Negrón–Marty v. Wal–Mart P.R., Inc.

• Citation: 862 F.Supp.2d 48
• Decision Date: 21 March 2012
• Docket Number: Civil No. 09–2201 (BJM).
• Parties: Ángel L. NEGRÓN–MARTY, et al., Plaintiffs, v. WAL–MART PUERTO RICO, INC., Defendant.
• Court: U.S. District Court — District of Puerto Rico

862 F.Supp.2d 48

Ángel L. NEGRÓN–MARTY, et al., Plaintiffs,

v.WAL–MART PUERTO RICO, INC., Defendant.

Civil No. 09–2201 (BJM).

United States District Court,

D. Puerto Rico.

March 21, 2012.

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

Kenneth C. Suria–Rivera, William Estrella Law Offices, San Juan, PR, for Defendant.

OPINION AND ORDER

BRUCE J. McGIVERIN, United States Magistrate Judge.

Ángel L. Negrón–Marty (“Negrón”), his wife Maribel Orengo–Echevarría (“Orengo”), and their conjugal partnership (collectively, “plaintiffs”) sued Wal–Mart Puerto Rico, Inc. (“WalMart”), alleging employment discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., Law No. 44 of July 2, 1985 (“Law 44”), 1 L.P.R.A. §§ 501 et seq., Law No. 100 of June 30, 1959 (“Law 100”), 29 L.P.R.A. §§ 146 et seq., Law No. 115 of December 20, 1991 (“Law 115”), 29 L.P.R.A. §§ 194a 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 Article 1802 of the Puerto Rico Civil Code, 31 L.P.R.A. § 5141. (Docket No. 1).

Before the court is Wal–Mart's motion for summary judgment on all claims. (Docket No. 16). Plaintiffs opposed the motion (Docket No. 31), Wal–Mart replied (Docket No. 38), and plaintiffs filed a sur-reply (Docket No. 57). In addition, Wal–Mart moved to strike portions of Negrón's statement under penalty of perjury, (Docket No. 39), which plaintiffs opposed (Docket No. 58); Wal–Mart replied (Docket No. 64) and plaintiffs filed a sur-reply (Docket No. 67). This case is before me by consent of the parties. (Docket No. 25). For the reasons that follow, WalMart's motion for summary judgment is granted in part and denied in part.

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

Employment with Wal–Mart and Wal–Mart's Policies

On September 29, 1997, Negrón began work as a sales associate at a Wal–Mart store in Ponce, Puerto Rico. (Docket No. 18, hereinafter “Def. St.,” ¶ 1). At the time he was terminated on November 7, 2008, Negrón was Department Manager for the School Supplies Department. (Def. St., ¶ 2). He was 44 years old at the time he was terminated. (Def. St., ¶ 48).

Negrón signed an acknowledgment of receiving Wal–Mart's employee handbook on September 19, 1997. (Def. St., ¶ 3). That handbook includes policies against discrimination, harassment, and retaliation. (Def. St., ¶ 4). Negrón was aware of the policies, received formal training in them, and knew that he should immediately report any discrimination to a supervisor. (Def. St., ¶ 5). Wal–Mart also offered a 1–800 number for its employees to report discrimination. (Def. St., ¶ 6). The company's “Open Door Policy” provided another avenue for complaints. (Def. St., ¶ 7). The Store also had written descriptions of its policies on a bulletin board. (Def. St., ¶ 8). Wal–Mart's policy sets out instructions regarding to whom employees may report discrimination and harassment. (Def. St., ¶ 53).

Another formal policy entitled “Coaching for Improvement” defines a progressive discipline policy with four levels of discipline: unwritten warnings (“Verbal Coaching”), a meeting accompanied by a written warning (“Written Coaching”), a meeting and written warning followed by one day of mandatory paid leave and a follow-up meeting (“Decision–Making Day”), and ultimately, termination. (Def. St., ¶¶ 10–12). Depending on the circumstances, the policy does not require each lower step to be followed before proceeding at a higher step; for instance, certain types of conduct may result in immediate termination. (Def. St., ¶ 13). Negrón was familiar with this system. (Def. St., ¶ 14).

The 2007 Performance Reviews

A written performance review form dated May 15, 2007 states that Negrón received verbal discipline regarding his performance level in “inventory results.” (Def. St., ¶ 16). The form states that Negrón's department was expected to have inventory results of “-.85% or less,” and that the actual performance was “–1.65% vs. sales.” (Def. St., ¶¶ 16–18). According to the statement of Zoraida Vecchioly Rivera (“Vecchioly”), the Store Manager, “the same admonishment was issued to all associates in the School Supply Department....” (Def. St., ¶ 19). Negrón denies having received this warning, however.²(Docket No. 31–1, hereinafter “Pl. St.,” ¶ 16). He also denies that the inventory results were negative. (Pl. St., ¶ 19).

A written performance review form dated June 20, 2007 states that Negrón cashed a check on June 2, 2007 “which showed that the account was closed,” and that “[t]his same situation took place in previous months with a shares check.” (Def. St., ¶ 20; Docket No. 18–7, p. 2). The performance review states that a failure to correct the issue will result in “Decision Day” discipline. (Def. St., ¶ 24). Vecchioly stated that “[a] similar situation happened back in 2006.” (Def. St., ¶ 23).³ The policy on returned checks written by associates to Wal–Mart authorized discipline, including termination, as a consequence. (Def. St., ¶ 22). Negrón testified that he was not aware he could be disciplined for cashing a bad check made out to him by a third party, and did not believe the disciplinary policy applied unless he was the one who made out the check himself.⁴ (Pl. St., ¶ 21).

A written performance review form dated December 7, 2007 states that Negrón took a 24–minute break on December 4, that he was under “Decision Day” status, and that Negrón would be subject to dismissal for failure to correct the problem. (Def. St., ¶¶ 26, 28). A policy states that employees may only take breaks of up to 15 minutes. (Def. St., ¶ 27). Negrón did not sign the performance form, but wrote a letter dated December 11, 2007 acknowledging the violation. (Def. St., ¶ 29). Negrón stated that he only wrote the letter because he would be terminated if he did not. (Pl. St., ¶ 29). Negrón denies taking a 24–minute break, and denies having ever violated the 15–minute break rule; he asked Vecchioly to provide evidence of how long he went on break, but she did not do so. (Pl. St., ¶ 26).

The December 2007–January 2008 Leave of Absence

On December 10, 2007, Wal–Mart received a letter written by Dr. Carmen L. Maldonado Buitrago (“Dr. Maldonado”) stating that she would like Negrón to stay home from work until December 16, 2007, that she would perform a psychometric evaluation, and that Negrón had a nervous breakdown affecting his job performance. (Def. St., ¶ 30). On December 11, 2007, Wal–Mart received a medical absence certificate from Instituto de Medicina de Familia del Sur (“Instituto”) stating that Negrón was sick as of December 11, and could not resume his duties until further notice. (Def. St., ¶ 31). Wal–Mart approved a leave of absence with reduced hours from December 10 through December 16, 2007, and continuous leave from December 23, 2007 through January 14, 2008. (Def. St., ¶ 32). Dr. Maldonado provided another letter on December 23, 2007 stating she would need three weeks to decide whether he could return to work. (Def. St., ¶ 33).

On January 14, 2008, Negrón told Vecchioly that he was ready to return to work even though his medical certificate said he could not yet work; Vecchioly insisted on a medical certificate stating he could return to work. (Def. St., ¶ 34). On January 15, Dr. Maldonado sent Wal–Mart a letter stating he could return to work on January 21, 2008. (Def. St., ¶ 35). Wal–Mart also received a letter from Instituto on January 15 stating Negrón could return to work on January 21. (Def. St., ¶ 36). Wal–Mart extended Negrón's leave of absence through January 21. (Def. St., ¶ 37). On January 17, 2008, Dr. Maldonado sent Wal–Mart a letter stating that she had referred Negrón to the State Insurance Fund (“SIF”) for evaluation and treatment. (Def. St., ¶ 38). Also on January 17, Wal–Mart received a letter from the SIF indicating he would receive treatment while working, and that his condition was still pending determination. (Def. St., ¶ 39).

Negrón's Working Environment

Negrón returned to work as Department Manager for the School Supplies Department on January 21, 2008. (Def. St., ¶ 40). Following his return, Vecchioly removed four of the five part-time employees from the department, leaving him with only one part-time employee. (Pl. St., ¶ 40). His supervisors, Vecchioly, Gustavo Jordan (“Jordan”), and Sheila Pérez (“Pérez”), would “constantly” visit the department and tell him to work faster or else he would be discharged. (Pl. St., ¶ 40). They told him that his medical leave requests negatively affected his performance, that they were tired of his leave requests, and that he would be fired if he were absent again for a medical appointment. (Pl. St., ¶ 40).⁵ Negrón testified that following his admission to a hospital, his shift schedule was changed. (Pl. St., ¶ 40). He also testified that he was assigned more merchandise to shelve than he could in the time allotted. (Pl. St., ¶ 40).

Negrón testified that he had complained of being called a “crazy old man” to Personnel Manager Doris Donate (“Donate”), District Manager Gilberto Rosa (“Rosa”), and Idelina Lebrón (“Lebrón”) on more than one occasion. (Docket No. 31–1, hereinafter “Pl. St.,” ¶ 9). Negrón also complained about changes in his shifts, the imposition of unreasonable deadlines, and the removal of assistants assigned to him. (Pl. St., ¶ 9). Negrón also stated that Vecchioly, Jordan and Pérez “constantly, on a daily basis” told him he would be terminated for not meeting the company's expectations. (Pl. St., ¶ 17). According to Vecchioly's statement, Negrón never complained to her of age discrimination, and “never used an Open Door Policy with [her]” to complain of...