United States Court of Appeals
For the First Circuit
No. 05-2043
MYRTA NIEVES-VEGA,
Plaintiff, Appellant,
v.
HERMENEGILDO ORTIZ-QUIÑONES, IN HIS PERSONAL CAPACITY;
ANGEL D. RODRÍGUEZ, IN HIS PERSONAL AND OFFICIAL CAPACITIES;
GILDA RAMOS, IN HER PERSONAL CAPACITY; JOHN DOE; RICHARD ROE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Carlos R. Ramirez, with whom John F. Nevares & Associates,
PSC was on brief, for appellant.
Susana I. Peñagaricano-Brown, Assistant Solicitor General,
Department of Justice with whom Salvador J. Antonetti-Stutts,
Solicitor General, Mariana Negrón-Vargas, Deputy Solicitor
General and Maite D. Oroncz-Rodríguez, Deputy Solicitor General,
were on brief, for appellee.
April 5, 2006
HOWARD, Circuit Judge. Myrta Nieves-Vega brought this
action, under 42 U.S.C. § 1983 and Puerto Rico law, against several
employees of the Puerto Rico Planning Board (Board). She alleged
that the defendants discriminated against her on account of her
political affiliation by reducing her salary. The district court
granted the defendants summary judgment on the ground that Nieves'
claim was time barred. We affirm.
Nieves was employed by the Board for over 20 years.
Until February 1999, Nieves, a member of the New Progressive Party
(NPP), worked for the Board as an Administrative Analyst VII, a
career service position. In February 1999, with the Board under
NPP leadership, Nieves was appointed to serve as a Special
Assistant II, a trust position.
In 2000, the Popular Democratic Party (PDP) candidate
defeated the NPP candidate for governor. In the period between the
election and the PDP assuming control of the Board's leadership,
Nieves resigned her trust position and requested reinstatement to
her career position. Her request was granted and took effect on
July 16, 2001, the day before the PDP assumed control of the Board.
In her reassigned post, Nieves earned a salary of $3,155 per month.
This was a "salary by exception" because it was higher than the
salary typically paid to an employee in Nieves' position.
After the PDP assumed control of the Board, new Board
President Hermenegildo Ortiz-Quiñones ordered that the Office of
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Administration of Personnel and Human Resources review Nieves'
salary to determine if the grant of a salary by exception was
proper. This agency subsequently concluded that Nieves was not
entitled to the salary by exception.
On June 13, 2002, Nieves received a letter from Ortiz
explaining that she was not entitled to the salary by exception and
that her salary would be reduced to $2,189 as of July 1, 2002. The
following month, Nieves wrote to the new Board President Angel
Rodriguez to contest the salary reduction. She claimed that Ortiz
had ordered the salary reduction to punish her for her membership
in the NPP and requested that Rodriguez reinstate her prior salary.
Rodriguez replied that the salary reduction was not politically
motivated and would stand.
On July 1, 2003, exactly one year after the salary
reduction took effect, Nieves filed an action claiming that the
salary reduction was an act of unlawful political discrimination.
She sought $1,000,0000 in compensatory damages, $2,000,000 in
punitive damages, back pay, the reinstatement of her salary,
attorney's fees and costs.
The defendants subsequently moved for summary judgment,
arguing that Nieves' claim was untimely under the applicable one-
year statute of limitations because the claim accrued on June 13,
2002, the date that Nieves received notice of the salary reduction.
Nieves opposed, arguing that the claim did not accrue until July 1,
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2002, the date that the salary reduction took effect, and, even if
the claim accrued when she received notice of the reduction, her
letter to Rodriguez tolled the limitations period. The district
court granted the defendants' motion, ruling that the claim accrued
on the date that Nieves received notice of the salary reduction and
that Nieves' letter to Rodriguez did not toll the limitations
period because it sought equitable relief while her lawsuit sought
equitable relief and damages.
We review summary judgment rulings de novo. See Guzman-
Rosario v. United Parcel Serv., Inc., 397 F.3d 6, 9 (1st Cir.
2005). Summary judgment is appropriate where there is no genuine
issue of material fact, and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56 (c).
On appeal, Nieves renews the two arguments she made to
the district court: that her claim accrued on July 1, 2002 and that
the running of the statute of limitations was tolled by her letter
to Rodriguez. The parties agree that Nieves' action is governed by
Puerto Rico's one-year statute of limitations for personal injury
claims. See Rodriguez-Garcia v. Caguas, 354 F.3d 91, 96 (1st Cir.
2004).
Federal law determines the date on which a § 1983 claim
accrues. See Lafont-Rivera v. Soler-Zapata, 984 F.2d 1, 2-3 (1st
Cir. 1993). A claim accrues on the date that "the plaintiff 'knows
or has reason to know of the act which is the basis for the
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claim.'" Rodriguez-Garcia, 354 F.3d at 96-97 (quoting Rodriguez
Narvaez v. Nazario, 895 F.2d 38, 41 n.5 (1st Cir. 1990)). "The
rule in an employment discrimination case is that the limitations
period begins to run when the [plaintiff] receives unambiguous and
authoritative notice of the discriminatory act (which is another
way of saying that the period begins to run when the employee
learns of the adverse employment action)." Morris v. Gov't Dev.
Bank of P.R., 27 F.3d 746, 749 (1st Cir. 1994) (parentheses in
original); see also Chardon v. Fernandez, 454 U.S. 6, 8 (1981)
(per curiam) (holding that the statute of limitations began to run
on the date that the employee received notice of the employer's
decision to terminate his employment); Lopez-Gonzalez v. Comerio,
404 F.3d 548, 551 (1st Cir. 2005) (similar).
The June 13, 2002 letter from Ortiz to Nieves stated that
"effective on July 1, 2002," Nieves' salary by exception was
eliminated, and her salary would be reduced to $2,189 per month.
This letter provided Nieves with unequivocal notice that the Board
had decided to reduce her salary. Accordingly, the statute of
limitations began to run on June 13, 2002, and therefore, unless
the letter to Rodriguez tolled the running of the limitations
period, Nieves' July 1, 2003 complaint is time barred.
When a § 1983 action is brought in Puerto Rico, federal
law borrows from Puerto Rico tolling law so long as the Puerto Rico
law is consistent with underlying federal policy. See Rodriguez-
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Garcia, 354 F.3d at 97. Under Puerto Rico law, "extrajudicial
claims" by a creditor may toll the running of a statute of
limitations. See 31 P.R. Laws Ann. § 5303; Benitez-Pons, v. Puerto
Rico, 136 F.3d 54, 60 (1st Cir. 1998). But because "tolling
provisions [are] interpreted restrictively against the person
invoking their protection," the requirements for making an
extrajudicial claim are strict. Rodriguez Narvaez, 895 F.2d at 43.
The extrajudicial claim must be "identical" to the claim actually
filed in court. Benitez-Pons, 136 F.3d at 59. It must seek the
same form of relief, be based on the same facts, and be asserted
against the same defendants as the subsequent lawsuit. See
Rodriguez-Garcia, 354 F.3d at 97.
Nieves' letter to Rodriguez fails the first requirement:
it seeks relief different from the relief later requested in the
lawsuit. In the letter, Nieves stated that she believed that her
salary reduction was an act of political discrimination and
requested that Rodriguez "set [it] aside." In her subsequent
complaint, however, Nieves sought $3,000,000 in damages, back pay,
attorney's fees and costs in addition to requesting that the salary
reduction be set aside. We have held several times that an
extrajudicial claim seeking only equitable relief does not toll the
statute of limitations where the subsequent complaint also seeks
damages. See Benitez-Pons, 136 F.3d at 59-61; Riofrio Anda v.
Ralston Purina Co., 959 F.2d 1149, 1154 (1st Cir. 1992); Rodriguez-
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Narvaez, 895 F.2d at 46; Torres v. Superintendent of Police, 893
F.2d 404, 407 (1st Cir. 1990); Hernandez del Valle v. Santa Aponte,
575 F.2d 321, 323 (1st Cir. 1978). This is so because an
extrajudicial claim requesting only injunctive relief does not give
the defendants "fair notice that [they] might be called upon to
defend a damages suit, with different issues not applicable to a
suit for injunctive relief."1 Hernandez del Valle, 575 F.2d at
324. Accordingly, Nieves' letter to Rodriguez did not toll the
statute of limitations and her complaint was time barred.2
1
At oral argument, Nieves argued that, even if the letter to
Rodriguez was insufficient to toll the limitations period for her
damages claim, it was sufficient to toll the limitations period for
her equitable relief claim. This argument was not raised in
Nieves' brief and therefore is, at best, forfeit. See Suprenant v.
Rivas, 424 F.3d 5, 16 (1st Cir. 2005). In any event, even if plain
error review were available, there was no such error here. In
Hernandez del Valle, 575 F.2d at 322-24, and Torres, 893 F.2d at
407, the plaintiffs sought reinstatement and damages in their court
complaints but sought only reinstatement in their extrajudicial
claims. In both cases, we concluded that the entire cause of
action was time barred. See Hernandez del Valle, 575 F.2d at 24;
Torres, 893 F.2d at 407.
2
Nieves suggests also that her complaint stated a timely
hostile work environment claim because it was based on events
occurring after July 1, 2002. The district court rejected this
argument on the ground that Nieves had disavowed any such claim
during the litigation. We agree. In her opposition to the
defendants' motion to dismiss, Nieves asserted that the allegations
of discriminatory conduct in her complaint, aside from the
reduction of salary allegation, were "made not as a cause of action
. . . but to support the contention that defendants' decision to
substantially reduce plaintiff's salary was politically motivated."
This statement constitutes an abandonment of any additional
discrimination claims that could have been raised by the facts
pleaded in Nieves' complaint. See Sheehan v. Marr, 207 F.3d 35, 42
(1st Cir. 2000).
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Affirmed.
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