Marrero v. Misey Rest., Inc.

• Decision Date: 13 December 2019
• Docket Number: CIV. NO. 17-1911 (MDM)
• Parties: LIZBETH M. FERRER MARRERO, Plaintiff, v. MISEY RESTAURANT, INC.; d/b/a RESTAURANTE RAICES; et. al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

LIZBETH M. FERRER MARRERO, Plaintiff, v. MISEY RESTAURANT, INC.; d/b/a RESTAURANTE RAICES; et. al., Defendants.

CIV. NO. 17-1911 (MDM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

December 13, 2019

OPINION AND ORDER

Plaintiff Lizbeth Ferrer Marrero ("Plaintiff" or "Ferrer"), a former temporary employee, brings this action against Misey Restaurant, Inc. d/b/a Restaurante Raíces ("Raíces") and Jobs for You, Inc. ("JFY") (hereinafter collectively referred to as "Defendants") alleging pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1962, 42 U.S.C. §§ 2000e-5 et seq. Ferrer also asserts supplemental claims under Puerto Rico law. More specifically, Plaintiff claims that upon her return from maternity leave, Defendants illegally terminated her temporary employment assignment because of her pregnancy and because she complained that Defendants did not provide her with an adequate space and reasonable time to express breastmilk.

Presently before the Court are Raíces' and JFY's motions for summary judgment, respectively (Docket Nos. 102 and 107,) which Plaintiff opposed (Docket No. 114). Raíces and JFY respectively replied to Plaintiff's opposition. (Docket Nos. 129 and 132). Plaintiff filed a sur-reply exclusively as to JFY's motion (Docket No. 138). In light of the findings of fact and legal discussion set forth below, the Court GRANTS in part and DENIES in part Raíces' motion for summary judgment (Docket No. 102) and GRANTS in its entirety JFY's motion for summary judgment (Docket No. 107).

I. Summary Judgment Standard

Summary judgment is appropriate when "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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see Fed. R. Civ. P. 56(a). "An issue is genuine if 'it may reasonably be resolved in favor of either party' at trial, . . . and material if it 'possess[es] the capacity to sway the outcome of the litigation under the applicable law.'" Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (alteration in original) (citation and internal quotation marks omitted).

The moving parties, in this case Raíces and JFY, respectively, bear the initial burden to demonstrate the lack of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325. To defeat summary judgment, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).

When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Moreover, at the summary judgment stage, the court does not make credibility determinations or weigh the evidence. Id. If the court finds that some genuine factual issue remains, the resolution of which could affect the outcome of the case, then the court must deny summary judgment. Id. at 248.

In cases like this one, which involve questions of motive or intent, the movant's burden is particularly rigorous. Medina v. Adecco, 561 F. Supp. 2d 162, 165-66 (D.P.R. 2008). Unsettled issues regarding motive and intent will often preclude summary judgment. See Lipsett v. Univ. of P.R., 864 F.2d 881, 895 (1st Cir. 1988). Summary judgment may be appropriate, however, if the non-moving party's case rests merely upon "conclusory allegations, improbable inferences, and unsupported speculation." Forestier Fradera v. Mun. of Mayaguez, 440 F.3d 17, 21 (1st Cir. 2006) (quoting Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003)). The court should deny summary judgment when the nonmoving party "can point to specific facts detailed in affidavits and depositions—that is, names, dates, incidents, and supporting testimony—giving rise to an inference of discriminatory animus." Lipsett, 864 F.2d at 895.

II. Materials Properly Considered on Summary Judgment

In this case, both defendants, Raíces and JFY, offer declarations in support of their respective motions for summary judgment. Plaintiff objected to the use of Defendants' declarations, mainly arguing that they were not disclosed to her during discovery. Similarly, to oppose Defendants' motions for summary judgment, Plaintiff offers various declarations of third-party witnesses, none of which come from Ferrer herself. Defendants, in turn, objected to the declarations presented by Plaintiff because they did not comply with the legal requirements of unsworn statements offered to oppose a summary judgment motion. The Court will briefly address the validity of the relevant declarations offered by the parties.

On summary judgment, Rules 56(a) and (b), provide that claimants and defendants may move for summary judgment "with or without supporting affidavits." Fed. R. Civ. P. 56(a) and (b). A party asserting that a particular fact is undisputed must support that assertion "by citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations. . ., admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A); Ortiz-Osorio v. Municipality of Loiza, 128 F. Supp. 3d 442, 446 (D.P.R. 2015). The import of these subsections is that, regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied. Celotex, 477 U.S. at 323-24.

One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Id. Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves. Celotex, 477 U.S. at 323-24. All materials relied on to support a factual position must be admissible as evidence, Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir.1993), or capable of being reduced to an admissible form. Celotex, 477 U.S. at 324; see Fed. R. Civ. P. 56(c)(2) ("A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence").

When, like here, the parties use affidavits or declarations as support, they "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). See also Fed. R. Evid. 602 ("A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter").

Furthermore, under federal law, to support or oppose a motion for summary judgment, a party may offer an unsworn statement that is signed under penalty of perjury in compliance with 28 U.S.C. Sec. 1746, in lieu of a sworn statement or affidavit. See 28 U.S.C. § 1746;¹ Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int'l, Inc., 982 F.2d 686, 689-90 (1st Cir. 1993) (citing 28 U.S.C. § 1746); Maldonado-Ortiz v. Lexus de San Juan, 775 F. Supp. 2d 389, 396 (D.P.R. 2011); see also Peters v. Lincoln Elec. Co., 285 F.3d 456, 475 (6th Cir.2002) (Affidavits need not be notarized to be cognizable on summary judgment so long as they are made under penalties of perjury in accordance with 28 U.S.C. § 1746); Pfeil v. Rogers, 757 F.2d 850, 859 (7th Cir.1985) (holding that an affidavit failing to satisfy the "technical, non-substantive requirements of execution" may be considered as part of a party's opposition to a motion for summary judgment provided the affidavit complies with 28 U.S.C. § 1746), cert. denied, 475 U.S.1107 (1986); Davis v. Frapolly, 756 F.Supp. 1065, 1067 (N.D.Ill.1991) (holding that unsworn statements signed under penalty of perjury may be considered as evidence in support of a motion for summary judgment).

Against that legal backdrop, the Court analyses the validity of the statements offered by the parties, which the Court deems to have included relevant information for summary judgment purposes and those which do not constitute cumulative evidence.

The Court begins with Ferrer's proffered affidavits. In support of her Opposition to both Defendants' motions for summary judgment, Ferrer submitted various "affidavits." In pertinent part, and most relevant to Ferrer's claims, she presented an unsoworn declaration purportedly signed by Dianira Carrión, one of Ferrer's past supervisors at Raíces. (Docket No. 115-4; 115-5). At first glance, the Court can easily dispense with Carrión's "declaration" because it does not meet the applicable legal requirements.

First, it is a handwritten document titled "Interview: Dianira Carrión Mauras" and it appears to have been the result of interview questions to Carrión. Second, it fails to comply with the technical requirements that it be made based on personal knowledge, admissible evidence, and it fails to establish that the declarant is competent to testify on the matters stated. See Fed. R. Civ. P. 56(c)(4). Third, and most importantly, Carrión's unsworn declaration was not signed under penalty of perjury, thereby failing to satisfy the requirements of 28 U.S.C. § 1746. That alone is fatal to Plaintiff's proffered declaration by Carrión.

Accordingly, because Carrión's unsworn declaration does not comply with the applicable legal requirements, the Court cannot consider it as evidence in support of Plaintiff's opposition to both motions for summary judgment.

Plaintiff also offered a...