United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: DEFENDANT DON SHAPIRO
INCORPORATED'S MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY
MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE.
before this court is a motion for summary judgment filed by
defendant Don Shapiro Produce Company
(“defendant” or “the
company”). (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.
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
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).
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).
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.
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).
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).
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. (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.
Plaintiff's Employment at Don ...