Andino et al v. Municipality of Catano et al, No. 3:2011cv01715 - Document 73 (D.P.R. 2012)

Court Description: OPINION & ORDER: Denying 71 Motion for Reconsideration. Signed by Judge Gustavo A. Gelpi on 12/12/12. (CL)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF PUERTO RICO 3 4 5 VICTOR ANDINO, et al., 6 Plaintiffs, 7 8 v. MUNICIPALITY OF CATAà O, et al., 9 Defendants. Civil No. 11-1715 (GAG) 10 11 12 13 OPINION AND ORDER 14 15 16 Plaintiffs move for reconsideration (Docket No. 71) of the court s opinion and order granting defendant s motion for summary judgment (Docket No. 70). I. 17 18 19 20 21 22 23 24 25 26 27 28 Standard of Review A motion for reconsideration may not serve as a vehicle to relitigate matters previously litigated and decided by the court. Villanueva-Mendez v. Vazquez, 360 F. Supp. 2d 320, 322 (D.P.R. 2005). Courts entertain motions for reconsideration that seek to correct manifest errors of law or fact, present newly discovered evidence, or arise due to intervening changes in law. See Rivera Surillo & Co. v. Falconer Glass. Indus. Inc., 37 F.3d 25, 29 (1st Cir. 1994) (citing FDIC v. World Univ., Inc., 978 F.2d 10, 16 (1st Cir. 1992)); Cherena v. Coors Brewing Co., 20 F. Supp. 2d 282, 286 (D.P.R. 1998)). A losing party may not repeat old arguments previously considered and rejected, or . . . raise new legal theories that should have been raised earlier. Nat l Metal Finishing Co. v. BarclaysAmerican/Commercial, Inc., 899 F.2d 119, 123 (1st Cir. 1990). II. Discussion Plaintiffs state the court granted summary judgment because Defendants provided a Civil No. 11-1715 (GAG) 1 legitimate, non-discriminatory reason for Andino s termination, specifically, two separate incidents 2 of insubordination. (Docket No. 71 at 1-2.) The court did not grant summary judgment merely 3 because Defendants presented what the court deems a legitimate, non-discriminatory reason for 4 termination. This determination is the second step of Title VII analysis for claims rooted in indirect 5 evidence. (See Docket No. 70 at 4.) Plaintiffs cite Che v. Massachusetts Bay Transp. Auth., 342 6 F.3d 31, 39-40 (1st Cir. 2003), for the proposition that using insubordination as a basis for 7 dismissal could be considered pretext by a jury where there was testimony from which it could be 8 inferred that the supervisor withdrew the order because the conduct had been permitted in the past. 9 (Docket No. 71 at 2.) Plaintiff elaborates, The First Circuit reasoned that one way of 10 demonstrating pretext is by showing that the employer s proffered explanation is unworthy of 11 credence. (Id.) 12 Plaintiffs attempt to fit into this mold Andino s and his co-worker s sworn statements. 13 Specifically, Plaintiffs claim that finding him insubordinate was unjustified because the 14 rehabilitation center in Ponce where the Mayor s executive assistant ordered Mr. Andino to take the 15 patient closed at 3:00 p.m. every day, so it made no sense for Mr. Andino to drive two hours to 16 Ponce only to be sent back to Cataño. Plaintiffs argue this testimony undermines [D]efendants 17 contention that their only intent was to sanction Mr. Andino. (Docket No. 71 at 2.) Plaintiffs 18 contend this offends Che s directive that determinations of motive and intent, particularly in 19 discrimination cases, are questions better suited for the jury, as proof is generally based on inferences 20 that must be drawn, rather than on the proverbial smoking gun. (Id. at 3 (quoting 342 F.3d at 40).) 21 Plaintiff supports this argument by citing Acevedo-Parillo v. Novartis Ex-Lax, Inc. to substantiate 22 that a false reason for dismissal is evidence, sometimes quite good evidence, that the reason for the 23 dismissal was discriminatory. (Id. at 3 (citing 696 F.3d 128, 141 (1st Cir. 2012)).) 24 Regarding the insubordination findings, however, the court disagrees with Plaintiffs 25 contention that Mr. Andino s lay response to counsel s requests that he point to a smoking gun are 26 merely the lay expressions of a recognized legal tenet that smoking gun evidence is rarely available 27 28 2 Civil No. 11-1715 (GAG) 1 in discrimination cases. (Docket No. 71 at 3.) Defendants counsel asked, Is it your contention 2 that Mayor Rosario has discriminated against you because of your race in any way, to which 3 Andino replied, No, I can t say that. (Docket No. 52-4 at 41, ¶¶ 10-13.) Furthermore, counsel 4 asked, So you don t contend it s not your contention that you were suspended because of your 5 race? Plaintiff replied, I don t think so. Maybe they have it in their head, but I don t think so. 6 (Id. at 39, ¶¶ 22-25; 40, ¶ 1.) This statement is clear: Mr. Andino stated that his supervisors may 7 have suspended him because of his race, but he does not think so. This testimony discredits 8 Plaintiffs allegation that the first infraction was pretextual. 9 Furthermore, Plaintiffs cannot demonstrate that the true reason behind Andino s termination 10 was discriminatory. Plaintiffs state, This Court also discounts the statement by Jesus Diaz, Mr. 11 Andino s supervisor, that Mr. Andino just had to be black when Mr. Andino complained that Mr. 12 Diaz had reduced his vacation for matters that should have been attributed to sick leave. (Docket 13 No. 71 at 3.) Plaintiffs contend, The implication was that there was some [sic] improper in a black 14 man, Mr. Andino, asserting his rights as an employee, that perhaps Mr. Andino was acting 15 presumptuous, or even above his station. (Id.) The court did not discount Defendant Diaz s 16 statement. Rather, it squarely considered it, as Plaintiffs citation of Hazard-Chaney, the First 17 Circuit case upon which the court relied, clearly reveals. (Id.) Plaintiffs claim that the Hazard- 18 Chaney court affirmed the District Court s rejection of [a supervisor s consistent reference to 19 appellant as black or African American ] that was inadmissible hearsay to prove racial 20 discrimination. (Id. at 3-4.) Plaintiffs contention falters, however, because the Hazard-Chaney 21 court grappled with the ostensibly inadmissible statement as though it was admissible. ( In the face 22 of a downward progression . . . the [decision-maker s]1 isolated, unsubstantiated remark - were it to 23 24 1 27 In Hazard-Chaney, the only evidence with racial content was a statement reported by appellant from an Optima recruiter that Dr. Keith Lammers, appellant s supervisor, consistently referred to [appellant] as Afro - African-American or black, in any of the management meetings, reminding people that there exists a low expectation as to productivity for African Americans. 56 Fed. Appx. 521, 522 (1st Cir. 2003). 28 3 25 26 Civil No. 11-1715 (GAG) 1 be considered as non-hearsay, and even when combined with the several racially neutral incidents 2 she cites - is insufficient to invigorate her claim of pretext. ) (emphasis added). 3 Plaintiffs elected not to pursue wrongful termination or other employment-based claims in 4 this litigation, focusing only on raced-based discrimination under Title VII and Section 1981. 5 Perhaps there exist valid claims elsewhere, but the court affirms its judgment as to the laws 6 Plaintiffs claim Defendants offended. 7 III. 8 9 Conclusion For the abovementioned reasons, the court DENIES Plaintiffs motion to reconsider. (Docket No. 71.) 10 11 12 SO ORDERED. In San Juan, Puerto Rico this 12th day of December 2012. 13 /S/ Gustavo A. Gelpí 14 GUSTAVO A. GELPI United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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