Escribano-Reyes v. Professional HEPA Certificate Corp., 817 F.3d 380

Background

Escribano sued his employer, Professional HEPA Certificate Corp. (HEPA), alleging discrimination and retaliation under the ADA and ADEA and related Puerto Rico claims. Discovery concluded and HEPA moved for summary judgment arguing it lacked the statutory number of employees to be a covered employer.
HEPA submitted official wage reports and tax/Informative Return Statements filed with the Puerto Rico Department of Labor showing fewer than 15 employees in 2012–2013.
Escribano opposed with a handwritten list of 27 names (produced in discovery) and a sworn statement executed one day before filing his opposition asserting personal knowledge that HEPA had 27 employees.
HEPA moved to strike the post-discovery sworn statement as a sham affidavit and argued the list plus affidavit were insufficient to show an employment relationship satisfying ADA/ADEA coverage.
The district court struck the affidavit under the sham-affidavit doctrine, granted summary judgment for HEPA on the ADA/ADEA coverage ground, declined supplemental jurisdiction over state-law claims, and imposed $1,000 in sanctions on Escribano’s counsel under Fed. R. Civ. P. 11 and 28 U.S.C. § 1927.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court erred in striking Escribano's post-discovery sworn statement under the sham affidavit doctrine	Escribano: affidavit merely supplemented testimony and addressed facts defense counsel did not ask about at deposition; there were no material inconsistencies	HEPA: affidavit contradicted deposition, was tardy and self-serving, and manufactured issues of fact after summary-judgment motion	Court: affirmed striking — affidavit contradicted prior deposition, contained inconsistencies, and timing suggested fabrication to avoid summary judgment
Whether Escribano produced sufficient evidence to show HEPA met statutory employee thresholds for ADA (≥15) and ADEA (≥20) coverage	Escribano: list of 27 names + his personal-knowledge affidavit established enough employees to create a triable issue	HEPA: official payroll/tax filings show fewer than required employees; the list and affidavit lack indicia of an employment relationship	Court: even considering the affidavit, the list was too vague (no payroll, temporal specificity, or agency-factor evidence) to meet plaintiff's burden; summary judgment for HEPA affirmed
Whether temporal requirement (employees "for each working day in 20 or more calendar weeks") was satisfied by Escribano's evidence	Escribano: roughly estimated dates and durations suffice to show presence during relevant weeks	HEPA: plaintiff failed to provide specific time-period evidence; official records are contrary	Held: plaintiff's rough estimations insufficient to meet statutory temporal requirement
Whether sanctions against counsel were improper	Escribano: sanctions improper because affidavit was not a sham	HEPA/District Court: counsel has history of filing post-discovery affidavits; filing here was vexatious and violated Rule 11 and § 1927	Held: sanctions affirmed — district court did not abuse its discretion given prior admonitions and the sham affidavit finding

Key Cases Cited

Morales v. A.C. Orssleff's EFTF, 246 F.3d 32 (1st Cir.) (sham affidavit doctrine in employment cases)
Walters v. Metropolitan Educational Enterprises, 519 U.S. 202 (U.S. Supreme Court) (payroll records bear on employee status)
De Jesús v. LTT Card Services, Inc., 474 F.3d 16 (1st Cir.) (plaintiff bears burden to show employer coverage threshold)
Reid v. Community for Creative Non-Violence, 490 U.S. 730 (U.S. Supreme Court) (common-law agency test for employee status)
Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 (U.S. Supreme Court) (use of EEOC factors to determine employee status)
Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1 (1st Cir.) (striking contradictory affidavit submitted after summary-judgment motion)