Escribano-Reyes v. Professional HEPA Certificate Corp.

United States Court of Appeals
For the First Circuit
Nos. 15-1259
15-1404
CARLOS ESCRIBANO-REYES,
Plaintiff, Appellant,
v.
PROFESSIONAL HEPA CERTIFICATE CORP.,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Lynch, Circuit Judges.
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.
March 30, 2016
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.
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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.
I.
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
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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
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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. Reyes v. Prof'l HEPA Certificate Corp., 74 F.
Supp. 3d 489 (D.P.R. 2015). Invoking the sham affidavit doctrine
and our opinion in Morales v. 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 granted HEPA's motion for summary judgment with
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regard to Escribano's ADA and ADEA claims, id. at 493, 495–96.
The court also declined to exercise supplemental jurisdiction over
Escribano's state law claims and dismissed them without prejudice.
Id. at 496; see 28 U.S.C. § 1367(c)(3).
In a separate order dated January 23, 2015, the district
court ordered the parties to "show cause as to why [Escribano] or
his counsel should or should not be sanctioned pursuant to Fed. R.
Civ. P. 11(b) and 28 U.S.C. § 1927." Both parties filed motions
in compliance with the order on February 6, 2015. Escribano also
filed a notice of appeal from the judgment that same day.
On February 18, 2015, the district court issued an
opinion and order imposing on Escribano's counsel, Escanellas-
Rivera, a $500 sanction for violation of Rule 11(b) of the Federal
Rules of Civil Procedure and a $500 sanction for violations of 28
U.S.C. § 1927. Reyes v. Prof'l HEPA Certificate Corp., 86 F. Supp.
3d 79, 82–83 (D.P.R. 2015). In imposing the sanction for
violations of 28 U.S.C. § 1927, the district court judge noted
that "[c]ounsel's behavior is not an isolated event" and that he
and other judges in the District of Puerto Rico had previously
admonished Attorney Escanellas-Rivera for filing post-summary
judgment affidavits.1 Id. at 83. Escribano filed an amended
1 The district court cited the following cases as examples
of Attorney Escanellas-Rivera's history of filing post-discovery
affidavits: Levine-Diaz v. Humana Health Care, 990 F. Supp. 2d
133, 140 (D.P.R. 2014) (disregarding portions of affidavit where
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notice of appeal on February 24, 2015, to include an appeal of the
district court's order on sanctions.
"it was either incongruent with [the plaintiff's] deposition
testimony or the matter in question was the subject of extensive
questioning during deposition, yet she decided to elaborate
further in her affidavit"); Rodriguez-Fonseca v. Baxter Healthcare
Corp. of P.R., 899 F. Supp. 2d 141, 148 (D.P.R. 2012) ("Plaintiff's
attorney is hereby admonished to never again file a sham affidavit
before this Court."); Order at 2, Velazquez-Perez v. Developers
Diversified Realty Corp., No. 10-1002 (D.P.R. June 12, 2012), ECF
No. 131 (striking post-summary judgment affidavit under sham
affidavit doctrine, and noting that "a practice of presenting post
summary judgment affidavits . . . simply makes a mockery out of
Rule 56"); Rivera v. Empresas Y-Nuina, Inc./Kikuet, No. 10-1574,
2011 WL 3443086, at *3-4 & n.3 (D.P.R. Aug. 8, 2011) (noting the
defendant's objection to the plaintiff's submission of a sworn
statement, but declining to find that it was a sham affidavit);
Melendez-Ortiz v. Wyeth Pharm. Co., 775 F. Supp. 2d 349, 359
(D.P.R. 2011) (adopting magistrate judge's recommendation to
disregard portions of affidavit under sham affidavit doctrine);
Mojica v. El Conquistador Resort & Golden Door Spa, 714 F. Supp.
2d 241, 252 (D.P.R. 2010) (noting submission of "self-serving
affidavit," but declining to find that the affidavit was a sham
affidavit); Rivot-Sanchez v. Warner Chilcott Co., 707 F. Supp. 2d
234, 239 & n.1 (D.P.R. 2010) (adopting magistrate judge's
recommendation to strike portions of sworn statement under sham
affidavit doctrine); Marquez v. Drugs Unlimited, Inc., No. 08-
2387, 2010 WL 1133808, at *4-6 (D.P.R. Mar. 22, 2010) (disregarding
several statements in a sworn statement under sham affidavit
doctrine); Order, Baerga-Castro v. Wyeth Pharm., No. 08-1014
(D.P.R. July 15, 2009), ECF No. 78 (granting motion to strike
affidavit); Franco v. Glaxosmithkline, No. 06-1781, 2009 WL
702221, at *7-8 (D.P.R. Mar. 11, 2009) (adopting magistrate judge's
report and recommendation, which disregarded several statements in
sworn affidavit under sham affidavit doctrine); Rivera-Rocca v. RG
Mortg. Corp., 535 F. Supp. 2d 276, 285–86 n.5 (D.P.R. 2008)
(disregarding "sham affidavit"). The district court also cited
Sánchez-Medina v. Unicco Service, Co., No. 07-1880, 2010 WL 3955792
(D.P.R. May 20, 2010); however, that case did not involve an
affidavit submitted by Attorney Escanellas-Rivera, but rather a
motion to strike portions of the plaintiff's (Escanellas-Rivera's
client) deposition testimony because of inconsistencies, id. at
*1–2.
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II.
"We review a district court's grant of summary judgment
de novo, and review the record in the light most favorable to the
nonmoving party, drawing all reasonable inferences in the
nonmoving party's favor." Del Valle-Santana v. Servicios Legales
de P.R., Inc., 804 F.3d 127, 129 (1st Cir. 2015). "[W]e review
the district court's decision as to 'the evidentiary materials it
will consider in deciding a motion for summary judgment' only for
'a clear abuse of discretion.'" Lennon v. Rubin, 166 F.3d 6, 8
(1st Cir. 1999) (quoting EEOC v. Green, 76 F.3d 19, 24 (1st Cir.
1996)).
A. Escribano's Sworn Statement
Escribano first contends that the district court erred
in striking his sworn statement. He argues that "there were no
inconsistencies between the [sworn statement] and previous
statements from Escribano," and that he provided an adequate
explanation for the late filing when he stated that he had to
prepare the sworn statement in order to support facts that HEPA's
counsel never asked about during Escribano's deposition, "but were
raised by HEPA, along with new factual allegations never before
raised in [HEPA's motion for summary judgment]."
The district court did not abuse its discretion in
striking Escribano's statement. "[W]here a party has given 'clear
answers to unambiguous questions' in discovery, that party cannot
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'create a conflict and resist summary judgment with an affidavit
that is clearly contradictory,' unless there is a 'satisfactory
explanation of why the testimony [has] changed.'" Hernandez-
Loring v. Universidad Metropolitana, 233 F.3d 49, 54 (1st Cir.
2000) (second alteration in original) (quoting Colantuoni v.
Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4–5 (1st Cir. 1994)); see
also Torres v. E.I. DuPont de Nemours & Co., 219 F.3d 13, 20 (1st
Cir. 2000).
There are a number of inconsistencies between
Escribano's deposition testimony and his allegations in the sworn
statement.2 For example, in his sworn statement, Escribano alleged
that between March and April 2013, he was subjected to derogatory
comments regarding his age from employees David Ayala, Alfredo
García, Jeniffer Zayas, and Anabel Pérez. But earlier in his
deposition, when defense counsel pressed him on "[w]ho
specifically told [him] that [he was] old," he identified only
Ayala and García. Defense counsel then asked, "Who else?";
Escribano responded, "That's it." Additionally, in his sworn
statement, Escribano claimed that in August 2013, Ayala, García,
2 The district court did not err in declining to enumerate
each of the inconsistencies between the sworn statement and
deposition. See Orta-Castro v. Merck, Sharp & Dohme Química P.R.,
Inc., 447 F.3d 105, 110 (1st Cir. 2006) ("[W]e can find no
authority whatsoever for the proposition that a district court
must specifically enumerate the contradictions that lead it to
disregard a given piece of evidence.").
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and Pérez "told [him] that they did not want [him] working with
them, due to the discrimination charge file[d], and also because
[he] was old and sick and was useless due to the requests for
reasonable accommodation made." Though Escribano said that Ayala
had made disparaging comments about his age, at no point during
his deposition did he allege the particular discriminatory acts
cited above; indeed, when asked at the end of his deposition if he
could identify any other discriminatory acts against him by Ayala,
García, or Pérez, he answered in the negative. Elsewhere in his
sworn statement, Escribano alleged that adverse employment actions
were taken against him in 2012. But in his deposition, Escribano
described the alleged discrimination as beginning in 2013.
Additionally, in his sworn statement, Escribano stated --
inconsistently -- that employee Alexander Velázquez was elevated
to a position higher than Escribano's in either November 2012 or
March 2013. In his deposition, though, Escribano stated -- also
inconsistently -- that Velázquez was promoted above him either in
April 2013 or after Escribano filed a discrimination charge in
June 2013.
The timing of the sworn statement -- signed one day
before Escribano's opposition to HEPA's motion for summary
judgment was filed -- also supports the district court's conclusion
that Escribano's sworn statement was an inappropriate attempt to
manufacture issues of fact and should be stricken. See Orta-
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Castro v. Merck, Sharp & Dohme Química P.R., Inc., 447 F.3d 105,
110 & n.2 (1st Cir. 2006) ("[T]he Statement was executed only after
[the defendant] had filed its motion for summary judgment, thus
suggesting that the Statement was made solely to create an issue
of fact for the purpose of surviving summary judgment," id. at
110.); Torres, 219 F.3d at 20–21 (affirming district court's
decision to strike affidavits that were offered after defendants
had filed motions for summary judgment); Colantuoni, 44 F.3d at 5
("[W]e think it significant that the affidavit was offered only
after defendants had filed motions for summary judgment. In these
circumstances, we are persuaded that plaintiff's affidavit should
be disregarded in considering the propriety of summary
judgment.").
Escribano presents no satisfactory explanation for the
inconsistencies created by his eleventh-hour filing. And the
explanation he does offer does not work. He argues that HEPA's
counsel did not address certain factual allegations during
Escribano's deposition and then raised them for the first time in
HEPA's motion for summary judgment, which was itself supported by
a different sworn statement, thereby entitling Escribano to
"support his opposition to the dispositive motion with a [sworn
statement] as for those factual allegations." But this argument,
which the district court characterized as a "brother counsel did
it first" argument, Reyes, 74 F. Supp. 3d at 493, falls flat
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because it does not explain why Escribano's testimony is
inconsistent or why he failed to describe certain acts of alleged
discrimination in his deposition even though he was given the
opportunity. Escribano's insistence that evidence he needed to
support his opposition to summary judgment was unavailable because
defense counsel never asked about it during Escribano's deposition
is meritless; Escribano cannot blame opposing counsel for his
failure to marshal the evidence he required.
Under these circumstances, the district court acted
within its discretion in striking Escribano's sworn statement.
B. Grant of Summary Judgment to HEPA
The harder question is whether HEPA was entitled to
summary judgment on the issue of coverage. Without reaching the
question of whether his later sworn statement is consistent with
his deposition on this issue, we consider his sworn statement and
conclude that even his best case was insufficient to meet his
burden.
As the plaintiff, Escribano bears the burden of proving
that HEPA is a covered employer under the ADA and the ADEA. See
De Jesús v. LTT Card Servs., Inc., 474 F.3d 16, 18–19 (1st Cir.
2007); cf. Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006) (holding
that "the threshold number of employees for application of Title
VII [of the Civil Rights Act of 1964] is an element of a plaintiff's
claim for relief"); Aly v. Mohegan Council, Boy Scouts of Am., 711
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F.3d 34, 45 (1st Cir. 2013).3 An "employer" for purposes of the
ADA is "a person engaged in an industry affecting commerce who has
15 or more employees for each working day in each of 20 or more
calendar weeks in the current or preceding calendar year." 42
U.S.C. § 12111(5)(A). The ADEA's definition uses the same
phrasing, except the employer must have "twenty or more employees."
29 U.S.C. § 630(b).
The only evidence regarding the number of employees
employed by HEPA that Escribano submitted was an unadorned list of
twenty-seven names titled "Lista de Empleados" ("List of
Employees"). This list was first submitted as an exhibit during
Escribano's deposition, where HEPA's counsel asked Escribano about
some of the individuals who appeared on Escribano's list but not
in the documents HEPA submitted. Escribano's answers did little
to flesh out his skeletal list. The only additional information
he provided was general job titles for the purported employees
(e.g., "Helper" or "Technician assistant") and very rough
3 "Since many of the relevant legal standards applicable
in employment-discrimination cases arising under the ADEA, the
ADA, and Title VII are closely comparable, . . . we cite to them
as appropriate." Gonzalez v. El Dia, Inc., 304 F.3d 63, 68 n.4
(1st Cir. 2002) (citing Dichner v. Liberty Travel, 141 F.3d 24, 30
n.5 (1st Cir. 1998)); see also Serapion v. Martinez, 119 F.3d 982,
985 (1st Cir. 1997) (construing the definition of "employee" for
purposes of Title VII and noting that "[w]e regard Title VII, ADEA,
ERISA, and FLSA as standing in pari passu and endorse the practice
of treating judicial precedents interpreting one such statute as
instructive in decisions involving another").
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estimations of the time periods during which some of them allegedly
worked for HEPA. In his sworn statement, he said the basis for
his testimony was his personal knowledge, "since [he] worked on a
daily basis, along with the employees that appear in the list."
Personal knowledge is, of course, a basis on which to ground
testimony. See Cadle Co. v. Hayes, 116 F.3d 957, 961 n.5 (1st
Cir. 1997). The difficulty for Escribano is that what he submitted
is not enough competent evidence to establish that the additional
people he identified qualified as employees under the case law.
"[T]he employment relationship is most readily
demonstrated by [an] individual's appearance on the employer's
payroll." Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202,
206 (1997); see De Jesús, 474 F.3d at 21. Escribano did not
provide any payroll evidence beyond the documents that HEPA had
already submitted.
Payroll records are not dispositive, though. De Jesús,
474 F.3d at 22. Instead, "the ultimate touchstone . . . is whether
an employer has employment relationships with" the requisite
number of employees -- fifteen for the ADA and twenty for the ADEA
-- "for each working day in 20 or more weeks during the year in
question." Walters, 519 U.S. at 212. "A series of Supreme Court
decisions have established that when a statute contains the term
'employee' but does not define it, a court must presume that
Congress has incorporated traditional agency law principles for
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identifying 'master-servant relationships.'" Lopez v.
Massachusetts, 588 F.3d 69, 83 (1st Cir. 2009) (citing Clackamas
Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444–47
(2003); Walters, 519 U.S. at 211–12; Nationwide Mut. Ins. v.
Darden, 503 U.S. 318, 322–23 (1992); Cmty. for Creative Non-
Violence v. Reid, 490 U.S. 730, 739–40 (1989)); see also Casey v.
Dep't of Health & Human Servs., 807 F.3d 395, 404–05 (1st Cir.
2015). In this circuit, we have applied the common-law agency
test to decide whether an individual is an employee for purposes
of the ADA, see Dykes v. DePuy, Inc., 140 F.3d 31, 38 (1st Cir.
1998), and the ADEA, see Camacho v. P.R. Ports Auth., 369 F.3d
570, 573–74 (1st Cir. 2004); Speen v. Crown Clothing Corp., 102
F.3d 625, 631 (1st Cir. 1996).
In Reid, the Supreme Court summarized the prevailing
common-law test for determining whether an individual is an
employee.4 490 U.S. at 751–52. In Clackamas, the Supreme Court
4 "In determining whether a hired party is an employee
under the general common law of agency, we consider the hiring
party's right to control the manner and means by which the product
is accomplished. Among the other factors relevant to this inquiry
are the skill required; the source of the instrumentalities and
tools; the location of the work; the duration of the relationship
between the parties; whether the hiring party has the right to
assign additional projects to the hired party; the extent of the
hired party's discretion over when and how long to work; the method
of payment; the hired party's role in hiring and paying assistants;
whether the work is part of the regular business of the hiring
party; whether the hiring party is in business; the provision of
employee benefits; and the tax treatment of the hired party."
Reid, 490 U.S. at 751–52 (footnotes omitted).
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"was persuaded that courts should look to the guidelines in the
[Equal Employment Opportunity Commission's ("EEOC")] Compliance
Manual to address the question of when a person is an 'employee.'"5
Lopez, 588 F.3d at 85 (citing Clackamas, 538 U.S. at 448–50). The
EEOC Compliance Manual states that "[t]he question of whether an
employer-employee relationship exists is fact-specific and depends
on whether the employer controls the means and manner of the
worker's work performance," and identifies a list of sixteen non-
exclusive factors for determining whether an employment
relationship exists.6 EEOC Compliance Manual (CCH), § 2-III(A)(1),
¶ 7110, at 5716–17 (2009).
5 The Supreme Court in Clackamas recognized "that the
EEOC's guidelines are intended to apply across Title VII, the ADA,
and the Age Discrimination in Employment Act." De Jesús, 474 F.3d
at 24 (citing Clackamas, 538 U.S. at 449 n.7); see EEOC Compliance
Manual (CCH), § 2-I, ¶ 7103, at 5706 (2009).
6 The sixteen factors are: "[1] The employer has the right
to control when, where, and how the worker performs the job. [2]
The work does not require a high level of skill or expertise. [3]
The employer furnishes the tools, materials, and equipment. [4]
The work is performed on the employer's premises. [5] There is a
continuing relationship between the worker and the employer. [6]
The employer has the right to assign additional projects to the
worker. [7] The employer sets the hours of work and the duration
of the job. [8] The worker is paid by the hour, week, or month
rather than the agreed cost of performing a particular job. [9]
The worker does not hire and pay assistants. [10] The work
performed by the worker is part of the regular business of the
employer. [11] The employer is in business. [12] The worker is
not engaged in his/her own distinct occupation or business. [13]
The employer provides the worker with benefits such as insurance,
leave, or workers' compensation. [14] The worker is considered an
employee of the employer for tax purposes (i.e., the employer
withholds federal, state, and Social Security taxes). [15] The
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Escribano could have created a triable issue as to the
number of employees HEPA had by submitting evidence that, "under
traditional principles of agency law," Walters, 519 U.S. at 211,
the individuals on the list he provided had an employment
relationship with HEPA. The sparse evidence he provides -- names,
general job titles, and very rough estimates of when those
individuals worked for HEPA -- does not come close to satisfying
the multifaceted common-law agency test.
"[A]n issue is 'genuine' if it 'may reasonably be
resolved in favor of either party.'" Vineberg v. Bissonnette, 548
F.3d 50, 56 (1st Cir. 2008) (quoting Garside v. Osco Drug, Inc.,
895 F.2d 46, 48 (1st Cir. 1990)). Indeed, a nonmoving party who
bears the ultimate burden of proof at trial, like Escribano, must
"demonstrate that a trier of fact could reasonably resolve [the]
issue in [his] favor." Borges ex rel. S.M.B.W. v. Serrano-Isern,
605 F.3d 1, 5 (1st Cir. 2010). Without more concrete, specific
evidence, a reasonable trier of fact simply could not find that
the individuals on Escribano's list that did not appear in HEPA's
filings were in an employment relationship with HEPA. Cf. Ost v.
W. Suburban Travelers Limousine, Inc., 88 F.3d 435, 439–40 (7th
Cir. 1996) (finding that an affidavit from an employee that her
employer can discharge the worker. [16] The worker and the
employer believe that they are creating an employer-employee
relationship." EEOC Compliance Manual (CCH), § 2-III(A)(1),
¶ 7110, at 5716–17 (2009).
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employer had twenty-four employees was "too vague a submission to
carry her burden" to prove that her employer was covered by Title
VII).
Escribano had ample opportunity during discovery to
obtain more evidence about the employees identified on his list or
on the topic of the number of employees, yet failed to do so. He
cannot now claim that he was unable to secure the evidence he
needed to challenge HEPA's motion for summary judgment. Not only
did he not do the discovery, but he also did not file a motion
under Federal Rule of Civil Procedure 56(d). See Fed. R. Civ. P.
56(d) (providing that if a nonmovant "shows by affidavit or
declaration that, for specified reasons, it cannot present facts
essential to justify its opposition," the district court may grant
certain forms of relief); Hicks v. Johnson, 755 F.3d 738, 743 (1st
Cir. 2014) (noting that "Rule 56(d) allows, in certain
circumstances, for supplemental discovery after a motion for
summary judgment has been filed").
The evidence Escribano submitted was also insufficient
to satisfy the temporal requirement in the definition of
"employer," namely that HEPA had fifteen (or twenty) "or more
employees for each working day in each of 20 or more calendar weeks
in the current or preceding calendar year." 42 U.S.C.
§ 12111(5)(A); see also 29 U.S.C. § 630(b). In his deposition,
Escribano was unable to provide specific time periods during which
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the individuals on his list worked. Rather, he stated that
individuals worked, for example, "months," "a month," "about a
year ago," and "you could say almost a year." Indeed, it is not
even clear from his answers whether he is referring to the length
of time that these individuals worked or how long it had been since
they had either started working at or left HEPA. This lack of
specifics and clarity prevents Escribano from carrying his burden.
C. Sanctions
Finally, Escribano challenges the imposition of
sanctions on his attorney based on the filing of the sworn
statement. The district court imposed sanctions under Federal
Rule of Civil Procedure 11 and 28 U.S.C. § 1927.7 In imposing
these sanctions, the district court placed particular emphasis on
Attorney Escanellas-Rivera's long track record of similar tactics,
noting that in one case, he was "admonished to never again file a
sham affidavit before this Court." Reyes, 86 F. Supp. 3d at 83
(quoting Rodriguez-Fonseca v. Baxter Healthcare Corp. of P.R., 899
F. Supp. 2d 141, 148 (D.P.R. 2012)).
7 Federal Rule of Civil Procedure 11(c)(1) authorizes the
imposition of sanctions on an attorney who has violated Federal
Rule of Civil Procedure 11(b), which governs attorneys'
representations to the court.
28 U.S.C. § 1927 provides: "Any attorney or other person
admitted to conduct cases in any court of the United States or any
Territory thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to
satisfy personally the excess costs, expenses, and attorneys' fees
reasonably incurred because of such conduct."
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"We review a district court's imposition of sanctions
for abuse of discretion." Jensen v. Phillips Screw Co., 546 F.3d
59, 64 (1st Cir. 2008); see CQ Int'l Co. v. Rochem Int'l, Inc.,
USA, 659 F.3d 53, 59 (1st Cir. 2011). "This standard is not
appellant-friendly, and 'a sanctioned litigant bears a weighty
burden in attempting to show that an abuse occurred.'" Jensen,
546 F.3d at 64 (quoting Young v. Gordon, 330 F.3d 76, 81 (1st Cir.
2003)). Escribano's entire argument opposing sanctions is
predicated on his claim that the district court erred in concluding
that many of his statements in the sworn statement were a sham.
We already rejected that argument above, and Escribano marshals no
other defenses. We find no abuse of discretion in the court's
order of sanctions.
III.
For the reasons set forth above, we affirm.
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