Marrero-Gutierrez v. Molina

United States Court of Appeals
For the First Circuit

No. 06-2527

ENID MARRERO-GUTIERREZ; ALEJANDRO BOU SANTIAGO

Plaintiffs, Appellants,

v.

ESPERANZA MOLINA; IVAN VELEZ; ILEANA ECHEGOYEN; GABRIEL ALONSO;
NILSA ENID NEGRON; RAMONITA GARCIA; WANDA ROMAN; LUIS COSS; MYRNA
CRESPO-SAAVEDRA; HOUSING DEPARTMENT OF THE COMMONWEALTH OF PUERTO
RICO

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Justo Arenas, U.S. Magistrate Judge]

Before

Lynch, Circuit Judge,
Howard, Circuit Judge,
and Young,* District Judge.

Lixandra Osorio Felix and Liz Marie Cruz-Jimenez, on brief
for appellants.
Salvador J. Antonetti-Stutts, Solicitor General, Susana I.
Penagaricano-Brown, Assistant Solicitor General, Mariana Negron-
Vargas, Deputy Solicitor General, and Maite D. Oronoz-Rodriguez,
Deputy Solicitor General, on brief for apellees.

June 20, 2007

*
Of the District of Massachusetts, sitting by designation.
 YOUNG, District Judge. Enid Marrero-Gutierrez

(“Marrero”) and Alejandro Bou Santiago (“Bou”) (collectively “the

Plaintiffs”) sued Esperanza Molina (“Molina”), Ivan Velez

(“Velez”), Luis Coss (“Coss”) a/k/a Tito, Gabriel Alonso

(“Alonso”), Ileana Echegoyen, Nilsa Enid Negron, Ramonita Garcia,

and Wanda Roman in their personal capacities; Myrna Crespo-Saavedra

in her official capacity; and the Housing Department of the

Commonwealth of Puerto Rico (“Housing Department”) (collectively

“the Defendants”) for political discrimination and violations of

the Plaintiffs’ rights under the First, Fifth, and Fourteenth

Amendments to the United States Constitution. The Plaintiffs also

asserted various state-law claims. Acting on a motion for judgment

on the pleadings, the district court granted judgment to the

Defendants on all claims. The Plaintiffs now appeal. After

careful consideration, we affirm.

I. Factual and Procedural History

The Plaintiffs are former employees of the Housing

Department and active members of the New Progressive Party (“NPP”)

– a political party that campaigns for Puerto Rican statehood. In

2000, Puerto Rico held its general elections, and the Popular

Democratic Party (“PDP”) won control of the government. The PDP is

a political adversary of the NPP.

Bou worked in the Housing Department for ten years. In

May 2000, he received a promotion to the position of Administrative

-2-
Director II and was appointed as the Director of the Office of

Security and Emergency Management of the Housing Department. As a

result of PDP’s winning the elections that year, Coss - a member of

the PDP - was appointed Special Assistant to the Secretary of the

Housing Department. Bou alleges that Coss gave instructions to the

Human Resources personnel of the Housing Department to find a way

to replace him with a PDP adherent. Specifically, Bou alleges that

Coss made this request to Angel Semidey (“Semidey”) who, despite

being a PDP adherent, refused to help Coss and subsequently

resigned. On March 7, 2001, Bou was demoted. On July 27, 2002,

Bou encountered Semidey at a celebration and, for the first time,

learned that his demotion resulted from his affiliation with NPP.

Marrero held a career position as Director of the Section

8 Program starting in 1994. Marrero alleges that her job

performance garnered only praise from her supervisors. Marrero

managed to receive such positive performance feedback despite

serving under different party administrations during her career at

the Housing Department.

Marrero alleges that after Molina retired in June 2002,

the Housing Department was reorganized without following federal

guidelines. As part of the reorganization, Alonso was brought in

to supervise the Section 8 Program. The reorganization amounted to

a constructive demotion of Marrero by reducing her responsibilities

and subjecting her to an abusive work environment. Specifically,

-3-
her new responsibilities failed to include functions that she was

entitled to perform under the Housing Department’s prior

reclassification program. Marrero also alleges that her

subordinates often circumvented her, that her supervisors treated

her in a discourteous manner by harassing and intimidating her, and

that Molina openly disparaged the NPP in front of Marrero and her

personnel. Finally, Marrero suffered several humiliating events

arising out of her health status. Marrero was surgically treated

for cancer in her reproductive system. The Defendants allegedly

mocked her as a result of this condition, claiming that she was not

really sick and simply attempting to avoid returning to work by

faking her illness.

On or about May 3, 2002, while still on medical leave,

Marrero received a letter dated April 18, 2002, stating the

intention to remove her from office. This letter, and a subsequent

one, accused her of failing to perform job duties and of committing

illegal acts. These accusations mirrored ones levied against Velez

- a member of the PDP - who directly supervised Marrero during this

time. The Housing Department also notified Velez that it intended

to terminate him. Velez was initially demoted and later

terminated. In both letters, Marrero was summoned to an informal

hearing, which she alleges was a sham designed to tarnish her

reputation. Despite her characterization of the hearing, Marrero

was able to proffer evidence rebutting the accusations against her.

-4-
Marrero was allowed to continue working at the Housing Department

pending the final disposition. The hearing officer submitted a

negative report. On March 10, 2002, the Housing Department

notified Marrero of her separation from employment and salary,

which constituted the last alleged act of discrimination by the

Defendants.

This action commenced in the district court on March 10,

2003. The Housing Department successfully moved to dismiss, on

Eleventh Amendment grounds, the claims against it for monetary

relief. Marrero does not appeal this ruling. Thereafter, upon

motions duly briefed by both sides, the district court granted the

Defendants judgment on the pleadings pursuant to Federal Rule of

Civil Procedure 12(c). The appeal of this order is before this

Court.

II. Analysis

The standard of review of a motion for judgment on the

pleadings under Federal Rule of Civil Procedure 12(c) is the same

as that for a motion to dismiss under Rule 12(b)(6). Pasdon v.

City of Peabody, 417 F.3d 225, 226 (1st Cir. 2005); Collier v. City

of Chicopee, 158 F.3d 601, 602 (1st Cir. 1998). Courts of appeals

review de novo a district court’s decision to allow a motion to

dismiss, taking as true the well-pleaded facts in the complaint and

drawing all reasonable inferences in favor of the plaintiff.

Vistamar, Inc. v. Fagundo-Fagundo, 430 F.3d 66, 69 (1st Cir. 2005).

-5-
 A. Statute of Limitations

Title 42 of the United States Code, section 1983 creates

a private right of action for violations of federally protected

rights. Because it has no internal statute of limitations, section

1983 claims “borrow[] the appropriate state law governing

limitations unless contrary to federal law.” Poy v. Boutselis, 352

F.3d 479, 483 (1st Cir. 2003).

The parties do not dispute that the relevant statute of

limitations for civil rights claims in Puerto Rico takes a one-year

limitation period from P.R. Laws Ann. Tit. 31, § 5298(2). Centro

Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st

Cir. 2005); Benitez-Pons v. Puerto Rico, 136 F.3d 54, 59 (1st Cir.

1998).

The parties do dispute, however, the date from which the

one-year statute of limitation ought accrue. Bou argues that the

injury occurred in July 2002, when Semidey revealed the wrongful

reasons for his demotion. The Defendants counter that the proper

accrual date is March 7, 2001, the date of the actual demotion.

Federal law determines the date on which the statute of

limitations begins running. Carreras-Rosa v. Alves-Cruz, 127 F.3d

172, 174 (1st Cir. 1997). The first step in such an inquiry is to

determine the actual injury on which the plaintiff rests the cause

of action. Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 5 (1st Cir.

1994). Here, there is no dispute that the actual injury of which

-6-
Bou complains is his demotion. Bou’s argument, and the dispositive

point on this issue faced by this Court, is thus properly framed as

whether the date of that injury ought be tolled until he learned of

the discriminatory animus that made his demotion wrongful.

As a general principle, section 1983 claims accrue “when

the plaintiff knows, or has reason to know, of the injury on which

the action is based.” Id.; Rodríguez-García v. Municipality of

Caguas, 354 F.3d 91, 96-97 (1st Cir. 2004); Rodriguez Narvaez v.

Nazario, 895 F.2d 38, 41 n.5 (1st Cir. 1990). A claimant is deemed

to “know” or “learn” of a discriminatory act at the time of the act

itself and not at the point that the harmful consequences are felt.

See Chardon v. Fernandez, 454 U.S. 6, 8 (1981); Del. State Coll. v.

Ricks, 449 U.S. 250, 258 (1980).

In the employment discrimination context, this circuit

has rejected the contention that claims do not accrue until the

plaintiff knows of both the injury and the discriminatory animus.

Morris v. Gov’t Dev. Bank of P.R., 27 F.3d 746, 749-50 (1st Cir.

1994); cf. Vistamar, Inc., 430 F.3d at 66 (holding that the statute

of limitations period for a section 1983 claim seeking to redress

an unlawful taking of property began to accrue on the date of the

wrongful appropriation). In Morris v. Government Development Bank

of Puerto Rico, we dismissed the identical theory proffered by Bou

when we rejected the appellant’s contention that “his cause of

action existed in what amounts to a state of suspended animation

-7-
until he became aware of the racial and political motives behind

the adverse employment decision.” 27 F.3d at 749-750.

Following this clear precedent, the statute of

limitations period for Bou’s claim began to accrue at the first

discrete act of discrimination. See id.; cf. Ledbetter v. Goodyear

Tire & Rubber Co., 550 U.S. __, 2007 WL 1528298, at *2 (May 29,

2007) (holding that the limitations period for a Title VII claim

for pay discrimination begins with the first discrete act). There

is simply no support for Bou’s argument that this date ought be

suspended until he learned the discriminatory motives behind the

discrete act. As a result, the limitations period for Bou’s claim

began on the date of his demotion. Since Bou did not file this

action until March 10, 2003, his claims are, as the district court

correctly ruled, time-barred.

B. Marrero’s Threshold Arguments

Marrero advances three threshold, procedural challenges

to the dismissal of her section 1983 claims. She argues that the

district court erred in allowing the Defendants’ motion for a

judgment on the pleadings because the Defendants had waived the

grounds upon which the district judge relied by failing to

consolidate their defenses and raise them in the first motion to

dismiss. Second, Marrero contends that the district judge

improperly converted the Defendants’ motion for judgment on the

pleadings into a motion for summary judgment. Finally, Marrero

-8-
raises the argument that the district court ought not have

dismissed the ancillary state law claims after finding no

cognizable section 1983 claim. These threshold issues are easily

dispensed with before addressing the arguments on the merits.

1. Failure to Consolidate Defenses

The district court dismissed the Plaintiffs’ claims by

allowing a narrow motion to dismiss and then subsequently allowing

a broader motion for judgment on the pleadings. Marrero attacks

the district court’s allowance of the second motion by parroting

the general rule for consolidation of defenses found in Federal

Rule of Civil Procedure 12(g). According to Marrero, the

Defendants waived the grounds upon which the district court relied

in the second motion by failing to raise them when the Housing

Department moved to dismiss on Eleventh Amendment grounds.

Federal Rule of Civil Procedure 12(g) provides that:

A party who makes a motion under this rule may
join with it any other motions herein provided
for and then available to the party. If a
party makes a motion under this rule but omits
therefrom any defense or objection then
available to the party which this rule permits
to be raised by motion, the party shall not
thereafter make a motion based on the defense
or objection so omitted, except a motion as
provided in subdivision (h)(2) hereof on any
of the grounds there stated.

Fed. R. Civ. P. 12(g) (emphasis added).

Marrero ignores the rule’s express exception that cross-

references subdivision (h)(2) and permits a “defense of failure to

-9-
state a claim upon which relief can be granted” to be raised “by

motion for judgment on the pleadings.” Fed. R. Civ. P. 12(h)(2);

see Silva v. Encyclopedia Britannica Inc., 239 F.3d 385, 387-88

(1st Cir. 2001).

Here, the district court entertained and allowed a motion

for judgment on the pleadings that raised a defense of failure to

state a claim. The district court’s action thus squarely meets the

exception to the general rule expressed in Rule 12(g) and

undermines Marrero’s argument.

2. Improper Conversion

Marrero also argues that the district court improperly

converted the motion for judgment on the pleadings into a motion

for summary judgment. This argument marries with Marrero’s

contention that factual issues existed on the merits of her section

1983 claim. Marrero, consumed by her belief that such factual

issues existed, concludes that the district judge must have

converted the motion for judgment on the pleadings into a motion

for summary judgment in order to dismiss the case. There is,

however, no support that such a conversion occurred.

The record shows that the district court properly

considered the matter as a motion for judgment on the pleadings.

The Defendants did not attach any documents or exhibits outside

their pleadings, and the district court never allowed the parties

to supplement the record. See Collier, 158 F.3d at 603 (holding

-10-
that such a conversion is proper in order to consider materials

outside the pleadings).

Of course, the implication of this holding is that we

will review, as we do below, Marrero’s arguments as to why factual

issues remained as to her section 1983 claims under the standard

for a motion for judgment on the pleadings, which requires the

plaintiff to meet only a deferential, notice-pleading requirement

to survive dismissal. Aponte-Torres v. Univ. of P.R., 445 F.3d 50,

54-55 (1st Cir. 2006).

3. Supplemental Jurisdiction

Finally, Marrero raises, though weakly pursues, an

argument that the district court failed to exercise supplemental

jurisdiction over her ancillary state law claims. Marrero concedes

in her brief that the jurisdictional power of the district court

rested solely on federal question jurisdiction. As a result, the

district court would have needed to exercise supplemental

jurisdiction in order to adjudicate claims that arose under the

laws of the Commonwealth of Puerto Rico. See 28 U.S.C. § 1367(a).

A district court retains the discretion, however, to

decline to exercise supplemental jurisdiction where the district

court has dismissed all claims over which it had original

jurisdiction. Id. § 1367(c)(3); see Rodriguez v. Doral Mortgage

Corp., 57 F.3d 1168, 1177 (1st Cir. 1995) (“As a general principle,

the unfavorable disposition of a plaintiff's federal claims at the

-11-
early stages of a suit, well before the commencement of trial, will

trigger the dismissal without prejudice of any supplemental

state-law claims.”).

Here, the district court, after dismissing the section

1983 claim, exercised the discretion to dismiss the supplemental

state-law claims. We will not disturb this proper exercise of

discretion. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350

(1987).

C. Marrero’s Merits Arguments

After dispensing with the threshold, procedural

arguments, we must carefully review the district court’s dismissal

on a motion for judgment on the pleadings of Marrero’s section 1983

claim. Such a review must be conducted by considering the adequacy

of Marrero’s complaint in light of the Supreme Court’s admonition

that there can be no “heightened pleading standard” or a “more

demanding rule for pleading a complaint under § 1983 than for

pleading other kinds of claims for relief.” Leatherman v. Tarrant

County Narcotics Intelligence and Coordination Unit, 507 U.S. 163,

167-68 (1993). We consider each of Marrero’s theories in turn.

1. Procedural Due Process Claim

In order to establish a procedural due process claim

under section 1983, a plaintiff “must allege first that it has a

property interest as defined by state law and, second, that the

defendants, acting under color of state law, deprived it of that

-12-
property interest without constitutionally adequate process.” PFZ

Props., Inc. v. Rodriguez, 928 F.2d 28, 30 (1st Cir. 1991).

To establish a constitutionally protected property

interest in employment, a plaintiff must demonstrate that she has

a legally-recognized expectation that she will retain her position.

Santana v. Calderon, 342 F.3d 18, 24 (1st Cir. 2003). A legitimate

expectation of continued employment may derive from a statute, a

contract, or an officially sanctioned rule of the workplace. Id.;

Perry v. Sindermann, 408 U.S. 593, 601-02 (1972). Here, it is

undisputed that under the laws of Puerto Rico, career or tenured

employees have property rights in their continued employment.

Gonzalez-De-Blasini v. Family Dep’t, 377 F.3d 81, 86 (1st Cir.

2004); Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 7 (1st Cir.

2000); Kauffman v. P.R. Tel. Co., 841 F.2d 1169, 1173 (1st Cir.

1988).

This inquiry, therefore, narrows to whether Marrero

received constitutionally adequate process. See PFZ Props., Inc.,

928 F.2d at 30. Such a standard naturally requires us to consider

what process was provided to Marrero and whether it was

constitutionally adequate. Zinermon v. Burch, 494 U.S. 113, 126

(1990). In this case, we must decide whether the pre-termination

hearing provided to Marrero satisfies this standard.

Due process requires only that the pre-termination

hearing fulfill the purpose of “an initial check against mistaken

-13-
decisions - essentially, a determination of whether there are

reasonable grounds to believe that the charges against the employee

are true and support the proposed action.” Cepero-Rivera v.

Fagundo, 414 F.3d 124, 135 (1st Cir. 2005) (citing Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 545-46 (1985)). This initial

check requires the employee to receive notice of the charges, an

explanation of the evidence that supports those charges, and the

ability to refute that evidence. See id. at 134. Any standard

that would require more process than this would unduly impede the

government in removing poorly performing employees. See id.

Marrero concedes in her amended complaint that on May 3,

2002, she received a letter informing her of the Housing

Department’s intention to remove her from office. This letter,

along with a second letter, required her to appear at an informal

meeting to discuss the removal proceedings. She attended the

meeting and was given a full opportunity to respond to each of the

allegations. Even drawing all inferences in Marrero’s favor, the

process provided her in this pre-termination hearing comported with

due process guarantees by providing her notice and an opportunity

to be heard. As a result, the pre-termination hearing provided

constitutionally adequate process without necessitating a post-

termination hearing. See Feliciano-Angulo v. Rivera-Cruz, 858 F.2d

40, 43-44 (1st Cir. 1988) (holding that due process requires no

irreducible combination of pre- and post-termination hearings).

-14-
 2. Equal Protection Claim

Under the Equal Protection Clause, persons similarly

situated must be accorded similar governmental treatment. See City

of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985);

Barrington Cove Ltd. P’ship v. R.I. Hous. & Mtg. Fin. Corp., 246

F.3d 1, 7 (1st Cir. 2001). In order to establish this claim,

Marrero needs to allege facts indicating that, “compared with

others similarly situated, [she] was selectively treated . . .

based on impermissible considerations such as race, religion,

intent to inhibit or punish the exercise of constitutional rights,

or malicious or bad faith intent to injure a person.” Rubinovitz

v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995).

The formula for determining whether individuals or

entities are “similarly situated” for equal protection purposes is

not always susceptible to precise demarcation. See Coyne v. City

of Somerville, 972 F.2d 440, 444-45 (1st Cir. 1992). Instead, the

test is whether an objective person would see two people similarly

situated based upon the incident and context in question. See

Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 21 (1st

Cir. 1999).

Here, Marrero fails even to implicate this test by

failing to make any allegation that persons similarly situated were

treated more favorably. In fact, the complaint includes

allegations to the contrary by admitting that Velez, despite his

-15-
PDP membership, was accused of similar charges, accorded similar

process, and eventually received a similar reprimand. Accordingly,

Marrero’s equal protection claim was correctly dismissed.

3. Political Discrimination

Finally, we address Marrero’s claim of political

discrimination. The First Amendment protects non-policymaking

public employees from adverse employment actions based on their

political opinions. See Rutan v. Republican Party of Ill., 497

U.S. 62, 75-76 (1990); Padilla-Garcia v. Guillermo Rodríguez, 212

F.3d 69, 74 (1st Cir. 2000). To establish a prima facie case, a

plaintiff must show that party affiliation was a substantial or

motivating factor behind a challenged employment action. See

Padilla-García, 212 F.3d at 74; Angulo-Alvarez v. Aponte de la

Torre, 170 F.3d 246, 249 (1st Cir. 1999). “While plaintiffs are

not held to higher pleading standards in § 1983 actions, they must

plead enough for a necessary inference to be reasonably drawn.”

Torres-Viera v. Laboy-Alvarado, 311 F.3d 105, 108 (1st Cir. 2002)

(citing Leatherman, 507 U.S. at 167-68); see also, Bell Atlantic

Corp. v. Twombly, 127 S.Ct. 1955 (2007)(rephrasing the standards

under Rule 12 (b)(6)).

Here, Marrero’s allegations are limited to stating that

she was badly treated at work and that her political party was

mocked. Thus, Marrero has failed to set forth any sort of causal

connection between her demotion and the political animus that she

-16-
alleges prompted it. Merely juxtaposing that she is an active

member of the NPP and that the defendants are affiliated with the

PDP is insufficient, standing alone, to create a causal link. See

Bell Atlantic Corp., 127 S.Ct. at 1966; Padilla-García, 212 F.3d at

74. True, such a connection is one among a myriad of possible

inferences. Yet even drawing all reasonable inferences in

Marrero’s favor, it would be speculative to draw the forbidden

inference from the range of possibilities. See Bell Atlantic Corp.,

127 S.Ct. at 1966 (stating that a naked assertion of conspiracy

gets the complaint close to stating a claim, but “without some

further factual enhancement it stops short of the line between

possibility and plausibility of entitlement to relief”).

Accordingly, the district court correctly concluded that her

complaint failed to state a cause of action upon which relief could

be granted.

III. CONCLUSION

Each of the Plaintiff’s arguments fails to state a claim

upon which relief could be granted. Therefore, the district

court’s ruling ought be, and hereby is, affirmed.

-17-