García-Ledesma v.Centro

• Decision Date: 27 March 2012
• Docket Number: Civil No. 10–1577 (BJM).
• Parties: Juan J. GARCÍA–LEDESMA, Plaintiff, v. Joyería Oro CENTRO, doing business as Oro Centro, also known as J.C. Jeweler's, Inc., et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

916 F.Supp.2d 161

Juan J. GARCÍA–LEDESMA, Plaintiff,

v.Joyería Oro CENTRO, doing business as Oro Centro, also known as J.C. Jeweler's, Inc., et al., Defendants.

Civil No. 10–1577 (BJM).

United States District Court, D. Puerto Rico.

March 27, 2012.

Luis E. Minana, Luis E. Minana & Associates, San Juan, PR, for Plaintiff.

Jose Enrique Colon–Santana, Bufete Colon Santana & Roman, San Juan, PR, for Defendants.

OPINION AND ORDER

BRUCE J. McGIVERIN, United States Magistrate Judge.

Juan J. García–Ledesma (“García”) sued Joyería Oro Centro, also known as J.C. Jeweler's, Inc. (“JCJ”) and Josué Carrión–Carrero (“Carrión”), as well as an unnamed insurance company, alleging employment discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., and Law No. 100 of June 30, 1959 (“Law 100”), 29 L.P.R.A. §§ 146 et seq., as well as unjust dismissal in violation of Law No. 80 of May 30, 1976 (“Law 80”), 29 L.P.R.A. §§ 185a et seq., and tort liability under Articles 1802 and 1803 of the Puerto Rico Civil Code, 31 L.P.R.A. §§ 5141, 5142. (Docket No. 1). In addition to federal question jurisdiction under 28 U.S.C. § 1331, García's complaint invokes diversity jurisdiction under 28 U.S.C. § 1332, asserting that he is a citizen of New Jersey and that the amount in controversy is over $75,000. (Docket No. 1, ¶¶ 5–7). García has since voluntarily dismissed his action against Carrión. (Docket No. 23).

Before the court is JCJ's motion for summary judgment on all claims. (Docket No. 41). García opposed (Docket No. 50) and JCJ replied (Docket No. 61). García also moved to strike Carrión's statement under penalty of perjury (Docket No. 48), which JCJ opposed (Docket No. 43). JCJ filed an unopposed motion to deem its statement of facts to be admitted. (Docket No. 62). This case is before me by consent of the parties. (Docket No. 54). For the reasons that follow, JCJ's motion for summary judgment is granted in part, while the motions to strike Carrión's statement and to deem admitted JCJ's statement of facts are denied.

MOTION TO STRIKE CARRIÓN'S STATEMENT UNDER PENALTY OF PERJURY

García moves to strike Carrión's statement under penalty of perjury, arguing that JCJ failed to disclose the statement as an initial disclosure of documentary evidence under Rule 26(a)(1)(A). (Docket No. 48, p. 1–3). This position is a non-starter.

As JCJ correctly observes, the statement was executed on July 19, 2011, and filed only a day later on July 20. This is not a document that was in the “possession, custody, or control” of JCJ prior to that date. SeeFed.R.Civ.P. 26(a)(1)(A)(ii). And to whatever extent the duty to disclose the statement was even triggered, Rule 37(c)(1) does not require exclusion where the nondisclosure was “substantially justified” or “harmless.” Relevant factors in deciding whether exclusion of evidence is proper under this rule include: “the sanctioned party's justification for the late disclosure; the opponent-party's ability to overcome its adverse effects (i.e., harmlessness); the history of the litigation; the late disclosure's impact on the district court's docket; and the sanctioned party's need for the precluded evidence.” Harriman v. Hancock County, 627 F.3d 22, 30 (1st Cir.2010).

García laments that the statement was offered at a “late stage, after the conclusion of the discovery process....” (Docket No. 48, p. 3). But on July 14, 2011, the court granted an extension of discovery until August 7 for the sole purpose of taking Carrión's deposition. (Docket No. 40). Indeed, García represented to the court that the parties agreed to hold this deposition in “the first week of August.” (Docket No. 39). García's motion to strike never indicates that JCJ reneged on the agreement or otherwise prevented Carrión from being deposed. The docket does not suggest otherwise: García served no subpoenas, filed no motions to compel, and did not request additional time to conduct the deposition. Nor did García seek an extension of time to oppose summary judgment in order to take and use the deposition. Of course, crafting a statement at the close of discovery to support summary judgment could be an abusive tactic if, for instance, Carrión's status as a witness were not disclosed to García. But that is not the case here, and I cannot discern how JCJ “thwart[ed] Plaintiff's right to conduct discovery and question Mr. Carrión–Carrero about the statements therein provided.” García's motion to strike is DENIED.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of the case are summarized here after applying Local Rule 56, which structures the presentation of proof at summary judgment.¹

García's Relationship to the Carrión Family and the “Oro Centro” Businesses

García is a single adult citizen of the United States, now living in New Jersey. (Docket No. 50–1, hereinafter “Pl. St.,” ¶ C).² García considers himself “African–American or Black.” (Pl. St., ¶ G). JCJ is a company owning and operating pawn shops in Bayamón, Carolina, Santurce, and Ponce. (Docket No. 41–1, hereinafter “Def. St.,” ¶ 1). At the time of the complained-of events, Carrión was JCJ's sole shareholder and president. (Def. St., ¶ 2). “Oro Centro Express” is the name used by two businesses owned by corporations controlled by Carrión's siblings, Jeannie Carrión–Carrero (“Jeannie Carrión”) and César Carrión–Carrero. (Def. St., ¶ 6). Jeannie Carrión worked for JCJ between August 2002 and May 2003. (Def. St., ¶ 9). Neither Carrión nor JCJ own either Oro Centro Express. (Def. St., ¶ 5). Jeannie Carrero–Ramos (“Carrero”) is the Carrión siblings' mother. (Def. St., ¶ 9). Carrero worked for JCJ between August and December 2002. (Def. St., ¶ 9). To prove that Carrión and Carrero both use the name “Oro Centro,” García submitted unlabeled photos of various “Oro Centro” storefronts, a sign, a logo, and an advertisement.³ (Pl. St., ¶ B; Docket No. 50–2).

García testified that he began working for JCJ sometime in 2001 or 2002, ending in November of 2004 or 2005 with a “strong argument” between himself and Carrión, and returning sometime in 2006 or 2007. (Def. St., ¶ 3).⁴ In his verified complaint, García alleged that he “was an employee of Defendant Oro Centro from 1998 through 2009.” (Pl. St., ¶ A). JCJ's records indicate that García worked there between August and December 2002, between December 2004 and May 2005, in December 2005, between February and December 2008, and between January and April 2009. (Def. St., ¶ 4). García returned to work at JCJ in 2006 or 2007. ( Id.). He worked for Jeannie's Oro Centro Express between 2007 and 2008. (Def. St., ¶ 7).

García's Disciplinary History

García was terminated on April 21 or 22, 2009. (Def. St., ¶ 13). Carrión states that García was terminated because of disciplinary admonishments García received while working for JCJ.⁵ (Def. St., ¶ 15). A letter from Pablo Burgos (“Burgos”) dated April 3, 2008 outlines eight behaviors that García was instructed not to engage in. (Docket No. 63–1, p. 3). An admonishment form dated August 24, 2008 states “makes contracts and fails to secure merchandise, prompting that same be appropriated” ( sic throughout) as the reason for admonishment. (Docket No. 63–1, p. 4). Another form, dated August 27, 2008, states it was issued because of a cashbox mismatch of $519 on August 23. (Docket No. 63–1, p. 5). And a third form dated February 3, 2009 states that García twice pawned and purchased articles “which fail to comply with the minimum to be paid for stated transactions, although previously warned regarding this type of situation.” (Docket No. 63–1, p. 6). In his deposition, García testified that he recalled writing that “they have forgiven me many mistakes” on the admonition form. (Def. St., ¶ 22).

García's Working Conditions

García testified that he has a life-long physical condition causing pain in his hip, making walking difficult, and giving him a limp. (Def. St., ¶ 23). He also alleged that he suffered from unspecified “speech and learning impediments” for which he received therapy and treatment throughout his life, and that he was “substantially limited,” without further detail, in “manual tasks, concentration, and [ sic ] speech, running, and complicated tasks,” among others. (Pl. St., ¶ E). García's position involved being on his feet, climbing stairs, crouching, and carrying large objects. (Def. St., ¶ 29). He testified that between two and four employees were sometimes required to carry certain objects. (Def. St., ¶ 30). His complaint alleges that he “fully complied with all his duties,” and that JCJ imposed some unspecified burden to carry out functions not related to his work, subsequently subjecting him to ridicule. (Pl. St., ¶ J).

García testified that Carrión allowed him a 15–20 minute sitting break when he asked on two occasions. (Def. St., ¶ 26). Carrión stated that he was not aware of any documentary evidence of García's condition or what his physical limitations with respect to “handling heavy objects, climbing stairs, crouching [,] and standing up” were. (Def. St., ¶ 27). Carrión also stated that, whatever García's restrictions might be, another employee would need to be hired to assist García with objects stored upstairs or to deal with heavy objects. (Def. St., ¶ 28).

García testified that sometime in 2004, Carrero called him, among other names, “nigger,” “mother-fucking nigger,” and “gimp nigger.” ⁶ (Def. St., ¶ 8). García also testified that Carrero “insulted” him, without provocation, sometime in 2008.⁷ (Def. St., ¶ 11). In his complaint, García stated that he “questioned and complained constantly of the discriminatory and derogative [ sic ] treatment he was always dished out by management at Oro Centro.” (Pl. St., ¶ F). García also cites a series of comments in Spanish made by Carrero and Carrión occurring in 2003, 2004, 2008, and 2009. (Pl. St., ¶ F).⁸...