Colon-Perez v. Department of Health of Puerto Rico

• Decision Date: 11 June 2009
• Docket Number: Civil No. 07-1497 (FAB).
• Citation: 623 F.Supp.2d 230
• Parties: Paz Maria COLON-PEREZ, Plaintiff, v. DEPARTMENT OF HEALTH OF the Commonwealth of PUERTO RICO, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

623 F.Supp.2d 230

Paz Maria COLON-PEREZ, Plaintiff, v. DEPARTMENT OF HEALTH OF the Commonwealth of PUERTO RICO, et al., Defendants.

Civil No. 07-1497 (FAB).

United States District Court, D. Puerto Rico.

June 11, 2009.

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Jely A. Cedeno-Richiez, O'Neill & Gilmore, Julio Cesar Alejandro-Serrano, Nicolas Nogueras-Cartagena, Nicolas Nogueras Law Offices, San Juan, PR, for Plaintiff.

Lumy Mangual-Mangual, P.R. Department of Justice-Federal Litigation, San Juan, PR, for Defendants.

OPINION AND ORDER

FRANCISCO A. BESOSA, District Judge.

On June 11, 2007, plaintiff Paz Maria Colon-Perez ("Colon") filed a complaint in which she lodged discrimination and retaliation claims pursuant to Title VII of the Civil Rights Act and the Age Discrimination in Employment Act ("ADEA"), Fourteenth Amendment equal protection and First Amendment Free Speech claims pursuant to 42 U.S.C. § 1983, and Puerto Rican Commonwealth law claims. (Docket No. 1) On September 12, 2008, the Court granted Colon's voluntary motion to dismiss her ADEA claims and her Title VII claim against defendants Greduvel Duran Guzman ("Duran") and Rosa Perez Perdomo ("Perez") in their personal capacity. (Docket Nos. 42 & 45; see also Docket No. 48, pp. 1-2, ¶¶ 3-5, stating plaintiff's remaining claims.)

On August 26, 2008 defendants Department of Health of the Commonwealth of Puerto Rico ("DOH"), Perez, and Duran filed a motion for summary judgment. (Docket No. 39) Plaintiff Colon opposed summary judgment on September 22, 2008. (Docket No. 48)

For the reasons provided below, the Court GRANTS defendants' motion for summary judgment.

I. Plaintiff fails to support her opposition to summary judgment adequately

Colon's statement of contested material facts (Docket No. 49) suffers from several shortcomings. These flaws prohibit her from effectively creating a controversy as to the material facts put forward by the defendants. The flaws fall into three categories: (1) Colon fails to submit her own statement of facts; instead she merely addresses defendants' proposed facts; (2) Colon makes irrelevant and ill-timed arguments against defendants' proposed facts in her opposition to those facts; and (3) the sole exhibit adduced by Colon providing facts relevant to her retaliation claim is only in the Spanish language, and thus cannot be considered by the Court. The Court shall address these three issues in sequence.

Local Civil Rule 56 directs a party filing a summary judgment motion to support that motion with a "separate, short, and concise statement of material facts, set forth in numbered paragraphs, as to which the moving party contends there is no genuine issue of material fact to be tried." L. Civ. R. 56(b). The rule also directs a party opposing summary judgment to file a "separate, short, and concise statement of material facts." L. CIV. R. 56(c). In that statement, the party opposing summary judgment must "admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts." Id. Each denial or qualification must be supported by a record citation. Id. Leaving semantics aside, Colon complied with the mandatory aspects of this rule.¹ She comes up short, however, in an area of discretion. The local rule also allows the party opposing summary judgment to submit its own statement of additional facts. Id. Colon submitted no such statement. To be clear, such a statement is not required, but in a case such as this, where the facts proposed by the defendant do not support plaintiff's causes of action, the burden is on the plaintiff affirmatively to point out to the court actual controversies as to facts, supported by the record, which would prevent the grant of summary judgment for the defendant. See, e.g., Morales v. A.C. Orssleff's EFTF, 246 F.3d 32, 33 (1st Cir.2001) ("the filing of a motion for summary judgment signals a formidable search for a genuine issue of material fact. If this is not to impose the daunting burden of seeking a needle in a haystack, the court needs help from counsel.").

As mentioned above, in addition to not adducing additional facts helpful to her cause, Colon raises inappropriate and ill-timed arguments against defendants' proposed facts. These errors fall into several different categories.

First, Colon offers facts unsupported by record citation, such as when she says that "plaintiff's position had an administrative development that was placed outside [the] Secretariat." (Docket No. 49, p. 2, ¶ 8) This averment shall not be considered by the Court because it is not supported by a record citation.

Second, and most alarmingly, Colon obliquely references problems that occurred during discovery that prevented her from taking Duran's deposition, as well as the depositions of others at DOH. (Docket No. 49, pp. 2-7, ¶¶ 8, 9, 10) She then argues that because of these difficulties Duran's statement under penalty of perjury should be struck from the record. This is not the proper way to challenge a piece of evidence, and Colon has not provided the Court with sufficient reason to take such a drastic measure as striking Duran's statement. If during discovery, the named defendants or other members of DOH failed to appear for their scheduled depositions then the plaintiff could have taken different steps. Colon could have subpoenaed the defendants pursuant to FED. R. CIV. P. 45. Colon could have also asked the court to intervene if the defendants balked at the subpoenas or failed to comply with their discovery burdens pursuant to FED. R. CIV. P. 26. Colon did neither such thing. The Court shall not allow Colon to raise these issues for the first time at summary judgment. Even if the Court were inclined to hear such arguments, Colon would need to provide a clear and detailed explanation showing that she complied with her discovery obligations while the defendants did not. Instead, Colon simply states that "no attorney was available to coordinate the depositions." This basic statement, with no greater elaboration as to what transpired between the parties, is not sufficient for the Court to find that the defendants failed to comply with their discovery duties.

Lastly, as Colon should well know, documents containing language in Spanish must be accompanied by a certified English language translation. See 48 U.S.C. § 864; L. Civ. R. 10(b); Puerto Ricans For P.R. Party v. Dalmau, 544 F.3d 58, 67 (1st Cir.2008). A court may not consider documents before it provided in the Spanish language. Gonzalez-De-Blasini v. Family Dep't, 377 F.3d 81, 89 (1st Cir.2004). Pages 7 and 8 of plaintiff's sole exhibit, exhibit A, violate this rule because they are entirely in Spanish and are unaccompanied by a certified English language translation. (Docket No. 49-2, Ex. A., p. 7-8) Notably, Exhibit A is the only document in the record that supports plaintiff's assertion that she was "supplanted in her duties by a younger male doctor." This in turn is the only fact proffered by Colon in support of her retaliation claim.² Because this document cannot be considered by the Court, Colon is left with no support in the record for her claim that the defendants retaliated against her.

II. Factual Background

Colon has worked for the DOH since November 25, 1958. She was initially appointed to the position of "Dietitian 1." During her time at DOH, Colon received several promotions and salary raises; by February 1, 2001 she held the "career employee" position of "Executive Director III." Her salary is $5,170.00 a month. Although her most recent appointment-related document states that she was assigned to the Deputy Secretariat of Health Protection and Promotion, her current post is actually within the Auxiliary Secretariat of Family Health and Integrated Services ("ASFHIS"). Defendant Dr. Greduvel Duran Guzman ("Duran") has directed ASFHIS from 2006 to the present date. ASFHIS is composed of five separate "divisions" all of which are coordinated by a central office, or Secretariat. The Secretariat in turn divides tasks between three components: programmatic, clinical, and administrative. Each component of the Secretariat is staffed by a different person.

From 2001 to the present day Colon has been tasked with running the programmatic component. Dr. Pablo Monserrate manages the clinical component. Until his retirement on September 30, 2006, Juan Rolon, Esq. managed the administrative component of the Secretariat. He held the position of "Executive Director IV." Upon Rolon's retirement his position was frozen by Duran in compliance with three executive orders: 2005-12, 2006-19, and 2006-27. All three of the orders are focused on reducing payroll costs for the Commonwealth government. Executive Order 2005-12 directs agencies to reduce payroll expenses by at least 10% and to prevent the creation of new career employees. Executive Order 2006-19 directs agencies to eliminate vacant positions absent "extraordinary" situations. Executive Order 2006-27 directs agencies to "freeze" career positions prior to eliminating them and it directs, among otherthings, that there must be a "justification" and written authorization from the Management and Budget Office before the position can be filled.

Although Rolon's career position was "frozen," a need remained for someone to fulfill his former duties. Duran "detailed" attorney Marco A. Martinez ("Martinez") to cover Rolon's position as of October 2, 2006. Martinez was not awarded any additional compensation and was not appointed to the Executive Director IV position, which had been frozen. Instead he continued as an "Attorney I" in the Department of Health and he earned $3,244 a month. On June 18, 2007, Martinez chose to return to his former placement in the legal division of the Department of Health and Dr. Joan Rivera-Ortiz ("Rivera") was transferred to cover the administrative component of the Secretariat....