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Escribano-Reyes v. Professional Hepa Certificate Corp.

United States Court of Appeals, First Circuit

March 30, 2016

CARLOS ESCRIBANO-REYES, Plaintiff, Appellant,


Aníbal Escanellas-Rivera, with whom Escanellas & Juan, P.S.C. was on brief, for appellant.

José L. Nieto-Mingo, with whom Ricardo Pizarro García and Pizarro García Law Offices, LLC were on brief, for appellee.

Before Howard, Chief Judge, Torruella and Lynch, Circuit Judges.

LYNCH, Circuit Judge.

Carlos Escribano-Reyes's ("Escribano") discrimination and retaliation suit against his employer, Professional HEPA Certificate Corp. ("HEPA"), ended in summary judgment for HEPA and a sanction order against Escribano's counsel for filing a "sham affidavit" after he received repeated warnings in earlier cases not to do so.

As to the summary judgment order, Escribano first argues that the district court erred in striking, under the sham affidavit doctrine, a post-discovery sworn statement that Escribano had submitted in his opposition to HEPA's motion for summary judgment. Second, he argues that the district court erred in granting summary judgment to HEPA on the basis that he did not meet his burden of showing that HEPA had enough employees to qualify as a covered employer under either the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101–12213, or the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621–634. Even though the nature of the evidence he provided -- a list of names of twenty-seven individuals who he believed were employees of HEPA -- was competent, we agree with the district court that it was insufficient to meet his burden on summary judgment, where the defendant had submitted official documents filed with the Puerto Rico Department of Labor showing that it did not employ enough people to trigger the ADA or the ADEA.

Finally, Escribano challenges the district court's imposition of $1000 in sanctions against Escribano's attorney, Aníbal Escanellas-Rivera, for submitting the stricken affidavit. Finding no error, we affirm.


On September 9, 2013, Escribano brought suit in the United States District Court in Puerto Rico against his employer, HEPA. His amended complaint alleged "illegal harassment, discrimination and retaliation, due to [his] disability, requests for a reasonable accommodation, age, and for his opposition against [HEPA's] unlawful employment practices, " in violation of the ADA and the ADEA. He also alleged violations of Puerto Rico law.

On June 24, 2014, about one month after the conclusion of discovery -- on the last day of which Escribano's deposition had been taken -- HEPA filed a motion for summary judgment. HEPA argued that it did not employ the minimum number of employees necessary to qualify as an "employer" under either the ADA or the ADEA. See 42 U.S.C. § 12111(5)(A) ("employer" for purposes of ADA requires "15 or more employees"); 29 U.S.C. § 630(b) ("employer" for purposes of ADEA requires "twenty or more employees"). In support, HEPA submitted "Quarterly Report[s] of Wages Paid to Each Employee" for the years 2012 and 2013 that had been filed with the Puerto Rico Department of Labor and Human Resources, as well as "Informative Return Statements" for the years 2012 and 2013, to show that HEPA had fewer than fifteen employees between 2012 and 2013.

Escribano filed a memorandum in opposition to HEPA's motion for summary judgment on August 13, 2014. He argued that HEPA had twenty-seven employees during the years 2011, 2012, 2013, and 2014. To support his argument, Escribano submitted: (1) a handwritten list prepared by Escribano, which had been produced in discovery, that listed the names of twenty-seven people who Escribano believed were employees of HEPA, and (2) a sworn statement dated August 12, 2014, in which he stated that "[he] [was] fully aware of the fact that the defendant had 27 employees during the years in which the adverse employment actions were taken against [him], since [he] worked on a daily basis, along with the employees that appear in the list."

HEPA filed a reply to Escribano's memorandum on September 3, 2014, arguing that Escribano's allegations with regard to the number of HEPA employees were insufficient to defeat a motion for summary judgment and requesting that the district court strike Escribano's sworn statement in its entirety. HEPA stated that Escribano's "sworn statement consists of several new allegations never before mentioned, testimony that contradicts [Escribano's] testimony during his deposition, that is based on hearsay and/or that constitute a conclusory allegation and/or a reinstatement of [Escribano's] allegations of the Amended Complaint unsupported by a single piece of evidence or reference to the record." In short, HEPA alleged that Escribano, "confronted with the fact that there is no evidence to support his allegations, prepared a custom-made, self-serving statement . . . to face the ambiguities and gaps of his factual and legal theories."

The district court granted HEPA's motion for summary judgment and its motion to strike Escribano's sworn statement on January 23, 2015. Reyesv.Prof'l HEPA Certificate Corp., 74 F.Supp.3d 489 (D.P.R. 2015). Invoking the sham affidavit doctrine and our opinion in Moralesv.A.C. Orssleff's EFTF, 246 F.3d 32, 35 (1st Cir. 2001), the district court explained that unless a party can provide a "satisfactory explanation" for doing so, "[f]ollowing discovery, a party may not use a later affidavit to contradict facts previously provided to survive summary judgment." Reyes, 74 F.Supp.3d at 491. The court then noted that Escribano's sworn statement -- signed after HEPA's motion for summary judgment and just one day before Escribano's opposition was filed --"provides no explanation as to its tardiness, inconsistencies with previous facts and new factual contentions." Id. Lamenting that "this [was] not the first time this court face[d] a sham affidavit issue with [Escribano's] counsel, " id. at 492, the district court struck Escribano's sworn statement, held that Escribano's pleadings supported by the stricken evidence would be deemed unsupported, and ...

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