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Rodriguez v. Don Shapiro Produce Co.

United States District Court, D. Massachusetts

March 27, 2019

GERARDO LANDAVERDE RODRIGUEZ, Plaintiff,
v.
DON SHAPIRO PRODUCE COMPANY, Defendant.

          MEMORANDUM AND ORDER RE: DEFENDANT DON SHAPIRO INCORPORATED'S MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 44)

          MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE.

         Pending before this court is a motion for summary judgment filed by defendant Don Shapiro Produce Company (“defendant” or “the company”).[1] (Docket Entry # 44). Plaintiff Gerardo Landaverde Rodriguez (“plaintiff”) opposes the motion. (Docket Entry # 55). After conducting a hearing, this court took the motion (Docket Entry # 44) under advisement.

         PROCEDURAL BACKGROUND

         Liberally construing the pro se complaint, it sets out the following causes of action: (1) theft of past settlements or awards for medical benefits obtained for workers' compensation payments awards; (2) wrongful termination for refusing to sign documents and a check; and (3) intentional interference with advantageous business relations based upon defendant giving a “bad recommendation” or negative references. (Docket Entry # 1). Defendant moves for summary judgment on all of the claims in the complaint. (Docket Entry # 44).

         STANDARD OF REVIEW

         Summary judgment is designed “to ‘pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.” Tobin v. Fed. Express Corp., 775 F.3d 448, 450 (1st Cir. 2014) (internal citation omitted). It is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). It is inappropriate “if the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side.” Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014).

         “Genuine issues of fact are those that a factfinder could resolve in favor of the nonmovant, while material facts are those whose ‘existence or nonexistence has the potential to change the outcome of the suit.'” Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (quoting Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011)). The evidence is viewed “in the light most favorable to the non-moving party” and “all reasonable inferences” are drawn in his favor. Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). “Unsupported allegations and speculation, ” however, “do not demonstrate either entitlement to summary judgment or the existence of a genuine issue of material fact sufficient to defeat summary judgment.” Rivera-Colón v. Mills, 635 F.3d 9, 12 (1st Cir. 2011); see Serra v. Quantum Servicing, Corp., 747 F.3d 37, 39-40 (1st Cir. 2014) (“allegations of a merely speculative or conclusory nature are rightly disregarded”). Plaintiff's unsworn statements in his opposition (Docket Entry # 55) and an undated statement in the attached exhibits (Docket Entry # 55-1, p. 6) lack any indication that they are signed under pains and penalties or perjury. As such, they are not the equivalent of an affidavit or declaration within the meaning of Rule 56(c) and do not carry evidentiary weight in the summary judgment calculus. See Fragoso v. Lopez, 991 F.2d 878, 887 (1st Cir. 1993) (statements in opposition brief do not avoid summary judgment because “litigant ‘may not rest upon mere allegations in, say, an unverified complaint or lawyer's brief, but must produce evidence which would be admissible at trial to make out the requisite issue of material fact'”) (citations omitted). The documents filed as exhibits to plaintiff's opposition also include a May 2012 affidavit (Docket Entry # 55-1, pp. 71-72), which is considered part of the evidentiary record as are other documents in the exhibits with the exception of the above-noted, undated and unsworn statement (Docket Entry # 55-1, p. 6).

         Defendant filed a LR. 56.1 statement of undisputed facts. (Docket Entry # 46). Although plaintiff filed an opposition to the summary judgment motion, he did not include or otherwise file a LR. 56.1 response controverting, with page references to the record, the statement of facts in defendants' LR. 56.1 statement. See LR. 56.1. Uncontroverted statements of fact in the LR. 56.1 statement comprise part of the summary judgment record. See LR. 56.1; Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003) (plaintiff's failure to contest date in LR. 56.1 statement of material facts caused date to be admitted on summary judgment); Stonkus v. City of Brockton Sch. Dep't, 322 F.3d 97, 102 (1st Cir. 2003). Adhering to this framework, the record sets out the following facts.

         FACTUAL BACKGROUND

         A. Plaintiff's History

         Plaintiff was born in El Salvador on October 25, 1973 and entered “the United States without inspection on December 1st, 1998 through Phoenix, [Arizona].” (Docket Entry # 1-5, p. 12) (Docket Entry # 55-1, p. 71). At the time of his arrival, he was 25 years old and illiterate. (Docket Entry # 1-5, pp. 12-13) (Docket Entry # 55-1, p. 71). In 2001, plaintiff “applied for El Salvador Temporary Protect[ed] Status and” obtained an “Employment Authorization Card” and a social security card. (Docket Entry # 1-5, p. 12) (Docket Entry # 55-1, p. 71).

         Plaintiff was involved in two separate workplace accidents and received financial settlements for each workers' compensation claim submitted to or approved by the Massachusetts Department of Industrial Accidents. (Docket Entry # 55-1, pp. 22-23, 37-38). The first accident took place on August 11, 2006 at Metropolitan Cabinet Distributers Company, plaintiff's former employer. (Docket Entry # 1-5, p. 13) (Docket Entry # 2, p. 2) (Docket Entry # 55-1, pp. 22-23, 29-30). On May 26, 2009, plaintiff obtained a lump sum amount of $25, 000 adjusted to $17, 825 after deducting plaintiff's attorney's fees and expenses to a Boston law firm. (Docket Entry # 55-1, pp. 22-23, 26). The second accident took place on February 3, 2013 at State Garden, another former employer. (Docket Entry # 55-1, pp. 37-38, 77). Plaintiff began working at State Garden, located in Chelsea, Massachusetts, in November 2012. (Docket Entry # 55-1, p. 77). Represented by counsel, plaintiff received a lump sum amount of $3, 000 with no adjustment for deductions. (Docket Entry # 55-1, pp. 37-38). The settlement agreement identifies American Resources Staffing (“ARS”), a company associated with plaintiff's employment at State Garden, as plaintiff's employer. (Docket Entry # 55-1, pp. 37-39, 77).

         In the meantime, plaintiff received a letter dated February 23, 2012 from the Selective Service System (“SSS”) informing him of a failure to register and including a request for information.[2] (Docket Entry # 55-1, pp. 72, 75) (Docket Entry # 1-5, p. 7). After receiving additional letters from SSS dated March 22 and April 5, 2012, plaintiff responded with an affidavit dated May 12, 2012 to SSS stating that he did not know he was required to register when he arrived in the United States. (Docket Entry # 1-5, pp. 12-13) (Docket Entry # 55-1, pp. 71-75). In the affidavit, plaintiff states that he is not a “Legal Permanent Resident” and has been under “Temporary Protected Status since” June 2001. (Docket Entry # 55-1, p. 72). SSS responded by letter dated June 7, 2012 instructing plaintiff to “take the Status Information letter we sent to you previously, and this letter to the agency which administers the benefit you wish to receive” “which is contingent” on your registration with SSS. (Docket Entry # 55-1, p. 70) (Docket Entry # 1-5, p. 15).

         B. Plaintiff's Employment at Don ...


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