González Tomasini v. United States Postal Service

• Citation: 594 F.Supp.3d 355
• Decision Date: 24 March 2022
• Docket Number: CIVIL NO. 17-1552 (MEL)
• Parties: Orlando GONZÁLEZ TOMASINI, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.
• Court: U.S. District Court — District of Puerto Rico

594 F.Supp.3d 355

Orlando GONZÁLEZ TOMASINI, Plaintiff,

v.UNITED STATES POSTAL SERVICE, Defendant.

CIVIL NO. 17-1552 (MEL)

United States District Court, D. Puerto Rico.

Signed March 24, 2022

Carlos M. Sanchez-La-Costa, Ricardo Lozada-Franco, San Juan, PR, for Plaintiff.

Carmen M. Marquez-Marin, United States Attorneys Office, San Juan, PR, for Defendant.

OPINION & ORDER

Marcos E. López, United States Magistrate Judge

Mr. Orlando González Tomasini ("Plaintiff") filed an amended complaint against United States Postal Service and its Postmaster General in his official capacity ("Defendant" or "USPS"), on December 17, 2018. ECF No. 28.¹ In his complaint, Plaintiff alleges violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Rehabilitation Act, 29 U.S.C. § 791 et seq., and the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq.² Plaintiff alleges that his employer, the USPS, subjected him to age and disability discrimination, interfered with his substantive rights under the FMLA, and retaliated against the Plaintiff for protected activity under each of the above Acts. Specifically, Plaintiff claims he was subject to discrimination, harassment creating a hostile work environment, and retaliation in the form of a hostile work environment, unjust discipline, and the fabrication of a federal criminal case against him.³ Pending before the court is Defendant's motion for summary judgment. ECF Nos. 151, 152, 153. Plaintiff responded in opposition on October 18, 2021. ECF Nos. 157, 158.

I. ADMISSIBILITY IN SUMMARY JUDGMENT

A. THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) INVESTIGATIVE REPORT ( EXHIBIT H)

As a threshold evidentiary matter, Plaintiff challenges Defendant's introduction of the "EEOC Investigative Report" (Exhibit H; ECF No. 152-8) in support of Defendant's motion for summary judgment.⁴ Plaintiff contends that because the EEOC Investigative Report was not written by the Plaintiff it is hearsay and, by implication, inadmissible. ECF No. 157 at 5, ¶¶ 22, 23. However, prior administrative findings are admissible in employee discrimination cases pursuant to the public records hearsay exception. See Chandler v. Roudebush, 425 U.S. 840, 863 n. 39, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976) ("Prior administrative findings made with respect to an employment discrimination claim may, of course, be admitted as evidence at a federal-sector trial de novo.") (citing Fed. R. Evid. 803(8) ). Specifically, Federal Rule of Evidence 803(8)(A)(iii) lists "factual findings from a legally authorized investigation ...." as an exception to the hearsay rule in civil cases, as long as the opponent of the evidence "does not show that the source of information or other circumstances indicate a lack of trustworthiness." Fed. R. Evid. 803(8)(A)(iii)–(B). The First Circuit, like other circuits, has left the question of admissibility and trustworthiness of EEOC reports and findings to the discretion of the trial court. Smith v. Mass. Inst. of Tech., 877 F.2d 1106, 1112–13 (1st Cir. 1989) ("Our canvass of the other circuits reveals general agreement that the question of admissibility is one for the discretion of the district court."); Talavera v. Municipality of San Sebastian, 865 F. Supp. 2d 150, 154 (D.P.R. 2011) ("The Smith opinion essentially stands for the proposition that ‘the question of admissibility [of EEOC reports] is one for the discretion of the district court.’ "); see also Burns v. Johnson, 829 F.3d 1, 8 n. 5 (1st Cir. 2016) (citing Smith, 877 F.2d at 1113 ).

Plaintiff has made no showing that would indicate a lack of trustworthiness in the EEOC Investigative Report. Indeed, the Plaintiff does not even appear to contest the factual contentions being supported by the report, and instead challenges the report as the source of Defendant's proposed facts without elaboration. Therefore, because the EEOC Investigative Report falls under the public record exception language of Federal Rule of Evidence 803(8)(A)(iii) and because there is no reason to doubt the trustworthiness of the cited portions of the report, the court exercises its discretion to admit the EEOC Investigative Report as evidence in support of Defendant's motion for summary judgment.

B. AUTHENTICATION OF DOCUMENTS FROM THE OFFICE OF WORKERS COMPENSATION PROGRAMS ("OWCP")

Plaintiff also challenges the genuineness of certain documents purporting to be from the Office of Workers’ Compensation Programs, originating in an online platform labeled "AQS." Exhibit Q; ECF No. 152-17. Plaintiff argues that under Federal Rule of Civil Procedure 56(c)(2) these documents are not properly authenticated and therefore inadmissible.⁵ A document submitted for purposes of summary judgment generally must be properly authenticated. G. v. Fay School, 931 F.3d 1, 14 (1st Cir. 2019) (stating that documents that are "unauthenticated" are "inadmissible at the summary judgment stage") (citing Carmona v. Toledo, 215 F.3d 124, 131 (1st Cir. 2000) ); but see Joseph v. Lincare, Inc., 989 F.3d 147, 156 (1st Cir. 2021).

Authentication is not generally an onerous requirement and authenticating an exhibit such as that which Defendant seeks to introduce would only require an affidavit or deposition testimony from, for example, a custodian of records confirming the reliability of the records. See Rodríguez Vega v. Policlínica la Familia de Toa Alta, Inc., 942 F. Supp. 2d 210, 223 n. 7 (D.P.R. 2013) ; Setterlund v. Potter, 597 F. Supp. 2d 167, 170–71 (D. Mass. 2008) ; Joseph, 989 F.3d at 156. However, while the disputed exhibit does appear to contain genuine OWCP information, Defendant has not even attempted to authenticate the disputed exhibit nor responded to Plaintiff's challenge to the exhibit. See Setterlund, 597 F. Supp. 2d at 171 ("Here, plaintiff has not attempted to authenticate any of the disputed exhibits. Although many appear to be genuine—for example, plaintiff has submitted copies of documents that are almost certainly relevant records of the USPS or her medical providers—the appearance of authenticity is not enough."). Therefore, although looking genuine, Defendant's Exhibit Q has not been properly authenticated by Defendant and cannot be admitted as evidence for the purposes of summary judgment.

C. AUTHENTICATION OF PLAINTIFF'S UNSWORN WITNESS STATEMENTS

Turning to Plaintiff's exhibits, Plaintiff cited to several unsworn statements from deposition witnesses, namely the statements of Rolando Franquiz (Exhibit 10; ECF No. 157-10), Marcos Toledo (Exhibit 17; ECF No. 157-17), and Víctor Rivera (Exhibit 21; ECF No. 157-21). Typically, unsworn witness statements that are not made under penalty of perjury are inadmissible for purposes of summary judgment. See e.g. Setterlund, 597 F. Supp. 2d at 172 ("Plaintiff has also submitted at least six exhibits that are in the form of witness statements or letters, generally addressed "to whom it may concern .... [P]laintiff has pointed to no case, and the Court has found none, where an unsworn witness statement (as opposed to a deposition or affidavit) was accepted by a court in opposition to a motion for summary judgment."). However, the authenticity of a written statement can be established independently through a deposition when a witness testifies that they authored the statement and discusses its contents. Joseph, 989 F.3d at 156 (" Fed. R. Evid. 901(b)(1) ) ("testimony by a witness with knowledge that the item is what it purports to be satisfies the requirement of authentication"). Rolando Franquiz, Marcos Toledo, and Víctor Rivera all testified in their depositions that they authored the statements Plaintiff seeks to introduce and each witness testified as to their contents. The statements by Rolando Franquiz, Marcos Toledo, and Víctor Rivera (ECF Nos. 157-10, 157-17, 157-21) are therefore properly authenticated by the deposition testimony of their authors and can be admitted as evidence in ruling on summary judgment.

II. UNCONTESTED FACTS⁶

Plaintiff Orlando González Tomasini began working for the U.S. Postal Service as a city carrier in California in 2003. ECF No. 152 at 1, ¶ 1; ECF No. 157 at 1, ¶ 1. In 2005, Plaintiff transferred to a USPS position in Puerto Rico in 2005, and eventually began working at the Bayamón Branch Post Office as a city carrier. ECF No. 152 at 1, ¶ 2; see ECF No. 157 at 2, ¶ 2. A city carrier prepares, sorts, and cases his mail for the route and delivers mail and packages on the street. ECF No. 152 at 1, ¶ 3; ECF No. 157 at 2, ¶ 3.

During the time that Plaintiff worked at the Bayamón Branch Post Office, almost all the letter carriers were over 40 years old. ECF No. 152-15 at 63, ¶¶ 15–25; ¶¶ 1–19. However, most of the letter carriers at the Bayamón Branch were younger than the Plaintiff. ECF No. 157 at 38, ¶ 25; ECF No. 157-7 at 15, ¶¶ 9–25, 16, ¶¶ 1–2. Plaintiff was born in 1961 and would have been 53 years old in January 2015. ECF No. 152-18 at 2.

Plaintiff was never disciplined while working for the USPS in California and was not disciplined while working with the USPS in Puerto Rico from 2005 to May 14, 2015. ECF No. 157 at 29, ¶ 1; ECF No. 157-6 at 2, ¶ 3. Richard Lugo ("Lugo") was the Manager of the Bayamón, Puerto Rico Branch Post Office from 2009 to 2016 and the second line supervisor of Plaintiff between August 2014 and May 15, 2015. ECF No. 152 at 2, ¶ 8; ECF No. 157 at 3, ¶ 8. Carmello Moyeno ("Moyeno"), Guillermo Dávila ("Dávila"), and Carlos Cabrera ("Cabrera") also held supervisor positions at the Bayamón Branch post office between 2014 and 2017. ECF No. 157 at 40, ¶ 36; ECF No. 157-8 at 19–24.

Before 2013 Plaintiff had not been diagnosed with any permanent medical condition. ECF No. 152 at 7, ¶ 57; ECF No. 157 at 16, ¶ 57. On April 16, 2013 Plaintiff suffered an accident at work.⁷ ECF No. 152 at 5, ¶ 39; ECF No. 152-1 at 99, ¶¶ 18–25; 100, ¶¶ 1–9; 104, ¶¶ 1–25; 105, ¶¶ 1–21. At some unspecified time after the accident, Plaintiff delivered a Federal Workers’...