Ocasio v. Oriental Bank

• Decision Date: 19 July 2016
• Docket Number: Civil No. 15-01309 (DRD)
• Parties: CARMEN OCASIO, Plaintiff, v. ORIENTAL BANK, Defendant.
• Court: U.S. District Court — District of Puerto Rico

CARMEN OCASIO, Plaintiff, v. ORIENTAL BANK, Defendant.

Civil No. 15-01309 (DRD)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

July 19, 2016

OPINION AND ORDER

On January 14, 2015, Plaintiff Carmen Ocasio ("Plaintiff") was dismissed from her position as a compliance clerk at Defendant Oriental Bank ("Defendant" or "Oriental") after a five-day unexcused absence from her employment during which she did not communicate with her employer. Plaintiff alleges she was dismissed in retaliation for exercising her rights under the Family Medical Leave Act of 1993 ("FMLA") 29 U.S.C. §2601 immediately prior to her dismissal. Plaintiff sued Oriental for allegedly violating her FMLA rights, asserting pendent claims based on Puerto Rico law.

Before the Court are Defendant's Motion for Summary Judgment (Docket No. 18) and Motion to Strike Plaintiff's Statement Under Penalty of Perjury in Support of Opposition to Motion for Summary Judgment (Docket No. 35). Plaintiff filed an Opposition to Motion for Summary Judgment (Docket No. 25) and an Opposition to Motion to Strike (Docket No. 39). For the reasons outlined below, the Court GRANTS both of Defendant's motions and DISMISSES WITHOUT PREJUDICE Plaintiff's state law claims

I. STANDARD OF REVIEW FOR SUMMARY JUDGMENT MOTIONS

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be entered where "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 judgment as a matter of law." FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 324-325 (1986). Pursuant to the clear language of the rule, the moving party bears a two-fold burden: it must show that there is "no genuine issue as to any material facts," as well as that it is "entitled to judgment as a matter of law." Veda-Rodriguez v. Puerto Rico, 110 F.3d 174, 179 (1st Cir. 1997). A fact is "material" where it has the potential to change the outcome of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "genuine" where a reasonable jury could return a verdict for the nonmoving party based on the evidence. Id. Thus, it is well settled that "the mere existence of a scintilla of evidence" is insufficient to defeat a properly supported motion for summary judgment. Id.

After the moving party meets this burden, the onus shifts to the non-moving party to show that there still exists "a trial worthy issue as to some material facts." Cortes-Irizarry v. Corporación Insular, 11 F.3d 184, 187 (1st Cir. 1997).

At the summary judgment stage, the trial court examines the record "in the light most flattering to the non-movant and indulges in all reasonable references in that party's favor. Only if the record, viewed in this manner and without regard to credibility determinations, reveals no genuine issue as to any material fact may the court enter summary judgment." Cadle Co. v. Hayes, 116 F.3d 957, 959-60 (1st Cir. 1997). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those ofa judge." Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 150 (2000)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505 (1986)). Summary judgment is inappropriate where there are issues of motive and intent as related to material facts. See Poller v. Columbia Broad. Sys., 369 U.S. 470, 473, 82 S.Ct. 486 (1962)(summary judgment is to be issued "sparingly" in litigation "where motive and intent play leading roles"); see also Pullman-Standard v. Swint, 456 U.S. 273, 288, 102 S.Ct. 1781 (1982)("findings as to design, motive and intent with which men act [are] peculiarly factual issues for the trier of fact."); see also Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir. 2000)(finding that "determinations of motive and intent . . . are questions better suited for the jury"). "As we have said many times, summary judgment is not a substitute for the trial of disputed factual issues." Rodríguez v. Municipality of San Juan, 659 F.3d 168, 178-179 (1st Cir. 2011)(internal quotations and citations omitted). Conversely, summary judgment is appropriate where the nonmoving party rests solely upon "conclusory allegations, improbable inferences and unsupported speculation." Ayala-Gerena v. Bristol Myers-Squibb Co., 85 F.3d 86, 95 (1st Cir. 1996). However, while the Court "draw[s] all reasonable inferences in the light most favorable to [the non-moving party] . . . we will not draw unreasonable inferences or credit bald assertions, empty conclusions or rank conjecture." Vera v. McHugh, 622 F.3d 17, 26 (1st Cir. 2010)(internal quotations and citation omitted). Moreover, "we afford no evidentiary weight to conclusory allegations, empty rhetoric, unsupported speculation, or evidence which, in the aggregate, is less than significantly probative." Tropigas De P.R. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011)(internal citations omitted).

Further, the Court will not consider hearsay statements or allegations presented by parties that do not properly provide specific reference to the record. See D.P.R. CIV. R. 56(e)("The[C]ourt may disregard any statement of fact not supported by a specific citation to the record material properly considered on summary judgment. The [C]ourt shall have no independent duty to search or consider any part of the record not specifically referenced."); see also Morales v. A.C. Orssleff's EFTF, 246 F.3d 32, 33 (1st Cir. 2001)(finding that, where a party fails to buttress factual issues with proper record citations, judgment against that party may be appropriate); Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)("Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment.").¹

If a defendant fails to file an opposition to the motion for summary judgment, the district court may consider the motion as unopposed and disregard any subsequently filed opposition. Velez v. Awning Windows, Inc., 375 F.3d 35, 41 (1st Cir. 2004). Furthermore, the district court must take as true any uncontested statements of fact. Id. at 41-42; see D.P.R.R. 311.12; see Morales, 246 F.3d at 33 ("This case is a lesson in summary judgment practice .... [P]arties ignore [Rule 311.12] at their own peril, and ... failure to present a statement of disputed facts, embroidered with specific citations to the record, justifies deeming the facts presented in the movant's statement of undisputed facts admitted.")(internal citations and quotations omitted); see also Euromodas, Inc. v. Zanella , Ltd., 368 F.3d 11, 14-15 (1st Cir. 2004). However, this does not mean that summary judgment will be automatically entered on behalf of the moving party, as the court "still has the obligation to test the undisputed facts in the crucible of the applicable law in order to ascertain whether judgment is warranted." See Velez, 375 F.3d at 42.

II. MOTION TO STRIKE "UNSWORN STATEMENT"

Before discussing Defendant's Motion for Summary Judgment (Docket No. 18), the Court must address a preliminary evidentiary issue. Plaintiff attached an unsworn affidavit ("Statement" or "Affidavit") (Docket No. 25-3) to support her Opposition to Motion for Summary Judgment (Docket No. 25). Defendant has moved to strike this Statement on grounds that it is a "sham affidavit" introduced to manufacture a dispute of material fact otherwise absent from the record. See Docket No. 35.

Defendant's Motion for Summary Judgment (Docket No. 18) relies heavily on Plaintiff's deposition testimony from February 1, 2016. Together with her Opposition to Summary Judgment (Docket No. 25), Plaintiff submitted an Opposition to Defendant's Proposed Statement of Undisputed Material Facts (Docket No. 25-1) and the unsworn statement at issue (Docket No. 25-3). Several of the facts that Plaintiff notes in her opposition to both summary judgment and Defendant's Rule 56 statement are exclusively supported by Plaintiff's unsworn statement, dated April 2, 2016, and, ostensibly, by inadmissible phone records attached as exhibits. Defendant maintains that the unsworn statement, signed almost a month after Defendant filed its Statement of Uncontested Facts, is a sham intended to create material issues of fact to defeat Defendant's Motion for Summary Judgment. See Docket No. 35. In her response to the motion to strike, Plaintiff argues that the Statement does not contradict her deposition testimony, but instead clarifies it. See Docket No. 39.

A. Sham Affidavit Doctrine

At the outset, we must note that an affidavit is equivalent to other forms of evidence, such as deposition testimony. See 10A Wright & Miller, Federal Practice & Procedure § 2727 (3d ed. 2011) ("facts asserted by the party opposing the [summary judgment] motion, if supported byaffidavits or other evidentiary materials, are regarded as true."). The First Circuit has ruled that even arguably self-serving affidavits are to be considered when resolving motions for summary judgment. See Cadle Co. v. Hayes, 116 F.3d 957, 961 n.5 (1st Cir. 1997) ("A party's own affidavit, containing relevant information of which [she] has first-hand knowledge, may be self-serving, but it is nonetheless competent to support or defeat summary judgment."). However, when a party "has given clear answers to unambiguous questions, [she] 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." Escribano-Reyes v. Prof'l Hepa Certificate Corp., 817 F.3d 380, 387 (1st Cir. 2016) (citing Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994)). District courts are not required to articulate each contradiction between the party's...