Full opinion text
OPINION AND ORDER DANIEL R. DOMINGUEZ, District Judge. I. PROCEDURAL HISTORY The instant case involves claims of discrimination and failure to accommodate under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112 et seq., along with several claims arising under the laws of Puerto Rico, over which this Court exercises supplemental jurisdiction. Currently before the Court is Defendant’s Motion for Summary Judgment (Docket No. 36), filed on May 15, 2009, which Plaintiff opposed (Docket No. 45) on June 22, 2009. Subsequently, Defendants filed a reply to Plaintiffs opposition (Docket No. 48) on July 1, 2009 and Plaintiffs filed a sur-reply (Docket No. 54). Additionally, Defendants filed a motion to strike related to an exhibit submitted by Plaintiff in support of his opposition to the motion for summary judgment (Docket No. 50). The Court referred the instant motion to Magistrate Judge Bruce McGiverin on October 15, 2009 (Docket No. 56), and he entered a Report and Recommendation (Docket No. 59) on March 1, 2010. Plaintiff filed his objections (Docket No. 60) to the Report and Recommendation on March 8, 2010 and Defendant responded to these objections on March 18, 2010 (Docket No. 61). In his Report and Recommendation, the Magistrate Judge recommended that Defendant’s motion for summary judgment be granted as to the federal claims, and that the claims arising under the law of Puerto Rico be dismissed without prejudice. Specifically, the Magistrate Judge found that Plaintiff failed to make out a prima facie case of discrimination based on actual disability claim under the ADA as Plaintiff failed to show that he was substantially limited in any major life activity. Additionally, the Magistrate Judge found that Plaintiff failed to raise a claim based upon a theory that he was “regarded as” disabled until his opposition to the motion for summary judgement and, as a result, should be barred from arguing this claim. Further, the Magistrate Judge found that, even if Plaintiff had raised this theory previously, his claim bears no merit as it fails to meet the heightened level of specificity for a “regarded as” claim. Likewise, the Magistrate Judge found that Plaintiff raised his hostile work environment claim for the first time in his opposition and that, therefore, this claim should also not be entertained. The, Magistrate Judge further found that, even if the Court were to address this claim on the merits, the same should be dismissed as Plaintiff has not introduced sufficient evidence to establish that Defendant’s proffered reason for dismissing Plaintiff was pretextual. The Magistrate Judge also addressed Defendant’s motion to strike (Docket No. 50) in his Report and Recommendation. First, the Magistrate Judge concluded that Defendant’s argument that the Rivot Statement (“the Statement”) (Docket No. 45-3) should be stricken as a violation of the discovery rules under Rules 26(a) and 26(e) to be “misplaced” as the Statement did not exist during the discovery period. The Magistrate Judge also analyzed Defendant’s assertions that the Statement was a “sham affidavit” and ultimately recommended that the Court strike certain portions of the Statement that directly contradicted Plaintiffs previous deposition testimony. The Magistrate Judge particularly emphasized that Plaintiffs counsel failed to correct or clarify the previous deposition testimony and that the contradictory Statement was executed after Defendant had filed its motion for summary judgment. Finally, the Magistrate Judge analyzed Defendant’s arguments that portions of the Statement were hearsay, concluding that Defendant’s arguments were not meritorious. In Plaintiffs Objections to the Report and Recommendation (Docket No. 60), Plaintiff did not object to the Magistrate Judge’s determination that Plaintiff is not a disabled individual under the ADA. Thus, Plaintiff did not object to the Magistrate Judge’s recommendation that the Court dismiss his causes of action for harassment, discrimination based upon disability and his request for reasonable accommodation. Accordingly, Plaintiffs only objection is to the Magistrate Judge’s determination that Plaintiff failed to demonstrate that Defendant’s reasons for terminating Plaintiff were pretextual. In support of this objection, Plaintiff re-hashes the factual arguments which he previously made in opposition to the motion for summary judgment, concluding that he had, in fact, presented the Court with sufficient facts to find pretext and that, thus, the Magistrate Judge’s recommendation that the Court grant summary judgment on this claim was incorrect. In Defendant’s Opposition to Plaintiff’s Objections to the Report and Recommendation (Docket No. 61), Defendant first asserts that Plaintiffs objections relate solely to the Magistrate Judge’s factual and legal conclusions pertaining to Plaintiffs retaliatory discharge claim. Defendant then asserts that, as the Magistrate Judge found, the factual allegations propounded by Plaintiff are insufficient to raise any triable facts regarding the allegedly pretextual nature of the reason given for Plaintiffs dismissal. Specifically, Defendant argues that the close temporal proximity between the service of process in the instant case and his termination is insufficient to establish retaliatory animus. Further, Defendant asserts that Plaintiff failed to create a genuine issue of material fact regarding his failure to comply with Defendant’s attendance policy. Upon a thorough review of the record, the Court finds that the Magistrate’s findings of fact, as well as the conclusions drawn therefrom are correct. Accordingly, the Court hereby adopts and incorporates by reference the Magistrate’s Report and Recommendation in tato, GRANTING Defendant’s Motion for Summary Judgment. The Court elaborates below only in order to address the sole challenge to the excellent Report and Recommendation the claims of retaliation under the ADA made by Plaintiff. II. REFERRAL TO MAGISTRATE JUDGE The Court may refer dispositive motions to a United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See also Fed.R.CivP. 72(b); Local Rule 72(a); Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). An adversely affected party may contest the Magistrate’s Report and Recommendation by filing its objections. See Fed.R.CivP. 72(b). Moreover, 28 U.S.C. § 636(b)(1), in pertinent part, provides that [A]ny party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. “Absent objection, ... [a] district court ha[s] a right to assume that [the affected party] agree[s] to the magistrate’s recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.1985), cert denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985). Moreover, “failure to raise objections to the Report and Recommendation waives that party’s right to review in the district court and those claims not preserved by such objections are precluded upon appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir.1992); see also Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994) (holding that objections are required when challenging findings actually set out in a magistrate’s recommendation, as well as the magistrate’s failure to make additional findings); see also Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir.1993) (stating that “[o]bjection to a magistrate’s report preserves only those objections that are specified”); see also Borden v. Sec. of H.H.S., 836 F.2d 4, 6 (1st Cir.1987) (holding that appellant was entitled to a de novo review, “however he was not entitled to a de novo review of an argument never raised”). The Court, in order to accept the unopposed portions of the Magistrate Judge’s Report and Recommendation, needs only satisfy itself by ascertaining that there is no “plain error” on the face of the record. See Douglass v. United Servs. Auto, Ass’n, 79 F.3d 1415, 1419 (5th Cir.1996) (en banc Xextending the deferential “plain error” standard of review to the un-objected to legal conclusions of a magistrate judge); see also Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982) (en bane)(appeal from district court’s acceptance of un-objected to findings of magistrate judge reviewed for “plain error”); see also Nogueras-Cartagena v. United States, 172 F.Supp.2d 296, 305 (D.P.R.2001) (finding that the “Court reviews [unopposed] Magistrate’s Report and Recommendation to ascertain whether or not the Magistrate’s recommendation was clearly erroneous”)(adopting the Advisory Committee note regarding FED. R.CIV.P. 72(b)); see also Garcia v. I.N.S., 733 F.Supp. 1554, 1555 (M.D.Pa., 1990) (finding that “when no objections are filed, the 'district court need only review the record for plain error”). Because Plaintiff timely filed an opposition to the Magistrate’s Report and Recommendation, the Court will review de novo only the objected-to portions as the Court has already determined that the un-objected to portions of the Report and Recommendation do not contain any “plain error.” III. SUMMARY JUDGMENT Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be entered where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 324-325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Pursuant to the clear language of the rule, the moving party bears a two-fold burden: it must show that there is “no genuine issue as to any material facts;” as well as that it is “entitled to judgment as a matter of law.” Vega-Rodriguez v. Puerto Rico, 110 F.3d 174, 179 (1st Cir.1997). A fact is “material” where it has the potential to change the outcome of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “genuine” where a reasonable jury could return a verdict for the nonmoving party based on the evidence. Id. Thus, it is well settled that “the mere existence of a scintilla of evidence” is insufficient to defeat a properly supported motion for summary judgment. Id. After the moving party meets this burden, the onus shifts to the non-moving party to show that there still exists “a trial worthy issue as to some material facts.” Cortes-Irizarry v. Corporacion Insular, 111 F.3d 184, 187 (1st Cir.1997). At the summary judgment stage, the trial court examines the record “in the light most flattering to the non-movant and indulges in all reasonable references in that party’s favor. Only if the record, viewed in this manner and without regard to credibility determinations, reveals no genuine issue as to any material fact may the court enter summary judgment.” Cadle Co. v. Hayes, 116 F.3d 957, 959-60 (1st Cir.1997). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Summary judgment is inappropriate where there are issues of motive and intent as related to material facts. See Poller v. Columbia Broad. Sys., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (summary judgment is to be issued “sparingly” in litigation “where motive and intent play leading roles”); see also Pullman-Standard v. Swint, 456 U.S. 273, 288, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (“findings as to design, motive and intent with which men act [are] peculiarly factual issues for the trier of fact.”); see also Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir.2000) (finding that “determinations of motive and intent ... are questions better suited for the jury”). Conversely, summary judgment is appropriate where the nonmoving party rests solely upon “conclusory allegations, improbable inferences and unsupported speculation.” Ayala- Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 97 (1st Cir.1996). IV. FACTUAL BACKGROUND When analyzing a motion for summary judgment, the Court must view the facts in the light most favorable to the non-moving party. See Cadle Co., 116 F.3d at 959-60. The Court will not consider hearsay statements nor allegations presented by parties that do not properly provide specific reference to the record. See L.CrvR. 56(e)(“The [Cjourt may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment. The [Cjourt shall have no independent duty to search or consider any part of the record not specifically referenced.”); see also A.C. Orssleffs EFTF, 246 F.3d at 33 (finding that, where a party fails to buttress factual issues with proper record citations, judgment against that party may be appropriate); see also Garside v. Osco Drug, 895 F.2d 46, 50 (1st Cir.1990) (“Hearsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment.”). Here, neither party has objected to the Magistrate Judge’s findings of fact; rather, Plaintiff only opposes the Magistrate Judge’s application of fact to the standard for retaliation and the conclusions which the Magistrate Judge reached upon a review of the facts as applied to this standard. Accordingly, and after a review of parties’ filings in comparison with the Magistrate Judge’s Report and Recommendation, the Court finds that the Magistrate Judge’s account of the facts is accurate. Thus, rather than repeating the lengthy set of facts that pertain to the instant case in their entirety, the Court hereby adopts and incorporates by reference the Magistrate Judge’s exhaustive findings of fact in toto, noting particularly that they remain unchallenged. Y. ADA CLAIMS Under the Americans with Disabilities Act, employers are generally prohibited from discriminating against qualified persons with disabilities in the workplace. See 42 U.S.C. § 12112(a). Specifically, the statute provides that employers shall not “discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... discharge of employees and other terms, conditions, and privileges of employment.” Id. For the purposes of interpreting this statute, “discriminate” includes an employer’s failure to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C. § 12112(b)(5)(A). The statutory meaning of “disability” under the ADA is “(1) a physical or mental impairment that substantially limits one or more of a person’s major life activities; (2) a record of having such an impairment; or (3) being regarded as having such an impairment.” Sanchez-Figueroa v. Banco Popular de P.R., 527 F.3d 209, 214 (1st Cir.2008). The actual “existence of a disability [must] be determined in ... a case-by-case manner” for the purposes of fulfilling the requirements of the first definition of “disability” under the ADA. Toyota, 534 U.S. at 198, 122 S.Ct. 681. Accordingly, “[w]hether a person has a disability under the ADA is an individualized inquiry.” Bailey v. Georgia-Pacific Corp., 306 F.3d at 1167 (internal quotations omitted). The Supreme Court has established that having an impairment is, in itself, insufficient to warrant protection under the ADA. Toyota, 534 U.S. at 198, 122 S.Ct. 681. A plaintiff must also show that the impairment has a substantial effect on a major life activity. Id. Accordingly, evidence of an impairment which is supported only with a medical diagnosis or conclusory assertions of disability by a physician are insufficient to show disability for the purposes of the ADA. See id; Whitlock v. Mac-Gray, Inc., 345 F.3d 44, 46 (1st Cir.2003) (citing Toyota, 534 U.S. at 198, 122 S.Ct. 681). Rather, a plaintiff must submit “evidence that the extent of the limitation caused by [her] impairment in terms of [her] own experience is substantial.” Toyota, 534 U.S. at 198, 122 S.Ct. 681. “A substantial limitation cannot include any impairment which interferes in only a minor way with the performance of manual tasks, and the phrase major life activities refers only to those activities which are of central importance to daily life.” Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 176 (1st Cir.2003). Although working may be considered a major life activity, in order to be considered disabled, plaintiff must show that she is “precluded from more than the performance of a particular job.” Guzman-Rosario v. United Parcel Service, Inc., 397 F.3d 6, 11 (1st Cir.2005). Rather, plaintiff must make the “weighty showing” that she “is significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” Bailey, 306 F.3d at 1168 (quoting 29 C.F.R. § 1630.2(j)(3)(i))(internal quotation omitted). In order to fulfill the requirements of the second definition of “disability” under the ADA, plaintiff must show that she has a “record” of “disability,” which is defined as having a “history of, or [having] been misclassified as having, an impairment that substantially limit[s] a major life activity.” Id. at 1169. The Supreme Court has stated that there are two ways in which a plaintiff may fulfill the statutory requirement for being “regarded as” having an impairment where he can not fulfill the requirements of either the first or the second definitions of “disability.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). Either “(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.” Id. Accordingly, “A plaintiff claiming that he is regarded as disabled cannot merely show that his employer perceived him as somehow disabled; rather, he must prove that the employer regarded him as disabled within the meaning of the ADA.” Bailey, 306 F.3d at 1169. Thus, [i]n order to establish a [discrimination] claim under the ADA, a plaintiff must prove the following three elements by a preponderance of the evidence: first, that she is disabled within the meaning of the ADA ... second, that with or without reasonable accommodation she was a qualified individual able to perform the essential functions of the job; and third, that the employer discharged her because of her disability. Mulloy v. Acushnet Co., 460 F.3d 141, 145—46 (1st Cir.2006) (internal quotations and citations omitted)(emphasis ours). Where, as here, a plaintiff can not prove this prima facie case directly, McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817, provides the plaintiff an opportunity to prove his case indirectly. See Jacques, 96 F.3d at 511. Under the McDonnell Douglas framework, a plaintiff must first prove by the preponderance of the evidence that he or she (i) has a disability within the meaning of the Act; (ii) is qualified to perform the essential functions of the job, with or without reasonable accommodations; (iii) was subject to an adverse employment action by a company subject to the Act; (iv) was replaced by a non-disabled person or was treated less favorably than non-disabled employees; and (v) suffered damages as a result. Jacques, 96 F.3d at 511 (emphasis ours); see also Orta-Castro v. Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105, 111 (1st Cir.2006). When opposing a properly supported motion for summary judgment, a plaintiff bears the burden of establishing each of the elements of the ADA prima facie case of discrimination, including the existence of disability. See Bailey, 306 F.3d at 1166. As in the ADA discrimination claim outlined above, the prima facie case of failure to accommodate under the ADA requires that the plaintiff show that she is a qualified individual with a disability under the meaning of the ADA. OrtaCastro, 447 F.3d at 112. Further, a plaintiff must show that the employer knew of the plaintiffs limitations and failed to accommodate them. Id. Finally, the employer’s failure to accommodate must have affected the terms, conditions or privileges of the plaintiffs employment. Id. Thus, the requirement of “disability” is paramount under both the discrimination and failure to accommodate claims created by the Act. In the instant case, Plaintiff has not objected to the Magistrate Judge’s findings that his claims of discrimination based upon actual disability, discrimination based upon a finding that Plaintiff was “regarded as” disabled, failure to accommodate, and hostile work environment do not bear genuine issues of material fact and should be dismissed. Thus, the Court reviews the Magistrate Judge’s findings and conclusions as to these claims for plain error. First, as to Plaintiffs claim of discrimination based upon actual disability and the related failure to accommodate claim, the Court finds that the Magistrate Judge was correct when he found that Plaintiff neither alleged nor supported a finding of disability as he did not allege or show that he was substantially limited in any of the three life activities identified in his amended complaint. Thus, the Court adopts and incorporates the Magistrate Judge’s decision to GRANT Defendant’s motion for summary judgment as to Plaintiffs claims of discrimination based upon actual disability and failure to accommodate said disability. See supra n. 2. Additionally, upon a review of the filings in the instant case, the Court agrees with the Magistrate Judge’s determination that Plaintiff raised his “regarded as” claim for the first time in his opposition to the motion for summary judgment, despite being granted the opportunity to amend his complaint in the instant case. As this violates the principle that a defendant possesses an “inalienable right to know in advance the nature of the cause of action being asserted against him,” the Court agrees with the Magistrate Judge’s determination that Plaintiff may not argue this new theory at this late hour. See Ruiz Rivera v. Pfizer Parms., LLC, 521 F.3d 76, 84 (1st Cir.2008) (internal quotation omitted). Further, the Court agrees with the Magistrate’s determination that Plaintiff, even in this late attempt to raise a “regarded as” claim, has failed to cite any evidence relevant to the issue of whether Defendant regarded Plaintiff as disabled. Thus, the Court adopts the Magistrate Judge’s Report and Recommendation as to Plaintiffs “regarded as” claim and DISMISSES this claim. See supra n. 2. The Court now turns to Plaintiffs hostile work environment claim. Upon a review of the relevant filings in the instant case, the Court agrees with the Magistrate Judge’s determination that Plaintiff made no citations to the record to bolster his bald hostile work environment claims. Accordingly, the Court agrees with the Magistrate Judge’s determination that “[t]his is insufficient to defeat summary judgment and violates Local Rule 56(e).” See Matias-Cardona v. Verizon Wireless P.R., Inc., 610 F.Supp.2d 157, 170 (D.P.R.2009). The Court therefore finds that summary judgment as to Plaintiffs hostile work environment claim is appropriate under the Local Rules and First Circuit case law. See L.Crv.R. 56(e)(“The [Cjourt may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment. The [Cjourt shall have no independent duty to search or consider any part of the record not specifically referenced.”); see also Morales v. A.C. Orssleffs EFTF, 246 F.3d 32, 33 (1st Cir.2001) (finding that, where a party fails to buttress factual issues with proper record citations, judgment against that party may be appropriate). Accordingly the Court hereby GRANTS Defendant’s motion to dismiss as to Plaintiffs hostile work environment claim. See supra n. 2. VI. RETALIATION UNDER THE ADA The ADA contains an anti-retaliation clause which states that “[njo person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge ... under this chapter.” 42 U.S.C. § 12203(a). In order to set forth a prima facie case of retaliation under the ADA, the “plaintiff must show: (1) that he engaged in protected conduct, (2) that he suffered an adverse employment action, and (3) that there was a causal connection between the protected conduct and the adverse employment action.” Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 35 (1st Cir.2010). Once a plaintiff makes this prima facie showing “of retaliation, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment decision.” Id. at 36 (internal quotation omitted). The First Circuit has clarified that “[tjhe [defendant] employer’s burden is one of production [or articulation], not persuasion.” Id. (internal quotation omitted). Thus, once the “employer produces a legitimate reason for its decision,” the burden shall shift back to the plaintiff to “show that the motive was” retaliatory. Id. (internal quotation omitted). “Thus, the plaintiff bears the ultimate burden to create a plausible inference that the employer had a retaliatory motive.” Id. As Plaintiff only opposes certain of the Magistrate Judge’s conclusions drawn from the undisputed facts of the instant case, the Court shall focus its inquiry on the disputed portions of the Magistrate Judge’s analysis. Plaintiff does not dispute the Magistrate Judge’s finding that he presented a prima facie showing of retaliation. Thus, upon review of the Magistrate Judge’s findings, as well as the record, the Court finds that Plaintiff has made the “small showing” necessary to shift the burden to Defendant to articulate a legitimate and non-retaliatory reason for its employment decision. See Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003); see also Calero-Cerezo v. U.S. Dept. of Justice, 355 F.3d 6, 26 (1st Cir.2004). Specifically, the Court wholly agrees with the Magistrate Judge’s determination that Plaintiff presented a prima facie case of retaliation by termination for filing his complaint in the instant case as the time period between service of process and Plaintiffs termination was sufficiently short to raise an inference of causation. Accordingly, the Court’s inquiry next focuses on whether Defendant has discharged the burden which shifted to it following Plaintiffs showing of a prima facie case of retaliation. Defendant’s burden is simply to “articulate a legitimate, nondiscriminatory reason for its employment decision.” Carreras, 596 F.3d at 35. Here, Defendant has established that Plaintiff failed to contact his supervisor during an absence from work which spanned the time period between March 24 and 28, 2008 and that this failure to contact his supervisor directly contravened Defendant’s policies. Defendant further claims that Plaintiff failed to bring a medical certificate to the dispensary upon his return to work. Ultimately, Defendant’s overarching argument is that it dismissed Plaintiff as the result of Plaintiffs progressive discipline, which was based on Plaintiffs previous reprimands, performance reviews and his failure to contact his supervisor when he was absent from work between March 24 and 28, 2008. Defendant asserts that Plaintiffs termination was the result of the previous disciplinary actions against him, in combination with Plaintiffs failure to follow Defendant’s policy by contacting his supervisor during his absence. Although Plaintiff attempts to argue that material issues of fact exist as to whether the nurse represented to Plaintiff that she would tell Plaintiffs supervisor that Plaintiff was unable to work, this line of argument falls flat. Defendant does not emphasize Plaintiffs failure to notify his supervisor merely to establish that the supervisor had no knowledge that Plaintiff was unable to work due to his alleged injury; rather, Defendant points to Plaintiffs failure to properly notify his supervisor of the injury himself as the final event that led to Defendant’s discharge of Plaintiff. Thus, Plaintiff has not established a genuine issue of material fact relating to this step of the Court’s analysis and, accordingly, the burden must shift back to Plaintiff to demonstrate that Defendant’s proffered reason for termination was merely pretext for discrimination. See Calero-Cerezo, 355 F.3d at 26; see also Mesnick v. General Elec. Co., 950 F.2d 816, 827 (1st Cir.1991). Plaintiff contests the Magistrate Judge’s findings that Defendant’s proffered reasons for his termination were pretextual. Plaintiff cites the assertion that he had previously never been disciplined for failing to contact his supervisor when he was unable to report to work, as well as the temporal proximity between the filing of the complaint in the instant case and his termination as his primary evidence of pretext. Plaintiff also argues once again that Defendant failed to hold a meeting with Plaintiff prior to terminating his employment, in contravention of its own policies. As well noted by the Magistrate Judge, the Court should find that an employer’s failure to follow its own internal policies is per se insufficient to show pretext; rather, Plaintiff must show that he was treated differently. See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 346 (5th Cir.2007) (reaching this conclusion in a Title VII context). Further, the Court should not find that, where an employee establishes that he has not been previously disciplined for contacting nurses, rather than his supervisor, during previous absences, pretext for retaliation exists. See id.; see also Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 858-59 n. 7 (1st Cir.2008). The Court can not draw from Plaintiffs arguments and supporting evidence a sufficiently plausible inference of retaliatory motive to discharge Plaintiffs burden. Accordingly, the Court finds that Plaintiff has not met his burden of demonstrating that Defendant’s proffered reason for Plaintiffs dismissal was pretextual. Ultimately, the Court must find that Plaintiff has not met its final burden of showing that brevis disposition is not appropriate as to his claim of retaliation. Therefore, the Court GRANTS Defendant’s motion for summary judgment as to Plaintiffs claim of retaliation. VII. STATE LAW CLAIMS Finally, the Court dismisses without prejudice Plaintiffs supplemental state law claims, arising under the laws of Puerto Rico. See Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir.1995) (finding that dismissal of supplemental state-law claims is appropriate where there is an “unfavorable disposition of a plaintiffs federal claims” before trial). VIII. CONCLUSION For the reasons stated above, the Court hereby GRANTS DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT. Accordingly all Plaintiffs’ federal claims are hereby DISMISSED WITH PREJUDICE The Court also DISMISSES WITHOUT PREJUDICE Plaintiffs supplemental state law claims arising under the laws of Puerto Rico. Judgment shall be entered accordingly. IT IS SO ORDERED. REPORT AND RECOMMENDATION BRUCE J. McGIVERIN, United States Magistrate Judge. Plaintiff William RivoNSánchez (“Rivot” or “plaintiff’) brings this action against Warner Chileott Company, Inc. (‘WC” or “defendant”) for damages arising under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, and related claims under Puerto Rico law. Defendant filed a motion for summary judgment as to all claims (Docket No. 36), plaintiff opposed (Docket No. 45), defendant replied (Docket No. 48), and plaintiff filed a surreply (Docket No. 54). The presiding district judge referred the summary judgment motion and related motions, including defendant’s associated motion to strike (Docket No. 50), to me for a report and recommendation. (Docket No. 56). For the reasons that follow, I recommend that defendant’s unopposed motion to strike be granted in part and denied in part. I further recommend that defendant’s motion for summary judgment be granted as to all claims under both federal and Puerto Rico law. I. FACTUAL BACKGROUND The following material facts, which will be viewed in the light most favorable to plaintiff as the nonmoving party, are either undisputed or conclusively supported by the evidentiary record except where otherwise noted. A. Warner Chileott Company Defendant Warner Chileott Company manufactures products including oral contraceptives. (Dockets No. 36-2, ¶ 4; 36-9, ¶ 7). The two stages of production, manufacturing and packaging, are performed in separate buildings by different groups of employees. (Dockets No. 36-2, ¶ 4; 36-9, ¶¶7-8). Manufacturing employees work with active product, including hormones. (Dockets No. 36-2, ¶ 5; 36-9, ¶8). The Packaging Department is a two-floor building consisting of conveyor belts, packaging lines, printing and punching machines, and a separate room where employees package oral contraceptive pills in their final form. (Dockets No. 36-2, ¶¶ 5-6; 36-6, p. 8-14; 36-9, ¶ 8). B. Plaintiffs Employment with Warner Chilcott Plaintiff Rivot began working for Pfizer Pharmaceuticals LLC on May 28, 2002, as a cleaner at Pfizer’s plant in Fajardo, Puerto Rico. (Dockets No. 36-2, ¶¶ 1, 3; 36-4, p. 1; 36-5, p. 39; 45-3, ¶ 3). During his pre-employment medical exam with Pfizer, Rivot was preliminarily diagnosed with hepatitis C by Dr. Roberto López, Pfizer’s plant physician at the time. Pfizer hired plaintiff as a regular employee despite the diagnosis. (Dockets No. 36-2, ¶ 2; 36-5, p. 37; 45-3, ¶ 4). In 2002 plaintiff was asymptomatic and could walk, see, talk, hear, work, perform household chores, breathe, perform manual tasks, eat, sleep, and drive his motorcycle. (Dockets No. 36-2, ¶ 2; 36-5, p. 38, 41-44). WC became plaintiffs successor employer when it acquired Pfizer’s Fajardo plant on June 1, 2004. (Dockets No. 36-2, ¶ 1; 36-9, ¶ 4; 45-3, ¶ 3). At all relevant times, plaintiff held the position of Cleaner and was assigned to work in the plant’s packaging area, where his immediate supervisor was Elia Claudio, Packaging Supervisor. (Dockets No. 36-2, ¶¶ 3, 7; 36-5, p. 15-17, 20; 36-8, ¶¶ 6-7; 36-9, ¶ 6). Plaintiff was also supervised by Rafael Rosa and William Cortés. (Docket No. 36-8, ¶ 7). Plaintiffs job as a cleaner included, inter alia, the following essential functions: (1) gathering and disposing of trash; (2) cleaning the floors, walls, and ceilings of the packaging areas and offices; (3) performing all other duties assigned by his supervisor; and (4) performing all his assigned duties in a manner consistent with WC’s standard operating procedures (“SOPs”). (Dockets No. 36-2, ¶ 8; 36-11, § III; 43-3, § III). According to his own deposition testimony and affidavit, as a cleaner, plaintiff was responsible for gathering, shredding, and disposing of unused printed cardboard, packages, foils, and other waste from the machines in the Packaging Department. He was assigned to shred waste during his entire tenure as a cleaner, both under Pfizer and under Claudio after WC took over. (Dockets No. 36-2, ¶ 8; 36-5, p. 5-13; 45-3, ¶¶ 9, 37, 48). Plaintiff also collected, shredded, and disposed of protective disposable “uniforms” on orders from his supervisor. (Dockets No. 36-2, ¶ 19; 36-6, p. 13-20; 45, ¶ 5; 45-3, ¶¶ 8-9). These garments are worn by employees working with hormones in the “controlled” areas of the Packaging Department; the employees leave the controlled areas through an “air lock” where they remove the protective garments and place the garments into trash bags before exiting into non-controlled areas. (Dockets No. 36-2, ¶ 18; 36-6, p. 13-20; 36-9, ¶ 9). The air lock has negative air pressure that keeps out contamination from the controlled area, thus allowing employees to enter and exit controlled areas without risk of exposure. (Dockets No. 36-2, ¶ 18; 36-9, ¶ 9). The controlled area and air lock area were installed in the Packaging Department in or around December 2006. (Dockets No. 36-2, ¶ 18; 36-9, ¶ 9). C. Plaintiffs Hepatitis C Condition; First Leave of Absence Plaintiff testified that after diagnosing plaintiff with hepatitis C in 2002, Dr. López informed plaintiff that plaintiff could not be exposed to the hormones used in oral contraceptives such as those produced in the plant, as such exposure would have a negative impact on his hepatitis C condition. (Dockets No. 45, ¶3; 45-3, ¶ 5; 45-4, p. 20-22). According to plaintiff, Dr. López explained to him the different functions and duties that he could and could not perform, including the avoidance of any contact with hormones. (Dockets No. 45, ¶ 3; 45-3, ¶ 5; 45-4, p. 20-22). Plaintiff testified that Dr. López ordered plaintiff not to be exposed to the active products for the hormones, work in the conveyer line for packaging oral contraceptive pills, or handle products contaminated with hormones. (Dockets No. 45, ¶ 4; 45-3, ¶ 6; 45-4, p. 20-22). On June 16, 2003, plaintiff began a nine-month course of medical treatment for hepatitis C with Dr. Evelio Bravo Fernández (“Bravo”), using PEG-Intron, ribavirin, and folic acid. (Dockets No. 36-2, ¶ 9; 36-5, p. 45-47, 51; 36-12, p. 2-5). During treatment, plaintiff could see, hear, talk, breathe, eat, and sleep, but could not work, take care of himself, or perform manual tasks. (Dockets No. 36-2, ¶ 10; 36-5, p. 47-51; 45-3, ¶ 10). According to Dr. Bravo, although plaintiff suffered from incapacitating depression during the treatment as a result of the PEG-Intron and ribavirin, plaintiffs hepatitis C was not incapacitating and plaintiff was not limited, nor did he complain of being limited, in his daily life activities, such as sitting, standing, walking, performing manual tasks, talking, hearing, and seeing. (Dockets No. 36-2, ¶ 11; 36-12, p. 6-8; 45-6, p. 2-3). Dr. Bravo testified that during his treatment of plaintiff, from June 16, 2003 until June 19, 2008, he never instructed plaintiff to avoid being exposed to any-specific product or substance due to his hepatitis C condition. (Dockets No. 36-2, ¶ 13; 36-12, p. 9-10). On or around September 3, 2003, plaintiff expressed concern to Dr. López about how exposure to oral contraceptive hormones could affect his liver condition. (Dockets No. 36-2, ¶ 12; Docket No. 36-13, p. 1). Shortly thereafter, plaintiff took a leave of absence for medical treatment from September 8, 2003 until May 25, 2004, related to his hepatitis C condition and severe depression. (Dockets No. 36-2, ¶ 12; 36-6, p. 26; 36-14, ¶ 4; 45, ¶ 16). Upon stopping treatment, he was able to work, care for himself, dress himself, and see, hear, talk, breathe, and eat normally. After finishing the treatment, he was depressed due to his work situation, and he experienced trouble sleeping due to his depression. Plaintiff testified that he had had trouble sleeping prior to his hepatitis C problems and that the trouble returned after the work-related depression began. Plaintiff was treated with antidepressants to help him sleep. His sleeping problem, which he did not suffer from while receiving the treatment, was that he would wake up continually during the night, approximately every two hours, then be tired come morning. (Docket No. 36-6, p. 4-8). The transition from Pfizer to WC was complete by the time plaintiff returned from leave. (Dockets No. 45, ¶¶ 9-10; 45-3, ¶ 34). On or around May 25, 2004, Dr. Carlos Robles Mora (“Dr. Robles”), WC’s plant physician, evaluated plaintiff and cleared him to return to work. (Dockets No. 36-2, ¶ 15; 36-6, p. 26; 36-14, ¶ 5). During the evaluation, plaintiff indicated that he felt fine, that he had no limitations to perform his regular duties, and that he did not desire any accommodation. (Dockets No. 36-2, ¶ 15; 36-14, ¶ 5, p. 4). Plaintiff reported to work under Claudio and was given his normal job functions. (Dockets No. 36-6, p. 26; 45, ¶ 12; 45-3, ¶ 36). Plaintiff explained to Claudio about his medical condition, and also explained to her what Dr. López had told him regarding exposure to hormones. Plaintiff requested gloves and a mask in order to perform his functions and duties, but WC never gave him any protective disposable clothing. (Dockets No. 45, ¶¶ 11-12, 14, 20; 45-3, ¶¶ 35, 38, 43; 45-4, p. 27). On April 1, 2005, plaintiff received his performance evaluation for the year 2004. He was advised that he needed to improve his attendance. (Dockets No. 36-2, ¶ 16; 36-5, p. 20-24; 36-15, p. 4; 45-3, ¶57). Plaintiff claims that he did not have an “attendance problem” as his absenteeism in the year 2004 was justified by his medical leave of absence. (Docket No. 45, ¶ 16). Plaintiffs supervisors during the year 2004 were Claudio and Rosa, primarily Claudio. (Docket No. 36-5, p. 21). On September 15, 2006, plaintiff received his performance evaluation for the year 2005; he was advised that he needed to improve in several areas, such as his attendance, his productivity, his initiative, and the quality of his work. (Dockets No. 36-2, ¶ 17; 36-5, p. 24-26; 36-16, p. 2-4; 45-3, ¶ 57). Rosa was plaintiffs supervisor during the entire year 2005. (Docket No. 36-5, p. 24). D. Plaintiffs Additional Duty After Installation of the Air Lock Area After the December 2006 installation of the air lock and controlled areas in the Packaging Department, Claudio assigned plaintiff to enter the air lock area to gather and dispose of the bags of discarded uniforms, though he did not enter the controlled area past the air lock. Plaintiff was not provided protective equipment despite his numerous requests. (Dockets No. 36-2, ¶¶ 18-19; 36-6, p. 16-25; 45, ¶ 23; 45-3, ¶¶ 9, 46). According to plaintiff, this task was not within his functions and duties. (Dockets No. 36-6, p. 25; 45-3, ¶ 14). He was the only employee assigned to work in the air lock area, without any type of protective equipment. (Docket No. 45-3, ¶ 44). Although no one at WC ever told him that he was exposed to hormones in the air lock area, plaintiff believed, based on the dust he observed on the air lock’s floor, that the air lock was contaminated with hormones. Plaintiff reached this conclusion because the employees wore their uniforms into the air lock area from the controlled rooms, where their uniforms had gotten covered with pill particulate and other materials related to the packaging and manufacturing process, and left the discarded uniforms in open plastic bags in the air lock area. (Dockets No. 36-2, ¶¶ 19-20; 36-6, p. 23-29; 45-3, ¶¶ 8, 13, 15). Plaintiff alleges that his assignment to collect the uniforms from the air lock, along with operating the shredder, increased his exposure to hormones. (Docket No. 45-3, ¶¶ 19, 63). Plaintiff did not have any health problems or complications due to the hepatitis C condition prior to being assigned to the collection of the disposable uniforms, but afterward he started to develop rashes between his legs and allergies. (Dockets No. 45, ¶ 16; 45-3, ¶40; 48-5, p. 2). Over time, plaintiffs hepatitis C condition continued to deteriorate, so he had to take several prolonged medical leaves for treatment. (Dockets No. 45, ¶ 33; 45-3, ¶ 52). Plaintiff informed WC that when he was off work on medical leave, he did not suffer from any respiratory problems or blisters on his legs, but that the problems started again once he reported back to work and was assigned the collection and disposal of the uniforms and the shredder machine. (Docket No. 45-3, ¶ 53). Plaintiff requested from Claudio and Rubén Lugo López (“Lugo”), WC’s Human Resources Director (Docket No. 36-9, ¶ 1), not to be assigned to the collection of the allegedly contaminated used disposable uniforms; not to have to gather those uniforms in the air lock area; not to be assigned to the operation of the shredding machine; to be relocated to another position; for a uniform, mask and gloves in order to perform his functions and duties; and for time off and medical leave in order to receive treatment for hepatitis C and depression. (Dockets No. 45, ¶¶ 17, 26, 27, 42; 45-3, ¶¶41, 61; 45-4, p. 27, 30-33, 36). Plaintiff told Claudio and Lugo that he could not operate the shredder due to hormone exposure from the pill packaging, since he was suffering from rashes on his legs. (Dockets No. 45, ¶ 26; 45-3, ¶ 49). Plaintiff also told Claudio that José Betancourt, a night-shift maintenance employee, could have disposed of the discarded uniforms from the air lock area and operated the shredder machine, but WC did not assign Betancourt those duties despite plaintiffs request. (Dockets No. 45, ¶¶ 19, 42; 45-3, ¶¶ 42, 61; 45-4, p. 37-38). Plaintiff on numerous occasions told Claudio and Lugo that they could contact his private general practitioner, Dr. Francisco Rovira Martino (“Dr. Rovira”), to explore reasonable accommodation alternatives, but WC never met with plaintiff or his doctors to discuss his condition, accommodation requests, or alternatives, and never contacted Dr. Rovira. (Dockets No. 45, ¶¶ 27, 35; 45-3, ¶¶ 42, 54). Dr. Rovira told plaintiff he could not be exposed to hormones and must ask WC for relocation to another position and duties unrelated to hormone exposure. (Dockets No. 45, ¶; 45-3, ¶ 30). Dr. Rovira testified that he recalled recommending relocation to another area in forms WC had sent to him regarding plaintiff. (Dockets No. 45, ¶¶ 5-6; 45-3, ¶ 31; 45-7, p. 2-3). Plaintiff verbally requested Claudio to exempt him from entering the air lock area to gather the bags containing the uniforms; Claudio told him he had no problem going inside the air lock and getting the bags. (Dockets No. 36-2, ¶ 19; 36-6, p. 23; 45-3, ¶14). Plaintiff then went to Dr. Robles and WC’s nurses about the air lock issue; after that, WC granted plaintiffs request and he no longer had to enter the air lock area. Instead, thereafter, the bags containing the uniforms began to be placed outside the air lock area. Plaintiff was required to gather those bags from the non-controlled room outside the air lock and take them to a disposition area for destruction. (Dockets No. 36-2, ¶ 21; 36-6, p. 29-31, 32-35). According to plaintiff, placing the bags outside of the air lock area was in contravention of WC’s SOPs. (Dockets No. 36-6, p. 35; 45-3, ¶ 16). E. Plaintiffs Disciplinary Warnings On February 6, 2007, plaintiff received a written reprimand for clocking in outside of his lunch period on January 31, 2007, and again on February 2, 2007, thus incurring unauthorized overtime. He signed the reprimand and was advised that any further violations of WC’s policies and procedures could result in severe disciplinary actions, including termination of employment. (Dockets No. 36-2, ¶ 22; 36-5, p. 27-35; 36-18, p. 1). According to plaintiff, these incidents were inadvertent, as he was unfamiliar with the new time card system. He explained the mistake to Claudio and requested that she correct his time card, but instead Claudio issued the reprimand. (Dockets No. 36-5, p. 27-35; 45-3, ¶ 17). On June 6, 2007, plaintiff was issued a second written reprimand for insubordination due to his refusal the previous day to gather the bags containing uniforms which were placed outside the air lock area. The reprimand reminded plaintiff that he did not work in areas exposed to contraceptives; that handling the bags did not represent any exposure to hormones, inasmuch as he was not entering any controlled areas to perform his duty; and that he could use gloves and masks if he so preferred. He was again advised that further violations could result in more severe disciplinary actions including termination. (Dockets No. 36-2, ¶ 23; 36-6, p. 21-22, 34-37; 36-17, p. 1; 43-7, p. 1; 45, ¶ 43; 45-3, ¶ 62). Plaintiff met with Claudio and Lugo to discuss the second reprimand. He tried to explain his health concerns about picking up the uniforms, and declined to sign the reprimand. (Docket No. 36-6, p. 37-41). Lugo told plaintiff during the meeting that if plaintiff had a problem with his liver, then he could not continue working at WC, since everything at WC was hormones. (Dockets No. 36-6, p. 48-49; 45, ¶39; 45-3, ¶58; 45-5, p. 18, 21). F. Plaintiffs Discrimination Complaints; Second Leave of Absence Plaintiff went to WC’s management to complain about alleged discrimination. (Docket No. 45-5, p. 12). According to plaintiff, he complained to Rosa that he had made several requests for reasonable accommodation, and that WC had done nothing with regard to his complaint. (Dockets No. 45, ¶ 45; 45-5, p. 12-13). Namely, plaintiff stated that he complained to Rosa that the area where he was working was a bad place for him to work but no one else had been assigned in his place, and he complained about working with the shredder machine and about his rash. (Docket No. 45-5, p. 13). Nothing happened as a result of the complaint to Rosa. (Docket No. 45-5, p. 13, 16-17). Plaintiff stated that he also complained to Ruth Torres, WC’s Occupational Nurse, about his working conditions and his rash. (Dockets No. 36-2, ¶ 33; 45-5, p. 14). According to plaintiff, Rosa, after seeing plaintiff talking with a coworker in the back of the Packaging Department, threatened to fire plaintiff if he continued to catch him talking and not doing anything. (Dockets No. 45, ¶49; 45-5, p. 13, 16-17). Plaintiff also stated that Claudio told him that he was at WC to do whatever she said, whenever she said it, and that on one occasion Claudio pushed him aside while coming down the stairs where plaintiff was cleaning and threatened to give plaintiff more work. (Docket No. 45-5, p. 17-20). Plaintiff further stated that Lugo, Claudio, and Dr. Robles knew about plaintiffs situation and his complaints but took no action. (Dockets No. 45, ¶ 45; 45-5, p. 15). WC never conducted any type of investigation regarding plaintiffs complaints of harassment and discrimination. (Dockets No. 45, ¶ 46; 45-3, ¶ 65). Plaintiff left WC on a leave of absence from June 11, 2007 until March 4, 2008. (Dockets No. 36-2, ¶ 24; 36-14, ¶ 6, p. 7). During his leave, on August 13, 2007, he received treatment for a mental and emotional condition through the State Insurance Fund. (Dockets No. 45, ¶ 44; 45-3, ¶ 63; 45-9, p. 1). On June 18, 2007, plaintiff filed a discrimination charge with the Puerto Rico Anti-Discrimination Unit (“ADU”) and the Equal Employment Opportunity Commission (“EEOC”) for alleged disability discrimination and retaliation. (Dockets No. 36-2, ¶ 25; 36-5, p. 2-5; 36-19, p. 1; 45, ¶ 47; 45-3, ¶ 66). On December 5, 2007, plaintiff filed the original complaint in the instant case. (Dockets No. 1; 45, ¶ 52; 45-3, ¶ 71). On or around January 9, 2008, plaintiff verbally complained to Dr. Robles that when he shredded discarded “blister” packages, at times, the packages were not empty but contained oral contraceptive pills. Plaintiff also complained that the other leftovers from the packaging area which he shredded were contaminated with hormones. (Dockets No. 36-2, ¶ 26; 36-14, ¶ 7; 45, ¶ 26; 45-5, p. 14). On the same date, Dr. Robles asked Maria Ortiz, former Industrial Hygienist at WC, and Viginia Buzó, Safety Specialist, to perform a risk analysis of the packaging area where the shredding of empty blister packages was performed in order to determine whether any possible exposure to hormones was within the limits of the occupational exposure level (“OEL”). (Dockets No. 36-2, ¶ 27; 36-14, ¶ 8). After sampling and testing the packaging area where empty blister packages were shredded, WC concluded that when plaintiff shredded empty blister packages in the packaging area, the exposure level to hormones was significantly below the established OEL. Thus, WC concluded that plaintiff was not in danger of any expected health risks from shredding the blister packages. (Dockets No. 36-2, ¶ 29; 36-14, ¶¶ 10-11). G. Plaintiffs March 2008 Absence and Termination Plaintiff returned to work from his leave of absence on March 4, 2008. (Dockets No. 36-2, ¶ 31; 36-14, ¶ 6, p. 10, 18). On March 24, 2008, plaintiff called in to WC’s dispensary around 10:00 and informed nurse Torres that he would be absent from work, as he had allegedly suffered an accident at home the previous Saturday, March 22, 2008 and would be absent for four or five days. (Dockets No. 36-2, ¶ 33; 36-6, p. 42-43; 36-9, ¶ 11; 36-22, p. 1; 36-23, p. 1; 37-3, p. 1; 43-12, p. 1; 43-13, p. 1; 45-3, ¶ 24). According to plaintiff, during the phone call with Torres, plaintiff explained everything that had happened to him, the pain he felt, and where he felt it. Also according to plaintiff, Torres recommended that plaintiff go to the doctor immediately and spoke with him while plaintiff was driving to the doctor. (Dockets No. 45, ¶ 33; 45-3, ¶ 24; 45-5, p. 2-3). According to plaintiff, Torres told plaintiff that she would contact his supervisor, Claudio, and inform Claudio about the accident plaintiff had just suffered. (Dockets No. 45, ¶ 33; 45-3, ¶ 24; 45-5, p. 3-4). Torres called Cortés, another of plaintiffs supervisors, the same day (March 24, 2008) to tell him that plaintiff had been absent from work that day due to his alleged accident. (Dockets No. 36-22, p. 1; 43-12, p. 1). Plaintiff alleges that on previous occasions, when he was going to be absent due to medical reasons, he would contact the dispensary nurses to inform them of his absence and the approximate duration thereof; the nurses would then contact his supervisors to pass on this information. He would not notify the nurses or his supervisor daily during these absences, but on his return or as soon as possible thereafter, he would provide WC a medical certificate either through the dispensary nurses or his supervisor. He was not disciplined for doing this. During several such absences, Claudio had contacted plaintiff to inquire about his health condition and the date he would report back to work. (Dockets No. 45-3, ¶¶ 22, 28; 45-5, p. 4). Pursuant to WC’s attendance policies, upon an absence employees must communicate, on a daily basis, with their immediate supervisor and must bring a medical certificate to WC’s medical dispensary for any absence exceeding two work days. Plaintiff received a copy of these policies and acknowledged the receipt on May 14, 2007. (Dockets No. 36-2, ¶ 32; 36-5, p. 18-20; 36-9, ¶ 10; 36-20; 36-21). The evidence is inconclusive as to whether or not Torres told plaintiff to contact his supervisor about his absence. Plaintiff stated both during his deposition and in a sworn affidavit that Torres never told plaintiff that he must contact Claudio to explain what had happened, as Torres had told plaintiff she would do so. (Dockets No. 45, ¶ 33; 45-3, ¶24; 45-5, p. 3-4). However, according to plaintiffs termination letter from Lugo, dated March 28, 2008, plaintiff was advised during his call with Torres that it was his duty to contact his supervisor regarding his absence, pursuant to WC’s policy. (Dockets No. 36-23, p. 1; 43-13, p. 1). It is undisputed that during the period between March 24, 2008 and March 28, 2008, plaintiff at no time contacted his immediate supervisor regarding his absence from work. (Dockets No. 36-2, ¶ 34; 36-6, p. 42-44; 36-9, ¶ 12; 36-22, p. 1; 45-5, p. 6). On March 28, 2008, plaintiff showed up at the security guard station at WC’s premises to receive his paycheck in order to be able to pay for his x-ray results and obtain a medical certificate. (Dockets No. 36-2, ¶ 35; 36-9, ¶ 13; 45, ¶ 33; 45-3, ¶ 25; 45-5, p. 6-11). To request his paycheck, plaintiff met with Eric Betancourt, one of WC’s human resources officials. (Dockets No. 45, ¶ 33; 45-3, ¶ 26; 45-5, p. 8-11). Plaintiff states that he told Betancourt about his accident, recounted his phone call to Torres and that Torres had told him she would tell Claudio about his accident and four-to five-day absence, and told Betancourt that he needed his paycheck in order to pay for his x-ray results, medicine, and medical certificate, and that the doctor needed the x-ray before preparing and issuing a medical certificate. (Dockets No. 45, ¶ 33; 45-3, ¶ 26; 45-5, p. 9-10). Plaintiff informed Betancourt that plaintiff was going to return to WC with the x-ray results later on, and also showed him his bruised rib cage area. (Dockets No. 45, ¶ 33; 45-3, ¶26; 45-5, p. 9). At that time, Betancourt did not inform plaintiff that he had been terminated. (Dockets No. 45, ¶33; 45-3, ¶26). Plaintiff then left WC’s premises without communicating with his supervisor. (Dockets No. 36-2, ¶ 35; 36-9, ¶ 13). The parties dispute whether plaintiff returned later the same day with the x-ray results and medical certificate, or whether his return visit was on March 31, 2008. According to plaintiffs deposition testimony and affidavit, plaintiff made a second visit to WC on March 28, 2008, and showed his x-ray results and medical certificate to Betancourt. Plaintiff testified that he tried to provide Betancourt with a copy of the x-ray results, but that Betancourt told him he did not want to touch the x-ray results. (Dockets No. 45, ¶ 33; 45-3, ¶ 26; 45-5, p. 9-11). Plaintiff stated in his deposition testimony that he then left the WC premises and did not go back. (Docket No. 45-5, p. 11). Defendant contends that plaintiff did not attempt to file any medical certificate with WC on March 28, 2008, but rather on March 31, 2008, after plaintiff had already been terminated. (Docket No. 48, ¶ 33, n. 4). Defendant bases this contention on Dr. Rovira’s medical certificate for plaintiff, which is dated March 31, 2008 (see Docket No. 37-3, p. 1), and on the deposition testimony of Dr. Rovira that he issued plaintiffs medical certificate on March 31, 2008. (Docket No. 37-2, p. 7). Also on March 28, 2008, Cortés e-mailed Lugo to inform him of the call he had received from Torres on March 24, 2008, regarding plaintiffs absence the day of the call. Cortés noted that as of March 28, 2008, plaintiff had not contacted Cortés nor sent a medical certificate that covered his absence, per company policy. Cortés commented that the situation was causing an operational problem in the Packaging Department as Cortés had to reassign other workers to cover plaintiffs tasks. (Dockets No. 36-22, p. 1; 43-12, p. 1). Finally, on the same date, March 28, 2008, after learning of plaintiffs visit to WC that morning, Lugo sent plaintiff a letter terminating his employment for what WC considered job abandonment in violation of its attendance policies. The letter noted that plaintiff had never contacted his supervisor regarding his absence and stated that WC’s decision took into consideration not only plaintiffs violation of WC’s rules regarding absences but also his prior discipline. (Dockets No. 36-2, ¶ 35; 36-6, p. 45; 36-9, ¶¶ 13-14; 36-22, p. 1; 36-23, p. 1; 43-13, p. 1; 45, ¶ 53; 45-3, ¶¶ 27, 72). After plaintiffs discharge, plaintiff alleges, Betancourt sent defendant’s officers an official e-mail stating that if an employee was absent, the supervisors must hold a meeting with the employee and a human resources officer to inquire about the employee’s reasons for absence, and stating that no disciplinary action could be taken against the employee before such a meeting. (Docket No. 45, ¶