Rodríguez-NegróN v. San Juan Children's Choir, CIVIL NO. 15-1608 (GAG)

• Decision Date: 24 March 2017
• Docket Number: CIVIL NO. 15-1608 (GAG)
• Parties: LIONEL RODRÍGUEZ-NEGRÓN, DARLENE J. MATOS-RIVERA, MINOR S.R.M. Plaintiffs, v. THE SAN JUAN CHILDREN'S CHOIR, Defendant.
• Court: U.S. District Court — District of Puerto Rico

LIONEL RODRÍGUEZ-NEGRÓN, DARLENE J. MATOS-RIVERA, MINOR S.R.M. Plaintiffs, v. THE SAN JUAN CHILDREN'S CHOIR, Defendant.

CIVIL NO. 15-1608 (GAG)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

March 24, 2017

OPINION AND ORDER

Lionel O. Rodríguez-Negrón ("Rodríguez-Negrón"), Darlene J. Matos-Rivera ("Matos-Rivera"), and the conjugal partnership comprised between them, and on behalf of their minor daughter, S.R.M. ("Plaintiff S.R.M."), (collectively, "Plaintiffs") filed a complaint alleging disability discrimination against the San Juan Children's Choir ("Defendant" or "Choir"), in violation of Title III of the American with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12181 et seq., Section 504 of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. §§ 701 et seq. (Docket No. 1.) Plaintiffs also invoke the Court's pendent jurisdiction for causes of actions arising under Puerto Rico Law No. 44 of July 2, 1985, P.R. LAWS ANN. tit. 1, §§ 501, et seq., and Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. LAWS ANN. tit. 31, §§ 5141-42.

Before the Court is Defendant's motion for summary judgment. (Docket No. 18.) Plaintiffs opposed the motion. (Docket No. 32.) Per leave of the Court, Defendant replied and Plaintiffs sur- replied. (Docket Nos. 44; 49.) After reviewing the parties' submissions and the pertinent law, the Court GRANTS Defendant's motion for summary judgment at Docket No. 18.

I. Standard of Review

Summary judgment is appropriate when "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 a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see Fed. R. Civ. P. 56 (a). "An issue is genuine if it may reasonably be resolved in favor of either party' at trial, ... and material if it 'possess[es] the capacity to sway the outcome of the litigation under the applicable law." Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (alteration in original) (internal citations omitted) (internal quotation marks omitted). The moving party bears the initial burden of demonstrating the lack of evidence to support the non-moving party's case. Celotex, 477 U.S. at 325. "The movant must aver an absence of evidence to support the nonmoving party's case. The burden then shifts to the nonmovant to establish the existence of at least one fact issue which is both genuine and material." Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir. 1994). The nonmovant may establish a fact is genuinely in dispute by citing particular evidence in the record or showing that either the materials cited by the movant "do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R.Civ. P. 56(c)(1)(B). If the court finds that some genuine factual issue remains, the resolution of which could affect the outcome of the case, then the court must deny summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party and give that party the benefit of any and all reasonableinferences. Id. at 255. Moreover, at the summary judgment stage, the court does not make credibility determinations or weigh the evidence. Id. Summary judgment may be appropriate, however, if the nonmoving party's case rests merely upon "conclusory allegations, improbable inferences, and unsupported speculation." Forestier Fradera v. Mun. of Mayagüez, 440 F.3d 17, 21 (1st Cir. 2006) (quoting Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003)).

II. Defendant's Objections to Plaintiffs' Statement of Uncontested Facts

Prior to establishing the relevant factual and procedural background, the Court must first address Defendant's objections to Plaintiffs' opposition at Docket No. 32. Defendant contends that Plaintiffs' opposition does not comply with Local Rule 56(c) and, therefore requests the motion for summary judgment at Docket No. 19 to be treated as unopposed. (Docket No. 44.)

A. Anti-Ferreting Rule

Local Rule 56(c), also known as the anti-ferreting rule, requires an opposing party to admit, deny or qualify the facts of the moving party, and to explain the reasons for denials or qualifications with record citations. Local Rule 56(e) of the Local Rules of this Court states that:

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) (D.P.R. 2009). "A party opposing a motion for summary judgment must submit a counter-statement, which shall admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts and unless a fact is admitted, shall support each denial or qualification by a record citation. [L. CV. R. 56(c) (D.P.R. 2009)]." P.R. Am.Co. V. Rivera-Vázquez, 603 F.3d 125, 131 (1st Cir. 2010) (internal quotation marks omitted); see also Montalvo Febus v. Sánchez, No. 11-1428 (GAG), 2013 WL 6628299, at *2 (D.P.R. Dec. 16, 2013).

The vast majority of Plaintiffs' opposing statements do not cite record evidence in support of their assertions, as mandated by Local Rule 56. The statement of facts that are relevant to Plaintiffs' causes of action are included in the upcoming factual background section, yet Defendants' statements that were improperly contested will be deemed admitted. See L. Civ. 56(e).

B. Sham Affidavit Doctrine

Irrespective of the above, Plaintiffs' opposition raises yet another issue. In support of their opposition, Plaintiffs provide two unsworn statements under penalty of perjury signed April, 2015, after Defendant moves for summary judgment. (Docket Nos. 33-7; 33-8.) Defendant move the Court to disregard these post- summary judgment documents, claiming that they are sham affidavits intended "to create a triable issue of fact to resist summary judgment." (Docket No. 44 at 3.)

The First Circuit has held that "[w]here a party has given clear answers to unambiguous questions in discovery, that party cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, unless there is a satisfactory explanation of why the testimony [has] changed." Escribano-Reyes v. Prof'l Hepa Certificate Corp., 817 F.3d 380, 386 (1st Cir. 2016) (citing Hernandez-Loring v. Universidad Metropolitana, 233 F.3d 49, 54 (1st Cir. 2000) (internal quotation marks omitted) (emphasis added)). Plaintiffs do not provide a reasonable justification for the change in testimony and the post-discovery filing, nor do the documents themselves contain any information as to why they were submitted post-discovery. Moreover, these unsworn statements contain self-serving allegations not properly supported by the record. In the factual background section, the Court strikes several parts of these documents because a "[p]laintiff cannot attempt to create an issue of fact by filing a "sham affidavit", that is, one that contradictsprior deposition testimony." Rivera-Rocca v. RG Mortgage Corp., 535 F. Supp. 2d 276, 286, n.5 (D.P.R. 2008) (citing Colburn v. Parker, 429 F.3d 325, 332 (1st Cir. 2005)).

The timing of the sworn statement—signed the same month¹ Plaintiff filed its opposition to Defendant's motion for summary judgment was filed—also weights in favor of Defendant's contention that said sworn statement constitutes inappropriate attempt to manufacture issues of fact and should be stricken. Escribano-Reyes, 817 F.3d at 387 (citing Orta-Castro v. Merck, Sharp & Dohme Química P.R., Inc., 447 F.3d 105, 110 & n.2 (1st Cir. 2006) ("[T]he Statement was executed only after [the defendant] had filed its motion for summary judgment, thus suggesting that the Statement was made solely to create an issue of fact for the purpose of surviving summary judgment," Id. at 110.)

III. Relevant Facts and Procedural Background

Plaintiff S.R.M. auditioned and was admitted to the Choir in 2005. (Docket Nos. 19 ¶ 15; 33 ¶ 15.) The Choir is an institution dedicated to educating students in the areas of music, signing and choir practice that has been recognized as one of Puerto Rico's most prestigious musical and cultural organizations. (Docket Nos. 19 ¶ 1; 33 ¶ 1.) On February 2007, while Plaintiff S.R.M. was at her second year of Preparatory level, the Choir sent her a letter notifying the specific requirements to advance to Elementary level. (Docket No. 19 ¶ 17.) In the letter, Plaintiff S.R.M. was advised to improve her performance in certain core curriculum areas and was further warned that if she did not progress, then she would be expelled from the institution. Id. Matos-Rivera, Plaintiff S.R.M.'s mother, does not recall this event. (Docket No. 33 ¶ 17.) Although longer than usually programmed by the Choir, Plaintiff S.R.M. advanced to Elementary level after takingsummer courses in 2008. (Docket No. 19 ¶ 20.) On August 15, 2008, at the beginning of the school year, Plaintiff S.R.M. was put on disciplinary probation because she was not concentrating in her Choir work, and although her technical skills had improved, they were not as expected under the institution's standards. (Docket Nos. 19 ¶ 22; 33 ¶ 22.) During the first semester of the...