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Sanchez v. City of Pembroke Pines

United States District Court, S.D. Florida

November 2, 2017

JIMMY R. SANCHEZ, JR., Plaintiff,



         THIS CAUSE is before the Court upon several motions filed by both parties, all of which are ripe for decision. Plaintiff Jimmy R. Sanchez ("Sanchez" or "Plaintiff) filed his operative Second Amended Complaint on March 20, 2017. ECF No. [30]. Defendant City of Pembroke Pines, Florida (the "City" or Defendant") answered on April 3, 2017, and the parties completed discovery on August 25, 2017. On August 17, 2017, Plaintiff filed his Motion for Judgement on the Pleadings, ECF No. [48]. Defendant opposed the motion on August 29, 2017, ECF No. [49], and Plaintiff filed a reply on September 5, 2017, ECF No. [53].

         Also on September 5, 2017, both the City and Sanchez filed Motions for Summary Judgment and accompanying Statements of Material Facts, ECF Nos. [50]-[55]. Pursuant to an extension granted by the Court, both parties filed oppositions to summary judgment on October 4, 2017, along with opposing statements of material fact, ECF Nos. [59]-[62]. The parties filed replies on October 11, 2017, ECF Nos. [64] & [65].

         On October 11, 2017, the City also filed a Motion to Strike, ECF No. [63], requesting that Case No. 16-cv-62958-BLOOM/Valle the Court strike certain portions of Plaintiff s Declaration, ECF No. [62-1], filed in Opposition to the City's Motion for Summary Judgment. The Court expedited briefing on the Motion to Strike, and Plaintiff filed an opposing brief on October 20, 2017, ECF No. [67]. All motions are now ripe for review.

         I. Motion for Judgment on the Pleadings

         A. Legal Standard

         Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). Judgment on the pleadings is appropriate if there are no material facts in dispute. See Palmer & Cay, Inc. v. Marsh & McLennan Cos., 404 F.3d 1297, 1303 (11th Cir. 2005); Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1291 (11th Cir. 2002). Thus, Rule 12(c) "provides a means of disposing of cases when . . . a judgment on the merits can be achieved by focusing on the content of competing pleadings" Perez v. Wells Fargo N.A., 774 F.3d 1329, 1336 (11th Cir. 2014)(citing 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1367 (3d ed. 2004)) (internal quotation marks omitted).

         To determine if a plaintiff is entitled to judgment on the pleadings, the Court "accept(s) as true all material facts alleged in the non-moving party's pleading, and [] view[s] those facts in the light most favorable to the non-moving party." Perez, 774 F.3d at 1335 (citing Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998)). "If a comparison of the averments in the competing pleadings reveals a material dispute of fact, judgment on the pleadings must be denied." Id. (citing Stanton v. Larsh, 239 F.2d 104, 106 (5th Cir. 1956)).

         B. Analysis

         Plaintiff moves for judgment on the pleadings arguing that "[b]ased on the admissions made [in Defendant's Answer and Affirmative Defenses], there is no genuine dispute of material fact that Plaintiff has established each element of his primafacie claim for unlawful retaliation due to the 'FMLA' and [discrimination due to the 'ADA.' " ECF No. [48] ¶ 3. Plaintiff further argues that because Defendant has failed to "plead or adequately demonstrate any good faith defense for the failure to rehire Plaintiff, " Plaintiff is entitled to liquidated damages. Id. ¶ 4. In response, Defendant argues that the statements Plaintiff claims are admissions are not admissions at all. ECF No. 49 ¶ 7. Rather, there remain significant issues of fact regarding both the retaliation claim under the FMLA and the discrimination claim under the ADA, precluding judgment on the pleadings. Id. The Court agrees that the Motion for Judgment on the Pleadings should be denied.

         a. Plaintiffs Retaliation Claim Under the FMLA

         To state a cause of action for retaliation under the FMLA, "an employee must allege that: (1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment decision; and (3) the decision was causally related to the protected activity." Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001) (citing Parris v. Miami Herald Publ'g Co., 216 F.3d 1298, 1301 (11th Cir.2000)). In its answer, the City admits "that the Plaintiff took FMLA leave during the calendar year 2014." ECF No. [31] ¶¶ 12, 13. While the parties agree that taking FMLA leave is statutorily protected activity under the FMLA, Plaintiffs argument that Defendant has "admitted" that Mr. Sanchez "suffered an adverse employment decision" and "the decision was causally related to the protected activity" defy even a cursory Case No. 16-cv-62958-BLOOM/Valle review of Defendant's Answer. Cf. ECF No. [48] at 4-5 and ECF No. [31] ¶¶ 18, 22, 25, 60.

         Plaintiff argues that Defendant "admits that there is a provision in the collective bargaining agreement that allowed for employees to obtain their jobs back, " ECF No. [48] at 5, citing to Answer Paragraph 22, which reads: "Admitted that there is an agreement and that would speak for itself." ECF No. [31] ¶ 22.[1] Plaintiff states that Defendant "admitted in ¶ 25 of the [A]nswer that Plaintiff contacted the city, via Chief Hernandez, about employment and during the conversation Chief Hernandez brought up that Plaintiff has previously missed time for medical issues." ECF No. [48] at 5. However, Paragraph 25 of the Answer reads: "Admitted that Plaintiff contacted the City about employment. Otherwise, without knowledge and therefore denied." ECF No. [31] ¶25. There is not a sufficient showing that no issue of material fact exists as to the adverse employment decision prong of Plaintiffs claim on a failure to rehire theory.

         Plaintiff argues that "Defendant admits . . . [Plaintiff] suffered an adverse employment decision when he was forced to resign due to the unbearable conditions, " citing Defendant's Answer ¶ 18. Paragraph 18 the Complaint alleges that "[w]hen th[e] situation became unbearable, Plaintiff had no choice but to submit a letter of resignation on or about November 16, 2014 and seek other employment. This constructive discharge became effective a few weeks later in December 2014." ECF No. [30] ¶ 18. However, Paragraph 18 of Defendant's Answer reads in its totality: "Admitted that Plaintiff resigned. Otherwise without knowledge and therefore denied." ECF No. [31] ¶ 18. There is not a sufficient showing that no issue of material fact Case No. 16-cv-62958-BLOOM/Valle exists as to the adverse employment action prong of Plaintiff s claim on constructive discharge grounds.

         Taking the Answer in the light most favorable to Defendant and comparing the competing pleadings, Plaintiff is precluded from judgment on the pleadings under each theory. The discrepancies between Plaintiffs allegations and Defendant's admissions reveal material disputes of fact. Accordingly, judgment on the pleadings is inappropriate and Plaintiffs Motion is denied as to his FMLA claim.

         b. Plaintiffs Associational Disability Discrimination Claim Under the ADA

         Plaintiff s Motion for Judgment on the Pleadings as to his ADA claim suffers a similar fate. A plaintiff attempting to establish a, prima facie case of "association discrimination" under the ADA must establish: (1) that she was subjected to an adverse employment action; (2) that she was qualified for the job at that time; (3) that her employer knew at that time that she had a relative with a disability; and (4) that "the adverse employment action occurred under circumstances which raised a reasonable inference that the disability of the relative was a determining factor in [the employer's] decision." Wascura v. City of S. Miami, 257 F.3d 1238, 1242 (11th Cir. 2001) (quoting HiIburn v. Murata Electronics N. Am., Inc., 181 F.3d 1220, 1230-31 (11th Cir. 1999).

         Once again, Plaintiffs arguments stretch the plain words of Defendant's Answer to their breaking point. Plaintiff claims that Defendant admits that it is undisputed that "[P]laintiff was qualified for the job at the time of the adverse employment action" based on Defendant's admission that Plaintiff resigned, had a collective bargaining agreement, and contacted the City about employment. ECF No. [48] at 6. Plaintiff also argues that Defendant knew that a member of Plaintiff s family, Plaintiff s son, was disabled and that the adverse employment action occurred Case No. 16-cv-62958-BLOOM/Valle under circumstances which raise a reasonable inference that his son's disability was a determining factor in the employer's decision. Plaintiff bases this assertion on Paragraph 25 of Defendant's Answer which states: "Admitted that Plaintiff contacted the City about employment. Otherwise without knowledge and therefore denied." Taking the Answer in the light most favorable to Defendant and comparing the competing pleadings, there exist material issues of fact for each element of Plaintiffs associational ADA claim. As such, the Motion for Judgment on the Pleadings is denied as to the ADA claim.

         II. Motion to Strike

         Defendant moves to strike Plaintiffs Declaration, ECF No. [62-1], in support of his Opposition to the City's Motion for Summary Judgment. In its Motion to Strike, the City argues that the affidavit contains information not based on Plaintiffs personal knowledge, information which contains hearsay, and information that directly contradicts Plaintiffs deposition testimony. The Court, having reviewed the Motion to Strike, Plaintiffs brief in opposition and the record before it, denies the City's Motion to Strike.

         This Court has previously noted that "[a] party opposing summary judgment may not substitute an affidavit alleging helpful facts in place of earlier deposition testimony in hopes of avoiding summary judgment." Rivero v. Midtown Towing of Miami, Inc., No. 13-CIV-22211, 2014 WL 12531510, at *3 (S.D. Fla. Dec. 8, 2014) (quoting Moore v. Tractor Supply Co., 352 F.Supp.2d 1268, 1275-76 (S.D. Fla. 2004) (striking plaintiffs affidavit "insofar as it is inconsistent with [p]laintiff s deposition testimony")). The Eleventh Circuit has provided instruction on this matter, noting that a court "may disregard an affidavit submitted solely for the purpose of opposing a motion for summary judgment when that affidavit is directly contradicted by Case No. 16-cv-62958-BLOOM/Valle deposition testimony . . . [as] [s]uch an affidavit would be a sham." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n.7 (11th Cir. 2003) (emphasis added). "When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony." Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984). However, these cases do not indicate that sham affidavits will be stricken from the record, but rather indicate that the affidavit at issue should be "disregarded." See also Aira v. Best Nat. Vending, Inc., 2012 WL 4935086 at *9-10 (S.D. Fla. 2012) (deciding that "to the extent [the] subsequent affidavit attempts to create a fact question... it is a sham and will not be considered, " but never striking it from the record); Pennant v. Convergys Corp., 368 F.Supp.2d 1307, 1312 (S.D. Fla. 2005) (disregarding subsequent affidavit as a sham). In fact, when presented with this scenario, courts in this circuit repeatedly decline to strike such affidavits. See, e.g., Dwyer v. Ethan Allen Retail, Inc., 528 F.Supp.2d 1297, 1300 (S.D. Fla. 2007) (noting that the law in this Circuit permits a district court to "disregard" a sham affidavit, that is "to grant summary judgment. . . notwithstanding the existence of the sham affidavit; not to actually strike the sham affidavit and refuse to consider it at all"); Breach v. Prison Health Servs., No. 2:06-CV-1133-MEF, 2008 WL 2959778, at *4 (M.D. Ala. July 31, 2008) (noting "a party cannot create a genuine issue of material fact at summary judgment with an affidavit that contradicts [prior testimony], " and that "[i]t is not the law of this Circuit that such an affidavit must be stricken"). Based on the foregoing, the Court declines to strike Plaintiffs affidavit. To extent an affidavit includes information not based on personal knowledge, information based on hearsay, or information that clearly conflicts with Sanchez's Case No. 16-cv-62958-BLOOM/Valle sworn deposition testimony, the deposition testimony will be credited.

         III. Motion for Summary Judgment

         A. Legal Standard

         The standard of review for cross-motions for summary judgment does not differ from the standard applied when only one party files a motion. See Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005). Under Federal Rule of Civil Procedure 56, summary judgment is appropriate "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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Fed. R. Civ. Pro. 56(a). The parties may support their positions by citation to the record, including, inter alia, depositions, documents, affidavits, or declarations. See Fed. R. Civ. P. 56(c). An issue is genuine if "a reasonable trier of fact could return judgment for the non-moving party." Miccosukee Tribe of Indians v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it "might affect the outcome of the suit under the governing law." Id. (quoting Anderson, 477 U.S. at 247-48).

         The moving party shoulders the initial burden to demonstrate the absence of a genuine issue of material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once the moving party has met its burden, the non-movant must "go beyond the pleadings" and show that there is a genuine issue for trial. Celotex, 411 U.S. at 324; see also Fed. R. Civ. Pro. 56(c)(1). To avoid summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Case No. 16-cv-62958-BLOOM/Valle Corp., 475 U.S. 574, 586 (1986) (emphasis added). A movant must present evidence demonstrating that it can establish the basic elements of his claim. Celotex, 477 U.S. at 322. After the nonmoving party has responded to the motion for summary judgment, a court must grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thus, "[a] 'judge's function' at summary judgment is not 'to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.' " Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam) (quoting Anderson, 477 U.S. at 249) (emphasis added).

         As before the Court here, "cross motions for summary judgment may be probative of the nonexistence of a factual dispute, but this procedural posture does not automatically empower the court to dispense with the determination whether questions of material fact exist." Georgia State Conference of NAACP v. Fayette Cty. Bd. of Comm 'rs, 775 F.3d 1336, 1345-46 (11th Cir. 2015). In particular, where "the parties respond[] to each respective summary judgment motion with disputes as to the 'undisputed' facts, add[] 'material facts' of their own, and then repl[y] with subsequent objections to the other party's additional facts, " the mere filing of cross motions for summary judgment is not conclusive. Id. Thus, where the parties disagree as to the facts, summary judgment cannot be entered unless one of the parties meets its burden of demonstrating that "there is no dispute as to any material facts with the evidence and all inferences drawn therefrom viewed in the light most favorable" to the other party. Shook v. United States, 713 F.2d 662, 665 (11th Cir. 1983)

         C. ...

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