Lopez-Santos et al v. Metropolitan Security Services, d/b/a Walden Security
Filing
52
OPINION AND ORDER re 36 Motion for Summary Judgment; and re 41 Memorandum in Opposition to Motion. Walden's motion for summary judgment is GRANTED (Docket No. 36) and Lopez's and Domena's action is DISMISSED WITH PREJUDICE. Judgment shall be entered accordingly. Consequently, Lopez's and Domena's motion for summary judgment (Docket No. 41) is MOOT. Signed by Judge Francisco A. Besosa on 06/14/2018. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
RAFAEL LÓPEZ-SANTOS,
and ERASMO DOMENA-RÍOS,
Plaintiffs,
v.
Civil No. 16-2071(FAB)
METROPOLITAN SECURITY
SERVICES, INC. d/b/a WALDEN
SECURITY,
Defendant.
OPINION AND ORDER
BESOSA, District Judge.
Before
the
Court
are
defendant
Metropolitan
Security
Services, Inc. d/b/a Walden Security (“Walden”)’s and plaintiffs
Rafael López-Santos (“López”) and Erasmo Domena-Ríos (“Domena”)
(collectively, “plaintiffs”)’s cross-motions for summary judgment
filed pursuant to Federal Rule of Civil Procedure 56 (“Rule 56”).
(Docket Nos. 36 & 41.)
For the reasons set forth below, the Court
GRANTS Walden’s motion for summary judgment (Docket No. 36.)
Accordingly,
plaintiffs’
motion
for
summary
judgment
(Docket
No. 41) is rendered moot.
I.
Background
The following facts are deemed admitted by both parties
pursuant to Local Rule 56.
Loc. Rule 56(e); P.R. Am. Ins. Co. v.
Civil No. 16-2071 (FAB)
Rivera-Vázquez,
September
2015,
603
2
F.3d
the
125,
United
130-31
States
(1st
Marshals
Cir.
2010). 1
Service
In
(“USMS”)
awarded Walden a contract to provide security services for the
federal courthouses in the District of Puerto Rico.
No. 37, Ex. 1 at pp. 2-3.)
(Docket
The contract, drafted by the USMS,
requires Walden to furnish the courthouses with non-commercial,
armed security
guard
Officers (“CSOs”).
The
contract
candidates.
services
in
the
form
of
Court
Security
Id. at p. 2; Docket No. 37, Ex. 2 at p. 2.
establishes
the
minimum
qualifications
(Docket No. 37, Ex. 2 at pp. 16-17.)
for
CSO
According to
the contract,
each individual designated to perform as a CSO [shall]
ha[ve] successfully completed or graduated from a
certified Federal, state, county, local or military law
enforcement training academy or program that provided
instruction on the use of police powers in an armed
1 Local Rule 56 governs the factual assertions made by both parties in the
context of summary judgment. Loc. Rule 56; Hernández v. Philip Morris USA,
Inc., 486 F.3d 1, 7 (1st Cir. 2007). The Rule “relieve[s] the district court
of any responsibility to ferret through the record to discern whether any
material fact is genuinely in dispute.” CMI Capital Market Inv. v. GonzálezToro, 520 F.3d 58, 62 (1st Cir. 2008). The movant must submit factual assertions
in “a separate, short, and concise statement of material facts, set forth in
numbered paragraphs.” Loc. Rule 56(b). The nonmovant must “admit, deny, or
qualify the facts supporting the motion for summary judgment by reference to
each numbered paragraph of the moving party’s statement of facts.” Loc. Rule
56(c). The movant may reply and admit, deny, or qualify the opponent’s newlystated facts in a separate statement and by reference to each numbered
paragraph.
Loc. Rule 56(d).
Facts which are properly supported “shall be
deemed admitted unless properly controverted.” Loc. Rule 56(e); P.R. Am. Ins.
Co., 603 F.3d 125, 130 (1st Cir. 2010). Here, the parties agree that “there is
no genuine dispute as to any material fact” in this case. See Fed. R. Civ. P.
56(a); Docket No. 39, Ex. 1 at p. 1 (“Plaintiff agrees with all of the facts
presented by the defendant.”); Docket No. 47 at pp. 1-2. Because there are no
material facts in dispute, the Court evaluates López’s and Domena’s claims “as
a matter of law” to determine the availability of remedies for López and Domena
pursuant to Law 80. See Fed. R. Civ. P. 56(a).
Civil No. 16-2071 (FAB)
3
capacity while dealing with the public. The certificate
shall be recognized by a Federal, state, county, local
or military authority, and provide evidence that an
individual is eligible for employment as a law
enforcement officer. In cases where a CSO applicant did
not receive a certificate, the Contractor shall provide
a signed statement from a supervisory official of the
department or agency indicating an applicant was
employed as a law enforcement officer and that no
certificate or diploma was issued. The statement shall
include all dates of employment the individual served in
a law enforcement capacity. The Contractor shall also
include a copy of the signed statement with the CSO
application.
Id. at p. 16.
In October 2015, Walden hosted town hall meetings for the
CSOs of the predecessor contractor, Akal Security, Inc. (“Akal”),
to provide Akal’s CSOs with “the opportunity to meet Walden’s team,
learn about the company, its benefits, [and] training, and complete
employment applications.”
(Docket No. 37, Ex. 1 at p. 3.)
and Domena worked as CSOs for Akal.
pp. 14-15, 17.)
López
(Docket No. 39, Ex. 2 at
Walden offered employment to all of Akal’s CSOs,
including López and Domena, provided that each candidate met the
contract’s qualification requirements.
(Docket No. 37, Ex. 1 at
p. 3.)
Though López and Domena submitted employment applications to
serve as CSOs for Walden, neither López nor Domena had “completed
or graduated from a certified Federal, state, county, local or
military law enforcement training academy or program that provided
Civil No. 16-2071 (FAB)
4
instruction on the use of police powers in an armed capacity while
dealing with the public,” as required by the contract.
(Docket
No. 37, Ex. 1 at p. 4; see Docket No. 37, Ex. 2 at p. 16.) 2
Consequently, the Vice President of Walden’s Federal Services
Division notified López and Domena that they were ineligible for
Walden’s
CSO
positions
certificate requirement.
because
they
failed
to
satisfy
(Docket No. 37, Ex. 1 at p. 4.) 3
the
López
2 López and Domena had worked as CSOs for the District of Puerto Rico for over
thirty-two (32) years, from 1983 to 2015. (Docket No. 39, Ex. 2 at pp. 14-15,
17.) They “were part of the original group of thirteen (13) employees” hired
as CSOs in Puerto Rico, and they maintained their positions over the course of
numerous changes in contractors, despite their lack of certificates. (Docket
No. 39, Ex. 2 at pp. 6-7, 19-20, 36-37, 57-67.) Indeed, López and Domena worked
for a total of six (6) contractors during the thirty-two (32) year period, and
no contractor before Walden had challenged the sufficiency López’s or Domena’s
qualifications due to their lack of certificates. (Docket No. 39, Ex. 2 at
pp. 6-7, 10, 19-20.)
3
The contract allows CSO candidates without certificates to waive the
certificate requirement with a signed statement from the USMS indicating that
the “applicant was employed as a law enforcement officer and that no certificate
or diploma was issued.” (Docket No. 37, Ex. 2 at p. 16.) The USMS waiver,
however, is only available upon the contractor’s request. Id. Throughout López
and Domena’s thirty-two (32) years as CSOs, “both plaintiffs attended numerous
trainings” related to their CSO duties and received many commendations and
special assignments as a result of their “exemplary performance, experience and
dedication on duty.” (Docket No. 39, Ex. 1 at pp. 2-3; Docket No. 39, Ex. 2 at
p. 86; see Docket No. 39, Ex. 2 at pp. 72-84, 88-89.) After Walden’s Federal
Services Division notified López and Domena of their ineligibility for the
failure to satisfy the certificate requirement, Walden’s site supervisor, former
Chief Judge Aida M. Delgado-Colón, and Judge Carmen Consuelo Cerezo urged the
USMS to waive the certificate requirement for López and Domena because of their
long history of excellent service. (Docket No. 39, Ex. 2 at pp. 97-99; Docket
No. 48, Ex. 1 at pp. 3-4, 6-8, 15-16.) In accord with the contract, the USMS
responded that only “Walden may ask the USMS” for a waiver of the requirement.
(Docket No. 39, Ex. 2 at p. 101.) The USMS explained that “CSOs are employees
of the vendor, not the USMS, so please keep in mind that the USMS will not reach
out to the vendor to waive any requirements.” Id. Notwithstanding López’s and
Domena’s impeccable records and the unwavering support for their candidacy, the
USMS declined to take action to help retain these experienced CSOs and Walden
refused to request waivers from the USMS. (Docket No. 39, Ex. 2 at pp. 13132.)
Civil No. 16-2071 (FAB)
5
and Domena were later informed that their services would no longer
be required as of December 1, 2015.
(Docket No. 37, Exs. 6 & 7;
Docket No. 39, Ex. 2 at p. 26.) 4
In June 2016, López and Domena commenced this action seeking
“statutory separation pay” pursuant to Puerto Rico Law 80 (“Law
80”).
(Docket No. 1 at p. 1; see P.R. Laws Ann. tit. 29, § 185.)
In November 2017, Walden moved for summary judgment to dismiss
López and Domena’s claims.
(Docket No. 36.)
Two weeks later,
López and Domena opposed Walden’s motion and filed a cross-motion
for summary judgement.
II.
(Docket No. 41.)
Jurisdiction
The Court has jurisdiction over this civil action pursuant to
28 U.S.C. § 1332(a)(1) because the dispute is between citizens of
different states and the matter in controversy exceeds $75,000,
exclusive of interest and costs.
See 28 U.S.C. § 1332(a).
III. Discussion
A.
Standard of Review
A court will grant summary judgment if “there is no
genuine dispute as to any material fact and the movant is entitled
4
Walden’s failure to request waivers for López and Domena despite their
outstanding records creates an appearance of impropriety and being unfair.
Walden’s actions suggest that Walden was interested in replacing the two highly
experienced CSOs with new recruits at lower salaries.
Cf. Docket No. 41 at
p. 3 (“Walden, rather, was intent on substituting these two long-term employees
with new recruits, whose salaries, presumably, would be lower that [sic] those
paid to the plaintiffs.”).
Civil No. 16-2071 (FAB)
6
to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
“A
dispute is genuine if the evidence about the fact is such that a
reasonable jury could resolve the point in the favor of the nonmoving party.
A fact is material if it has the potential of
determining the outcome of the litigation.”
Dunn v. Trs. of Bos.
Univ., 761 F.3d 63, 68 (1st Cir. 2014) (internal citation omitted).
The
role
of
summary
judgment
is
to
“pierce
the
boilerplate of the pleadings and assay the parties’ proof in order
to determine whether trial is actually required.”
Tobin v. Fed.
Exp. Corp., 775 F.3d 448, 450 (1st Cir. 2014) (internal citation
omitted).
The party moving for summary judgment has the initial
burden of “demonstrat[ing] the absence of a genuine issue of
material fact” with definite and competent evidence. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986); Maldonado-Denis v. CastilloRodríguez, 23 F.3d 576, 581 (1st Cir. 1994).
The movant must
identify “portions of ‘the pleadings, depositions, answers to
interrogatories,
and
admissions
on
file,
affidavits, if any’” which support its motion.
together
with
the
Celotex, 477 U.S.
at 323 (citing Fed. R. Civ. P. 56(c)).
Once a properly supported motion has been presented, the
burden shifts to the nonmovant “to demonstrate that a trier of
fact reasonably could find in [its] favor.”
Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000)
Civil No. 16-2071 (FAB)
7
(internal citation omitted).
“When the nonmovant bears the burden
of proof on a particular issue, [he or] she [or it] can thwart
summary judgment only by identifying competent evidence in the
record sufficient to create a jury question.”
450-51.
Tobin, 775 F.3d at
A court draws all reasonable inferences from the record
in the light most favorable to the nonmovant, but it disregards
unsupported and conclusory allegations.
McGrath v. Tavares, 757
F.3d 20, 25 (1st Cir. 2014).
When parties file cross-motions for summary judgment, a
court
must
“consider
each
motion
separately,
drawing
inferences in favor of each non-moving party in turn.”
all
AJC Int’l,
Inc. v. Triple-S Propiedad, 790 F.3d 1, 3 (1st Cir. 2015) (quoting
D & H Therapy Assocs., LLC v. Bos. Mut. Life Ins. Co., 640 F.3d
27, 34 (1st Cir. 2011)).
not
alter
the
summary
“Cross-motions for summary judgment do
judgment
standard,
but
instead
simply
‘require [the Court] to determine whether either of the parties
deserves judgment as a matter of law on the facts that are not
disputed.’”
Wells Real Estate Inv. Tr. II, Inc. v. Chardón/Hato
Rey P’ship, 615 F.3d 45, 51 (1st Cir. 2010) (quoting Adria Int’l
Grp., Inc. v. Ferré Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001)).
B.
Applicable Law
The Court applies Puerto Rico labor law to this diversity
suit.
See Quality Cleaning Prod. R.C., Inc. v. SCA Tissue N. Am.,
Civil No. 16-2071 (FAB)
8
LLC, 794 F.3d 200, 204 (1st Cir. 2015) (“Federal courts sitting in
diversity apply the substantive law of the state and, pursuant to
statute,
Puerto
purposes.”).
Rico
is
treated
as
a
state
for
diversity
Law 80 provides a statutory remedy for the wrongful
discharge of employees with indeterminate terms.
P.R. Laws Ann.
tit. 29, § 185; see Alvarado-Rivera v. Oriental Bank & Tr., 914 F.
Supp. 2d 198, 202 (D.P.R. 2012) (García-Gregory, J.) (citing Hoyos
v. Telecorp Commc’ns., Inc., 488 F.3d 1, 6 (1st Cir. 2007)).
Law
80 offers relief to “[e]very employee in commerce, industry, or
any other business or work place . . . in which he/she works for
compensation of any kind, contracted without a fixed term, who is
discharged from his/her employment without just cause.”
P.R. Laws
Ann. tit. 29, § 185(a). 5
C.
Walden’s Motion for Summary Judgment
Walden moves for summary judgment claiming that López
and Domena “never became Walden’s employees” and thus are not
entitled to remedies pursuant to Law 80.
(Docket No. 36 at p. 2.)
Walden contends that Law 80 protections apply exclusively to
employer-employee
relationships,
with
the
exception
of
the
safeguards provided in Article 6 of Law 80 (“Article 6”), which
involve the transfer of an acquired business.
5
See id. at pp. 5-
Law 80 defines “just cause” and “discharge” in Articles 2 and 5, respectively.
See P.R. Laws Ann. tit. 29, § 185(b), (e).
Civil No. 16-2071 (FAB)
6.
9
Walden asserts that, because this case does not involve a
business acquisition and Walden had no employment relationship
with López or Domena, “Law 80 is inapposite.”
p. 2; see id. at pp. 7-10.)
(Docket No. 47 at
The Court agrees.
Walden never served as López’s or Domena’s employer and
therefore, Law 80 is inapplicable to their claims.
Ann. tit. 29, § 185(a)-(n); Hoyos, 488 F.3d at 6.
See P.R. Laws
Pursuant to
Law 80, an “employer” is
any natural or juridical person that employs or allows
any employee to work for compensation. This term does
not include the Government of Puerto Rico and each one
of the three branches thereof, its departments,
agencies, instrumentalities, pubic corporations, and
municipal
governments
as
well
as
municipal
instrumentalities or corporations. It does not include
the Government of the United States of America either.
Id. at § 185(n)(g). 6
Law 80 defines “employee” as
any person who works for an employer and receives
compensation for his services. The term does not include
independent
contractors,
government
employees,
employees
covered
under
a
collective
bargaining
agreement in effect, or employees who work under a
temporary employment contract for a fixed term or
project.
Id. at § 185(n)(e). 7
Walden.
López and Domena were never employees of
See Docket No. 37, Ex. 1 at p. 4.
Indeed, López and
6 Law 80 provides definitions in Article 14.
Laws Ann. tit. 29, § 185(n). The
official translation of Article 14, however, is only available as a slip law.
P.R. Act No. 4 (2017), http://www.oslpr.org/v2/LeyesPopUpEn.aspx?yr=2017. The
Court refers to the official translation as provided by the slip law. See id.
7
See supra note 6.
Civil No. 16-2071 (FAB)
10
Domena do not dispute this fact.
(Docket No. 39, Ex. 1 at p. 14.)
Accordingly, Law 80 cannot offer relief to López and Domena.
López
considered
unavailing.
a
and
Domena’s
“successor
argument
employer”
that
pursuant
(Docket No. 41 at p. 14.)
Walden
to
should
Article
6
be
is
Article 6 states, in
relevant part:
In the case of transfer of a going business, if . . . .
the new acquirer chooses not to continue with the
services of all or any employees and hence does not
become their employer, the former employer shall be
liable for the compensation provided herein, and the
purchaser shall retain the corresponding amount from the
selling price stipulated with respect to the business.
In case he discharges them without good cause after the
transfer, the new owner shall be liable for any benefit
which may accrue under §§ 185a [through] 185m of this
title to the employee laid off.
P.R. Laws Ann. tit. 29, § 185(f) (emphasis added).
In the context
of Article 6, “successorship describes a situation where one entity
has succeeded another in the ownership of a business.”
Rodríguez
v. Exec. Airlines, Inc., 180 F. Supp. 3d 129, 134-35 (D.P.R. 2016)
(Delgado-Hernández, J.) (emphasis added).
Here, it is undisputed
that a business was not transferred between Akal and Walden.
Docket No. 37, Ex. 1 at p. 2.
See
Rather, the USMS awarded a contract
to Walden after choosing not to renew or extend Akal’s contract.
Id.
Walden is therefore not a “successor” pursuant to Article 6.
See Alvarado-Rivera, 914 F. Supp. 2d at 204 (“In determining
whether a company is a successor, one must focus on whether the
Civil No. 16-2071 (FAB)
11
new company ‘acquired substantial assets of its predecessor and
continued,
without
interruption
of
substantial
predecessor’s business operations.’”). 8
change,
the
Accordingly, the Court
GRANTS Walden’s motion for summary judgment (Docket No. 36).
IV.
Conclusion
For the reasons set forth above, Walden’s motion for summary
judgment is GRANTED (Docket No. 36) and López and Domena’s action
is
DISMISSED
accordingly.
WITH
PREJUDICE.
Judgment
shall
be
entered
Consequently, López and Domena’s motion for summary
judgment (Docket No. 41) is moot.
IT IS SO ORDERED.
San Juan, Puerto Rico, June 14, 2018.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
8 López and Domena assert arguments pertaining to Executive Order 13495 on the
“Nondisplacement of Qualified Workers Under Service Contracts.” (Docket No. 41
at pp. 10-11.) The Court need not address these arguments because López and
Domena only claim relief pursuant to Law 80. See Docket No. 1.
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