Vélez-Sepúlveda v. Glaxosmithkline P.R., Inc.

RUBÉN VÉLEZ-SEPÚLVEDA, Plaintiff, v. GLAXOSMITHKLINE P.R., INC., Defendant.

CIV. NO.: 13-1909(SCC)

UNITED STATES COURT FOR THE DISTRICT OF PUERTO RICO

July 15, 2015

OPINION AND ORDER

In this employment discrimination case, the defendant GlaxoSmithKline Puerto Rico, Inc., has filed a motion for summary judgment seeking to have the complaint against it dismissed. Docket No. 38. I grant the motion.

1. Background

1.1 Preliminary Matters

Before delving into the facts, I want to comment on two general failings of the defendant's motion and the plaintiff's opposition that have affected the manner in which I considerthe facts below. First, Plaintiff Rubén Vélez-Sepúlveda has, as a general matter, neglected to follow the strictures of Local Civil Rule 56, which requires a party opposing a motion for summary judgment to "admit, deny or qualify the facts supporting the motion for summary judgment," and, in doing so, to "support each denial or qualification by a record citation." LOC. CIV. R. 56(c). Rather than follow this simple instruction, Vélez repeatedly states that the facts in a given paragraph "are disputed," e.g., Docket No. 40-17, ¶ 26, without citing any basis whatsoever for that position. Inevitably, Vélez's unsupported denials fail, and the facts to which they respond are deemed admitted to the extent that they are supported by record evidence.

The local rules also permit a party opposing summary judgment to offer, "in a separate section" of their opposing statement of facts, "additional facts" which it supports by reference to the record. LOC. CIV. R. 56(c). Rather than include such additional facts as part of its opposing statement, however, Vélez chose to file a separate document—a self-signed sworn statement—that substitutes for an additional statement of facts. See Docket No. 40-1. Because the defendant managed to competently respond to this document, I will not strike it,but I do note that it has caused the Court confusion and is an unnecessary complication of the standard summary judgment practice. Moreover, in many cases it proposes facts that could not possibly be within Vélez's personal knowledge, but which are not otherwise supported by record citations. See, e.g., id. ¶ 6 (referring to the defendant's outsourcing of certain matters to a third-party). I cannot credit such proposed facts. Likewise, I will not credit facts that purport to contradict facts that Vélez admitted by failing to properly oppose the defendant's statement.

Finally, although it responds to Vélez's sworn statement as if it were a counter-statement of material facts, the defendant does so by repeated reference to a meritless objection that deserves comment. As noted, Vélez filed a statement swearing to certain facts. The defendant purports to deny many of these facts on the grounds that Vélez's "statement is a self-serving, conclusory allegation totally unsupported by any corroborating evidence," e.g., Docket No. 43-2, ¶ 2, as if this alone were reason to reject the facts proposed. Lest there be any doubt, it is not: witnesses associated with parties may—and routinely do—swear to affidavits for use during summary judgment. These affidavits are, almost by definition, self-serving; nonethe-less, they are competent so long as they swear to facts in the affiant's personal knowledge. Cadle Co. v. Hayes, 116 F.3d 957, 961 n.5 (1st Cir. 1997) ("A party's own affidavit, containing relevant information of which he has first-hand knowledge, may be self-serving, but it is nonetheless competent to support or defeat summary judgment."). Of course, a different rule pertains when the affidavit contradicts previous testimony, Colburn v. Parker, 529 F.3d 325, 332 (1st Cir. 2005), but the defendant at no point accuses Vélez of having done this. Accordingly, any denials on these grounds are rejected, and the sworn facts shall be deemed admitted to the extent they are made on the basis of personal knowledge, are not otherwise objected-to, and do not contradict other admitted facts.

1.2 Factual Background

Plaintiff Rubén Vélez-Sepúlveda began working for Defendant GlaxoSmithKline Puerto Rico ("GSK") on August 15, 1991, and over the next two decades he occupied a number of different positions. Vélez acknowledges receiving various employee handbooks over the years. Docket No. 40-17, ¶ 2.

Beginning in 2005, Vélez began to show signs of hypertension and cardiac problems, which continue into the present. On January 11, 2011, Vélez suffered a major heart attack, and onJanuary 17, 2011, he underwent a quadruple bypass surgery. Due to this condition, Vélez was on medical leave from January 12, 2011, until April 12, 2011. During this time, he received short-term disability benefits. When Vélez returned, he satisfactorily performed all of his job duties until, on June 10, 2011, he again went on medical leave. Around this time, Vélez informed his supervisor that he had certain unspecified limitations.¹ Between January 12 and June 10, Vélez "never received a briefing from [GSK] regarding [his] options to perform [his] employment position." Docket No. 40-1, ¶ 5. This second period of leave lasted until June 20, 2011, and was a further result of Vélez's heart condition, which required him to have two angioplasties. After the worsening of Vélez's condition on June 10, 2011, he submitted SINOT² paperwork to Bonnie Branch, a GSK case manager.³ During these periods ofabsence, Vélez suffered stress because of delays in the payment of his benefits. When Vélez returned to work on June 20, 2011, it was "without restrictions." Docket No. 40-1, ¶ 9. On June 14, 2012, Vélez was informed that his Family and Medical Leave Act ("FMLA") leave had been exhausted.⁴

At some point in August 2011, while working in the field in Camuy with Rodríguez, Vélez became dizzy and unable to work. Rodríguez told him to go home. Two weeks later, Rodríguez mentioned the possibility of moving Vélez into aless demanding position, but nothing ever came of it. That same month, Vélez's cardiologist, Dr. Edgardo Bermúdez, recommended that Vélez rest until November 2011, after which he could work half-days until February 2012.⁵ Accordingly, Vélez requested further short-term disability ("STD") leave on August 24, 2011, after having requested medical leave on August 18. Vélez's STD request was forwarded to Branch. On August 31, 2011, Vélez was diagnosed with major depression, of which fact he informed Branch.

On September 30, 2011, Vélez met with Orlando Anglero and Jorge Rodríguez to discuss his options. Vélez asked Anglero about the possibility of receiving a severance package, and Anglero told Vélez that he did not see severance as an alternative. Vélez was thus told he should apply for long-term disability ("LTD") benefits, which, Anglero said, would represent more benefits in the long-run. Vélez requested such benefits on October 5, 2011. As part of Vélez's application, hisdoctors certified that he was disabled and unable to work.⁶ A few days later, he had a conversation with Branch about his options; she informed him that his STD benefits would exhaust soon and that he should send documentation regarding his LTD benefits quickly so that it could be processed. During the conversation, Vélez told Branch that he would be unable to return to work when his STD benefits elapsed, and that his physician had said he'd likely continue to be disabled.

As Branch had warned, Vélez's STD benefits ran out on November 9, 2011. Then, on January 4, 2012, the Hartford Company denied his request for LTD benefits. That month, Vélez communicated with GSK's human resources department regarding his dissatisfaction with the Hartford Company's decision. On January 23, 2012, for instance, Vélez sent a letter to Claire Thomas, GSK's director of human resources, requesting assistance on the grounds that the Hartford Company'sdecision had been incorrect.

On January 31, 2012, Vélez was informed that his employment reserve under SINOT had ended, and he was terminated. On February 1, 2012, Vélez's cardiologist, Dr. José Pérez-Cardona, sent a letter to the Hartford Company certifying that Vélez lacked the ability to work as a pharmaceutical sales representative.⁷ Eventually, Vélez successfully appealed the denial of his LTD benefits, which he has been receiving since March 2012, retroactive to November 2011. These benefits amount to $5,595 per month, which works out to 60% of his salary, plus medical insurance paid by GSK.

Since his termination by GSK, Vélez has not sought other employment, as he is unable to work and cannot perform the essential functions of his former position.

2. Analysis

Vélez presses claims under the Americans with Disabilities Act, the Age Discrimination in Employment Act, and various Puerto Rico statutes. Below, I first resolve a dispute between the parties regarding Vélez's SINOT job reserve, and then I take up Vélez's claims.

2.1 SINOT Job Reserve

GSK's putative reason for terminating Vélez was that his SINOT job reserve—the period of time in which an employer must reserve a temporarily-disabled employee's job—had run out. Vélez argues that, to the contrary, the reserve had not run out when he was terminated. Although I see nothing in the ADA that would make the propriety of Vélez's termination turn on the correct computation of the SINOT job reserve,⁸ I address the issue because the parties have spent significant time with it in their briefs.

Pursuant to SINOT, when an employer becomes temporarily disabled, the employer must "protect the employment position held by" the employee "at the onset of the disability" for a period of one year plus fifteen days from the onset date. P.R. LAWS ANN. tit. 11, § 203(q)(1). Moreover, the employer's duty to reinstate the employee is not activated unless the employee "petition[s] the employer to be reinstated." Id. Of course, the employee must also be "mentally and physically capable" of performing his job duties at the time he requests reinstatement. Id. § 203(q)(2)...