Ramos v. Vizcarrondo
| Decision Date | 08 May 2017 |
| Docket Number | CIVIL NO. 14-1722 (GAG). |
| Citation | 251 F.Supp.3d 378 |
| Parties | Edwin RAMOS, et al., Plaintiffs, v. Jose VIZCARRONDO, et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Edwin Ramos, Pro se.
Janitza M. Garcia–Marrero, Carolina Santa Cruz–Sadurni, Reynaldo A. Quintana–Latorre, Baerga & Quintana Law Office, San Juan, PR, for Defendant.
On August 1, 2014, Edwin Ramos ("Plaintiff"), brought this employment discrimination action, pro se ,1 in the Puerto Rico Court of First Instance against José R. Vizcarrondo–Carrión ("Vizcarrondo–Carrión"), in his individual and official capacity as president of Desarrollos Metropolitanos,2 Linda Lebber Johnson, and the conjugal partnership composed by them; José A. Vizcarrondo–Toro ("Vizcarrondo–Toro"), Virginia Suarez and the conjugal partnership composed by them; Julio E. Vizcarrondo–Ramírez ("Vizcarrondo–Ramírez"), Nellie Carrión de Vizcarrondo and the conjugal partnership composed by them (collectively "Defendants"). The case was removed from state court by Defendants pursuant to 28 U.S.C. §§ 1331 and 1441. (See Docket No. 1.)
Plaintiff claims that Defendants engaged in discrimination on the basis of age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 – 623 and Puerto Rico Law No. 100 of June 30, 1959 ("Law 100"), P.R. LAWS ANN.tit. 29, §§ 146 – 151 ; that Defendants wrongfully denied retirement benefits and discriminated against him for exercising his rights under the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1132, 1140. (See Docket No. 9–1 at 19–27.) Plaintiff also seeks redress from injuries suffered as a result of Defendants' unwanted physical contact with Plaintiff under Article 1802 of the Puerto Rico Civil Code ("Article 1802"), P.R. LAWS ANN.tit. 31, § 5141. Id. at 19. Finally, Plaintiff has also asserted a claim under Law No. 80 of April 22, 1988 ("Law 80"), P.R. LAWS ANN.tit. 29, §§ 185a – 185m. Id. at 19–22.
Defendants have moved for summary judgment on all claims. (Docket No. 157.) Plaintiff responded. (Docket No. 174.) Defendants replied, raising several arguments, including Plaintiff's failure to comply with Federal Rule of Civil Procedure 56 and its local counterpart, in addressing and contesting the assertions of fact in Defendants' Statement of Undisputed Material Facts. Id. at 3. Plaintiff sur-replied. (Docket No. 181.) Defendants move to strike the Sur–Reply in its entirety given that it "fails to address the issues set forth in Defendants' Reply" and "improperly brings matters and documents that he did not address previously in his Opposition." (Docket No. 182.) Before analyzing the substantive arguments raised for and against summary judgment, the Court will first address these threshold matters.
A. Anti–Ferreting Rule
Local Rule 56(c) requires an opposing party to admit, deny, or qualify the facts of the moving party, and to support denials or qualifications with record citations . L. CV. R. 56(c) (D.P.R. 2010) (emphasis added). The rule clearly requires the nonmovant to address "each numbered paragraph of the moving party's statement of material facts." Id. The Rule further expands on a nonmovant's responsibility to properly admit, deny, or qualify properly supported assertions of fact:
Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted. An assertion of fact set forth in a statement of material facts shall be followed by a citation to the specific page or paragraph of identified record material supporting the assertion. The court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment. The court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts.
L. CV. R. 56(e). The Rule's purpose is "to relieve the district court of any responsibility to ferret through the record to discern whether any material fact is genuinely in dispute." Colón–Fontánez v. Municipality of San Juan, 660 F.3d 17, 28 (1st Cir. 2011). The First Circuit has spoken loud and clear as to the virtues of such a rule and the consequences of failing to adhere to its terms. See Puerto Rico Am. Ins. Co. v. Rivera–Vázquez, 603 F.3d 125, 131 (1st Cir. 2010) (citing Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000) ).
The vast majority of Plaintiff's opposing statements do not cite to evidence on the record in support of their contentions, in direct violation of Local Rule 56. Additionally, Plaintiff did not file any supporting documents as evidence with his opposition, and instead opted to rely exclusively on the evidence submitted by Defendants as support for their Statement of Uncontested Material Facts. (See Docket Nos. 159, 171 & 174.)
Plaintiff did not address or did not contest with citations to the record the following statement of facts in Defendants' Statement of Uncontested Facts: 25, 31, 42, 47–49, 51–52, 55–66, 72–114. (See Docket No. 174 at 3–8.) Plaintiff also attempted to dispute assertions of fact 115–179 with the following statement from his deposition: "[t]he documents that were provided to me reflect clearly that there was a mistake in the calculations." (See Docket Nos. 174 at 8; 187–3 at 31.) In light of Plaintiff's failure to meet the requirements of Local Rule 56 and, the Court deems the following assertions of fact as admitted: 25, 31, 42, 47–49, 51–52, 55–66, 72–179. (Docket No. 159.)
Moreover, Plaintiff attempted to contest several assertions of fact with inapposite statements from his deposition, which fail to adequately contest any of Defendants' material assertions of fact. (See Docket Nos. 159 ¶ 18; 174 ¶ 18; see also 187–1 at 72–73.) The Court will deem as admitted these and any other properly supported assertions of fact in Defendants' Statement of Uncontested Material Facts, not adequately contested by Plaintiff.
B. Plaintiff's Sur–Reply at Docket No. 181
Plaintiff sur–replied without addressing the matters raised in Defendants' Reply, but rather rehashed some of the arguments raised in the Opposition. (See Docket No. 181 1–7.) However, Plaintiff also improperly attempted to raise new theories for relief not raised in the Complaint and arguments against summary judgment not raised in Plaintiff's Opposition (unrelated to matters raised by Defendants in their Reply). See id. at 9–10. These arguments were waived by Plaintiff. See Rocafort v. IBM Corp., 334 F.3d 115, 121 (1st Cir. 2003).
Additionally, after Plaintiff failed to include any supporting documents with his Opposition, he now seeks to introduce new evidence as well as an extension of time for discovery. (Docket No. 181.) The documents that Plaintiff seeks to introduce into evidence are all in the Spanish language, in clear violation of 42 U.S.C. § 846 and Local Rule 5(g). See Puerto Ricans For Puerto Rico Party v. Dalmau, 544 F.3d 58 (1st Cir. 2008). Regardless, Plaintiff's attempt to introduce new evidence at this juncture is clearly improper and ignores the Court's Order issued on August 29, 2016: (Docket No. 149.)
Defendants' Motion to Strike Plaintiff's Sur–Reply is thus GRANTED. Plaintiff's Sur–Reply at Docket No. 181 is hereby stricken from the record.
Desarrollos Metropolitanos is a group of construction companies led by Vizcarrondo–Carrión as President, Vizcarrondo–Toro as Vice–President, and Vizcarrondo–Ramírez as President of the Board of Directors. (Docket Nos. 159 ¶¶ 1–4; 174 ¶¶ 1–4.) Plaintiff began his employment with Desarrollos Metropolitanos on October 15, 2001. (Docket Nos. 159 ¶¶ 5–6; 174 ¶¶ 5–6.) On or around December 2002, Desarrollos Metropolitanos promoted Plaintiff to the position of Comptroller, which he would occupy until April, 2013. (Docket Nos. 159 ¶¶ 9–11; 174 ¶¶ 9–10.)
Puerto Rico's prolonged economic malaise has significantly affected Desarrollos Metropolitanos' financial condition. (Docket Nos. 159 ¶ 13; 174 ¶ 13.) Gross profit at Desarrollos Metropolitanos LLC—one of the group of companies that comprises Desarrollos Metropolitanos—steadily declined from $7,057,138 in 2011, to a gross loss of $200,999 in 2012, a gross loss of $1,181,122 in 2013, and a gross loss of $1,194,527 in 2014. (Docket Nos. 159 ¶¶ 13–16; 174 ¶¶ 13–16.)
Desarrollos Metropolitano's deteriorating financial condition prompted management to implement cost-cutting measures, which involved reducing the group's workforce. (Docket Nos. 159 ¶¶ 13, 17; 174 ¶¶ 13–16.) As a result, Desarrollos Metropolitano's workforce was reduced by almost two thirds in four years, from 394 employees in 2012, to 140 in 2015. (Docket Nos. 159 ¶¶ 18–20; 174 ¶¶ 18–20.)
On April 8, 2013, Plaintiff received notice of a proposed salary reduction that, with the exception of two engineers, would affect all of the Company's employees. (Docket Nos. 159 ¶ 33; 174 ¶ 33.) That same day, Vizcarrondo–Carrión and Vizcarrondo–Toro met with Plaintiff in order to inform him that, due to the Desarrollos Metropolitanos' worsening financial condition, Plaintiff's position would have to be eliminated. (Docket Nos. 159 ¶¶ 36–37; 174 ¶¶ 36–37.) Afterwards, Plaintiff sent Vizcarrondo–Carrión an email requesting a severance payment as a result of his dismissal and subsequently collected his belongings and emptied his office at Desarrollos Metropolitanos. (Docket Nos. 159 ¶¶ 38–40; 174 ¶¶ 38–40.)
On April 9, 2013, Vizcarrondo–Carrión replied to Plaintiff's message, claiming that the situation was a misunderstanding and that Plaintiff was not entitled...
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