Gonzalez v. Sears Holding Co.

• Decision Date: 15 October 2013
• Docket Number: Civil No. 11–1468(DRD).
• Parties: Jacqueline Ortiz GONZALEZ, Plaintiff(s), v. SEARS HOLDING COMPANY a/k/a Sears Roebuck of Puerto Rico, Inc.; Melvin Fonseca; Melissa Negron, Defendant(s).
• Court: U.S. District Court — District of Puerto Rico

980 F.Supp.2d 170

Jacqueline Ortiz GONZALEZ, Plaintiff(s),

v.SEARS HOLDING COMPANY a/k/a Sears Roebuck of Puerto Rico, Inc.; Melvin Fonseca; Melissa Negron, Defendant(s).

Civil No. 11–1468(DRD).

United States District Court,

D. Puerto Rico.

Oct. 15, 2013.

Judith Berkan, Mary Jo Mendez–Vilella, Berkan & Mendez, San Juan, PR, for Plaintiffs.

Anabel Rodriguez–Alonso, Mariela Rexach–Rexach, Rafael E. Aguilo–Velez, Shiara L. Dilone–Fernandez, Schuster & Aguilo, LLP, San Juan, PR, for Defendants.

AMENDED OPINION AND ORDER NUNC PRO TUNC ADOPTING REPORT AND RECOMMENDATION

DANIEL R. DOMÍNGUEZ, District Judge.

Pending before the Court are: (a) Defendant's Motion For Summary Judgment And Memorandum Of Law In Support Thereof, Docket entries No. 35 and 36; (b) Plaintiff's Memorandum of Points and Authorities in Opposition to Motion for Summary Judgment, Docket No. 51; (c) Defendant's Reply to Opposition To Motion For Summary Judgment, Docket No. 63; (d) Report and Recommendation issued by the Magistrate Judge Marcos E. López (hereinafter “Magistrate Judge”), Docket No. 77; (e) Plaintiff's Objection to Report and Recommendation on Summary Judgment Request, Docket No. 78; (f) Opposition to Plaintiff's Objections to Magistrate Judge's Report and Recommendation, Docket No. 82. The Report and Recommendation concluded that the federal claims under the Americans with Disability Act (“ADA”), including Puerto Rico Law No. 44, against defendants Melvin Fonseca and Melissa Negrón, be dismissed with prejudice, and the state law claims be dismissed without prejudice. See Docket No. 77, page 214.

The instant case was referred to the Magistrate Judge Marcos E. López (hereinafter “Magistrate Judge”) for report and recommendation. See Docket entries No. 71 and 74. The Magistrate Judge entered the Report and Recommendation on August 30, 2013, Docket No. 77. Pursuant to the Order Referring Case, Docket No. 71, the parties were granted five business days to file any objections. The record shows that plaintiff timely opposed the Report and Recommendation on September3, 2013, Docket No. 78. On September 10, 2013, the defendants filed their response to plaintiff's objections on a timely fashion and after requesting leave of Court. See Docket entries No. 81 and 82. For the reasons set forth below, the Magistrate Judge's Report and Recommendation is adopted in toto, as supplemented herein.

Standard of Review

The District Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation. 28 U.S.C. § 636(b)(1)(B) (1993); Rule 72(b) of the Federal Rules of Civil Procedure (“Fed. R. Civ.P.”); Rule 72 of the Local Rules for the District of Puerto Rico (“Local Rules”). See Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). As a general rule, an adversely affected party may contest the Magistrate Judge's report and recommendation by filing its objections within fourteen (14) days after being served a copy thereof. See Local Rule 72(d); Fed.R.Civ.P. 72(b). Moreover, 28 U.S.C. § 636(b)(1), in its pertinent part, provides that:

Within fourteen days of being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.

“The district judge need not normally conduct a new hearing and may consider the record developed before the magistrate judge, making his or her own determination on the basis if that record.” See Local Rule 72(d) of December 3, 2009, as amended on September 2, 2010.

However, “[a]bsent objection by the plaintiffs, [a] district court ha[s] a right to assume that [a party] agree[s] to the magistrate's recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert. denied,474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, “[f]ailure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objection are precluded on appeal.” Davet v. Maccarone, 973 F.2d 22, 30–31 (1st Cir.1992). See also Henley Drilling Co. v. McGee, 36 F.3d 143, 150–151 (1st Cir.1994) (holding that specific objections are required when challenging findings actually set out in magistrate's recommendation, as well as magistrate's failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that “[o]bjection to a magistrate's report preserves only those objections that are specified”); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1st Cir.1988); Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, “however he was not entitled to a de novo review of an argument never raised”). See generally United States v. Valencia–Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980). Hence, the standard for review of an objected report and recommendation is de novo review of those matters properly objected.See Borden v. Secretary of H.H.S., 836 F.2d at 6. The Court, therefore proceeds, as the Report and Recommendation has been objected, to review the Report and Recommendation of the Magistrate Judge de novo, as to those parts that have been objected. Borden v. Secretary of H.H.S., supra.

The Summary Judgment Standard

Generally, “[s]ummary judgment is proper where ‘the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.’ Fed.R.Civ.P. 56(c).” Richardson v. Friendly Ice Cream Corporation, 594 F.3d 69, 74 (1st Cir.2010). See also Celotex Corp. v. Catrett, 477 U.S. 317, 324–325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Thompson v. Coca–Cola, Co., 522 F.3d 168, 175 (1st Cir.2008); Rodríguez–Rivera, et al. v. Federico Trilla Regional Hospital of Carolina, et al., 532 F.3d 28, 30 (1st Cir.2008). “The object of summary judgment is ‘to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.’ ” Dávila v. Corporación de Puerto Rico Para La Difusión Pública, 498 F.3d 9, 12 (1st Cir.2007), citing from Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir.2004) (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.1992)). In Dávila, the United States Court of Appeals for the First Circuit (“First Circuit”) held:

For this purpose, an issue is genuine if a reasonable jury could resolve the point in favor of the nonmoving party. Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir.2000). By like token, a fact is material if it has the potential to determine the outcome of the litigation. See Calvi v. Knox County, 470 F.3d 422, 426 (1st Cir.2006). Where, as here, the nonmovant has the burden of proof and the evidence on one or more of the critical issues in the case “is ... not significantly probative, summary judgment may be granted.” Acosta, 386 F.3d at 8 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

When reviewing de novo, the court “must scrutinize the evidence in the light most agreeable to the nonmoving party, giving that party the benefit of any and all reasonable inferences.” Noviello v. City of Boston, 398 F.3d 76, 84 (1st Cir.2005), citing Cox v. Hainey, 391 F.3d 25, 27 (1st Cir.2004). See also Richardson v. Friendly Ice Cream Corporation, 594 F.3d at 74. “[T]he nonmovant bears ‘the burden of producing specific facts sufficient to deflect the swing of the summary judgment scythe.’ ” Noviello, 398 F.3d at 84, citing Mulvihill v. Top–Flite Golf Co., 335 F.3d 15, 19 (1st Cir.2003). See also, Dávila, 498 F.3d 9. “Those facts, typically set forth in affidavits, depositions, and the like, must have evidentiary value; as a rule, ‘[e]vidence that is inadmissible at trial, such as, inadmissible hearsay, may not be considered on summary judgment.’ ” Noviello, 398 F.3d at 84, citing Vázquez v. López–Rosario, 134 F.3d 28, 33 (1st Cir.1998); accord Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). “The evidence presented by the non-moving party may not be ‘conclusory allegations, improbable inferences, [or] unsupported speculation.’ ” Torres–Negrón v. Merck & Company, Inc., et al., 488 F.3d at 39, citing Medina–Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). Based on these premises, the Court proceeds with the analysis.

Analysis

Factual and Procedural Background

The facts in this case are straightforward. Plaintiff Jacqueline Ortiz Santiago (hereinafter “Ortiz” or “plaintiff”) alleges in the Complaint several employment violations under the American with Disabilities Act (“ADA”), such as, “illegal and discriminatory actions taken by the employer on the basis of her disability,” “questioning her need for reasonable accommodation, and retaliated against her when she requested the Company to complywith the law,” 42 U.S.C. §§ 12101 et seq., and constructive discharge. See Complaint, Docket No. 1, page 1. Ms. Ortiz seeks a declaratory and injunctive relief enjoining the defendants from engaging in practices of disability discrimination, as well as damages against her former employer, defendant Sears Holdings a/k/s Sears Roebuck de Puerto Rico, Inc. (hereinafter “Sears”). Plaintiff is also seeking reinstatement to her prior position or in the alternative, “front pay and related benefits in lieu of reinstatement.” See Complaint, Docket No. 1, page 9. In addition, plaintiff' seeks compensatory damages, lost wages and benefits, past and future, as well as...