Labor Watch



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Fiddler González & Rodríguez, P.S.C., P.O. Box 363507, San Juan, PR 00936-3507. Our fax (787) 759-3108.


We welcome your questions and comments.

José J. Santiago



Carlos A. Padilla



Antonio L. García



Edgardo Barreto







On August 27, 2013, the Puerto Rico Supreme Court issued a significant decision regarding the correct interpretation of Rule 36 of the 2009 Rules of Civil Procedure. This holding should be useful to employers and their attorneys in disposing of claims through summary judgment, instead of having to bear the expense of a trial hearing.


In José J. Zapata Berríos v. JF Montalvo Cash & Carry, Inc. 2013 TSPR 95, the plaintiff was dismissed as part of a reorganization that was made necessary due to a significant reduction in company sales. The Plaintiff filed a claim of unjust dismissal under Puerto Rico Act No. 80 of May 30, 1976. The Company filed a Motion for Summary Judgment which was accepted by the Court of First Instance, but rejected by the Appeals Court. The Employer appealed to the Supreme Court, which ruled in its favor.


The Supreme Court held that the Plaintiff had failed to adequately challenge the Employer's Motion for Summary Judgment. The Employer had submitted 12 proposed statements of un-contradicted material facts in support of its contention that Plaintiff's termination was for just cause under Act 80. Under the provisions of Rule 36, the Plaintiff was required to submit challenges to the Employer's statements of un-contradicted material facts pointing out which specific statements were being challenged and the admissible evidence supporting said challenge. The Plaintiff failed to do so and violated the requirements of Rule 36. Instead, the Plaintiff submitted five statements that it alleged contradicted the Employer's case. However, two of those alleged contradictions were based on an affidavit signed by the Plaintiff which contradicted his own prior testimony at his deposition. In the affidavit, the Plaintiff claimed that the Employer had paid productivity bonuses to some employees after his termination and that it had hired a substitute for his position.


The Supreme Court rejected Plaintiff's contentions and adopted the federal "sham affidavit doctrine", which holds that "...a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party's earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity."Carolyn C. Cleveland v. Policy Management Systems Corporations,, 526 US 795, 806 (1999) (Citations omitted). The Court held that the Plaintiff had not effectively contravened the Employer's 12 proposed statements of un-contradicted material facts and therefore, those statements were admitted as such, including the fact that no one had been hired to substitute the Plaintiff and it dismissed the Plaintiff's claim regarding payment of bonuses.


In this case FGR was able to obtain an excellent result for our client, JF Montalvo Cash & Carry, Inc.


The Labor Law Group at Fiddler González & Rodríguez, P.S.C., will issue the FGR LABOR WATCH with information of legal issues and developments in areas of interest to our friends and clients. If you know anyone who would like to receive the FGR LABOR WATCH, please feel free to forward this newsletter. For more information about any matter raised in this Labor Watch, please contact your usual FGR labor lawyer or José A. Silva Cofresí at

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