Cordero-Suarez v. Rodriguez

WANDA CORDERO-SUAREZ, Plaintiff,

v.ORLANDO RODRIGUEZ, ET ALS., Defendants.

CIV. NO. 09-1586 (PG)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

Dated: July 21, 2011

OPINION AND ORDER

Pending before the Court is defendants' motion for summary judgment (Docket No. 44) . For the reasons set forth below, the Court GRANTS their request.

I. BACKGROUND

On June 26, 2009, plaintiff Wanda Cordero-Suarez ("Cordero" or "Plaintiff") filed the above-captioned claim pursuant to 42 U.S.C. § 1983 ("Section 1983") against defendants Orlando Rodriguez ("Rodriguez"), District Manager for the Internal Revenue Division for the District of Mayaguez; Angel A. Ortiz Garcia ("Ortiz"), Former Secretary Treasury Department for the Commonwealth of Puerto Rico; Fabian Serrano ("Serrano"), Director of the Internal Revenue Division of the Treasury Department; Jose J. Fas Quinones ("Fas"), Deputy Secretary of Human Resources of the Treasury Department; Juan C. Puig ("Puig"), Secretary of the Treasury Department for the Commonwealth of Puerto Rico. See Complaint, Docket No. 1. The present action was filed against defendants Ortiz, Rodriguez, Serrano, and Fas in their official and personal capacity, and against defendant Puig in his official capacity.

According to Plaintiff, the defendants violated her constitutional rights under the First, Fifth and Fourteenth Amendments to the Constitution of the United States. Plaintiff thus requests in her complaint that defendants be enjoined from discriminating against her because of her political beliefs, and seeks compensatory damages for the persecution to which she has been allegedly subjected to by the defendants. In her pleadings, Plaintiff also included supplemental state law claims pursuant to Puerto Rico Law No. 100 of June 30, 1959 ("P.R. Law No. 100"), P.R. Laws Ann. tit. 29, § 146 et seq. and Puerto RicoLaw No. 382 of May, 11, 1950 ("P.R. Law No. 382"), P.R. LAWS ANN. tit. 29, § 137.

After careful review of the defendants' motion to dismiss filed in lieu of an answer to the complaint, the Court dismissed Cordero's claims for monetary damages against all defendants in their official capacity; the claims against co-defendants Ortiz and Puig; and her claims for sexual harassment, due process, equal protection, and her supplemental claim under Puerto Rico Law No. 100. Remaining, thus, are her claims for damages under Section 1983 against co-defendants Rodriguez, Serrano and Fas (hereinafter collectively referred to as "the Defendants").

In the complaint, Plaintiff alleges that she began to work for the Commonwealth of Puerto Rico on September 1, 1996 at the Internal Revenue Division ("IRD") of the Treasury Department. At all times relevant herein, Plaintiff has held the position of Agent III at the IRD and has been an active member of the New Progressive Party ("NPP"). According to Plaintiff's allegations, her political beliefs were known to all defendants, who - with the exception of Puig - were well-known and active members of the Popular Democratic Party ("PDP"). Plaintiff noted in her complaint that co-defendant Rodriguez is the brother of the President of the PDP for the City of Mayaguez, Mayor Jose Guillermo Rodriguez. See id. at 1 36.

Plaintiff contends that Rodriguez told Plaintiff that he would personally see that she be dismissed as an employee of the Treasury Department because of her affiliation to the NPP. See id. at 1 37. Cordero maintains that the harassment has been going on for several years on a continuous basis and that it turned intolerable after November 21, 2008, when she received a notice of suspension from work and pay for 30 days, which was signed by Ortiz. According to Plaintiff the reasons for the suspension were merely pretextual, the real reason being her political affiliation. See id. at 1 38.

Cordero avers that she has personally informed co-defendants Serrano and Fas of Rodriguez's harassment to no avail because no action was taken to correct the situation. See id. at 1 42. Accordingly, Plaintiff claims Serrano and Fas are responsible by omission. See id. at 1 44.

Now before the Court are Defendants' motion for summary judgment (Docket No. 45), the Plaintiff's response (Dockets No. 53-54), and the Defendants' reply (Docket No. 62).

II. STANDARD OF REVIEW

A motion for summary judgment is governed by Rule 56(c) of the Federal Rules of Civil Procedure, which allows disposition of a case if "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." See Sands v. Ridefilm Corp., 212 F.3d 657, 660 (1st Cir.2000). A factual dispute is "genuine" if it could be resolved in favor of either party, and "material" if it potentially affects the outcome of the case. See Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir.2004).

To be successful in its attempt, the moving party must demonstrate the absence of a genuine issue as to any outcome-determinative fact in the record, see DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir.1997), through definite and competent evidence. See Maldonado-Denis v. Castillo Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). Once the movant has averred that there is an absence of evidence to support the non-moving party's case, the burden shifts to the non-movant to establish the existence of at least one fact in issue that is both genuine and material. See Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990) (citations omitted). If the non-movant generates uncertainty as to the true state of any material fact, the movant's efforts should be deemed unavailing. See Suarez v. Pueblo Int'l, 229 F.3d 49, 53 (1st Cir.2000) . Nonetheless, the mere existence of "some alleged factual dispute between the parties will not affect an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). However, "summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).

At the summary judgment juncture, the Court must examine the facts in the light most favorable to the non-movant, indulging that party with all possible inferences to be derived from the facts. See Rochester Ford Sales, Inc. v. Ford Motor Co. , 287 F.3d 32, 38 (1st Cir.2002). The Court must review the record "taken as a whole," and "may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 135 (2000). This is so, because credibility determinations, the weighingof the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. Id.

III. FINDINGS OF FACT

Before setting forth the facts found by this Court to be undisputed and relevant to the matter at hand, we must first address a compliance issue presented to the Court when reviewing Plaintiff's statement of facts. In essence, Plaintiff failed to properly support her opposing statement of material facts with specific record citations, as required by Local Rules 56(c) and 56(e). "The purpose of this rule is to relieve the district court of any responsibility to ferret through the record to discern whether any material fact is genuinely in dispute." CMI Capital Market Investment, LLC v. Gonzalez-Toro, 520 F.3d 58, 62 (1st Cir.2008) . "As a result, when parties ignore this anti-ferret rule, they do so at their peril." Grant v. El Conquistador Partnership L.P., No. 06-1849, 2009 WL 1140261, at *3 (D.P.R. April 27, 2009) . Consequently, unless admitted by the opposing party, the Court did not consider the factual statements that were not properly supported by the record submitted.

In addition, the Defendants seek to exclude Plaintiff's statement under penalty of perjury attached as Exhibit 1 in support of her assertions in her own Statement of Uncontested Material Facts (Docket No. 54-1). The Defendants object to the consideration of the statement under penalty of perjury claiming that portions of this statement are self-serving, conclusory and contradict her deposition testimony. See Docket No. 62.

Here, the Plaintiff offered a statement under penalty of perjury in support of her statement of uncontested facts. The same was signed after the Defendants' motion for summary judgment had been filed, which itseld suggests to the Court "that the Statement was made solely to create an issue of fact for the purpose of surviving summary judgment." Orta-Castro v. Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105, 110 (1st Cir.2006) (holding district court did not abuse discretion in disregarding affidavit submitted in support of plaintiff's opposition to summary judgment, since statements therein conflicted with answers plaintiff had given in her deposition, and plaintiff failed to provide satisfactory explanation for subsequent change in testimony). Moreover, the Plaintiff fails to explain therein the need to supplement her deposition testimony. Additionally, the Court notes that by submitting this statement, the Plaintiff seeks to embellish the testimony shegave during her deposition as it pertains to some key issues regarding the merits of her claim.¹

"It is settled that '[w]hen an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed.'" Torres v. E.I. Dupont De Nemours & Co., 219 F.3d 13, 20 (1st Cir.2000) (citing Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir.1994)). After carefully reviewing the testimony given in Plaintiff's deposition versus the content of her statement under penalty of perjury, ...