Escribano-Reyes v. Prof'l Hepa Certificate Corp.

• Decision Date: 30 March 2016
• Docket Number: 15–1404.,Nos. 15–1259,s. 15–1259
• Citation: 817 F.3d 380
• Parties: Carlos ESCRIBANO–REYES, Plaintiff, Appellant, v. PROFESSIONAL HEPA CERTIFICATE CORP., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

817 F.3d 380

Carlos ESCRIBANO–REYES, Plaintiff, Appellant,

v.PROFESSIONAL HEPA CERTIFICATE CORP., Defendant, Appellee.

Nos. 15–1259

15–1404.

United States Court of Appeals, First Circuit.

March 30, 2016.

Aníbal Escanellas–Rivera, with whom Escanellas & Juan, P.S.C. was on brief, for appellant.

José L. Nieto–Mingo, with whom Ricardo Pizarro García and Pizarro García Law Offices, LLC were on brief, for appellee.

Before HOWARD, Chief Judge, TORRUELLA and LYNCH, Circuit Judges.

LYNCH

, Circuit Judge.

Carlos Escribano–Reyes's ("Escribano") discrimination and retaliation suit against his employer, Professional HEPA Certificate Corp. ("HEPA"), ended in summary judgment for HEPA and a sanction order against Escribano's counsel for filing a "sham affidavit" after he received repeated warnings in earlier cases not to do so.

As to the summary judgment order, Escribano first argues that the district court erred in striking, under the sham affidavit doctrine, a post-discovery sworn statement that Escribano had submitted in his opposition to HEPA's motion for summary judgment. Second, he argues that the district court erred in granting summary judgment to HEPA on the basis that he did not meet his burden of showing that HEPA had enough employees to qualify as a covered employer under either the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101

–12213, or the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 –634. Even though the nature of the evidence he provided—a list of names of twenty-seven individuals who he believed were employees of HEPA—was competent, we agree with the district court that it was insufficient to meet his burden on summary judgment, where the defendant had submitted official documents filed with the Puerto Rico Department of Labor showing that it did not employ enough people to trigger the ADA or the ADEA.

Finally, Escribano challenges the district court's imposition of $1000 in sanctions against Escribano's attorney, Aníbal Escanellas–Rivera, for submitting the stricken affidavit. Finding no error, we affirm.

I.

On September 9, 2013, Escribano brought suit in the United States District Court in Puerto Rico against his employer, HEPA. His amended complaint alleged "illegal harassment, discrimination and retaliation, due to [his] disability, requests for a reasonable accommodation, age, and for his opposition against [HEPA's] unlawful employment practices," in violation of the ADA and the ADEA. He also alleged violations of Puerto Rico law.

On June 24, 2014, about one month after the conclusion of discovery—on the last day of which Escribano's deposition had been taken—HEPA filed a motion for summary judgment. HEPA argued that it did not employ the minimum number of employees necessary to qualify as an "employer" under either the ADA or the ADEA. See 42 U.S.C. § 12111(5)(A)

("employer" for purposes of ADA requires "15 or more employees"); 29 U.S.C. § 630(b) ("employer" for purposes of ADEA requires "twenty or more employees"). In support, HEPA submitted "Quarterly Report[s] of Wages Paid to Each Employee" for the years 2012 and 2013 that had been filed with the Puerto Rico Department of Labor and Human Resources, as well as "Informative Return Statements" for the years 2012 and 2013, to show that HEPA had fewer than fifteen employees between 2012 and 2013.

Escribano filed a memorandum in opposition to HEPA's motion for summary judgment on August 13, 2014. He argued that HEPA had twenty-seven employees during the years 2011, 2012, 2013, and 2014. To support his argument, Escribano submitted: (1) a handwritten list prepared by Escribano, which had been produced in discovery, that listed the names of twenty-seven people who Escribano believed were employees of HEPA, and (2) a sworn statement dated August 12, 2014, in which he stated that "[he][was] fully aware of the fact that the defendant had 27 employees during the years in which the adverse employment actions were taken against [him], since [he] worked on a daily basis, along with the employees that appear in the list."

HEPA filed a reply to Escribano's memorandum on September 3, 2014, arguing that Escribano's allegations with regard to the number of HEPA employees were insufficient to defeat a motion for summary judgment and requesting that the district court strike Escribano's sworn statement in its entirety. HEPA stated that Escribano's "sworn statement consists of several new allegations never before mentioned, testimony that contradicts [Escribano's] testimony during his deposition, that is based on hearsay and/or that constitute a conclusory allegation and/or a reinstatement of [Escribano's] allegations of the Amended Complaint unsupported by a single piece of evidence or reference to the record." In short, HEPA alleged that Escribano, "confronted with the fact that there is no evidence to support his allegations, prepared a custom-made, self-serving statement ... to face the ambiguities and gaps of his factual and legal theories."

The district court granted HEPA's motion for summary judgment and its motion to strike Escribano's sworn statement on January 23, 2015. Reyes v. Prof'l HEPA Certificate Corp., 74 F.Supp.3d 489 (D.P.R.2015)

. Invoking the sham affidavit doctrine and our opinion in Morales v. A.C. Orssleff's EFTF, 246 F.3d 32, 35 (1st Cir.2001), the district court explained that unless a party can provide a "satisfactory explanation" for doing so, "[f]ollowing discovery, a party may not use a later affidavit to contradict facts previously provided to survive summary judgment." Reyes, 74 F.Supp.3d at 491

. The court then noted that Escribano's sworn statement—signed after HEPA's motion for summary judgment and just one day before Escribano's opposition was filed—"provides no explanation as to its tardiness, inconsistencies with previous facts and new factual contentions." Id. Lamenting that "this [was] not the first time this court face[d] a sham affidavit issue with [Escribano's] counsel," id. at 492, the district court struck Escribano's sworn statement, held that Escribano's pleadings supported by the stricken evidence would be deemed unsupported, and granted HEPA's motion for summary judgment with regard to Escribano's ADA and ADEA claims, id. at 493, 495–96. The court also declined to exercise supplemental jurisdiction over Escribano's state law claims and dismissed them without prejudice. Id. at 496 ; see 28 U.S.C. § 1367(c)(3).

In a separate order dated January 23, 2015, the district court ordered the parties to "show cause as to why [Escribano] or his counsel should or should not be sanctioned pursuant to Fed.R.Civ.P. 11(b)

and 28 U.S.C. § 1927." Both parties filed motions in compliance with the order on February 6, 2015. Escribano also filed a notice of appeal from the judgment that same day.

On February 18, 2015, the district court issued an opinion and order imposing on Escribano's counsel, Escanellas–Rivera, a $500 sanction for violation of Rule 11(b) of the Federal Rules of Civil Procedure

and a $500 sanction for violations of 28 U.S.C. § 1927. Reyes v. Prof'l HEPA Certificate Corp., 86 F.Supp.3d 79, 82–83 (D.P.R.2015). In imposing the sanction for violations of 28 U.S.C. § 1927, the district court judge noted that "[c]ounsel's behavior is not an isolated event" and that he and other judges in the District of Puerto Rico had previously admonished Attorney Escanellas–Rivera for filing post-summary judgment affidavits.¹

Id. at 83. Escribano

filed an amended notice of appeal on February 24, 2015, to include an appeal of the district court's order on sanctions.

II.

"We review a district court's grant of summary judgment de novo, and review the record in the light most favorable to the nonmoving party, drawing all reasonable inferences in the nonmoving party's favor." Del Valle–Santana v. Servicios Legales de P.R., Inc., 804 F.3d 127, 129 (1st Cir.2015)

. "[W]e review the district court's decision as to ‘the evidentiary materials it will consider in deciding a motion for summary judgment’ only for ‘a clear abuse of discretion.’ " Lennon v. Rubin, 166 F.3d 6, 8 (1st Cir.1999) (quoting EEOC v. Green, 76 F.3d 19, 24 (1st Cir.1996) ).

A. Escribano's Sworn Statement

Escribano first contends that the district court erred in striking his sworn statement. He argues that "there were no inconsistencies between the [sworn statement] and previous statements from Escribano," and that he provided an adequate explanation for the late filing when he stated that he had to prepare the sworn statement in order to support facts that HEPA's counsel never asked about during Escribano's deposition, "but were raised by HEPA, along with new factual allegations never before raised in [HEPA's motion for summary judgment]."

The district court did not abuse its discretion in striking Escribano's statement. "[W]here a party has given ‘clear answers to unambiguous questions' in discovery, that party cannot ‘create a conflict and resist summary judgment with an affidavit that is clearly contradictory,’ unless there is a ‘satisfactory explanation of why the testimony [has] changed.’ " Hernandez–Loring v. Universidad Metropolitana, 233 F.3d 49, 54 (1st Cir.2000)

(second alteration in original) (quoting Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4–5 (1st Cir.1994) ); see also Torres v. E.I. DuPont de Nemours & Co., 219 F.3d 13, 20 (1st Cir.2000).

There are a number of inconsistencies between Escribano's deposition testimony and his allegations in the sworn statement.² For example, in his sworn statement, Escribano alleged that between March and April 2013, he was subjected to derogatory comments regarding his age from employees David Ayala, Alfredo García, Jeniffer Zayas, and Anabel Pérez. But earlier in his deposition, when defense counsel pressed him on "[w]ho specifically told [him] that [he was] old," he identified only Ayala and García. Defense counsel then asked, "Who else?"; Escribano responded, "That's it." Additionally, in his sworn...