Levine-Diaz v. Humana Health Care

• Decision Date: 02 January 2014
• Docket Number: Civ. No. 10–2090(PG).
• Citation: 990 F.Supp.2d 133
• Parties: Charlotte LEVINE–DIAZ, Plaintiff, v. HUMANA HEALTH CARE, Defendant.
• Court: U.S. District Court — District of Puerto Rico

990 F.Supp.2d 133

Charlotte LEVINE–DIAZ, Plaintiff,

v.HUMANA HEALTH CARE, Defendant.

Civ. No. 10–2090(PG).

United States District Court, D. Puerto Rico.

Jan. 2, 2014.

Anibal Escanellas–Rivera, Escanellas & Juan, San Juan, PR, for Plaintiff.

Juan F. Santos–Caraballo, Mariela Rexach–Rexach, Jackson Lewis LLP, San Juan, PR, for Defendant.

OPINION AND ORDER

JUAN M. PEREZ–GIMENEZ, District Judge.

Plaintiff Charlotte Levine–Diaz (hereinafter “Plaintiff” or “Levine”) filed this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. (“Title VII”), against her former employer Humana Health Plans of Puerto Rico, Inc.¹ (“Humana” or “Defendant”), allegingdiscrimination on the basis of sex and gender, sexual harassment and retaliation for engaging in protected conduct. See Docket No. 1. In summary, Levine claims that the Defendant discriminated against her, subjected her to a hostile work environment in her employment and eventually terminated her because of her sex and in retaliation for complaining of sexual harassment and other unlawful employment practices. See id. The Plaintiff also invoked supplemental jurisdiction over her state law claims under Law No. 100 of June 30, 1959 (“Law No. 100”), P.R. Laws Ann. tit. 29, § 146 et seq.; Law No. 17 of April 22, 1988 (“Law No. 17”), P.R. Laws Ann. tit. 29, § 155 et seq.; Law No. 69 of July 6, 1985 (“Law No. 69”), P.R. Laws Ann. tit. 29, § 1321 et seq.; Law No. 115 of December 20, 1991 (“Law No. 115”), P.R. Laws Ann. tit. 29, §§ 194a et seq.; and, Law No. 80 of May 30, 1976, P.R. Laws Ann. tit. 29, § 185 et seq.²

Before the court is the Defendant's Motion for Summary Judgment (Docket No. 22–23), Plaintiff's Opposition (Dockets No. 34) and Defendant's Reply (Docket No. 45). After a close examination of all the evidence on record and a careful review of the applicable statutory and case law, the Court GRANTS IN PART AND DENIES IN PART the Defendant's motion for summary judgment for the reasons explained below.

I. SUMMARY JUDGMENT STANDARD

A motion for summary judgment is governed by Rule 56(c) of the Federal Rules of Civil Procedure, which allows disposition of a case if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Sands v. Ridefilm Corp., 212 F.3d 657, 660 (1st Cir.2000). A factual dispute is “genuine” if it could be resolved in favor of either party, and “material” if it potentially affects the outcome of the case. See Calero–Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir.2004).

To be successful in its attempt, the moving party must demonstrate the absence of a genuine issue as to any outcome-determinative fact in the record, see DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997), through definite and competent evidence. See Maldonado–Denis v. Castillo–Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). Once the movant has averred that there is an absence of evidence to support the non-moving party's case, the burden shifts to the non-movant to establish the existence of at least one fact in issue that is both genuine and material. See Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990) (citations omitted). If the non-movant generates uncertainty as to the true state of any material fact, the movant's efforts should be deemed unavailing. See Suarez v. Pueblo Int'l, 229 F.3d 49, 53 (1st Cir.2000). Nonetheless, the mere existence of “some alleged factual dispute between the parties will not affect an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, “summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.” Medina–Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).

At the summary judgment juncture, the court must examine the facts in the light most favorable to the non-movant, indulging that party with all possible inferences to be derived from the facts. See Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st Cir.2002). The court must review the record “taken as a whole,” and “may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 135, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). This is so, because credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. Id.

II. FACTUAL FINDINGS

Before setting forth the facts found by this court to be undisputed and relevant to the matter at hand, we must first address several compliance issues presented to the court when reviewing Plaintiff's statements of facts.

In addition to Federal Rule of Civil Procedure 56, the local rules of civil procedure govern the parties' submissions of summary judgment materials. See L.Cv.R. 56 (D.P.R. 2009). Regarding the filing of opposing statements of material facts, Local Rule 56(c) states as follows:

A party opposing a motion for summary judgment shall submit with its opposition a separate, short, and concise statement of material facts. The opposing statement shall admit, deny or qualify the facts supporting the motion for summary judgment by reference to each numbered paragraph of the moving party's statement of material facts. Unless a fact is admitted, the opposing statement shall support each denial or qualification by a record citation as required by this rule. The opposing statement may contain in a separate section additional facts, set forth in separate numbered paragraphs and supported by a record citation as required by subsection (e) of this rule.

L.Cv.R. 56(c). “This separate section containing additional facts is necessary to allow the moving party to reply to those additional facts and to allow the court to easily determine the disputed facts. ... Therefore, a party may not include numerous additional facts within its opposition to the moving party's statements of uncontested facts.” Malave–Torres v. Cusido, 919 F.Supp.2d 198, 207 (D.P.R.2013) (internal citations omitted).

In its reply, the Defendant complains that, in her attempt to controvert the facts the Defendant proposed, Levine denied facts without evidentiary support or by citing incomplete portions of her deposition,contradicted her prior statements, and qualified the fact in question with irrelevant and unrelated new allegations. See Docket No. 45 at pages 3–4. After reviewing the Plaintiff's objections to the Defendant's statement of uncontested facts (Docket No. 34–1), the court found that the Plaintiff did not include a separate section of additional facts. Instead, she proposed additional facts in the same numbered paragraphs wherein she admitted, denied or qualified the Defendant's proposed factual statements. And while the court understands that a party asserting that a fact is genuinely disputed must support the assertion with record citations, see Fed.R.Civ.P. 56(c)(1), the Plaintiff, for the most part, incorporated her own version of events in the paragraphs where she opposed the Defendant's and in the body of her response memorandum. The court is under no obligation to “sift through Plaintiff's responses to locate additional facts.” Malave–Torres, 919 F.Supp.2d at 207. Therefore, the court will “disregard any additional facts provided by [Plaintiff] when denying or qualifying [Defendant's] statement of uncontested facts.” Acevedo–Parrilla v. Novartis Ex–Lax, Inc., 696 F.3d 128, 137 (1st Cir.2012).

The Defendant also complains in its reply that the Plaintiff, in her opposition, “resorts to a sham affidavit which contains conclusory allegations, lacks foundation and, notably, is based on hearsay and, also, on information which contradicts her deposition testimony.” Docket No. 45 at page 3. “It is settled that ‘[w]hen an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed.’ ” Torres v. E.I. Dupont De Nemours & Co., 219 F.3d 13, 20 (1st Cir.2000) ( citing Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4–5 (1st Cir.1994)). Nonetheless, “[e]ven a clearly self-serving affidavit constitutes evidence which the court must consider when resolving summary judgment motions.” Malave–Torres, 919 F.Supp.2d at 204 ( citing Cadle Co. v. Hayes, 116 F.3d 957, 961 n. 5 (1st Cir.1997) (“A party's own affidavit, containing relevant information of which he has first-hand knowledge, may be self-serving, but it is nonetheless competent to support or defeat summary judgment.”)). In determining whether an affidavit is admissible, the analysis of whether the affidavit should be stricken from a party's opposition to a motion for summary judgment does not simply end with a determination that the affidavit is self-serving inasmuch as the court must determine whether it is a sham. See id.

After carefully reviewing the testimony given in Plaintiff's deposition versus her statement under penalty of perjury, the court disregarded the contents of the latter only to the extent it was either incongruent with her deposition testimony or the matter in question was the subject of extensive questioning during deposition, yet she decided to elaborate further in her affidavit. The court, however, considered the Plaintiff's affidavit when it properly addressed, qualified or denied the content of a statement of fact set forth by the Defendant and the matter was not subject to questioning during her deposition or the affidavit properly clarified her response.

In accordance with the foregoing, the court...