USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-2099
MANUEL MUNIZ-CABRERO,
Plaintiff, Appellant,
v.
DR. ALEJANDRO RUIZ, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Jesus E. Cuza with whom Vicente & Cuebas was on brief for
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appellant.
James D. Noel, III with whom Ledesma, Palou & Miranda was on
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brief for appellees.
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May 18, 1994
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Stahl, Circuit Judge. Plaintiff-appellant Manuel
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Muniz Cabrero appeals the district court's grant of summary
judgment in favor of defendants-appellees Dr. Alejandro Ruiz
("Ruiz"), Dr. Karen Soto ("Soto"), Dr. Olga Hernandez
("Hernandez"), and Edmundo Carrero ("Carrero"). Because we
agree with the district court's finding that plaintiff's 42
U.S.C 1983 action is time-barred, we affirm.
I.
I.
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FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
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The following facts are uncontested. In July 1982,
plaintiff was hired to work at the Sports Complex at the
state-run University of Puerto Rico, Mayaguez Campus
("University"). From 1983 to present, plaintiff has served
as the Sports Complex's "Executive Official I," a career
position roughly equivalent to the more familiar title of
Director.1 Plaintiff is also an active member of the New
Progressive Party ("NPP"), whose gubernatorial candidate lost
the general election in November 1984.
In August 1990, Ruiz, an active member of the
Popular Democratic Party ("PDP"), was appointed Chancellor of
the University. Three months after assuming office, Ruiz met
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1. Under Puerto Rico law, employees with career status enjoy
property rights in their continued employment. See Rivera-
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Ruiz v. Gonzalez-Rivera, 983 F.2d 332, 334 (1st Cir. 1993);
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Kauffman v. Puerto Rico Tel. Co., 841 F.2d 1169, 1173 (1st
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Cir. 1988).
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with the University's Administrative Board2 to propose a
reorganization plan. Under the plan, the Sports Complex,
which had always operated as an independent department under
the direct control of the Chancellor, was to be merged with
the Physical Education Department at the University's Arts
and Sciences College.
On November 15, 1990, the Administrative Board
unanimously approved the proposal to be effective December 1,
1990, and subject to review at the conclusion of the 1990-91
academic year.3 On or about November 30, 1990, plaintiff
met with Ruiz and Hernandez, Dean of the Faculty of the
College of Arts and Sciences, to discuss the reorganization.
At that meeting, Ruiz informed plaintiff that, under the new
structure, plaintiff would report to Soto, Director of the
University's Physical Education Department and, in her
absence, to Carrero, Associate Director of Physical
Education. Ruiz also gave plaintiff a letter dated November
30, 1990, which formally detailed the new arrangement.
Between December 1, 1990, and February 20, 1991,
plaintiff missed forty-seven days of work. In his absence,
Soto and Hernandez temporarily took over his
responsibilities, including the review of mail addressed to
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2. Both Ruiz and Hernandez are members of the Administrative
Board.
3. The second semester ended in May 1991.
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plaintiff. On April 12, 1991, plaintiff wrote to Soto
stating that although he returned to work as of February 20,
1991, he had not been assigned any tasks. Plaintiff also
complained that the duties he used to perform were now
discharged by Soto and Carrero. Five days later, in a letter
dated April 17, 1991, Soto provided plaintiff with a detailed
description of his responsibilities under the new structure.
In that letter, Soto remarked that the duties as outlined
"follow the provisions of the [personnel form] you signed
with the Campus." Thereafter, on May 1, 1991, plaintiff,
Soto and Carrero met to clarify the functions described in
the April 17 letter. In his final relevant correspondence, a
May 9, 1991, letter to Soto, plaintiff wrote: "After having
evaluated the duties assigned to me it is easy to interpret
that I have been demoted from my position and functions." In
closing, plaintiff noted that he would continue to perform
his duties as assigned. Thereafter, plaintiff continued to
serve as Executive Director I, occupying his same office and
suffering no reduction in salary.
On June 26, 1992, plaintiff filed a complaint under
42 U.S.C. 1983, charging Ruiz, Hernandez, Soto and Carrero
with political discrimination in violation of plaintiff's
First, Fifth and Fourteenth Amendment rights. Plaintiff
charged, inter alia, that he was the victim of "illegal
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activity" since November 1984, such activity intensifying in
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August 1990 when the four defendants, all allegedly members
of the then-ruling PDP or some unspecified party other than
the NPP, plotted to effect the reorganization, thereby
attempting to demote plaintiff solely because of his
membership in the NPP. Plaintiff's complaint sought both
monetary damages and injunctive relief.
On February 25, 1993, defendants filed a motion for
summary judgment arguing, inter alia, that the 1983 action
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was time-barred. Plaintiff filed an opposition to
defendants' motion on April 21, 1993. In an opinion and
order dated May 24, 1993, the district court granted
defendants' motion, finding among other things, that the
purported discrimination occurred outside of the statute of
limitations period. The district court further found that
plaintiff had not alleged sufficient facts to suspend the
limitations period under a "continuing violations" theory.
It is from these rulings that plaintiff appeals.
II.
II.
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STANDARD OF REVIEW
STANDARD OF REVIEW
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Summary judgment is appropriate when the record
reflects "no genuine issue as to any material fact and . . .
the moving party is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). "In this context, `genuine' means
that the evidence is such that a reasonable jury could
resolve the point in favor of the nonmoving party."
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Rodriguez-Pinto v. Tirado-Delgado, 982 F.2d 34, 38 (1st Cir.
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1993) (internal quotations and citations omitted). As
always, we review grants of summary judgment de novo,
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indulging all reasonable inferences in the nonmovant's favor.
See Levy v. FDIC, 7 F.3d 1054, 1056 (1st Cir. 1993).
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Nonetheless, the nonmovant may not rely upon "unsupported
allegations; rather, [s/]he must set forth specific facts, in
suitable evidentiary form, in order to establish the
existence of a genuine issue for trial." Rivera-Muriente v.
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Agosto-Alicia, 959 F.2d 349, 352 (1st Cir. 1992). "A party
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opposing a summary judgment motion must inform the trial
judge of the reasons, legal or factual, why summary judgment
should not be entered. If it does not do so, and loses the
motion, it cannot raise such reasons on appeal." Rodriguez-
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Pinto, 982 F.2d at 41 (internal quotations and citations
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omitted). Finally, "Rule 56 may be used to determine the
applicability of a statutory time bar to a particular set of
facts." Id.
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III.
III.
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DISCUSSION
DISCUSSION
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Plaintiff argues that the district court erred in
finding that his complaint was time-barred. In essence, he
argues that the Administrative Board did not have the power
to effect the reorganization, that his "demotion" was
therefore invalid, and that any and all repercussions
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stemming from this "illegal demotion" constituted separate
and actionable "continuing violations" of plaintiff's
constitutional rights, each restarting the limitations clock.
We do not agree.
A. Statute of Limitations
A. Statute of Limitations
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"Under 42 U.S.C. 1983, an aggrieved individual
may sue persons who, acting under color of state law, abridge
rights, immunities, or privileges created by the Constitution
or laws of the United States." Johnson v. Rodriguez, 943
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F.2d 104, 108 (1st Cir. 1991), cert. denied, 112 S. Ct. 948
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(1992). Whereas the personal injury statute of limitations of
the forum state governs in 1983 actions, see, e.g. Owens v.
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Okure, 488 U.S. 235, 236 (1989), the date of accrual, i.e.,
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the date on which the limitations clock begins to tick, is
determined by reference to federal law. Rivera-Muriente, 959
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F.2d at 352. Puerto Rico's applicable statute, P.R. Laws
Ann. tit. 31, 5298 (1991), prescribes a one-year
limitations period beginning on the date of accrual. Id.
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Under federal law, the limitations "period in a 1983 case
ordinarily starts when the plaintiff knows, or has reason to
know, of the harm on which the action is based." Id. at 353
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(collecting cases).
We begin by noting that if any civil rights
violation occurred here, it occurred on December 1, 1990,
when the Administrative-Board-approved merger became
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effective. Plaintiff, by his own testimony, knew of the full
impact of the transfer, at the very latest, in May 1991 when
plaintiff wrote to Soto that he would perform his duties as
assigned even though he believed he had been demoted.
Therefore, plaintiff's one-year limitations period commenced
at the very latest in May 1991 and terminated in May 1992, a
full month before the filing of plaintiff's complaint.
Moreover, as the district court found, plaintiff has failed
to allege sufficient facts to suspend the limitations period
under a continuing violation theory.
B. "Continuing Violation" Theory
B. "Continuing Violation" Theory
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To establish a continuing violation, plaintiff
"`must allege that a discriminatory act occurred or that a
discriminatory policy existed' within the period prescribed
by the statute." Johnson v. General Elec., 840 F.2d 132, 137
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(1st Cir. 1988) (quoting Velazquez v. Chardon, 736 F.2d 831,
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833 (1st Cir. 1984)). There are two varieties of continuing
violations: serial and systemic. Kassaye v. Bryant College,
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999 F.2d 603, 606 (1st Cir. 1993). Serial violations are
"composed of a number of discriminatory acts emanating from
the same discriminatory animus, each act constituting a
separate [actionable] wrong." Jenson v. Frank, 912 F.2d 517,
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522 (1st Cir. 1990). Plaintiff bears the burden of
demonstrating that at least one discriminatory act occurred
within the limitations period. See id.; Mack v. Great Atl.
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and Pac. Tea Co., 871 R.2d 179, 183 (1st Cir. 1989);
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Velazquez, 736 F.2d at 833. It is not enough to show that
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plaintiff is merely feeling the effects of some earlier
discriminatory action. In other words, there is a "critical
distinction between a continuing act and a singular act that
brings continuing consequences in its roiled wake." Johnson,
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943 F.2d at 108 (internal citations omitted); see also Mack,
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871 F.2d at 182 ("In any such analysis, it is imperative that
we distinguish between the occurrence of a discriminatory act
and the later effects of that act."); Goldman v. Sears,
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Roebuck & Co., 607 F.2d 1014, 1018 (1st Cir. 1979) ("A
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continuing violation is not stated if all that appears from
the complaint is that the plaintiff continues to suffer from
the ongoing effects of some past act of discrimination."),
cert. denied, 445 U.S. 929 (1980). Systemic violations, on
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the other hand, "need not involve an identifiable discrete
act of discrimination transpiring within the limitation
period." Jenson, 912 F.2d at 523. Rather what must be shown
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is that plaintiff has been harmed by the application of a
discriminatory policy or practice and that such policy
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continues into the limitations period. Id.
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First, plaintiff has failed to show that any of the
actions that allegedly occurred within the year prior to the
filing of the complaint, i.e. Soto's (1) refusal, purportedly
for reasons of building security, to give plaintiff new
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master keys to the Sports Complex, (2) opening of mail
addressed to plaintiff, (3) hiring of a Sports Complex
employee, and (4) representations that she was the Director
of the Sports Complex, constituted separate and actionable
1983 violations.4 Rather, these incidents are natural and
foreseeable consequences of the 1990 merger (which made Soto
responsible for the overall management of the Sport's
Complex), and plaintiff's subsequent 47-day absence from
work. See generally Kassaye, 999 F.2d at 603 (private
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college's request that professor vacate his office was merely
an effect and not an independent incarnation of past alleged
discriminatory refusal to grant tenure on basis of race); De
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Leon Ortero v. Rubero, 820 F.2d 18, 20 (1st Cir. 1987)
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(defendants' refusal to reinstate plaintiff "was not a
separate act of discrimination, but rather a consequence of
his initial demotion"); Velazquez, 736 F.2d at 833 (demotion
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followed by defendant's repeated refusals to reinstate
plaintiff did not constitute a continuing violation).
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4. Plaintiff has failed to refute any of the statements
proffered by defendants in defense of their actions. For
example, plaintiff has not contradicted Soto's sworn
statement that she denied plaintiff (and others) master keys
to the Sports Complex for security reasons, that she opened
plaintiff's mail because he was absent from work, or that her
assignment of plaintiff's duties mirrored his job description
as set forth in his personnel form. Moreover, plaintiff
alleged that Soto represented herself as the "Director" of
the Sports Complex on letters dated December 4, 1991 and May
28, 1992. A review of the letters shows that Soto signed
"Dr. Soto, Director." At the time Soto signed these letters,
she was the Director of the Physical Education Department.
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Secondly, because plaintiff has failed to identify
any discriminatory policy or practice in effect during the
statutory period, he fares no better under the systemic
violation theory. Instead of "alleg[ing] facts which would
enable a jury to conclude that [he] had suffered from
political discrimination in the year before [he] filed suit,"
Velazquez, 736 F.2d at 834, plaintiff has simply alleged that
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every time Soto carried out her position as supervisor, she
resurrected a general political plot designed by defendants
to harm and humiliate plaintiff. This is not enough.5
Plaintiff has failed to proffer any evidence that he was
treated differentlythan members ofparties other thanthe NPP.6
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5. Plaintiff's evidence of discriminatory animus consists of
the following:
Close to the date in which Carlos Romero
Barcelo lost the elections [November
1984], Dr. Karen Soto came to me and
asked me what was I going to do now that
the New Progressive Party had lost.
Plaintiff has neglected to show how this dated and
inconclusive statement evidences a policy of discrimination
which continued into the limitations period, or how it could
support "a finding that [plaintiff was] treated differently
than [he] would have been treated had [he] belonged to
[defendants'] political part[ies]." Id. at 836.
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6. Plaintiff further contends that because the original
reorganization was illegal, any fallout from the merger
constituted an independent act of demotion. We are not
persuaded. Under plaintiff's novel theory, any demoted
employee with a potential cause of action could wait an
indefinite period of time before bringing a 1983 action
because every day s/he went to work, s/he was affected. This
is absurd. Statute of limitations are designed to keep stale
claims out of court. See Havens Realty Corp. v. Coleman, 455
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Because "`the proper focus [in continuing violation
analysis] is on the time of the discriminatory act, not the
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point at which the consequences of the act become painful,'"
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Mack 871 F.2d at 182 (quoting Chardon v. Fernandez, 454 U.S.
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6, 8 (1981) (per curiam) (emphasis in original)), and because
the allegedly discriminatory act here happened more than one
year prior to the filing of the complaint, plaintiff's action
is time-barred.
To the extent that plaintiff challenges other
portions of the district court's ruling, "it does so in a
perfunctory manner, without any attempt at developed
argumentation". Alan Corp. v. International Surplus Ins.
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Co., No. 93-1697, slip op. at 12 (1st Cir. Apr. 22, 1994)
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(collecting cases). Such arguments are deemed waived. Id.
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IV.
IV.
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CONCLUSION
CONCLUSION
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For the foregoing reasons, the judgment of the
district court is
Affirmed.
Affirmed.
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U.S. 363, 380 (1982). Plaintiff's interpretation of the
continuing violation theory would reduce this purpose to a
nullity.
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