United States Court of Appeals
For the First Circuit
No. 06-1132
EDMOND A. FREDERIQUE-ALEXANDRE,
Plaintiff, Appellant,
v.
DEPARTMENT OF NATURAL AND ENVIRONMENTAL RESOURCES OF THE
COMMONWEALTH OF PUERTO RICO; NATURAL RESOURCES ADMINISTRATION;
LUIS RODRÍGUEZ-RIVERA; FRANCIS NIEVES,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl and Baldock,* Senior Circuit Judges.
Charles S. Hey-Maestre with whom De Jesús, Hey & Vargas was on
brief for appellant.
Susana I. Peñagaricano-Brown, Assistant Solicitor General,
with whom Salvador J. Antonetti-Stutts, Solicitor General, Mariana
Negrón-Vargas and Maite D. Oronoz-Rodríguez, Deputy Solicitors
General, were on brief for appellees.
March 1, 2007
*
Of the Tenth Circuit, sitting by designation.
STAHL, Senior Circuit Judge. The outcome of this
employment discrimination case hinges largely on two basic
requirements of litigating a Title VII claim in federal court,
timeliness and the submission of documents in the English language.
We affirm the district court's dismissal of plaintiff's Title VII
discrimination and hostile work environment claims for failure to
timely file within the statutory period. Plaintiff bases his
assertion of timeliness on a document submitted to the court in the
Spanish language, without an accompanying English translation,
despite ample time and opportunity to provide such a translation.
We cannot consider that document's impact on the question of the
timeliness of his claim. We also affirm the district court's grant
of summary judgment as to plaintiff's Title VII retaliation claim
and Puerto Rico Law 426 claim.
Plaintiff Edmond Frederique-Alexandre ("Frederique")
brought a variety of discrimination claims against his former
employer, the Department of Natural and Environmental Resources of
the Commonwealth of Puerto Rico (DNER), and other defendants.1 The
district court granted defendants' motion for partial summary
judgment and dismissed the action in its entirety. Frederique
appeals the district court's grant of summary judgment as to: (1)
1
The other defendants in this action are Puerto Rico's Natural
Resources Administration, Luis Rodríguez-Rivera, and Francis
Nieves.
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the Title VII discrimination and hostile work environment claims;
(2) the Title VII retaliation claim; and (3) the Puerto Rico Law
426 claim.2 Because Frederique appeals from the district court's
grant of summary judgment, we employ a de novo review, drawing all
reasonable factual inferences in favor of the nonmoving party.
See Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 42 (1st
Cir. 2002).
A. The Discrimination and Hostile Workplace Claims
Frederique, a native of Haiti and an agronomist by
training, began his employment with the DNER in 1992. He alleges
that his former supervisor, José González-Liboy ("González"),
repeatedly harassed and belittled him and denied him career
advancement based on his national origin, in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.3
In 1996, Frederique filed an administrative charge
("First Charge") with the Anti-Discrimination Unit (ADU) of the
Puerto Rico Department of Labor and Human Resources and the Equal
Employment Opportunity Commission (EEOC) alleging national origin
2
Frederique has not appealed the dismissal of his civil rights
claims under 42 U.S.C. §§ 1983 and 1988, or his constitutional
claims regarding due process, equal protection, and free
expression, and thus the issues are waived.
3
Frederique's complaint alleges that González: (1) gave
Frederique only insignificant tasks, despite Frederique's request
for substantive assignments; (2) made derogatory comments and jokes
about Frederique's language, accent, culture, and country of
origin; (3) gave Frederique undeserved negative evaluations; and
(4) did not consider Frederique for raises or promotions.
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discrimination. Frederique subsequently withdrew the First Charge,
allegedly because González pressured him to do so and promised to
improve his conduct. However, Frederique alleges that after he
withdrew the First Charge, González's discriminatory behavior
continued, resulting in his filing a second administrative
complaint ("Second Charge") with the EEOC on October 31, 2000. As
to this claim, the EEOC issued a favorable determination on the
merits and issued a right-to-sue letter in 2003. Frederique
subsequently brought this action in United States District Court
for the District of Puerto Rico.
In his complaint filed in this action, Frederique stated
that González's discriminatory behavior "continued until the year
1999 when González Liboy left the agency." Frederique repeated
this 1999 date in the plaintiff's version of the facts contained in
the Supplemental Joint Case Management Memorandum and in his
opposition to defendants' motion for summary judgment. The 1999
date is critical for our timeliness analysis.
Under 42 U.S.C. § 2000e-5(e)(1), a Title VII plaintiff is
required to file an administrative charge with the EEOC within
either 180 or 300 days after the "alleged unlawful employment
practice occurred." Because Puerto Rico is a so-called "deferral"
jurisdiction, the administrative charge must be filed within 300
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days of the alleged unlawful conduct.4 See Rivera v. Puerto Rico
Aqueduct and Sewers Auth., 331 F.3d 183, 188 (1st Cir. 2003). In
his complaint, Frederique alleged that the harassment against him
ended when González left the agency, sometime in 1999. Even
assuming that the last act of alleged discrimination occurred on
December 31, 1999, Frederique would only have had until October 26,
2000 to file his administrative charge with the EEOC. He missed
this mark by five days, filing on October 31, 2000.
The Supreme Court has said that the timeliness
requirement under 42 U.S.C. § 2000e-5(e)(1) is "mandatory," and
failure to file within the time period means a potential plaintiff
"lose[s] the ability to recover for [the alleged discrimination]."
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 110
(2002). We see no recognized equitable basis for tolling the 300-
day period in this case, nor does Frederique suggest that such a
basis exists. See Zipes v. Trans World Airlines, 455 U.S. 385, 393
(1982) ("[F]iling a timely charge of discrimination with the EEOC
. . . is subject to waiver, estoppel, and equitable tolling.");
Jones v. City of Somerville, 735 F.2d 5, 8 (1st Cir. 1984) ("In the
4
Under 42 U.S.C. § 2000e-5(e)(1), a plaintiff may not recover
"for discrete acts of discrimination or retaliation that occur
outside the statutory time period," but in the case of a hostile
work environment claim, the court may properly consider the entire
scope of the claim, "including behavior alleged outside the
statutory time period . . . so long as an act contributing to that
hostile environment takes place within the statutory time period."
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002).
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absence of a recognized equitable consideration, the limitation
period cannot be extended by even one day.").
On this appeal, in an attempt at salvaging the timeliness
of his claims, Frederique now points to the document he submitted
to the district court in April 2004, in response to defendants'
motion to dismiss, and which he also appended to his response to
defendants' motion for summary judgment. The document is a
preprinted EEOC form entitled "Charge of Discrimination," which
Frederique submitted to the EEOC on October 31, 2000, when he filed
his Second Charge. The form's preprinted language appears in both
English and Spanish. However, all of Frederique's responses are
written in Spanish alone. In the box entitled "FECHA DE ULTIMO
ACTO DISCRIMINATORIO/Date most recent or continuous discrimination
took place," Frederique entered "Septiembre 14, 2000." Frederique
argues that the form establishes that the last act of
discrimination occurred on September 14, 2000, which he alleges is
the true date that González left the DNER. He further avers that
the 1999 date for González's departure, which he relied upon in his
complaint and repeated in two later court filings, was merely a
"clerical error" and that his submission of the "Charge of
Discrimination" form to the district court constituted a
"constructive amendment" of his complaint under Rule 15(b) of the
Federal Rules of Civil Procedure. Thus, Frederique concludes,
there was only a one-and-a-half-month gap between the last act of
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discrimination and his filing of the Second Charge, well within the
300-day requirement.
However, Frederique argues to no avail. In this circuit,
we have repeatedly reminded litigants that "[t]he law
incontrovertibly demands that federal litigation in Puerto Rico be
conducted in English," and that untranslated documents are not part
of the record on appeal. Estades-Negroni v. Assocs. Corp. of N.
Am., 359 F.3d 1, 2 (1st Cir. 2004); see also 48 U.S.C. § 864 ("All
pleadings and proceedings in the United States District Court for
the District of Puerto Rico shall be conducted in the English
language."). We have also confirmed that this rule applies equally
to trial and pre-trial proceedings. See Estades-Negroni, 359 F.3d
at 2. While ignorance of this rule would not excuse a failure to
translate documents, in this case it appears that Frederique was
well aware of this requirement because he filed, along with his
opposition to defendants' motion for summary judgment, a motion
requesting leave to file Spanish language documents and time to
obtain certified English translations. Six months passed between
the plaintiff's motion to submit the translations and the district
court's dismissal of his claims for failure to timely file. During
those six months, plaintiff did not submit translations of any
documents, including the "Charge of Discrimination" form. In sum,
because Frederique failed to submit an English-language version of
the "Charge of Discrimination" form, the date he entered in Spanish
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on that form is not part of the record and does not impact our
above analysis of the timeliness of his claims.
In an attempt to avoid the statutory time bar, which was
implicated by the 1999 date clearly set forth in his own filings
(the complaint, the case management memorandum, and the opposition
to the motion for summary judgment), Frederique makes one final,
abbreviated argument. He contends that he suffered "unfair
surprise" because the district court did not give him "the
opportunity to be heard on [the] 'fact' issue regarding the filing
of the administrative charge." The "fact" issue to which
Frederique refers is a purported typographical error by counsel
which stated that the final act of discrimination occurred in 1999,
rather than 2000 as Frederique now avers.
At first glance, Frederique's argument appears to have
some attraction. DNER moved for summary judgment only on the
constitutional claims, the Title VII retaliation claim, individual
liability for the first Title VII claim, and the Puerto Rican law
claim. Notably, DNER did not move for summary judgment on official
liability for the first Title VII claim. Nevertheless, the
district court granted summary judgment on all of Frederique's
claims, including a sua sponte grant as to official liability on
the first Title VII claim. We have said before that "[t]hough a
district court may enter summary judgment sua sponte at, or in
consequence of, a pretrial conference, the court must ensure that
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the targeted party has an adequate opportunity to dodge the
bullet." Berkovitz v. Home Box Office, Inc., 89 F.3d 24, 29 (1st
Cir. 1996). Thus, Berkovitz imposes two conditions on a grant of
summary judgment. First, "a district court ordinarily may order
summary judgment on its own initiative only when discovery is
sufficiently advanced that the parties have enjoyed a reasonable
opportunity to glean the material facts." Id. Berkovitz also
requires that "the court may enter summary judgment sua sponte only
if it first gives the targeted party appropriate notice and a
chance to present its evidence on the essential elements of the
claim or defense." Id.
Here, the first Berkovitz requirement is quite clearly
satisfied; discovery had proceeded to the point where DNER was able
to move for partial summary judgment. As to the second
requirement, however, Frederique now claims that he did not have
notice as to the grounds on which the court granted summary
judgment, and that as a result he had no chance to present evidence
on the timeliness issue.
In a way, Frederique's claims seem odd; he had more than
ample opportunity to be heard on the issue of when the last act of
discrimination occurred. It was he who submitted the 1999 date to
the court in three separate filings, the last of which was his
response to defendants' motion for summary judgment; and it was he
who had the opportunity to seek to amend his complaint at various
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junctures, either as of right or later by leave of the court. In
addition, Frederique had abundant notice that timeliness was an
issue; in fact, DNER had moved to dismiss the case in the first
instance on just these grounds. Nevertheless, the district court
did grant summary judgment without giving Frederique additional
notice that timeliness was an issue, and therefore Frederique did
not have a further opportunity to present his opposition. It is
not clear here whether additional notice and opportunity were
required because of the significant prior notice that Frederique
had in fact received on the issue. Importantly, this case differs
from Berkovitz in that Frederique does not complain that he lacked
the opportunity to raise a genuine issue of material fact as
between himself and the defendants, but only that he allegedly
misstated, on several occasions, an essential element of his claim.
Frederique's only basis for claiming that his first three
pleadings contained a typographical error is the unsupported
assertion of counsel. Frederique points to untranslated documents
in the record as evidence of the error, but as we have often
stated, litigation in federal courts must be conducted in English.
Estades-Negroni, 359 F.3d at 2. Because Frederique forfeited his
opportunity to amend the pleadings despite receiving notice that
timeliness was at issue, because all of his formal filings
contained the 1999 date, and because he has not pointed to anything
in the record that supports his allegation that the last date of
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discrimination occurred in 2000, we will not reverse the district
court's grant of summary judgment on this claim.
B. The Retaliation Claim
Frederique also appeals the district court's grant of
summary judgment as to his retaliation claim, brought under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. Frederique
alleges that the DNER and various individual employees retaliated
against him for filing the Second Charge with the EEOC by not
hiring him for a Forest Service Director position. On December 18,
2003, Frederique filed a third complaint with the EEOC ("Third
Charge") detailing this retaliation allegation. Although he had
not yet received a right-to-sue letter from the EEOC, Frederique
brought a Title VII retaliation claim against defendants as part of
this action. The district court granted summary judgment as to
this claim because it was brought prematurely, before issuance of
the right-to-sue letter. We agree, for substantially the reasons
outlined by the district court.
A plaintiff must exhaust his administrative remedies,
including EEOC procedures, before proceeding under Title VII in
federal court. See Lebrón-Ríos v. U.S. Marshal Serv., 341 F.3d 7,
13 (1st Cir. 2003). While Frederique is correct that the
exhaustion requirement is not a jurisdictional prerequisite, but
rather is subject to waiver, estoppel, and equitable tolling, see
Zipes, 455 U.S. at 393 (1982), he makes no persuasive argument that
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the facts or equities favor a waiver in this case. He only
suggests that no purpose would be served by permitting the EEOC to
conduct a conciliation process regarding his Third Charge because
prior efforts to resolve Frederique's other complaints have been
"futile." This circuit has taken a "'narrow view' of equitable
exceptions to Title VII" exhaustion requirements, Mack v. Great
Atl. and Pac. Tea Co., Inc., 871 F.2d 179, 185 (1st Cir. 1989)
(quoting Earnhardt v. Commonwealth of Puerto Rico, 691 F.2d 69, 71
(1st Cir. 1982)), and Frederique's proffered reason -- alleged
futility -- is not sufficient to "bring [his claim] within that
tiny sphere," Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275,
279 (1st Cir. 1999). Therefore, we affirm the district court's
grant of summary judgment without prejudice as to this claim.
C. Law 426 Claim
Frederique also brought a supplemental claim against
defendants under Puerto Rico Law 426, P.R. Laws Ann. tit. 1, § 601
(2000). The district court granted summary judgment as to this
claim, concluding that Law 426 is meant to protect whistleblowers
who report acts of public corruption, whereas Frederique failed to
identify any information he had disclosed regarding public
financial malfeasance. We agree. Though Frederique attempts to
broaden the statute to include public employees who "denounce
unlawful acts," the statute does not permit such a far-ranging
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interpretation. The statute's statement of purpose reads as
follows:
The purpose of this chapter is to adopt
measures for the protection of the rights of
public employees and officials who disclose
information or testify on alleged improper or
illegal acts regarding the use of public
property or funds that due to their nature
constitute acts of government corruption, or
that fall within the ethical conduct regulated
by our legal system.
P.R. Laws Ann. tit. 1, § 601 (2000) (emphasis added). The record
shows that Frederique has only alleged facts related to the
discrimination and harassment he allegedly suffered based on his
national origin. He makes no allegation that he ever witnessed or
reported the misuse of public property or funds. Therefore his
claim under Law 426 lacks any factual foundation and was properly
dispatched by the district court.
D. Conclusion
For the foregoing reasons, we affirm the district court's
grant of summary judgment as to all claims. Costs to appellees.
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