Ayala v. Shinseki

United States Court of Appeals
For the First Circuit

No. 13-2260

BRUNILDA AYALA,

Plaintiff, Appellant,

v.

ERIC KEN SHINSEKI;
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS;
VETERANS HOSPITAL IN PUERTO RICO,

Defendants, Appellees.

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

[Hon. Camille L. Vélez-Rivé, U.S. Magistrate Judge]

Before

Torruella, Lipez, and Barron,
Circuit Judges.

Vladimir Mihailovich, for appellant.
Lisa E. Bhatia-Gautier, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Juan Carlos Reyes-Ramos, Assistant United States
Attorney, were on brief, for appellees.

March 6, 2015
 TORRUELLA, Circuit Judge. Plaintiff-Appellant Brunilda

Ayala ("Ayala") challenges the district court's order granting

partial summary judgment for her former employer, the Department of

Veterans Affairs ("VA"). Specifically, Ayala contends that the

district court improperly refused to apply the continuing violation

doctrine to her otherwise time-barred Title VII retaliation claims

against the VA. After careful consideration, we affirm.

I. Background1

Ayala is a retired employee of the VA. She worked for

the VA for approximately thirteen years. While at the VA, she

worked primarily as a GS-4 Program Support Assistant in the VA's

Caribbean Healthcare System, Office of Geriatrics and Extended

Care.

Between 2001 and August 6, 2004, Ayala filed three Equal

Employment Opportunity ("EEO") complaints against the VA alleging

that, in retaliation for having reported her supervisor, José

Rivera, for allegedly sexually harassing interns in 2000, she

suffered the following retaliatory acts2: she was given a poor

1
The facts are drawn from the parties' statements of material
uncontested facts and the exhibits submitted by the parties at the
summary judgment stage. Because this is an appeal from a grant of
summary judgment, we recount the facts in the light most favorable
to the nonmovant, Ayala. See Franceschi v. U.S. Dep't. of Veterans
Affairs, 514 F.3d 81, 83 (1st Cir. 2008).
2
While the record is unclear as to the exact dates of these acts,
they must have taken place prior to August 6, 2004, as that was the
filing date of Ayala's third EEO complaint.

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recommendation that negatively affected her employment application

at the Drug Enforcement Agency; she was moved to an office located

in an empty and old part of the VA building; she was assigned to

work in an office known as the "Piss Room," a room where urine and

excrement would drop from the ceiling; she was transferred to work

under a new supervisor, Dr. Melba Feliciano ("Dr. Feliciano"); and

assigned sporadic work for which she did not have the proper

training to complete.

In September 2004, Ayala reported Dr. Feliciano to "top

management" at the VA for alleged fraud. According to Ayala, Dr.

Feliciano would come to the VA in the morning, punch her time card,

and leave shortly thereafter to treat patients at her private

practice. Ayala alleges that, in retaliation for having reported

Dr. Feliciano's activity, she was stripped of all of her duties and

transferred to a small windowless office. On June 11, 2007, Ayala

filed a fourth EEO complaint that recounted these allegations.

Ayala alleges that these employment conditions lasted until her

retirement on December 31, 2012.

Ayala also claims that, as a part of the VA's retaliation

against her, she periodically received false -- though largely

positive -– performance evaluations for work that she was not

assigned and did not do. Specifically, she received "fully

successful" performance evaluations in 2008, 2009, and 2010. She

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also claims that, starting in 2000, she was passed up for statutory

promotions and salary increases.

On March 13, 2009, Ayala filed a fifth EEO complaint

against the VA. The VA's Office of Resolution Management ("ORM")

investigated two of the claims included in that complaint3:

(1) whether unlawful retaliation occurred when, around October 3,

2008, Ayala was assigned sporadic work to assist a social worker

doing work she was unfamiliar with; and (2) whether unlawful

retaliation occurred when, around November 6, 2008, Ayala received

a performance evaluation based on work that she had not performed.

On January 28, 2010, the Office of Employment

Discrimination Complaint Adjudication ("OEDCA") denied Ayala's

fifth EEO complaint.4 The OEDCA found that, although Ayala had

stated a prima facie case of retaliation, the VA had articulated a

legitimate reason for Ayala's transfer and her performance

evaluations. In particular, the VA established that: (1) Ayala was

transferred because no other work was available and her new

assignment fit her job description, and (2) that Ayala's

performance evaluations were largely positive. Moreover, the OEDCA

3
The ORM partially dismissed the other claims included in Ayala's
fifth EEO complaint because they were not brought to the attention
of an EEO counselor or because the same claims had been previously
decided by the agency or the Equal Employment Opportunity
Commission ("EEOC").
4
The record is unclear as to what happened to Ayala's other four
EEO complaints.

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concluded that Ayala had failed to show that these proffered

reasons were in fact pretextual. The OEDCA informed Ayala of her

right to file a civil action in federal court.

On April 26, 2010, Ayala filed a civil action in the

district court pursuant to Title VII's antiretaliation provision,

42 U.S.C. § 2000e-3(a).5 The complaint recounts all of the

aforementioned alleged retaliatory acts, not only those contained

in her fifth EEO complaint. The VA moved for summary judgment.

The district court entered an Opinion and Order granting partial

summary judgment in favor of the VA, dismissing all but one of

Ayala's retaliation claims. In its Opinion and Order, the court

noted that, pursuant to Title VII's procedures, Ayala should have

filed her charges of discrimination within 300 days of the alleged

unlawful employment practice occurring.6 The court then held that

5
"Unlike its private-sector counterpart, Title VII does not
contain an express antiretaliation provision applicable to the
federal government as employer. See 42 U.S.C. § 2000e-16(a).
Nonetheless, we have assumed that the antiretaliation provision
applicable to private employers operates to prohibit retaliation in
the federal sector." Morales-Vallellanes v. Potter, 605 F.3d 27,
35-36 (1st Cir. 2010); see also Velázquez-Ortiz v. Vilsack, 657
F.3d 64, 72 (1st Cir. 2011).
6
The district court incorrectly ruled that Ayala had to file her
charges of discrimination against her "employer" within 300 days of
the alleged unlawful employment practice occurring. The applicable
limitations period was actually shorter.

Section 2000e-5(e)(1) sets out a general limitations period of
180 days for a plaintiff to file a charge of discrimination against
her employer. That period is extended to 300 days in deferral
jurisdictions if the plaintiff has initially instituted proceedings
with a State or local agency authorized "to grant or seek relief

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since Ayala filed her fifth EEO complaint on March 13, 2009, all

alleged retaliatory acts that took place before May 17, 2008, fell

outside the 300-day limitations period and, therefore, were time-

barred. The court rejected Ayala's argument that the continuing

violation doctrine saved her belated claims because, according to

the district court, each alleged retaliatory act was easily

identifiable and qualified as a "discrete discriminatory act."

The district court ruled that only two of Ayala's claims

were timely: (1) her allegation that her performance evaluations

since 2008 were unlawful retaliation because they supposedly rated

her for work that she did not perform; and (2) her contention that

the VA's failure to promote her or increase her salary since 2008

was unlawful retaliation for engaging in protected activity. The

court nevertheless granted summary judgment as to the first of

those claims finding that, inasmuch as her performance evaluations

from the allegedly illegal practice." Rivera-Díaz v. Humana Ins.
of P.R., Inc., 748 F.3d 387, 390 (1st Cir. 2014) (quoting 42 U.S.C.
§ 2000e-5(e)(1)) (internal quotation marks omitted). However,
federal agencies are excluded from the definition of the term
"employer." See 42 U.S.C. § 2000e(b). Instead, federal agencies
are covered under separate sections of Title VII, regardless of the
number of employees they have. 42 U.S.C. § 2000e-16(a). Complaints
against federal agencies are processed under the procedures set
forth in 29 C.F.R. § 1614. Pursuant to 29 C.F.R. § 1614.105(a)(1),
an individual wishing to initiate a complaint against a federal
agency, such as Ayala, must contact an EEO counselor within forty-
five days of the alleged unlawful employment practice. See also
Velázquez-Rivera v. Danzig, 234 F.3d 790, 794 (1st Cir. 2000) ("[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." (citing Román-Martínez v. Runyon, 100
F.3d 213, 216-18 (1st Cir. 1996))).

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were positive and not materially adverse, Ayala had failed to show

a prima facie case of retaliation.

Ayala then requested voluntary dismissal with prejudice

of the only remaining claim: that the VA unlawfully retaliated

against her by failing to promote her or increase her salary. The

district court granted her request and dismissed the entire

complaint with prejudice.

Ayala timely filed this appeal.

II. Discussion

A. Standard and Scope of Review

We review the district court's grant of summary judgment

de novo. Litz v. Saint Consulting Grp., Inc., 772 F.3d 1, 3 (1st

Cir. 2014). Summary judgment is appropriate only "if the movant

shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law."

Velázquez-Pérez v. Developers Diversified Realty Corp., 753 F.3d

265, 270 (1st Cir. 2014) (quoting Federal Rule of Civil Procedure

56(a)).

B. Analysis

Ayala challenges only the district court's conclusion

that the alleged adverse employment actions that took place more

than 300 days before she filed her EEO complaint constitute

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discrete acts that are time-barred.7 She contends that, because

the effects of those actions lasted until her retirement from the

VA, they constitute a continuing violation and, thus, her claims

were timely asserted. In the alternative, Ayala posits that if the

alleged adverse employment actions are indeed discrete acts, she

should at least be entitled to recover damages for the period

covering 300 days before filing her EEO complaint up until her

retirement. We disagree with both arguments.

Title VII, which protects employees against

discrimination based on race, color, religion, sex, or national

origin, requires a claimant seeking to recover for a discrete act

of discrimination to file her claims of unlawful employment

practices within either 45, 180, or 300 days of the occurrence of

that practice. The applicable term depends on whether the action

is filed against a federal or private employer, and on which agency

the action is filed.8 42 U.S.C. §§ 2000e-5(e)(1), 2000e-16(a). If

a claimant fails to do so, discrete discriminatory acts will be

time-barred, and thus not actionable, even if they are related to

acts alleged in timely filed charges. Nat'l R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 113 (2002).

7
Ayala does not challenge the district court's other rulings
regarding her performance evaluations since 2008 or the dismissal
with prejudice of her claims related to VA's failure to promote her
or increase her salary.
8
See footnote 6, supra.

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 Courts have recognized a narrow exception to the

limitations period via the "continuing violation doctrine." See

Pérez-Sánchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir.

2008). "Under the 'continuing violation' doctrine, a plaintiff may

obtain recovery for discriminatory acts that otherwise would be

time-barred so long as a related act fell within the limitations

period." Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st

Cir. 2009). However, this doctrine does not apply to "discrete

acts" of alleged discrimination that occur on a "particular day."

Id. Instead, it applies only to claims that cannot be said to

occur on a particular day and that by their very nature require

repeated conduct to establish an actionable claim, such as hostile

work environment claims. Id. The continuing violation doctrine

simply "allow[s] suit to be delayed until a series of wrongful acts

blossoms into an injury on which suit can be brought."

Morales-Tañón v. P.R. Elec. Power Auth., 524 F.3d 15, 19 (1st Cir.

2008) (quoting Limestone Dev. Corp. v. Vill. of Lemont, Ill., 520

F.3d 797, 801 (7th Cir. 2008)); see also Morgan, 536 U.S. at 115

("Hostile environment claims are different in kind from discrete

acts. Their very nature involves repeated conduct."); Johnson v.

Univ. of P.R., 714 F.3d 48, 53 (1st Cir. 2013) ("Discrete acts and

hostile work environment claims are 'different in kind,' because

hostile work environment claims by their nature involve repeated

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conduct and a single act of harassment may not be actionable on its

own." (internal citations omitted)).

The Supreme Court stated in Morgan that "termination,

failure to promote, denial of transfer, or refusal to hire" are

easily identifiable discrete acts instantaneously actionable.

Morgan, 536 U.S. at 114. In addition, we have held that the denial

of a reasonable accommodation, the failure to renew a contract, a

change of supervisor, a relocation to another floor, a transfer to

another office, and the failure to assign work to an employee also

constitute discrete acts. See Thornton v. United Parcel Serv.,

Inc., 587 F.3d 27, 30, 33-34 (1st Cir. 2009) (refusing to apply the

continuing violation doctrine to employer's failure to provide the

employee-plaintiff with reasonable accommodations for his

disability); Ruiz-Sulsona v. Univ. of P.R., 334 F.3d 157, 160 (1st

Cir. 2003) (finding that employer's failure to renew plaintiff's

contract constituted a discrete act); Rivera v. P.R. Aqueduct &

Sewers Auth., 331 F.3d 183, 186-89 (1st Cir. 2003) (holding that

moving plaintiff to a smaller office and transferring her from one

supervisor to another who did not assign her any work constituted

discrete acts). Similarly, a negative performance evaluation,

transfer to another area, and letter of warning also constitute

discrete acts. Miller v. N.H. Dep't. of Corr., 296 F.3d 18, 21-22

(1st Cir. 2002); see also Malone v. Lockheed Martin Corp., 610 F.3d

16, 20-22 (1st Cir. 2010) (refusing to find a hostile work

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environment and, subsequently, to apply the continuing violation

doctrine to the plaintiff's claims that he "received a series of

escalating reprimands, deteriorating performance reviews, and

eventually a demotion" on account of his race, because those

reprimands, reviews, and demotion were discrete acts).

"Each discrete discriminatory act starts a new clock for

filing charges alleging that act." Morgan, 536 U.S. at 113. It is

well-established that the statute is triggered upon the initial

occurrence of the discrete adverse employment action, even if "the

effect of the employer's [actions] continues to be felt by the

employee for as long as he remains employed." Tobin, 553 F.3d at

132 (quoting Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 135

(2d Cir. 2003)) (internal quotation marks omitted). Also, "an

employee may not extend or circumvent the limitations period by

requesting modification or reversal of an employer's prior action."

Id. at 131.

Here, Ayala does not advance a hostile work environment

claim. Instead, she claims that, between 2000 and September of

2004, her employer retaliated against her by giving her a negative

recommendation for an employment she was seeking, relocating her to

work at an empty and old part of the building, transferring her to

the so-called "Piss Room," and placing her under the supervision of

Dr. Feliciano. Ayala also claims that after she reported Dr.

Feliciano for fraud in September 2004, her employer further

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retaliated against her by stripping her of all her duties and

transferring her to a small windowless office.

On appeal, Ayala correctly concedes that all adverse

actions taken against her before September 2004 are discrete acts

and, thus, time-barred. Therefore, we need not dwell on those

claims. However, she alleges that the continuing violation

doctrine applies to the actions taken after said date, namely

stripping her of all duties and transferring her to a small

windowless office.

Although Ayala does not explain the reasoning behind her

allegation that the transfers prior to September 2004 are discrete

acts, while a similar transfer after September 2004 is not, it

seems that her reasoning is grounded on the fact that the effect of

the latter transfer continued until her retirement and, thus, she

alleges, it constituted a "continuing violation." Her reasoning is

flawed.

As explained above, the continuing violation doctrine is

meant to protect plaintiffs from losing the ability to file suit

for Title VII claims that might, by their nature, take time to

materialize. See Limestone Dev. Corp., 520 F.3d at 801 (holding

that the continuing violation doctrine simply "allow[s] suit to be

delayed until a series of wrongful acts blossoms into an injury on

which suit can be brought"). Plaintiffs might not realize that a

violation has occurred, or might not have sufficient evidence to

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support a Title VII claim until more than the general time limit to

file their claims has elapsed. See id. Therefore, courts have

been willing to toll Title VII's filing requirements in order to

preserve such legitimate claims.

This consideration is not applicable to discrete acts,

such as those alleged by Ayala, which are easy to identify and

immediately actionable. Our case law is clear that transfers to

other offices are easily identifiable discrete acts. Rivera, 331

F.3d at 187-89. Similarly, stripping an employee of all her duties

is also a discrete act. See id. (rejecting plaintiff's claim that

her transfer to a smaller office in the finance area and her

supervisor's failure to assign her work after said transfer,

despite plaintiff's repeated requests for assignments, constituted

a continuing violation). As such, and assuming that the transfer

was indeed to Ayala's detriment, upon being transferred to the

small windowless room and being stripped of all her duties, Ayala

should have known that she had been subjected to adverse employment

actions. Thus, she should have acted promptly, instead of waiting

almost three years to assert her rights.9 Since she failed to do

so, her claims are time-barred.

That the effect of these alleged actions lasted until her

retirement does not help Ayala. Title VII was triggered upon the

9
Ayala included this claim in her fourth EEO complaint, which was
filed on June 11, 2007.

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initial occurrence of the adverse employment actions, even if their

effects continued to be felt for as long as she remained employed.

See Tobin, 553 F.3d at 132. Nor is she entitled to recover damages

for the period comprised of forty-five10 days before filing her EEO

complaint up until her retirement, since it is clear that "[e]ach

discrete discriminatory act starts a new clock for filing charges

alleging that act." Morgan, 536 U.S. at 113.

III. Conclusion

Since both employment actions challenged by Ayala

constitute discrete acts, the continuing violation doctrine does

not apply to Ayala's claims and, thus, her claims are time-barred.

Therefore, we affirm the district court's amended judgment.11

Affirmed.

10
Although she claims entitlement to recover damages dating back
to 300 days before filing her EEO complaint, we have already
established that the limitations period applicable to her was
forty-five days after the alleged unlawful employment practice
occurred.
11
As an additional ground to affirm the dismissal of Ayala's
complaint, the VA alleges that Ayala failed to establish a prima
facie case of retaliation. The VA contends she alleges only that
the immediate cause of the adverse employment actions was her
reporting her supervisor for fraud and that reporting a supervisor
for fraud is not a protected ground under Title VII. See 42 U.S.C.
§§ 2000e-3(a), 16(a); Ponte v. Steelcase Inc., 741 F.3d 310, 321
(1st Cir. 2014). Our conclusion that Ayala's claims are time-
barred make it unnecessary to discuss this issue.

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