Rivera-Mercado v. Scotiabank De Puerto Rico-Inter., Civil No. 06-1018(JAG).

• Decision Date: 06 March 2008
• Docket Number: Civil No. 06-1018(JAG).
• Citation: 571 F.Supp.2d 279
• Parties: Yolanda RIVERA-MERCADO, Plaintiff v. SCOTIABANK DE PUERTO RICOINTERNATIONAL, et al., Defendant(s).
• Court: U.S. District Court — District of Puerto Rico

571 F.Supp.2d 279

Yolanda RIVERA-MERCADO, Plaintiff v. SCOTIABANK DE PUERTO RICOINTERNATIONAL, et al., Defendant(s).

Civil No. 06-1018(JAG).

United States District Court, D. Puerto Rico.

March 6, 2008.

COPYRIGHT MATERIAL OMITTED

Jenyfer Garcia-Soto, Colom Fagundo & Associates, San Juan, PR, for Plaintiff.

Javier G. Vazquez-Segarra, Goldman Antonetti & Cordova, San Juan, PR, for Defendants.

OPINION AND ORDER

JAY A. GARCIA-GREGORY, District Judge.

Pending before the Court is Defendants' Scotiabank de Puerto Rico-International, Scotiabank de Puerto Rico, Inc. ("SBPR"), Jorge Sierra, Arlene Marrero, and ABC Insurance Company (collectively "Defendants") Motion for Summary Judgment. (Docket No. 22). For the reasons set forth below, the Court GRANTS Defendants' Motion.

FACTUAL AND PROCEDURAL BACKGROUND

On January 5, 2006, Plaintiff Yolanda Rivera Mercado ("Plaintiff") filed the present complaint against Defendants. Basically, Plaintiff alleges that she was terminated from her employment at SBPR because of her asthma condition in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213. (Docket No. 1).

On May 15, 2007, Defendants moved for summary judgment. (Docket No. 22). Plaintiff opposed Defendants' Motion for Summary Judgment. (Docket No. 39). On August 13, 2007, Defendants responded to Plaintiffs opposition. (Docket No. 47). On September 7, 2007, Plaintiff filed her sur-reply. (Docket No. 54).

Defendants' Motion for Summary Judgment was referred to a Magistrate Judge. (Docket No. 57). On January 29, 2008, the Magistrate Judge issued a Report and Recommendation in which he recommended that Defendants' Motion for Summary Judgment should be granted. The Magistrate Judge concluded that the following facts were not in genuine and material dispute:

1) SBPR is a financial corporation organized under the laws of the Commonwealth of Puerto Rico.

2) On February 27, 2003, Plaintiff began working as a Manager of the Plaza Escorial branch of SBPR. Previously, she had worked with First Bank for over thirtythree years.

3) In general terms, as Manager of the Plaza Escorial branch of SBPR, Plaintiff was: responsible for generating and maintaining maximum business volumes and related revenues, consistent with negotiated short and long-term objectives of the Bank by developing new business opportunities and expanding existing connections; ensuring the delivery of a high standard of customer service, controlling branch operations; and of effectively managing the branch's human, financial and other resources.

4) Plaintiff received information or documents containing SBPR's anti-discrimination and anti-harassment policies, as well as the bank's affirmative action policies for the disabled.

5) Plaintiffs performance as of October 28, 2003, was appraised as part of her Performance Appraisal Report ("PAR") as "Meets Expectations," even though "business targets were not met," since she had only contributed to the branch's operations for half a year. On December 15, 2003, Plaintiff signed the PAR.

6) An Audit Report of the Plaza Escorial Branch performed on December, 2003, reported that "overall conditions in Escorial Branch are classified as Needs Improvement."

7) In particular, said report determined that improvement was required in the following areas: commercial loans, compliance, retailing, operations management and sales delivery.

8) On August 3, 2004, SBPR conducted a "Branch Revision Visit" at the Escorial branch.

9) Some of the findings reported during the August 3, 2004, visit to the Plaza Escorial branch of SBPR include: not correcting certain findings from a previous visit; the "Call Program" was in disarray; loans had not been adequately developed; and coaching of the assistant managers was inadequate as well as Plaintiffs marketing efforts.

10) In light of the deficiencies found during the August 3, 2004, visit to the Plaza Escorial branch of SBPR, Plaintiff was placed on a Performance Improvement Program ("PIP").

11) On August 23, 2004, a status report of a review of the files of the Plaza Escorial branch of SBPR showed that many of said files had many deficiencies (over 67% of the reviewed files needed correction).

12) On August 24, 2004, Plaintiff requested that her performance be re-valuated since she did not agree with her placement on the PIP.

13) On August 26, 2004, Plaintiff was informed that, in addition to the performance issues that had been informed to her when she was placed on the PIP, she had also violated the bank's policies and procedures related to the Customer Identification Program ("CIP").

14) The CIP is a federally mandated program that requires that a financial institution adequately maintain certain customer identifiers to protect United States citizens from terrorism and money laundering.

15) On September 7, 2004, Plaintiff was once again informed that her performance was poor and that the bank was in potential regulatory risk.

16) Plaintiff was informed that there would be a formal review of her and of Plaza Escorial's branch's performance on October 31, 2004.

17) The formal review states that the Plaza Escorial Branch of SBPR was in a state of disarray where almost all areas of the branch that were inspected were deficient.

18) On November 12, 2004, Plaintiffs employment was terminated.

19) Plaintiff suffers from asthma.

20) Prior to her termination, no one from SBPR mentioned anything about her alleged asthma condition.

21) Plaintiff does not consider herself to be disabled.

22) Plaintiff does not consider that her asthma condition impaired her ability to perform her duties as Manager of the Plaza Escorial branch of SBPR.

23) When asked if she had ever requested reasonable accommodations for her asthma condition, Plaintiff answered: "No sir, I had no reason to do so."

24) On April 21, 2005, Plaintiff filed a disability discrimination charge in the Equal Employment Opportunity Commission ("EEOC").

After considering all the aforementioned facts, the Magistrate Judge found that Plaintiff failed to submit sufficient evidence to support her claim that her asthma condition rendered her disabled within the meaning of the ADA.¹ Additionally, the Magistrate Judge concluded that Plaintiff failed to prove that her asthma condition rendered her disabled within the meaning of the statute because she did not proffer sufficient evidence to prove that Defendants regarded her as impaired in her ability to breathe and/or work.²

Furthermore, the Magistrate Judge noted that Plaintiff failed to allege in the complaint that she was limited in the major activities, namely, speaking, running, walking and working. The Magistrate also found that Plaintiff failed to allege that Defendants regarded her as disabled as required by the ADA. The Magistrate Judge stated that Plaintiff made said allegations for the first time in her reply and sur-reply to Defendants' Motion for Summary Judgment. As such, the Magistrate Judge concluded that Plaintiff could not attempt to amend her allegations by claiming for the first time in her opposition to the Motion for Summary Judgment and in the sur-reply that her ability to perform major life activities was impaired by her asthma and that Defendants regarded her as disabled.

Finally, the Magistrate Judge found that Plaintiffs ADA claim must fail because she failed to present evidence that Defendants regarded her disabled with respect to "either a class of jobs or a broad range of jobs in various classes as compared with the average person having comparable training, skill and abilities."³ For these reasons, the Magistrate Judge recommended that this Court should grant Defendants' Motion for Summary Judgment. (Docket No. 59). On February 15, 2007, Plaintiff filed her objections to the Report and Recommendation. (Docket No. 64).

STANDARD OF REVIEW

1) Summary Judgment Standard

The court's discretion to grant summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 states, in pertinent part, that the court may grant summary judgment only if "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 also Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52. (1st Cir.2000).

Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." See Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Once a properly supported motion has been presented before the court, the opposing party has the burden of demonstrating that a trial-worthy issue exists that would warrant the court's denial of the motion for summary judgment. For issues where the opposing party bears the ultimate burden of proof, that party cannot merely rely on the absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute. See Suarez v. Pueblo Int'l, Inc., 229 F.3d 49 (1st Cir. 2000).

In order for a factual controversy to prevent summary judgment, the contested facts must be "material" and the dispute must be "genuine". "Material" means that a contested fact has the potential to change the outcome of the suit under governing law. The issue is "genuine" when a reasonable jury could return a verdict for the nonmoving party based on the evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is well settled that "[t]he mere existence of a scintilla of evidence" is "insufficient to defeat a properly supported motion for summary...