge:GUSTAVO A. GELP
Party Name:Karla MALAVE-TORRES, Plaintiff, v. Jose M. CUSIDO, et al., Defendants.
Attorney:Hector J. Perez-Rivera, Luis R. Ortiz-Segura, Jeannette M. Lopez, Pinto-Lugo, Oliveras & Ortiz, PSC, San Juan, PR, for Plaintiff. Godwin Aldarondo-Girald, Aldarondo Girald Law Office, San Juan, PR, Kristy M. Johnson, Carlton Fields, P.A., Miami, FL, for Defendants.
Case Date:January 28, 2013
Court:United States District Courts, 1st Circuit, District of Puerto Rico

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919 F.Supp.2d 198 (D.Puerto Rico 2013)

Karla MALAVE-TORRES, Plaintiff,


Jose M. CUSIDO, et al., Defendants.

Civil No. 11-1432 (GAG).

United States District Court, D. Puerto Rico.

January 28, 2013

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Hector J. Perez-Rivera, Luis R. Ortiz-Segura, Jeannette M. Lopez, Pinto-Lugo, Oliveras & Ortiz, PSC, San Juan, PR, for Plaintiff.

Godwin Aldarondo-Girald, Aldarondo Girald Law Office, San Juan, PR, Kristy M. Johnson, Carlton Fields, P.A., Miami, FL, for Defendants.


GUSTAVO A. GELPÍ, District Judge.

On May 10, 2011, Karla Malave Torres (" Plaintiff" ) filed suit against Jose Cusido (" Cusido" ), Sterling Foods, Inc. (" Sterling" ) and unnamed insurance companies (collectively " Defendants" ), alleging she was discriminated against due to her pregnancy. ( See Docket No. 1.) Currently before the court is Defendants' motion for summary judgment. (Docket No. 50.) Plaintiff opposed the motion (Docket No. 67). Defendants filed a reply, which included a motion to strike Plaintiff's counter-statement of uncontested facts (Docket No. 77). Plaintiff filed a sur-reply (Docket No. 81). After reviewing the parties' submissions and applicable law, the court GRANTS IN PART and DENIES IN PART Defendants' motion to strike (Docket No. 77) and GRANTS Defendants' motion for summary judgment (Docket No. 50).

I. Standard of Review

Summary judgment is appropriate when " the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). See FED.R.CIV.P. 56(a). " An issue is genuine if ‘ it may reasonably be resolved in favor of either party’ at trial, and material if it ‘ possess[es] the capacity to sway the outcome of the litigation under the applicable law.’ " Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006) (alteration in original)

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(internal citations omitted). The moving party bears the initial burden of demonstrating the lack of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. " The movant must aver an absence of evidence to support the nonmoving party's case. The burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both genuine and material." Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). The nonmovant may establish a fact is genuinely in dispute by citing particular evidence in the record or showing that either the materials cited by the movant " do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED.R.CIV.P. 56(c)(1)(B). If the court finds that some genuine factual issue remains, the resolution of which could affect the outcome of the case, then the court must deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party and give that party the benefit of any and all reasonable inferences. Id. at 255, 106 S.Ct. 2505. Moreover, at the summary judgment stage, the court does not make credibility determinations or weigh the evidence. Id. Summary judgment may be appropriate, however, if the non-moving party's case rests merely upon " conclusory allegations, improbable inferences, and unsupported speculation." Forestier Fradera v. Mun. of Mayaguez, 440 F.3d 17, 21 (1st Cir.2006) (quoting Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003)).

II. Plaintiff's Self-Serving Affidavit

Prior to establishing the relevant factual background, the court must first rule upon Defendants' motion to strike Plaintiff's self-serving affidavit.1 ( See Docket No. 77.) Defendants filed their motion for summary judgment on July 24, 2012, in which they referenced the deposition testimony of Plaintiff. ( See Docket No. 50-2.) Plaintiff, in her opposition to summary judgment (Docket No. 67), relies heavily on disputed material issues of fact raised in her counter-statement of contested facts (Docket No. 68). Many of the facts Plaintiff refers to in her opposition brief are only supported by Plaintiff's sworn affidavit, dated September 12, 2012. ( See Docket No. 69-1.) Defendants argue the affidavit, signed roughly a month and a half after Defendants submitted their statement of uncontested facts, is a sham whose sole purpose is to create material issues of fact that defeat Defendants' motion for summary judgment. ( See Docket Nos. 77 & 78.) Plaintiff contends her Affidavit clarifies her deposition testimony and touches upon instances and activities not discussed during her deposition, but the Affidavit does not conflict with her deposition testimony. ( See Docket No. 81.)

A. Sham Affidavit

Some form of the sham affidavit doctrine has been accepted by each circuit court of appeals. See Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 251-52 (3d Cir.2007) (citing Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 577-78 (2d Cir.1969); Darnell v. Target Stores, 16 F.3d 174, 176 (7th Cir.1994); Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir.1994); Sinskey v. Pharmacia Ophthalmics, Inc., 982 F.2d 494, 498 (Fed.Cir.1992); Martin v. Merrell Dow Pharm., Inc., 851 F.2d 703, 706 (3d Cir.1988);

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Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir.1984); Reid v. Sears Roebuck and Co., 790 F.2d 453, 460 (6th Cir.1986); Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986); Albertson v. T.J. Stevenson Co., 749 F.2d 223, 228 (5th Cir.1984); Van T. Junkins & Assocs. v. U.S. Indus. Inc., 736 F.2d 656, 657-59 (11th Cir.1984); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir.1983); Radobenko v. Automated Equip. Corp., 520 F.2d 540, 544 (9th Cir.1975)). First Circuit precedent states, " [w]hen an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed." Colantuoni, 44 F.3d at 4-5. The district court need not specifically enumerate each contradiction between the witness' prior testimony and the later filed affidavit in order to disregard the evidence. See Orta-Castro v. Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105, 110 (1st Cir.2006) (affirming district court's decision to disregard later filed affidavit that contradicted prior deposition testimony). Such testimony can be stricken by the court when the party proffering the evidence provides no satisfactory explanation for the changed testimony. See Torres v. E.I. Dupont De Nemours & Co., 219 F.3d 13, 20-21 (1st Cir.2000) (citing Colantuoni, 44 F.3d at 4-5).

In determining whether the testimony constitutes an attempt to manufacture an issue of fact so as to defeat summary judgment, the court may consider the timing of the affidavit, as well as the party's explanation for the discrepancies. See Orta-Castro, 447 F.3d at 110. The timing of the affidavit is probative of the party's intent, as an affidavit executed after the moving party moves for summary judgment suggests ill motive. See id. (citing Colantuoni, 44 F.3d at 5; Torres, 219 F.3d at 20). The First Circuit also noted that when counsel represents a party during a deposition, any questions that are confusing or incorrect impressions garnered by the deponent may be raised by counsel during the deposition. When no such issues are raised during the deposition, but are later relied upon by the party in order to defeat summary judgment, a court may determine the sudden confusion to be an unsatisfactory explanation for the changed testimony. See Orta-Castro, 447 F.3d at 110-11; see also Ziehm v. Radioshack Corp., Civil No. 09-69-P-S, 2010 WL 2079550, at *3 (D.Me. May 22, 2010).

This doctrine excludes conflicting testimony given by an interested party, but does not bar a party from " elaborating upon, explaining or clarifying prior testimony elicited by opposing counsel on deposition." Nelson v. City of Davis, 571 F.3d 924, 928 (9th Cir.2009) (internal quotation marks omitted) (internal citations omitted). This doctrine does not allow a party to submit an affidavit that contradicts prior deposition testimony. See id.

Determining whether to apply the sham affidavit doctrine to the case at bar poses several issues for the court. Defendants request the court strikes the Affidavit entirely because the statements are self-serving, unsupported by the record, and contradict Plaintiff's previous deposition testimony. ( See Docket No. 77.) To support this argument, Defendants point out ten statements contained in the Affidavit that purportedly contradict Plaintiff's previous testimony. ( See id. ) However, of these ten statements, only one is directly contradicted by Plaintiff's deposition testimony, one statement does not provide any contradictory testimony at all, and the other eight are contradicted mainly by e-mails entered into evidence. ( See id. at 4, 7-18.)

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Defendants claim these supplemental factual assertions contained in the Affidavit are not supported elsewhere in the record. Whether such evidence should be excluded because it is contrary to other evidence in the record and whether a self-serving affidavit testimony, by itself, can defeat summary judgment, are worth discussing...

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