Navedo v. Nalco Chem., Inc.

• Citation: 848 F.Supp.2d 171
• Decision Date: 30 March 2012
• Docket Number: Civil No. 09–1232 (MEL).
• Parties: Donato Aponte NAVEDO, et al., Plaintiffs, v. NALCO CHEMICAL, INC., et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

848 F.Supp.2d 171

Donato Aponte NAVEDO, et al., Plaintiffs,

v.NALCO CHEMICAL, INC., et al., Defendants.

Civil No. 09–1232 (MEL).

United States District Court, D. Puerto Rico.

Jan. 30, 2012.

Opinion Denying Reconsideration March 30, 2012.

Juan J. Martinez–Rodriguez, Guaynabo, PR, for Plaintiffs.

Arturo Diaz–Angueira, James W. McCartney, Cancio, Nadal, Rivera & Diaz, San Juan, PR, Mark Lies, Natascha B. Riesco–Farinas, Chicago, IL, for Defendants.

OPINION AND ORDER

MARCOS E. LÓPEZ, United States Magistrate Judge.

On March 10, 2009, Donato Aponte–Navedo (“Aponte” or “plaintiff”), his spouse, Belkis I. Santiago–Martínez, and the conjugal partnership constituted between them (“plaintiffs”) filed a complaint against Nalco Chemical Company (“Nalco”) and three of its employees, José Serrano, Jorge Castillo,¹ and Ashok Paul Duggal, and the employees' respective conjugal partnerships (“defendants”), alleging discrimination based on gender, national origin, age, and disability, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”); the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (“ADEA”); the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101– 12213; and various provisions of Puerto Rico law.² (D.E. 1). Pending before the court is defendants' motion for summary judgment (D.E. 108, 110, 111, 112), plaintiffs' response in opposition (D.E. 169), and defendants' reply (D.E. 171, 172). Also pending before the court is defendants' motion to strike plaintiffs' response in opposition (D.E. 173), plaintiffs' reply (D.E. 183), and defendants' reply, (D.E. 195). For the reasons set forth below, defendants' motion to strike is granted in part and denied in part, and defendants' motion for summary judgment is granted.

I. Defendants' Motion to Strike

In support of their opposition to defendants' motion for summary judgment, plaintiffs submitted a response to defendants' statement of proposed facts as well as their own statement of additional proposed facts. (D.E. 169). In support of both their response and their additional facts, plaintiffs submitted Aponte's answers to defendant's interrogatories and an affidavit by Aponte, which is very similar to the statement of proposed facts. (D.E. 169). ³ Defendants move to strike Aponte's affidavit because they allege that its statements are not based on personal knowledge, lack foundation, are conclusory, speculative, contain hearsay, and recite what they consider to be Aponte's immaterial opinions and beliefs. (D.E. 173, ¶ 7). They further move to strike plaintiffs' additional statement of proposed facts because almost every one of those facts is supported by a citation to Aponte's affidavit.

Any affidavits submitted to support or oppose a motion for summary judgment “must be made on personal knowledge [and] set out facts that would be admissible in evidence....” Fed.R.Civ.P. 56(c)(4). See also Vazquez v. Lopez–Rosario, 134 F.3d 28, 33 (1st Cir.1998) (“Evidence that would be inadmissible at trial, such as inadmissible hearsay, may not be considered on summary judgment.”). Additionally, the Federal Rules of Evidence provide that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Fed.R.Evid. 602. If a declaration fails to comply with these rules, the court may sanction the submitting party by striking it from the record. Moreno Morales v. ICI Paints (Puerto Rico), Inc., 383 F.Supp.2d 304, 313–314 (D.P.R.2005). However, when a party has at least partially complied with the Rules' mandates, striking the entire declaration is generally too harsh of a sanction. Id.;Perez v. Volvo Car Corp., 247 F.3d 303, 315–16 (1st Cir.2001). Rather, the court should approach the affidavit with “a scalpel, not a butcher's knife,” disregarding the inadmissible portions and crediting the remaining statements. Perez, 247 F.3d at 315. In deciding which parts of an affidavit are admissible at the summary judgment stage, “personal knowledge is the touchstone.” Id. However, a bare assertion that a statement is based on the affiant's personal knowledge will not suffice; rather, the affidavit must be factually specific and explain the basis for that knowledge. Id. at 316. Moreover, “the requisite personal knowledge must concern facts as opposed to conclusions, assumptions, or surmise.” Id.

Taking this approach to Aponte's affidavit, many, but not all, of its paragraphs must be stricken for their failure to conform to the Federal Rules of Evidence and Civil Procedure. First of all, Aponte makes several assertions that do not indicate his basis of knowledge for that alleged fact. For example, Aponte states that the decision by one of Nalco's clients, Abbot, to terminate its contract with Nalco “was a global, corporate-wide decision” which had nothing to do with the service that Aponte was providing to the client. (D.E. 162–4, ¶ 31). Aponte does not specify the source of his knowledge for this proposed fact, and because Aponte was not employed in a corporate decision-making capacity at either Nalco or Abbot, it cannot be inferred that he knew reasons for this decision as a function of his employment. Therefore, this paragraph cannot be considered in ruling on defendant's motion, and is hereby stricken from the record. The following additional paragraphs similarly fail to indicate Aponte's personal knowledge and are also stricken: D.E. 169–4, ¶¶ 21 (fourth sentence), 24 (except for: “As an Application Engineer, I did not collect commissions”), 26, 28c, 32b (first sentence), 35c (second and last sentences), 37a, 41b (all sentences except for the first one), 42 (except for last sentence), 45 (second and fourth sentences), 46 (second, third, and fourth sentences), 51e (first sentence), 53 (second sentence), 60, 61.

Additionally, Aponte's affidavit contains several assertions that, in addition to lacking a foundation of personal knowledge, are conclusory and/or speculative.⁴ For example, Aponte states that he was “the regional expert” in a certain type of water-cooling technology called 3DTRASAR (D.E. 169–4, ¶ 16), but he does not explain who considered him to be such an expert and how he knew that they had this opinion of him, nor does he indicate by what standards he measures being a “regional expert” or any specific qualifications, awards, or recognition he may have obtained to achieve this status. Another example is a paragraph in which Aponte states that he “had very good relationships with his clients.” (D.E. 169–4, ¶ 28b). Without any specific factual knowledge to support this statement, it is a mere conclusion that cannot serve as probative evidence. See Santiago–Ramos v. Centennial P.R. Wireless Corp. 217 F.3d 46, 53 (1st Cir.2000) (deeming affidavits that do not provide “specific factual information” insufficient to support an opposition to a motion for summary judgment) (citations omitted).

Other statements in Aponte's affidavit are declaredly based only on his own convictions or beliefs, and thus must be stricken as speculative. See, e.g., (D.E. 169–4, ¶ 28c) (“It is my conviction that if these clients had been aware [that Nalco fired me], Nalco would have had problems with these clients....”). Some of these statements merely assert that his performance at Nalco was satisfactory and that any client dissatisfaction Nalco was not due to any failures in his work performance. See, e.g., (D.E. 169–4, ¶ 47) (“There were two other Nalco employees servicing Amgen ... and any conduct reflected in the client's complaint is attributable to them, not to me.”); (D.E. 169–4, ¶ 44) (“I am not to blame for the Warner Chilcott decision to cancel its contract with Nalco.”). In addition to being conclusory and speculative, Aponte's own opinions about the quality of his work are irrelevant to the ultimate question to be resolved in this case: whether he was terminated due to his employer's belief that his work was inadequate or due to impermissible discrimination. See Calero–Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 13 (1st Cir.2004) (declining to consider plaintiff's “occasional self-justifying suggestions that it was [her supervisor] not she, who was responsible for their ongoing problems.”).⁵

Furthermore, as defendants allege, Aponte's affidavit contains statements that are hearsay; however, while these statements are inadmissible to prove the truth of the matter they assert, they are admissible for other non-hearsay purposes. See, e.g., United States v. Cruz–Díaz, 550 F.3d 169 (1st Cir.2008) (“Out-of-court statements offered not to prove the truth of the matter asserted but merely to show ... what effect the statement had on the listener—are not hearsay.”) (citations omitted). For example, Aponte states several times that he told Duggal that he was overwhelmed by his work schedule and thus needed support from co-workers or extra time to complete tasks. (D.E. 169–4, ¶¶ 29a, 35a (first sentence only), 42b, 48a, 50a). While these statements are inadmissible to prove that Aponte was indeed overwhelmed or that his schedule was overwhelming, they may be considered in connection with their effect on Duggal's perception of Aponte's work performance. But see (D.E. 169–4, ¶¶ 31a, 41c) (containing hearsay not admissible for any non-hearsay purpose, nor falling under any hearsay exception, and are thus stricken from the record).

Similarly, Duggal's affidavit, which defendants submitted to support their motion, also contains several statements which contain inadmissible hearsay; specifically, those regarding the complaints he received from Aponte's clients. See, e.g., (D.E. 111, ¶ 29). Similar to Aponte's statements, these are also inadmissible to prove their truth (i.e., that Aponte's performance was actually deficient), but they are admissible for the nonhearsay purpose of showing their effect on the listener, Duggal. Therefore, these...