May 07, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2165
MARIA DE LOS ANGELES-SANCHEZ,
Plaintiff, Appellant,
v.
CARLOS ALVARADO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Boudin, Circuit Judge.
Juan G. Nieves Cassas for appellant.
Carlos Lugo Fiol, Assistant Solicitor General, with whom Anabelle
Rodriguez, Solicitor General, and Reina Colon de Rodriguez, Deputy
Solicitor General, were on brief for appellee.
COFFIN, Senior Circuit Judge. This appeal arises from
plaintiff Maria Sanchez's claim that Omar Santiago sexually
harassed her and that their employer condoned his behavior. The
district court dismissed the suit as time-barred. We vacate and
remand.
I.
In 1988, Sanchez was employed at the Puerto Rico Electric
Power Authority (PREPA). She alleged that from September 1988
for a period of approximately two years, Santiago, a fellow PREPA
employee, harassed her sexually. The harassment included
invitations to dinner and to accompany Santiago to a motel, wolf
whistles, taunts, stalking, threats to harm her if Sanchez
complained of his behavior, and a threat against Sanchez's
boyfriend.
Sanchez lodged a number of complaints against Santiago. In
November 1988, Santiago met with his supervisor regarding
Sanchez's complaints. He denied any wrongdoing. Sanchez filed
complaints with the Equal Employment Opportunity Office (EEOC) of
PREPA in December 1988 and May 1989. In July 1989, an EEOC
officer allegedly attempted to persuade Sanchez to drop the
charges against Santiago and recommended that she confront
Santiago on her own. At some point in 1989, PREPA issued
Santiago a warning to desist his behavior.
Nonetheless, Santiago continued to harass Sanchez, and she
filed a third EEOC complaint in April 1990. A drawn-out
investigation followed. On July 2, 1990, Sanchez submitted a
letter of resignation, effective July 20. She stated that
Santiago's offensive behavior, compounded by PREPA's failure to
discipline him, forced her to resign. On July 18, 1990, Sanchez
met a final time with an EEOC officer. She left PREPA two days
later.
On July 17, 1991, Sanchez filed suit against Santiago and
various other employees of PREPA (collectively "defendants"),
alleging violations of Title VII of the Civil Rights Act of 1964,
42 U.S.C. 1983, and the Puerto Rico Civil Code.1 The basis
for the suit was the sexual harassment, condoned by PREPA, that
culminated in her constructive discharge.
Defendants moved on various grounds to dismiss the suit.
The motion was referred to a magistrate judge, who recommended
that the Title VII claim be dismissed for Sanchez's failure to
comply with administrative filing requirements and that the
remaining claims proceed as timely filed. Defendants objected to
the latter recommendation. The district court agreed with
defendants and dismissed the entire complaint. Sanchez appeals
only that portion of the order dismissing the section 1983 and
tort claims as time-barred.
II.
We review the dismissal of plaintiff's suit under the
summary judgment standard because the district court relied on
1 Sanchez's sister Teresa also sued, claiming emotional
distress damages incurred from supporting Sanchez through her
ordeal. She was not, however, designated as an appellant in the
notice to appeal. Accordingly, she is not a party to the present
appeal. Pontarelli v. Stone, 930 F.2d 104, 108 (1st Cir. 1991).
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material other than the pleadings to determine defendants' motion
to dismiss. The federal rules of civil procedure provide that,
on a motion to dismiss for failure to state a cause of action, if
"matters outside the pleading are presented to and not excluded
by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56 . . . ." Fed. R.
Civ. P. 12(b)(6). Defendants' motion to dismiss therefore was
converted to a motion for summary judgment.
Our review of summary judgment is plenary, and we read the
record in the light most favorable to the party contesting it.
Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993). We affirm
the decision below only if we are satisfied that there is no
genuine dispute of material fact and that defendants are entitled
to judgment as a matter of law. Advance Financial Corp. v. Isla
Rica Sales, Inc., 747 F.2d 21, 26 (1st Cir. 1984). We now
consider whether the district court erred in determining that
Sanchez's suit was time-barred as a matter of law.
The limitations period for a section 1983 claim is governed
by the law of the forum state. Wilson v. Garcia, 471 U.S. 261,
276, 280 (1985). In Puerto Rico, the applicable statute of
limitations is the one-year period established for tort actions.
P.R. Laws Ann., tit. 31, 5298(2); Torres v. Superintendent of
Police, 893 F.2d 404, 406 (1st Cir. 1990). Accordingly, to be
timely filed, Sanchez's section 1983 and tort claims must have
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accrued within one year of July 17, 1991, the date she filed
suit.
The district court found that Sanchez filed her suit late.
Because Sanchez based her resignation on PREPA's failure to
address her complaints against Santiago, the court concluded that
the limitations period began on the date she learned that PREPA
would not act and that this date was July 2, 1990, the date she
tendered her resignation. It thus ignored evidence in the record
of events following that date.
Sanchez argues that the district court erred in finding that
the limitations period commenced July 2. She contends that PREPA
continued to refuse to discipline Santiago after that date. From
1988 through the date of her departure, Sanchez met with officers
of PREPA several times to seek redress but failed, allegedly
because of PREPA's ongoing policy not to discipline an employee
affiliated with the Popular Democratic Party. Her last bid for
action occurred July 18. Sanchez therefore asserts that, because
PREPA's unlawful practice continued until she left, the
limitations period did not begin to run until July 20.
A claim alleging a violation that occurs over an extended
period is timely so long as some of the challenged acts fall
within the statutory period. See Bruno v. Western Electric Co.,
829 F.2d 957, 960 (10th Cir. 1987); Goldman v. Sears, Roebuck &
Co., 607 F.2d 1014, 1018 (1st Cir. 1979). This claim will not be
saved, however, if only the consequences of the alleged violation
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fall within the limitations period. De Leon Otero v. Rubero, 820
F.2d 18, 19 (1st Cir. 1987) (citations omitted).
We conclude that Sanchez has raised sufficient questions
regarding the continuation of PREPA's alleged violation to
preclude summary judgment for defendants at this preliminary
stage of the proceeding. After July 2, both Santiago's
supervisor and the director of human resources assured Sanchez's
supervisor that the investigation of her charges was still in
progress. Sanchez also met with the EEOC on July 18, in an
apparent last-ditch effort to determine whether relief could be
obtained. A factfinder could determine that these events
demonstrate foot-dragging by PREPA, consistent with Sanchez's
theory that it did not want to discipline Santiago, or that they
demonstrate that Sanchez could not be certain until after the
July 18 meeting that PREPA would not act. Based on this record,
we are persuaded that defendants have not shown that Sanchez's
suit is time-barred as a matter of law.2
Defendants rely heavily on Delaware State College v. Ricks,
449 U.S. 250, 257-58 (1980), to argue that Sanchez cannot
demonstrate a violation that continues past July 2. In our view,
however, this case is distinguishable from Ricks. The plaintiff
there was denied tenure in March 1974. Following its usual
practice, the college offered him a one-year terminal contract,
which expired in June 1975. In April 1975, Ricks filed a charge
2 Because we find that the district court was premature in
determining the accrual date of Sanchez's claims, we need not
discuss the issue of equitable tolling.
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of discrimination with the EEOC. The Supreme Court held that the
filing was not timely because Ricks's claim accrued from the date
of the alleged discriminatory action -- the denial of tenure --
not from the date of actual termination, which was merely "a
delayed, but inevitable, consequence" of the unlawful action.
Id. at 257-58.
The Court placed great emphasis on the finality and
certainty of the college's decision to deny tenure, noting that
it capped an "unbroken array of negative decisions." Id. at 262.
No subsequent action by Ricks alone could secure tenure or
prevent his eventual departure. We therefore understand Ricks to
require that a decision to terminate employment must be
"unequivocal, and communicated in a manner such that no
reasonable person could think there might be a retreat or change
in position prior to the termination." See Hoesterey v. City of
Cathedral City, 945 F.2d 317, 320 (9th Cir. 1991).
By contrast, the letter of resignation from Sanchez lacked
such finality. Although Sanchez submitted her resignation on
July 2, she reserved 18 days for it to take effect. This waiting
period reasonably could indicate, as Sanchez avers, that if PREPA
ended the hostile atmosphere forcing her departure, she might
rescind her resignation. Thus, until she actually left her
employment, her constructive discharge was not certain.
We emphasize that our decision expresses no view upon the
merits of Sanchez's claims. On remand, she still must prove that
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defendants refused to act and that they maintained this policy
during the limitations period.
Vacated and remanded. No costs.
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