Reyes v. Professional Hepa Certificate Corp., 74 F. Supp. 3d 489

Plaintiff Carlos Escribano Reyes sued employer Professional HEPA alleging disability discrimination, failure to accommodate, age discrimination, harassment and retaliation under the ADA, ADEA, Title VII, and several Puerto Rico statutory and tort theories.
Defendant moved for summary judgment; Plaintiff opposed and filed a sworn affidavit the day before filing his opposition.
Defendant moved to strike Plaintiff’s post-summary-judgment affidavit as a sham; the court granted that motion and struck the affidavit.
Key undisputed facts: Plaintiff was hired in 2003 as a technician and later became technicians’ supervisor; he suffered a workplace accident in November 2012, underwent surgery, and his surgeon restricted him to office duties for 30 days.
Dispute over employer size: Defendant produced payroll records showing 13 employees; Plaintiff contended there were 27 employees and submitted a handwritten list but no corroborating evidence.
The court granted summary judgment dismissing Plaintiff’s ADA and ADEA claims (finding Defendant does not meet the statutory employee thresholds) and declined supplemental jurisdiction over state-law claims, dismissing them without prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of post-summary-judgment affidavit	The affidavit supports factual disputes raised in the opposition	The affidavit is a sham, filed late to manufacture disputes; should be stricken	Court struck Plaintiff’s post-summary-judgment affidavit under the sham-affidavit doctrine
Employer-size threshold for ADA/ADEA coverage	Escribano contends Professional HEPA employed 27 people (handwritten list), meeting statutory thresholds	Professional HEPA submitted payroll/Dept. of Labor records showing 13 employees and argues it does not meet the 15/20-employee thresholds	Court held Defendant had 13 employees as a matter of record; Plaintiff’s unsupported list insufficient; ADA/ADEA claims dismissed with prejudice
Sufficiency of evidence for accommodation/discrimination claims	Plaintiff asserts denial of accommodations and assignment to prohibited field work after injury	Defendant argues it is not an employer under ADA/ADEA so federal claims fail; also raised merits defenses	Court did not reach merits because employer-size dispositive; merits not decided
Supplemental jurisdiction over Puerto Rico claims	Impliedly seeks to keep state claims in federal court with federal claims	Defendant did not move on state claims; court could keep or decline jurisdiction	Court declined supplemental jurisdiction under 28 U.S.C. § 1367(c)(3) and dismissed state claims without prejudice

Morales v. AC Orsslejfs EFTF, 246 F.3d 32 (1st Cir. 2001) (post-deposition affidavits contradicted by prior testimony may be disregarded)
Orta-Castro v. Merck, Sharp & Dohme Química PR., Inc., 447 F.3d 105 (1st Cir. 2006) (affirming exclusion of later-filed affidavit that contradicted prior testimony)
Torres v. E.I. Dupont De Nemours & Co., 219 F.3d 13 (1st Cir. 2000) (sham affidavit doctrine applied where later affidavit lacks satisfactory explanation)
Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1 (1st Cir. 1994) (same)
Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment standard and burdens)
Anderson v. Liberty Lobby, 477 U.S. 242 (materiality and genuine dispute standards at summary judgment)
Iverson v. City of Boston, 452 F.3d 94 (1st Cir. 2006) (definition of genuine/material factual disputes)
Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576 (1st Cir. 1994) (burden-shifting at summary judgment)
Forestier Fradera v. Mun. of Mayaguez, 440 F.3d 17 (1st Cir. 2006) (conclusory allegations/inferences insufficient to resist summary judgment)
Benoit v. Technical Mfg. Corp., 331 F.3d 166 (1st Cir. 2003) (same)
Johnson v. Mayor and City Council of Baltimore, 472 U.S. 353 (context for employee-threshold rationale in ADEA)
Rey-Cruz v. Forensic Science Institute, 794 F. Supp. 2d 329 (D.P.R. 2011) (discussion of employer-size threshold policy)