United States Court of Appeals
For the First Circuit
No. 00-1309
ZOILO VELAZQUEZ-RIVERA,
Plaintiff, Appellant,
v.
RICHARD J. DANZIG, SECRETARY OF THE NAVY,
ISRAEL PAGAN, DIRECTOR OF HUMAN RESOURCES OFFICE,
EFRAIN FELICIANO, PEDRO AYALA, AND BIENVENIDO BURGOS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Boudin, Circuit Judge.
Gino Negretti-Lavergne for appellant.
Lilliam Mendoza-Toro, Assistant U.S. Attorney, with whom
Guillermo Gil, United States Attorney, and Miguel A. Fernandez,
Assistant U.S. Attorney, were on brief for appellee.
December 19, 2000
COFFIN, Senior Circuit Judge. This appeal caps an
elongated, unhappy saga leading up to and including the
termination of appellant's employment by the U.S. Navy in
Vieques, Puerto Rico. Appellant, a civilian Navy firefighter,
brought suit in federal court against the Secretary of the Navy,
and his former superiors at Roosevelt Roads Naval Station in
Ceiba, Puerto Rico, and on the nearby island of Vieques.1 After
a history of injuries sustained by appellant and various efforts
to accommodate him in a more restricted capacity, the Navy
finally terminated his employment.
Appellant alleged, as the district court interpreted
the complaint, violations of the Rehabilitation Act, 29 U.S.C.
§§ 702-794(a), the Age Discrimination in Employment Act (ADEA),
29 U.S.C. § 633a(c), Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-16(c), and 42 U.S.C. § 1983 (due process
rights). Also included were invocations of the federal
Constitution and certain labor laws of Puerto Rico. The
gravamen of the claims involved discriminatory action based on
disability, age, and retaliation.
1 The named defendants are Richard J. Danzig, Secretary
of the Navy; Ismael Pagan, Director of Human Resources at
Roosevelt Roads Naval Air Station (RRNAS), Ceiba, Puerto Rico;
Efrain Feliciano, Supervisor of the Fire Fighting Department
of RRNAS; Bienvenido Burgos, Fire Chief, Air Operations, Fire
Division of RRNAS; and Pedro Ayala, Lead Firefighter, Air
Operations, Fire Division, Vieques, Puerto Rico.
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The district court granted summary judgment for
defendants on all claims. We conclude that all but one of its
rulings were solidly based in fact and in law; one claim based
on
appellant’s final termination, alleging discrimination
because of his disability, merits further exploration.
FACTUAL BACKGROUND
Despite an appendix of nearly a thousand pages, the
essential facts may be briefly stated, leaving further details
to the discussion of the several issues. Appellant, a 55-year-
old man who worked for the Navy since 1967, was a firefighter at
the Navy's air facility on Vieques since 1988. In 1994, he
suffered an injury to his left knee and, after surgery, was
assigned to temporary light duty as a Fire Communications
Operator. In 1995, appellant sustained further injury to his
knee. Upon evaluation, he was found to be unable to perform a
firefighter's duties and was offered a job as a Tools and Parts
Attendant at his previous pay level. While considering this
offer, he had a third accident involving the same knee.
Appellant subsequently refused the offer, saying that the Tools
and Parts Attendant job called for physical activities, such as
climbing, lifting, and kneeling, that exceeded conditions
prescribed by his doctor.
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Appellant was removed from his job on June 24, 1996,
and appealed this action to the Merit Systems Protection Board
(MSPB). Although unlawful discrimination was not explicitly
raised, he did say that he was fired as a result of his injury.
On January 30, 1997, the MSPB dismissed his appeal as untimely.
Although advised of his rights, appellant did not appeal this
action to the Court of Appeals for the Federal Circuit, which
has exclusive jurisdiction to hear such appeals from the MSPB.
See 5 U.S.C. § 7703(b)(1).
Shortly thereafter, on April 11, 1997, the Navy offered
appellant a permanent job as a Fire Communications Operator on
Vieques, which he accepted. According to the Department of
Labor, which was paying him benefits under the Federal
Employees' Compensation Act (FECA), appellant had no choice but
to take the job or risk losing his right to further
compensation. See 5 U.S.C. § 8106(c)(2) ("A partially disabled
employee who . . . refuses or neglects to work after suitable
work is offered to, procured by, or secured for him is not
entitled to compensation.").
What happened next is not clear. We do know that a
meeting, involving appellant, his counsel, and Navy personnel,
occurred on May 5 at which the particulars of the new position
were discussed. We also know that appellant reported for work
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a week later, on May 12, but was told to leave a few hours
later. Following his termination, appellant brought the instant
action in January 1999. Because the record is not clear on
precisely what happened preceding his termination, we must
remand for further factual development.
ANALYSIS
We divide our analysis into two sections. In the
first, we discuss briefly a number of issues as to which we are
in agreement with the district court’s analysis and conclusions.
In the second, we address in some detail the issue that cannot
be resolved without further proceedings.
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I. SECONDARY ISSUES
A. Rulings on Discovery and Conversion of Motion to
Dismiss
Appellant assigns as error the court's conversion of
a motion to dismiss, filed by defendants, into a motion for
summary judgment. He buttresses his argument by asserting that
he was denied discovery of documents vital to his case.
Defendants filed their motion to dismiss, memorandum
of law, and attachments in a document occupying 181 pages.
Plaintiff-appellant filed his opposition, memorandum of law,
which included a section entitled “Standard Applicable to Motion
for Summary Judgment," and some 76 documents in a 455-page
submission. Noting that matters outside the pleadings were
submitted by both sides, the district court properly converted
defendants’ motion to dismiss to a motion for summary judgment
pursuant to Fed. R. Civ. P. 12(b). See, e.g., Garita Hotel Ltd.
P'ship v. Ponce Fed. Bank, 958 F.2d 15, 18-19 (1st Cir. 1992).
Appellant's own submission to the court, in a Rule
60(b) motion, undermines his contention that he was prejudiced
by the inability to continue discovery. He sought relief from
judgment based on an item in an allegedly newly discovered Naval
Inspection File, which concerned thirteen asserted occasions of
harassment against him. A Navy inspector had found twelve of
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the harassment allegations to be unsubstantiated. Appellant
claimed prejudice from being deprived of the thirteenth finding
that, although plaintiff's doctor had indicated that plaintiff
was not to work from September 9, 1995, to October 18, 1995, he
was improperly ordered back to work on October 18. It should
not be necessary to say that this claim is transparently thin.
B. The June 1996 Termination
The district court properly ruled that any claim of a
civil service nature resulting from appellant's termination from
the firefighter position had been forfeited by his failure to
appeal the MSPB's decision to the Court of Appeals for the
Federal Circuit. See 5 U.S.C. § 7703(b)(1). It was also
correct in holding that, even if appellant's claim was not
solely of a civil service nature, but included a discrimination
claim, then administrative remedies had not been exhausted,
since there had been no contact with an Equal Employment
Opportunity Commission (EEOC) counselor within 45 days, as
required by 29 C.F.R. § 1614.105(a)(1). See, e.g., Roman-
Martinez v. Runyon, 100 F.3d 213, 216-18 (1st Cir. 1996)
(holding that a federal employee's failure to contact an EEOC
counselor within the limitations period causes him to lose his
right to pursue a later de novo action in court).
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Appellant attempts to revive his unexhausted
discrimination claim by alleging a continuous pattern of
discrimination prior to his termination, arguing that the
limitation period is therefore extended. As the district court
correctly noted, however, even where such continuing violations
are of the type we have recognized as tolling the limitations
period, that would excuse only an untimely filing, not the
failure to exhaust an administrative requirement. In any event,
the alleged pattern was not the type of serial or systemic
violation that we have recognized as amounting to a continuing
violation. See, e.g., Andreu v. Banco Bilbao Vizcaya, No. 00-
1483, slip op. at 2-3 (lst Cir. Dec. 1, 2000). The district
court found that the alleged continuing pattern, which included
false accusations and assigning extraneous duties, such as
washing and waxing vehicles, was nothing more than discrete
instances of harassment that did not relieve appellant of the
duty to file within the prescribed period. We therefore affirm
the court's rejection of the applicability of the continuing
violation theory.
C. The May 1997 Termination
Appellant also pressed several claims attendant to his
second termination on May 12, 1997, from the Fire Communications
Operator position. We uphold the district court's dismissal of
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these claims, with the exception of the disability claim
discussed in Part II infra.
1. Age Discrimination Claim. Appellant initiated an
administrative ADEA claim on May 13, 1997, by filing with the
Navy's EEOC counselor a "pre-complaint" letter that alleged
discrimination only on account of his physical handicap. On
July 24, he filed a formal complaint, checking both age and
physical handicap on the preprinted government form. In the
four page letter accompanying the form, however, there is no
mention of any age-related conduct or statement. In a later
report, the EEOC counselor confirmed that "[d]uring the informal
counseling stage complainant did not define age as a basis for
discrimination." By not bringing his age discrimination claim
to the attention of the EEOC, he foreclosed the administrative
investigation and ameliorative action contemplated by the
exhaustion requirement. The district court's reasoning and
citations of authority adequately support its ruling that any
ADEA claim failed for lack of exhaustion of administrative
remedies.
2. Retaliation Claim. Appellant seems to have claimed
that his termination was due, in part, to retaliation for filing
the complaint with the Navy's Inspector General. But he neither
checked "Reprisal" on the EEOC form, nor alluded to the subject
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in his administrative complaint. For the same reason that his
ADEA claim remains unexhausted, appellant's retaliation claim is
forfeited. The court's ruling was obviously correct.
3. Section 1983 Claim. The court properly held the
§ 1983 claim time-barred, applying to the allegations of a
constitutional tort the appropriate one year statute of
limitations. See 31 P.R. Laws Ann. § 5298; see also Carreras-
Rosa v. Alves-Cruz, 127 F.3d 172, 174 (1st Cir. 1997)
(recognizing the rule from Wilson v. Garcia, 471 U.S. 261,
278-80 (1985), that the limitations period for filing § 1983
claims is governed by the applicable state statute of
limitations for personal injury actions, which is one year in
Puerto Rico). Since the relevant events occurred in May 1997
and the complaint was not filed until January 1999, the claim
was time-barred.
4. Pendent State Law Claims. Finally, the district
court ruled that the only proper party defendant in this case is
the Secretary of the Navy, as he is the “head of the department,
agency or unit” asserted to be the source of the grievance. 42
U.S.C. § 2000c-16(c). This being so, the court dismissed the
pendent claims, not only because it had dismissed the federal
claims, but also because the suit is against the United States,
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which has not waived its sovereign immunity for suits under
Puerto Rico's laws. We see no error in this ruling.
II. PRINCIPAL ISSUE: THE MAY 1977 TERMINATION -
THE DISABILITY CLAIM
We now come to the major issue in this case: whether
there was a genuine issue of material fact regarding appellant's
ability and willingness to perform the essential functions of
the Fire Communications Operator position.
Appellant bears the burden on three elements of his
claim for employment discrimination based on disability: (1)
that he was disabled, (2) that despite his disability, he was
able to perform the essential functions of the job, either with
or without reasonable accommodation, and (3) that his employer
discharged him because of that disability. Oliveras-Sifre v.
Puerto Rico Dep't of Health, 214 F.3d 23, 25 (1st. Cir. 2000)
(citing Feliciano v. Rhode Island, 160 F.3d 780, 784 (lst Cir.
1998)). Because the parties concede that appellant was disabled
within the meaning of the Act, we proceed to the second element
- whether appellant was able to perform the essential functions
of the job such that he was a "qualified person with a
disability." 42 U.S.C. § 12111(8).2
2 Because the district court found that appellant was not
a qualified individual with a disability, it did not reach the
third element of the prima facie case. Nor do we. Although we
may affirm the entry of summary judgment on any sufficient
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The district court found this issue also to be
uncontested, leading it to grant judgment for defendants. It
held as a matter of law that, because "it [wa]s uncontested that
Plaintiff could not perform the essential duties of the job
offered to him," appellant was not a "qualified individual with
a disability," as those terms are defined in the Rehabilitation
Act. 42 U.S.C. § 12111(8) ("The term 'qualified individual with
a disability' means an individual with a disability who, with or
without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds
or desires."); see also 29 U.S.C. § 794(d) (incorporating into
the Rehabilitation Act standards from the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12111); Oliveras-Sifre,
214 F.3d at 25 n.2 (recognizing same).
Our review of the record, however, reveals two disputed
issues material to the determination of whether appellant was a
qualified individual with a disability: (i) what were the
essential functions of a Fire Communications Operator; and (ii)
was appellant able and willing to perform these essential
ground revealed by the record, Torres v. E.I. Dupont De Nemours
& Co., 219 F.3d 13, 18 (lst Cir. 2000), we leave that
determination in the first instance to the district court on
remand. Of course, if appellee, the moving party below, shows
that appellant has not met his burden on that element, then
summary judgment may reissue in its favor.
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functions of the job? See Garcia-Alaya v. Lederle Parenterals,
Inc., 212 F.3d 638, 646 (1st Cir. 2000) ("In order to be a
qualified individual under the Act, the burden is on the
employee to show: first, that she possesses the requisite skill,
experience, education and other job-related requirements for the
position, and second, that she is able to perform the essential
functions of the position with or without reasonable
accommodation.") (internal quotation marks and footnote
omitted).
Because the answers to these questions are not
discernible from the record, which we review below, we must
remand.
- On March 19, 1997, a message was sent from the Office of
Workers' Compensation Programs (OWCP) to the Human Resources
Office (HRO) of the Navy at Roosevelt Roads, stating that
appellant was cleared for "limited duty (permanent?)" and asking
for a job offer.
- On April 9, HRO forwarded to OWCP a job offer for
appellant as a Fire Communications Officer on Vieques. The
record contains a 1994 evaluation of the position, listing
requirements of the job, without noting whether the position was
temporary or permanent. It carried a certificate, signed by the
Fire Chief, that the position was necessary. By 1995, the six
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page itemization of duties contained a typed-in list on the
cover sheet of "Other Duties Assigned," which included: "perform
mail runs, issue hot work permits for hazardous operations,
perform fire prevention inspections, support operational
training activities."
- By a letter dated April 11, 1997, the Navy offered
appellant the position of Fire Communications Operator on
Vieques, stating that it had received medical information that
"indicates you can perform the duties of another position with
lesser physical requirements than your previous position of
firefighter."
- On April 16, appellant's counsel wrote back, accepting the
offer, but reserving his claim of discriminatory conduct. He
requested a meeting to explore settlement.
- By a letter dated April 17, 1997, the OWCP reminded
appellant that if he refused to accept a suitable position, then
his right to further compensation under the FECA would be
jeopardized.
- On April 18, appellant signed the Navy's acceptance form.
- On May 5, a meeting took place with Navy and OWCP
officials, appellant, and his attorney. On that same day, the
Navy's Human Resources Director wrote the Vieques Navy Air
Operations Officer that the Fire Communications Operator
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position at Vieques had been offered to, and accepted by,
appellant. The letter also noted: “The amendment on the cover
sheet of the Position Description citing other duties assigned
has been deleted." The letter recommended that various steps
be taken to facilitate appellant’s return to duty, including
providing him with a description of his position and performance
standards and "[p]roviding him with the welcoming and acceptance
one would give to any other employee who arrives at the work
site for the first time."
- On May 12, appellant reported for work. What happened
from this point on is the subject of radically different
accounts by appellant and his supervisor, Efrain Feliciano.
Feliciano prepared a "Statement for the Record" on May 12, in
which he wrote: "Discussed position description with him before
he started to work. Position description does not completely
describe duties and responsibilities of the position."
Feliciano also reported that appellant had come inappropriately
attired in a firefighter polo shirt, shorts and tennis shoes,
and he was carrying a personal tape recorder. Although
appellant arrived with a cane, on leaving the premises, he left
the cane behind. At some later date, apparently in July,
Feliciano added, in an affidavit, that (1) there was no
permanent Fire Communications Operator position on Vieques; (2)
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he told appellant to change his clothes to start working, and
appellant refused; and (3) he discussed the position description
and appellant said that he could not perform most of the duties.
Appellant’s version, from his "Statement of Uncontested
Facts," differed from Feliciano's in five particulars: (1) the
Navy's Human Resources Officer had told him that he did not have
to wear a uniform; (2) when he reported for work, he was not
provided with a copy of the position description, but was told
that he knew the position and was commanded to start working;
(3) he was able to perform the required tasks and at no time
said that he could not do the job; (4) after working four hours,
he was sent home without an explanation; and (5) at no time did
Feliciano say that the position was not permanent.
- Following May 12, a further effort was made to assign
appellant to a Fire Communications Operator position on the main
island of Puerto Rico, but travel and work schedules made the
assignment infeasible.
- Three months later, on August 25, 1997, the Navy's EEOC
Counselor prepared a report, which noted that appellant, OWCP,
and the Navy had agreed to modifications of the Fire
Communications Operator position to accommodate appellant's
physical abilities. Nothing was noted about the events of May
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12 concerning appellant's termination. In a section later added
to the report, the counselor wrote:
A further review of this offer was made by the HRO
which revealed that although the complainant had
performed the duties of this position in the past they
were not of a permanent nature and were not a
requirement of the Fire Department in Vieques. The
complainant was allowed to perform these duties on a
temporary basis only. Based on this discovery, the
offer was not considered valid and the HRO was
compelled to explore the possibility of extending the
offer to the complainant but at the U.S. Naval
Station, Roosevelt Roads.
This review of the relevant parts of the record reveals
a clear cut dispute between the parties over the critical
question whether, as under appellee's version of events,
appellant was unable or refused to perform the duties of a Fire
Communications Operator as modified, or whether, as appellant
contests, he worked for several hours and was then terminated
without explanation. Under a section summarizing plaintiff's
allegations, the district court took note of appellant's version
of events:
Plaintiff struck a deal and several responsibilities
were eliminated from the position of Fire
Communications Operator. Plaintiff accepted the
position and returned to work on May 12, 1997. On the
day of his return, however, Plaintiff was sent home
without any explanation after working approximately
four hours. The Human Resources Department refused to
answer Plaintiff’s questions about his termination.
The court's subsequent opinion, however, reveals that it
impermissibly resolved the disputed versions of the events on
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May 12 when it mis-characterized the issue as "uncontested."
This it could not do. See, e.g., Burns v. State Police Ass'n of
Massachusetts, 230 F.3d 8, 9 (1st Cir. 2000) (reiterating the
well-settled summary judgment rule that courts are obliged to
view the facts, and all reasonable inferences drawn from them,
in the light most favorable to the nonmoving party).
Our review of the record demonstrates that, if true,
appellant's version of events sufficed to show he was a
qualified individual with a disability who was able to perform
the essential functions of the position. The dispute over that
issue, therefore, is material to appellant's cause of action and
cannot be resolved as a matter of law based on this record. As
we have already noted, it remains for the district court to
determine on remand whether appellant has carried his burden on
the third element of his ADA claim -- that he was discharged
because of his disability -- to survive summary judgment. If
so, then the issue regarding the second element -- whether
appellant was able and willing to perform the essential
functions of the job -- must be resolved by a fact finder.
We therefore affirm the ruling in favor of defendants
on all claims except appellant's Rehabilitation Act claim
related to the 1997 termination. We vacate the judgment on that
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issue and remand to the district court for further proceedings
in accordance with this opinion.
Affirmed in part, vacated in part, remanded for further
proceedings. Appellant to have one half of his costs.
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