Polo-Calderon v. De Salud, Civil No. 12–1006 (FAB).

991 F.Supp.2d 331

Claudio POLO–CALDERON and Jonathan Polo–Echevarria, Plaintiffs,

v.CORPORACION PUERTORRIQUEÑA DE SALUD and Joaquin Rodriguez–Benitez, Defendants.

Civil No. 12–1006 (FAB).

United States District Court, D. Puerto Rico.

Jan. 13, 2014.

Enrique J. Mendoza–Mendez, Mendoza Law Office, San Juan, PR, Juan R. Davila–Diaz, Hato Rey, PR, for Plaintiffs.

Marta D. Masferrer, Marta Masferrer Law Office, San Juan, PR, for Defendants.

MEMORANDUM AND ORDER

BESOSA, District Judge.

Before the Court is the motion for summary judgment filed by defendants Corporacion Puertorriqueña de Salud (“CPS”) and Joaquin Rodriguez–Benitez (“Rodriguez”), (Docket No. 90). Having considered it, plaintiffs' opposition, (Docket No. 112), and defendants' reply, (Docket No. 126), the Court DENIES defendants' motion for summary judgment.

I. Summary Judgment Standard

Summary judgment serves to assess the evidence and determine if there is a genuine need for trial. Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990). The Court may grant a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it has the potential to “affect the outcome of the suit under the governing law.” Id. A dispute is “genuine” when it “could be resolved in favor of either party.” Calero–Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir.2004). The party moving for summary judgment has the initial burden of “demonstrat[ing] the absence of a genuine issue of material fact” with definite and competent evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Maldonado–Denis v. Castillo–Rodriguez, 23 F.3d 576, 581 (1st Cir.1994). It must identify “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ ” which support its motion. Id. (citing Fed.R.Civ.P. 56(c)). Once a properly supported motion has been presented, the burden shifts to the non-moving party “to demonstrate that a trier of fact reasonably could find in [its] favor.” Santiago–Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir.2000) (internal citation omitted).

It is well-settled that “[t]he mere existence of a scintilla of evidence” is insufficient to defeat a properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[A] party opposing summary judgment[, therefore,] must ‘present definite, competent evidence to rebut the motion.’ ” Maldonado–Denis, 23 F.3d at 581 (internal citation omitted). In making this assessment, the Court must take the entire record in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 779–80 (1st Cir.2011).

II. Facts

Defendant Rodriguez is the President of CPS. (Docket No. 91 at p. 1.) Rodriguez is the godfather of plaintiff Jonathan Polo–Echevarria (“Polo”)'s younger brother, and Rodriguez's wife, Tachin Rodriguez, is the first cousin of Polo's father, plaintiff Claudio Polo. Id. Jonathan Polo, who was 17 years old at the time of the events in question, considered Rodriguez to be his uncle. (Docket No. 98–1 at p. 27.)

On January 21, 2011, Polo was hired as an office clerk at CPS through a professional services contract. (Docket No. 90–1; Docket No. 118–2 at p. 3.) He performed document shredding at CPS's Gurabo office, (Docket No. 91 at p. 4; Docket No. 118 at p. 4), and earned $7.25 per hour for his work. (Docket No. 90–1.) He rendered services from January 22, 2011 until February 4, 2011, working a total of 42.5 hours. (Docket No. 91 at p. 4; Docket No. 118 at p. 4; Docket No. 128–1 at p. 3.) Rodriguez was the person who gave Polo the office clerk job at CPS. (Docket No. 118–2 at p. 3; Docket No. 118–7 at p. 4.) Elba Navarro is the Accounting Area Supervisor of CPS who supervised and assigned work to Polo. (Docket No. 91 at p. 2; Docket No. 118–6 at pp. 5–7.) Polo was available to work after 2 p.m., and on Fridays from 8 a.m. to 5 p.m. (Docket No. 118–6 at p. 7.)

Between Friday, February 4, 2011 and Monday, February 7, 2011, Polo communicated via text message with an unidentified person, known only as prpng @ hotmail. com and “Siempre Atento”. (Docket No. 91 at p. 2; Docket No. 118 at p. 2.) Polo does not know who created the email account or to whom it belongs. (Docket No. 91 at p. 2; Docket No. 118 at p. 2.) Rodriguez denies that the email address is his, and he claims not to know who owns the account. (Docket No. 118–2 at p. 22.) The messages reflect the following interactions ¹:

Friday, February 4, 2011:

1:11 p.m. (from prpng@ hotmail. com): I see you again and I can't contain myself. I want to grab your ..........

(from Polo): You're back. Tell me who you are.

(from prpng@ hotmail. com): I can't even if I wanted to.

1:21 p.m. (from Polo): Well, unfortunately nothing will happen if I don't know who you are. I might be interested in you and you don't know it.

1:23 p.m. (from prpng@ hotmail. com): 40 something and I could have a chance?

1:25 p.m. (from Polo): Who knows!

(from prpng@ hotmail. com): Tell me the names of 40 year-olds you know and that could have a chance with you.

(from Polo): No. I'm tired of asking. It's the only question I've asked you and if you don't want to answer it, it's your problem.

1:34 p.m. (from prpng@ hotmail. com): Understand me. Don't get upset with me.

(from Polo): I'm not upset I'm only saying that you are afraid I don't know why.

6:06 p.m. (from prpng@ hotmail. com): Hey guy, I've got a lot to risk.

(from Polo): But it's that this is between you and me!

6:22 p.m. (from prpng@ hotmail. com): Give me a break, answer my?

(from prpng@ hotmail. com): I was going to recommend that you don't shave your chest. It should look really good on you. Give me a chance. Give me several names please.

Saturday, February 5, 2011:

5:36 a.m. (from Polo): No! You already know what the deal is, tell me or nothing is going to happen.

6:04 a.m. (from Polo): If you don't want to tell me who you are, what can I do? Nothing, you just keep on looking.

6:11 a.m. (from Polo): Life is about risks. If you don't tell me, well, farewell.

(from prpng@ hotmail. com): Risks yes, but calculated risks. Yes, If I manage to know what level of possibility I have I'll plunge in.

6:17 a.m. (from Polo): So the only thing you will know is that I like white mature ones, short like I am. There are several mature persons that I'm interested in.

(from prpng@ hotmail. com): Since you are not telling me a name, I'm advancing you to I'm short, mature, white, and with a lot of body hair.

6:22 a.m. (from Polo): If you are the person whom I think you are I wanted this to happen since a long time ago.

6:26 a.m. (from Polo): you appear to be the person whom I think you are.

9:17 a.m. (from prpng@ hotmail. com): Thank you we are walking. We continue another day. I don't want to overwhelm you.

9:55 a.m. (from prpng@ hotmail. com): I can't, the best thing is for me to look at you from afar. Something is better than nothing.

10:02 a.m. (from prpng@ hotmail. com): How can you say okay? how can you live thinking that there's someone that is looking at you with a desire of jumping on you and be okay? You're stronger than what I thought.

(from Polo): Well, if you don't want to tell me who you are, what can I do? Nothing, just stay staring.

(from prpng@ hotmail. com): I would like to tell you. That's why I'm asking you for some names to know if I have some opportunity or I best just stay staring. Understand me.

4:18 p.m. (from prpng@ hotmail. com): we need to talk. I'll tell you when and where another day

4:26 p.m. (from Polo): Tell me is it you?

(from prpng@ hotmail. com): WAIT NOT THROUGH HERE

(from Polo): through where?

(from prpng@ hotmail. com): when I know that I'll let you know sending a text. In meantime, start thinking about everything that I've asked you so you can answer it.

4:43 p.m. (from Polo): Well I'm not going to be meeting with you if I don't know who you are.

4:56 p.m. (from Polo): As far as I'm concerned you were the one that I said you are.

(from prpng@ hotmail. com): and if I were, you would understand why is it that we have to talk.

5:09 p.m. (from Polo): I am not going to talk in front of a person that I don't know. Talk to me through here. And if you tell me who you are, and I know you, then we can talk face to face.

(from prpng@ hotmail. com): I have to go. I'll write you another day.

(from prpng@ hotmail. com): Can you have lunch tomorrow at Plaza Centro? How much time do you have?Sunday, February 6, 2011:

(from prpng@ hotmail. com): Did you get it up today and think of me?

(from Polo): No because I don't know who you are

7:00 p.m. (from Polo): About what? I told you, if you don't tell me who you are, we are not going to having any type of person-to-person conversation

7:10 p.m. (from prpng@ hotmail. com): I left I'll call you tomorrow

(from prpng@ hotmail. com): At what time can you be in front of Roger Electric and I will pick you up. If you don't want, you don't want to get in.

(from Polo): I'm not going to have any type of personal communication with you, unless I know who you are. You are mistaken, I'm not that easy.

(from Polo): until I know who you are, I'm not going to be confirming anything for you

(from prpng@ hotmail. com): The thing is that I told you that I'm not dumb playing you and that I'm going to send you a text message before arriving so you know who I am. I only need the exact time that you can be at Roger.

Monday, February 7, 2011:

5:23 a.m. (from prpng@ hotmail. com): At what time do you get off this afternoon? The day is a bit complicated.

(from Polo): Dito

6:01 a.m. (from prpng@ hotmail. com): don't feel bad it's not such a big deal. Although I know you're joking with me. Tell me at...