Rivot-sanchez v. Warner Chilcott Co. Inc

Decision Date31 March 2010
Docket NumberCivil No.: 07-2148 (DRD).
Citation707 F.Supp.2d 234
PartiesWilliam RIVOT-SANCHEZ, Plaintiff,v.WARNER CHILCOTT COMPANY, INC., Defendant.
CourtU.S. District Court — District of Puerto Rico




Anibal Escanellas-Rivera, Maria T. Juan-Urrutia, Escanellas & Juan, San Juan, PR, for Plaintiff.

Carl E. Schuster, Lourdes C. Hernandez-Venegas, Zahira Diaz-Vazquez, Schuster & Aguilo LLP, San Juan, PR, for Defendant.


DANIEL R. DOMINGUEZ, District Judge.


The instant case involves claims of discrimination and failure to accommodate under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112 et seq., along with several claims arising under the laws of Puerto Rico, over which this Court exercises supplemental jurisdiction. Currently before the Court is Defendant's Motion for Summary Judgment (Docket No. 36), filed on May 15, 2009, which Plaintiff opposed (Docket No. 45) on June 22, 2009. Subsequently, Defendants filed a reply to Plaintiff's opposition (Docket No. 48) on July 1, 2009 and Plaintiffs filed a sur-reply (Docket No. 54). Additionally, Defendants filed a motion to strike related to an exhibit submitted by Plaintiff in support of his opposition to the motion for summary judgment (Docket No. 50).

The Court referred the instant motion to Magistrate Judge Bruce McGiverin on October 15, 2009 (Docket No. 56), and he entered a Report and Recommendation (Docket No. 59) on March 1, 2010. Plaintiff filed his objections (Docket No. 60) to the Report and Recommendation on March 8, 2010 and Defendant responded to these objections on March 18, 2010 (Docket No. 61).

In his Report and Recommendation, the Magistrate Judge recommended that Defendant's motion for summary judgment be granted as to the federal claims, and that the claims arising under the law of Puerto Rico be dismissed without prejudice. Specifically, the Magistrate Judge found that Plaintiff failed to make out a prima facie case of discrimination based on actual disability claim under the ADA as Plaintiff failed to show that he was substantially limited in any major life activity. Additionally, the Magistrate Judge found that Plaintiff failed to raise a claim based upon a theory that he was “regarded as” disabled until his opposition to the motion for summary judgement and, as a result, should be barred from arguing this claim. Further, the Magistrate Judge found that, even if Plaintiff had raised this theory previously, his claim bears no merit as it fails to meet the heightened level of specificity for a “regarded as” claim. Likewise, the Magistrate Judge found that Plaintiff raised his hostile work environment claim for the first time in his opposition and that, therefore, this claim should also not be entertained. The Magistrate Judge further found that, even if the Court were to address this claim on the merits, the same should be dismissed as Plaintiff has not introduced sufficient evidence to establish that Defendant's proffered reason for dismissing Plaintiff was pretextual.

The Magistrate Judge also addressed Defendant's motion to strike (Docket No. 50) in his Report and Recommendation. First, the Magistrate Judge concluded that Defendant's argument that the Rivot Statement (“the Statement”) (Docket No. 45-3) should be stricken as a violation of the discovery rules under Rules 26(a) and 26(e) to be “misplaced” as the Statement did not exist during the discovery period. The Magistrate Judge also analyzed Defendant's assertions that the Statement was a “sham affidavit” and ultimately recommended that the Court strike certain portions of the Statement that directly contradicted Plaintiff's previous deposition testimony. The Magistrate Judge particularly emphasized that Plaintiff's counsel failed to correct or clarify the previous deposition testimony and that the contradictory Statement was executed after Defendant had filed its motion for summary judgment. Finally, the Magistrate Judge analyzed Defendant's arguments that portions of the Statement were hearsay, concluding that Defendant's arguments were not meritorious.1

In Plaintiff's Objections to the Report and Recommendation (Docket No. 60), Plaintiff did not object to the Magistrate Judge's determination that Plaintiff is not a disabled individual under the ADA. Thus, Plaintiff did not object to the Magistrate Judge's recommendation that the Court dismiss his causes of action for harassment, discrimination based upon disability and his request for reasonable accommodation.2

Accordingly, Plaintiff's only objection is to the Magistrate Judge's determination that Plaintiff failed to demonstrate that Defendant's reasons for terminating Plaintiff were pretextual. In support of this objection, Plaintiff re-hashes the factual arguments which he previously made in opposition to the motion for summary judgment, concluding that he had, in fact, presented the Court with sufficient facts to find pretext and that, thus, the Magistrate Judge's recommendation that the Court grant summary judgment on this claim was incorrect.

In Defendant's Opposition to Plaintiff's Objections to the Report and Recommendation (Docket No. 61), Defendant first asserts that Plaintiff's objections relate solely to the Magistrate Judge's factual and legal conclusions 3 pertaining to Plaintiff's retaliatory discharge claim. Defendant then asserts that, as the Magistrate Judge found, the factual allegations propounded by Plaintiff are insufficient to raise any triable facts regarding the allegedly pretextual nature of the reason given for Plaintiff's dismissal. Specifically, Defendant argues that the close temporal proximity between the service of process in the instant case and his termination is insufficient to establish retaliatory animus. Further, Defendant asserts that Plaintiff failed to create a genuine issue of material fact regarding his failure to comply with Defendant's attendance policy.

Upon a thorough review of the record, the Court finds that the Magistrate's findings of fact, as well as the conclusions drawn therefrom are correct. Accordingly, the Court hereby adopts and incorporates by reference the Magistrate's Report and Recommendation in toto,GRANTING Defendant's Motion for Summary Judgment. The Court elaborates below only in order to address the sole challenge to the excellent Report and Recommendation,4 the claims of retaliation under the ADA made by Plaintiff.


The Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See also Fed.R.Civ.P. 72(b); Local Rule 72(a); Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). An adversely affected party may contest the Magistrate's Report and Recommendation by filing its objections. See Fed.R.Civ.P. 72(b). Moreover, 28 U.S.C. § 636(b)(1), in pertinent part, provides that

[A]ny party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.

“Absent objection, ... [a] district court ha[s] a right to assume that [the affected party] agree[s] to the magistrate's recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985) cert denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, “failure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objections are precluded upon appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992); see also

Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in a magistrate's recommendation, as well as the magistrate's failure to make additional findings); see also

Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that [o]bjection to a magistrate's report preserves only those objections that are specified”); see also

Borden v. Sec. of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, “however he was not entitled to a de novo review of an argument never raised”). The Court, in order to accept the unopposed portions of the Magistrate Judge's Report and Recommendation, needs only satisfy itself by ascertaining that there is no “plain error” on the face of the record. See

Douglass v. United Servs. Auto, Ass'n, 79 F.3d 1415, 1419 (5th Cir.1996) ( en banc )(extending the deferential “plain error” standard of review to the un-objected to legal conclusions of a magistrate judge); see also

Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982) (en banc)(appeal from district court's acceptance of un-objected to findings of magistrate judge reviewed for “plain error”); see also

Nogueras-Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001) (finding that the Court reviews [unopposed] Magistrate's Report and Recommendation to ascertain whether or not the Magistrate's recommendation was clearly erroneous”)(adopting the Advisory Committee note regarding FED.R.CIV.P. 72(b)); see also

Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa., 1990) (finding that “when no objections are filed, the district court need only review the record for plain error”). Because Plaintiff timely filed an opposition to the Magistrate's Report and Recommendation, the Court will review de novo only the objected-to portions as the Court has already determined that the un-objected to portions of the Report and Recommendation do not contain any “plain error.”


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