On September 9, 2013, Carlos Escribano Reyes (“Plaintiff’ or “Escribano”) filed the instant action against his employer, Professional HEPA Certificate (“Defendant” or “Professional HEPA”). (Docket No. 10.) Plaintiff alleges he was harassed, discriminated and retaliated against due to his disability, his requests for reasonable accommodation, age and his opposition to Defendant’s unlawful employment practices of in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., and the Age Discrimination in Employment Act (“ADEA”), 42 U.S.C. §§ 621 et seq. Pursuant to the court’s supplemental jurisdiction, Plaintiff also brings state law claims alleging violations of Puerto Rico Law 100 of June 30, 1959 (“Law 100”), P.R. Laws Ann. tit. 29, §§ 146 et seq., Puerto Rico Law 115 of December 20, 1991, P.R. Laws Ann. tit. 29, §§ 194(a), Puerto Rico Law 45 of April 18, 1935 (“Law 45”), P.R. Laws Ann. tit. 11, §§ 7 et seq., Puerto Rico Law 44 of June 30, 1959 (“Law 44”) P.R. Laws Ann. tit. 1 § 501 et seq., and Articles 1802 and 1803 of the Puerto Rico Civil Code (“Article 1802 & 1803”), P.R. Laws Ann. tit. 31, §§ 5141, 5142. (Docket No. 10.)
Pending before the court is Defendant’s Motion for Summary Judgment (Docket Nos. 27, 28, 29) which Plaintiff opposed. (Docket No. 39.) By leave of the court, Defendant filed a reply moving to strike Plaintiffs post summary judgment self-serving affidavit. (Docket No. 46.) Plaintiff filed a sur-reply. (Docket No. 55.) After carefully reviewing the parties’ submissions and applicable law, the court GRANTS Defendant’s motion to strike Plaintiffs post summary judgment affidavit at Docket No. 46 and GRANTS Defendant’s Motion for Summary Judgment at Docket Nos. 27, 28 and 29.
I. Plaintiffs Post Summary Judgment Affidavit
As a threshold matter, the first court addresses the admissibility of Plaintiffs sworn statement provided in support of his objections to Defendant’s Statement of Uncontested Facts. (See Docket No. 39-2) Defendant invokes the sham affidavit rule and contends that said sworn statement should be stricken from the record. (Docket No. 46-1.) Following discovery, a party may not use a later affidavit to contradict facts previously provided to survive summary judgment, unless the party provides a satisfactory explanation for providing post summary judgment affidavit. Morales v. AC Orsslejfs EFTF,
Plaintiffs post summary judgment affidavit, signed on August 12, 2014, the day before Plaintiffs opposition was filed, contains forty-three (43) paragraphs, yet it provides no explanation as to its tardiness, inconsistencies with previous facts and new factual contentions. (See Docket No. 39-1.) Defendant argues that the sworn statement is a sham, because it provides additional and contradicting facts, and its sole purpose is to create issues of fact that defeat Defendant’s Motion for Summary Judgment. (See Docket Nos. 46, 46-1.) Paragraphs 4, 5, 6, 7, 18, 19, 20, 22, 26, 29, 30, 37, 39, 42, 43, 44, 45, 46, 47, 55, 56, 61, 66, 68, 70, 72, 73, 74, 77, 78, 79, 82, 83, 84, 87, 88, 89, 90, 95, 97(b), 97(c), 97(d), 106, 123, 124, 125 and 128 of Plaintiffs Opposing Statement of Facts are supported, in whole or in part, by Plaintiffs post summary judgment affidavit. (See Docket No. 39-1.)
This exercise, in and of itself, constitutes an otherwise considerable and unwarranted task for the court to perform prior to even passing upon the merits of the summary judgment motion. It is probably even more complicated a task that ruling on the summary judgment motion. But at a threshold level, the plaintiff has not even offered an explanation for why his affidavit was presented after the fact of filing the summary judgment motion.
Velázquez-Pérez at Docket No. 131. Nevertheless, it seems as though the court is faced with this burdensome task almost every time Plaintiffs counsel is present as attorney of record. Plaintiffs counsel’s repeated behavior is reprimandable. Attorney Eseanellas is well aware of the case law governing post summary judgment affidavits, thus the court expects counsel to abide said precedent accordingly.
The court again turns to the sham affidavit allegations. In determining whether the testimony constitutes an attempt to manufacture an issue of fact so as to defeat summary judgment, the court may consider the timing of the affidavit, as weil as the party’s' explanation for the discrepancies. See Orta-Castro v. Merck, Sharp & Dohme Química PR., Inc.,
The court refuses to waste time and ink analyzing the intricacies of Plaintiffs post judgment affidavit, as the district court need not specifically enumerate each contradiction between the witness’ prior testimony and the later filed affidavit in order to disregard the evidence. See Orta-Castro,
Accordingly, pursuant to the sham affidavit doctrine, the court strikes Plaintiffs sworn statement at Docket No. 39-2 from the record. Plaintiffs pleadings supported by the stricken evidence will be deemed unsupported, pursuant to by Rule 56 of the Federal Rules of Civil Procedure.
The court further notes that the purported sham affidavit filed by Defendant, that of finance manager Anabelle Pérez (Docket No. 29-2) does not even relate to the issue raises in Plaintiffs own affidavit. As a matter of fact Defendant’s affidavit was not considered by the court in ruling on the present summary judgment motion.
II. 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,
When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party and give that party the benefit of any and all reasonable inferences. Id. at 255,
III. Relevant Factual and Procedural Background
Professional HEPA is a private company that has been conducting business since 2002, providing services and products relating to air filters and air quality. (Docket Nos. 29 ¶ 2; 39-1 ¶ 2.) According to Defendant, at the time of the events at issue, Professional HEPA employed thirteen (13) individuals. (Docket Nos. 29 ¶ 108; 29-68.) In support of its contention, Defendant submits the Quarterly Report of Wages from the Puerto Rico Department of Labor. Id. Conversely, Plaintiff argues that Defendant, at the time of the events, had twenty-seven (27) employees. (Docket No. 39-1 ¶ 108.) According to Plaintiff, these additional employees do not appear in the official company records provided to the Department of Labor because Defendant purposefully omitted the names of these fourteen (14) additional individuals to the Department of Labor or the Internal Revenue Services. Id. In support of his argument, Plaintiff provides a handwritten list of the names of the alleged twenty-seven (27) employees that worked for Defendant at the time of the events. (Docket Nos. 39-1 ¶ 108; 39-9 at 4.)
David Ayala (“Ayala”) and Alfredo Garcia (“Garcia”) established Professional HEPA in October 2002. (Docket Nos. 29 ¶ 3; 39-1 ¶ 3.) Ayala is the Vice President/Project Manager/Head Technician at Professional HEPA. (Docket No. 29 ¶ 4.) Garcia is the President/Technicians’ Supervisor at Professional HEPA. (Docket No. 29 ¶ 5.) Anabelle Pérez is the Finance Manager & Safety Supervisor at Professional HEPA. (Docket No. 29 ¶ 6.) Jennifer Zayas is the QA Manager at Professional HEPA. (Docket No. 29 ¶ 7.)
Defendant hired Plaintiff on July 2003 as a technician. (Docket Nos. 29 ¶ 13; 39-1 ¶ 13.) When Professional HEPA hired additional Technicians, Plaintiff was named the Technicians’ Supervisor. (Docket Nos. 29 ¶ 18; 39-1 ¶ 18.) The Technicians’ Supervisor position requires out-of-the-office field work as well as administrative duties. (Docket Nos. 29 ¶ 19; 39-1 ¶ 19.) On January 2005, Defendant hired Alexander Ve-lázquez. (Docket Nos. 29 ¶ 20; 39-1.)
On November 26, 2012, Plaintiff suffered an accident at the job site. (Docket Nos. 29 ¶ 26; 39-1 ¶ 26.) Before November 26, 2012, Plaintiff could perform all the functions of the position he was holding. (Docket Nos. 29 ¶ 29; 39-1 ¶ 29.) As a result of the accident, Plaintiff underwent surgery and was forced to go on leave for a few weeks. (Docket Nos. 29 ¶¶ 34-35; 39-1 ¶¶ 34-35.) Once back at work, Plaintiffs surgeon recommended he perform only office duties and that he should not be assigned field work for a thirty (30) day period. (Docket No. 29 ¶¶ 36-37.) Plaintiff argues that, upon recommendations of his doctor, he requested reasonable accommodation on multiple occasions. (Docket No. ,39-1 ¶ 37.) According to Plaintiff, Defendant denied his requests for reasonable accommodation and assigned him to field work, including lifting of heavy machinery, which his doctor recommended he should not do. Id.
IV. Discussion
Defendant argues that summary judgment should be entered in its favor dismissing Plaintiffs ADA and ADEA claims on the grounds that it does not qualify as an employer under either statute because it does not meet the employee requirement. (Docket No. 28.) Defendant further raises other arguments
A. ADA and ADEA employee requirement
Under the ADA, an employer is “a person engaged in an industry affecting commerce who has fifteen (15) or more employees for each working day in each of twenty (20) or more calendar weeks in the current or preceding calendar year.” 42 U.S.C. § 12111. Likewise, ADEA establishes a requirement of twenty (20) employees. 29 U.S.C. § 630.
Congress created this threshold of fifteen employees for Title VII and the ADA to apply. This requirement reflects Congress’s wisdom that only those companies with fifteen or more employees have the requisite substantial effect on interstate commerce to permit federal involvement to implicate either Title VII or the ADA. Rey-Cruz v. Forensic Science Institute,
Defendant contends it does not qualify as an employer because it does not satisfy each statute’s employee requirement. (Docket Nos. 28 at 5; 29 ¶ 108.) According to Defendants, at the time of the events, Professional HEPA only employed thirteen (13) individuals. (Docket Nos. 29 ¶ 108; 29-68.) On the other hand, Plaintiff contends that, at the time of the events, Defendant employed twenty-seven (27) employees. (Docket No. 39-1 ¶ 108.) As explained above, Plaintiff further explains the different tally is due to the fact that Defendant failed to report some of its employees to the Puerto Rico Department of Labor. Id.
The court’s analysis need not go too far. It seems as though Plaintiff is trying to convince the court that, despite not appearing in the company payroll or other records, Defendant employed fourteen (14) additional individuals but purposefully did not report them as employees. However, Plaintiff solely relies on his own handwritten list of the names of the employees that allegedly worked for Defendant. {See Docket No. 39-9 at 4.) Plaintiff provides no case law in support of his argument,' or additional evidence to prove Defendant in fact employed those other fourteen (14) individuals. Neither does Plaintiff provide the title or job description of these employees in order to evince their status as active employees for purposes of ADA and ADEA.
Accordingly, the court GRANTS Defendant’s Motion for Summary Judgment as to Plaintiffs ADA and ADEA claims.
V. Supplemental State law claims
Regarding Plaintiffs state law claims, in its discretion under 28 U.S.C. § 1367(c)(3), and having dismissed Plaintiffs federal claims, the court declines to exercise supplemental jurisdiction over those claims. Defendant did not move for summary judgment as to these claims. Plaintiff may file these claims in state court. Accordingly, Plaintiffs supplemental state law claims are DISMISSED without prejudice.
VI. Conclusion
Defendant’s motion to strike Plaintiff’s post summary judgment affidavit at Docket No. 46 is GRANTED and Defendant’s Motion for Summary Judgment at Docket Nos. 27, 28, 29 is GRANTED. Plaintiffs ADA and ADEA claims are DISMISSED with prejudice. Plaintiffs state law claims are DISMISSED without prejudice.
SO ORDERED.
Notes
. In turn, Plaintiff also invokes the sham affidavit rule to strike Anabelle Perez’s sworn
. This court will issue a separate order regarding whether Plaintiffs counsel’s repeated conduct merits the issuance of sanctions. See Fed.R.Civ.P. 11(b); 28 U.S.C. § 1927.
. Plaintiff could have obtained, via discovery, information to evince the existence of these additional employees by way of company records, job descriptions, statements of other employees and other sources. However, other than their names, the record is completely devoid of information of these individuals.