Martinez-Rivera v. Commonwealth of Puerto Rico

United States Court of Appeals
For the First Circuit

No. 13-1772

EDNA MARTÍNEZ-RIVERA, on her own behalf and on behalf of her
minor child, RCM; LYDIA RIVERA-O'FARRIL; LYDIA MARTÍNEZ-RIVERA,

Plaintiffs, Appellants,

v.

COMMONWEALTH OF PUERTO RICO; DEPARTMENT OF JUSTICE OF PUERTO
RICO; DEPARTMENT OF LABOR AND HUMAN RESOURCES OF PUERTO RICO;
VOCATIONAL REHABILITATION ADMINISTRATION; NYDIA COLÓN-ZAYAS,
MYRNA CAMBRELEN, JUAN ORTIZ-ORTIZ, ENRIQUE DEL CUETO-PÉREZ, all
in their official and personal capacities,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]

Before
Torruella, Lipez, and Thompson,
Circuit Judges.

Carlos Rodríguez García, with whom Rodríguez García PSC was
on brief, for appellants.
Roberto Ariel Fernández, with whom González Castañer PSC was
on brief, for appellees.

January 29, 2016
 THOMPSON, Circuit Judge.

Overview

Edna Martínez Rivera ("Martínez") is a former employee

of Puerto Rico's Vocational Rehabilitation Administration ("VRA"),

an agency tasked with integrating persons with disabilities into

the workforce. Sometime after the VRA let her go, Martínez filed

a federal-court suit against the defendants listed in our caption.

Essentially believing that they had discriminated against her

because of her disability, age, and politics, her complaint

seemingly alleges various violations of federal and local law.1

We say "essentially" and "seemingly" because her complaint is quite

muddled in key ways, forcing us to spend a lot of time piecing

together what claims she makes against whom (which isn't fair to

other litigants waiting in line for our attention, by the way).

Adding to the confusion, the district judge homed in on one federal

claim (under 42 U.S.C. § 1983), concluded that it ought to be

dismissed for failure to exhaust administrative remedies, and then

— without explaining why — dismissed the remaining claims too.

Martínez appeals. Unfortunately, her briefs are, like

her complaint, disorganized and opaque — they float legal theories

1 Martínez's son, mother, and sister joined as parties plaintiffs.
The district judge found — and Martínez does not argue otherwise
— that their claims are derivative of hers. So we treat the case
as if Martínez were the only plaintiff and appellant.
- 2 -
but do not always ground them in the case, for example.2 Yet she

still ends up with a partial victory, as we affirm in part and

reverse in part. We explain our thinking below. First, a little

background.

How the Case Got Here

A lawyer by training, Martínez worked for years as a

Puerto Rico government employee. In the late 2000s, for example,

she held key posts — director of the office of legal affairs and

auxiliary administrator of the office of administration — within

the VRA. A member of the Popular Democratic Party — one of Puerto

Rico's two main political parties, the other being the New

Progressive Party — Martínez has a visibly-apparent disability

that affects her mobility. And our defendants knew about her

political affiliation and her disability.

Martínez's professional life was going along swimmingly

— until the New Progressive Party's Luis Fortuño Burset became

Puerto Rico's governor in January 2009. Sadly for Martínez, over

the next six months VRA personnel stripped her of meaningful

2Her opening brief's jurisdictional statement, for instance, makes
passing reference to the possibility that defendants violated her
Fifth- and Fourteenth-Amendment rights. But she never explains
how or why this is so. Obviously then, any argument based on these
theories is waived. See, e.g., HSBC Realty Credit Corp. (USA) v.
O'Neill, 745 F.3d 564, 577 (1st Cir. 2014) (explaining that
arguments "not developed in a party's opening brief are waived").
- 3 -
duties, banished her to a subpar office, and made fun of her

disability (to list just a few of the indignities inflicted on

her). As a coup de grâce, the VRA told her in a letter dated

January 14, 2010 — which she acknowledged receiving the next day,

January 15 — that she was "being terminated" effective February

19, 2010 as part of a government downsizing required by law. That

law (known as "Law 7") called for (among other things) the

termination of certain commonwealth employees based on seniority,

all in the hopes of putting Puerto Rico on a better financial

footing. See generally Álamo-Hornedo v. Puig, 745 F.3d 578, 580

(1st Cir. 2014) (discussing Law 7). She could not work after

January 20, 2010, the complaint says, because the stress caused by

all the "political [and] disability discrimination" perpetrated by

defendants "exacerbated her physical disability."

Not willing to go away without a fight, Martínez

"attempted" (her word, not ours) to file an administrative appeal

with the Public Service Labor Relations Commission on February 12,

2010. Accusing the VRA of discriminating against her because of

her political affiliation and disability, her "attempted" filing

asked the commission to "declare void and null the layoff that was

notified." As best we can tell, Martínez never says what became

of her "attempted" filing. Anyway, the VRA let her go 7 days

later, on February 19, 2010.

- 4 -
 Still upset about the termination, Martínez filed a

complaint with the EEOC on July 12, 2010 and an amended complaint

on August 17, 2010, alleging political and disability

discrimination.3 Her amended EEOC complaint specifically accused

the VRA of replacing her with two nondisabled "female lawyers" who

"are politically affiliated [with] the governing party." She asked

the EEOC for a right-to-sue letter on February 2, 2011. But before

getting one, she sued our defendants in federal court on February

17, 2011. The EEOC gave her a right-to-sue letter about a month

later, on March 18.

Martínez's 103-paragraph federal complaint is hardly a

picture of clarity. Giving that document a generous read, she

seemingly alleges (as best we can discern) four categories of

claims. The first involves a political-discrimination claim tied

to 42 U.S.C. § 1983 (dealing with deprivations of federally-

protected rights at the hands of state actors), 42 U.S.C. § 1981

(declaring all persons "have the same right" to be free from

discrimination in specific activities, like making and enforcing

contracts and bringing suits), and 42 U.S.C. § 2000d (forbidding

racial discrimination by federal-grant recipients). The second

involves a disability-discrimination claim under Title I of the

3 EEOC stands for Equal Employment Opportunity Commission.
- 5 -
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.

The third involves an age-discrimination claim under the Age

Discrimination in Employment Act ("AEDA"), 29 U.S.C. § 621 et seq.

And the fourth involves a grab-bag of claims under Puerto Rico

law.

To Martínez's complaint, defendants responded with a

motion to dismiss for lack of subject-matter jurisdiction. See

Fed. R. Civ. P. 12(b)(1). Basically they argued that the statute

of limitation had run out on any section 1983 claim: the

applicable one-year limitations period, they wrote, started

running no later than January 20, 2010 (the date when she could no

longer work because of all the alleged discrimination she had

experienced) — but she filed her complaint on February 19, 2011,

they added, nearly one month after the limitations period had

expired. Oddly, defendants cited no authority (as far as we can

see) for the idea that a late-filed section-1983 claim is

jurisdictionally barred from federal court. See generally

Williams v. Henderson, No. 14-5150, 2015 WL 5638015, at *1 n.3

(10th Cir. Sept. 25, 2015) (unpublished) (agreeing with cases from

the Seventh and Ninth circuits holding that section 1983's

limitation period is not jurisdictional). Odder still, they argued

— without supporting reasoning — that because she filed her

section-1983 claim out of time, the judge had to dismiss all

- 6 -
federal claims (not just the section-1983 claim). And then they

suggested that the judge should decline jurisdiction over the

local-law claims.

Focusing with laser-like intensity on the section-1983

claim, Martínez fired back that the one-year limitations clock did

not start ticking until after February 19, 2010, when she learned

that the VRA had replaced her with persons who — unlike her — were

politically affiliated with the new administration (she does not

specify the precise date, regrettably). Alternatively, she argued

that her August 2010 EEOC filing tolled section 1983's limitations

period (tolling typically operates to interrupt and so postpone

the limitation period's running), making her section-1983 claim

(filed less than a year later) timely.

Taking up defendants' Rule 12(b)(1) motion, the district

judge (like the parties) zeroed in on section 1983. And he ruled,

first, that the limitations period began running on January 15,

2010 when Martínez got the termination letter, not when the VRA

hired her replacement — though he then concluded that the

limitations clock reset when she filed her EEOC complaint on July

12, 2010. So far, so good, for Martínez. But noting that she had

sued defendants before getting an EEOC right-to-sue letter, the

judge ruled that she had not exhausted her section-1983 claim

administratively (remember, the judge keyed his analysis to

- 7 -
section 1983). And — here's the kicker — he then dismissed all

claims (not just the section-1983 claim) with prejudice: as best

we can discern, he jettisoned all federal claims on exhaustion

grounds and relinquished jurisdiction over the supplemental local-

law claims.

Which brings us to today, with the parties fighting over

the judge's section-1983-driven decision. Essentially, Martínez

argues that she did not have to exhaust her section-1983 claim for

political discrimination with the EEOC.4 She also insists that

she timely filed her federal complaint, either because she brought

it within a year after learning that the VRA had replaced her with

persons politically simpatico with the party in power (she did not

know about the VRA's politically-discriminatory motives until the

replacements appeared, the theory goes) or because her EEOC filings

reset the limitations clock. And, wrapping up, she contends that

4Reader alert: Recall how Martínez's complaint seemingly suggests
that three statutes drive her political-discrimination claim —
section 1983, section 1981, and section 2000d. Well, her brief
does not seriously discuss whether or how sections 1981 and 2000d
apply in the context of this case, meaning she has waived any
possible arguments tied to those provisions. See, e.g., Rivera-
Muriente v. Agosto-Alicea, 959 F.2d 349, 351 n.2 (1st Cir. 1992)
(citing United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990),
for the canonical rule that arguments not developed in any
meaningful way are waived); see also Rodríguez v. Mun. of San Juan,
659 F.3d 168, 175 (1st Cir. 2011) (adding that "claims not made"
and claims "'confusingly constructed and lacking in coherence'"
are considered waived too (quoting United States v. Eirby, 515
F.3d 31, 36 n.4 (1st Cir. 2008))).
- 8 -
her receipt of the EEOC's right-to-sue letter before the judge

dismissed the case cured her failure to exhaust her disability-

and age-discrimination claims. Defendants' brief disagrees with

just about everything Martínez says — though they changed their

tune a bit on the disability-discrimination issue at oral argument,

as we'll soon see.

Time to roll up our sleeves and sort this all out.

Standard of Review

Relying on Rule 12(b)(1), the judge (to repeat

ourselves) decided the statute-of-limitations and exhaustion

issues as if they implicated the court's subject-matter

jurisdiction. On both scores, we have our doubts. As a general

matter, statutes of limitations are affirmative defenses rather

than jurisdictional bars. See, e.g., Bowles v. Russell, 551 U.S.

205, 218-19 (2007). And, for reasons that we get to shortly, the

exhaustion requirements involved here — though compulsory — are

not jurisdictional either. Perhaps then the judge should have

analyzed the case under Federal Rule of Civil Procedure 12(b)(6)

(failure to state a claim) rather than under Rule 12(b)(1) (lack

of subject-matter jurisdiction). See Mercado v. Ritz–Carlton San

Juan Hotel, Spa & Casino, 410 F.3d 41, 46 n.6 (1st Cir. 2005).

No matter, because under either rule we review the

judge's order de novo, accepting Martínez's well-pleaded facts as

- 9 -
true and drawing all reasonable inferences in her favor. See

McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006); see also

Román–Oliveras v. P.R. Elec. Power Auth., 655 F.3d 43, 45 (1st

Cir. 2011). And we can affirm a dismissal under either rule on

any ground supported by the record. See, e.g., McCloskey, 446

F.3d at 266. The parties (and we) rely on facts outside the

pleadings. But that is okay given the particular circumstances

here. See, e.g., Aversa v. United States, 99 F.3d 1200, 1210 (1st

Cir. 1996) (explaining that a court can "consider whatever evidence

has been submitted" in deciding a Rule 12(b)(1) motion); Arturet–

Vélez v. R.J. Reynolds Tobacco Co., 429 F.3d 10, 13 n.2 (1st Cir.

2005) (noting, among other things, that a court faced with a Rule

12(b)(6) motion can consider "facts" susceptible to "judicial

notice" and "concessions" in plaintiff's "response" to the

dismissal motion); Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)

(adding also that a court confronted with a Rule 12(b)(6) motion

can consider "documents the authenticity of which are not disputed

by the parties").

Political Discrimination (Section-1983 Claim)

Administrative Exhaustion

Whether Martínez had to administratively exhaust her

section-1983 claim for political discrimination is easy.

Controlling caselaw holds that for a person in her shoes,

- 10 -
exhaustion is not a precondition to bringing a section-1983 claim

in federal court. See, e.g., Patsy v. Bd. of Regents of State of

Fla., 457 U.S. 496, 501-02, 516 (1982); Álamo-Hornedo, 745 F.3d at

581.5 So we have no trouble concluding that the judge erred in

holding otherwise.

Now on to the more difficult issue: whether the statute

of limitations ran out on Martínez's section-1983 claim.

Statute of Limitations

For anyone not up-to-speed on how a statute-of-

limitations analysis works for a section-1983 claim, here's a quick

primer.

Because section 1983 does not have its own statute of

limitations (i.e., a provision intended to protect defendants from

having to defend against stale claims), courts use the personal-

injury limitations period adopted by the state where the injury

supposedly occurred — in Puerto Rico, one year.6 See, e.g., Morris

v. Gov't Dev. Bank of P.R., 27 F.3d 746, 748 (1st Cir. 1994)

5 Fyi: A federal statute — providing that "'[n]o action shall be
brought with respect to prison conditions under section 1983 . . .
by a prisoner . . . until such administrative remedies as are
available are exhausted'" — requires prisoners (and only
prisoners) to exhaust administrative remedies before bringing a
section-1983 suit. See Woodford v. Ngo, 548 U.S. 81, 87-88 (2006)
(quoting 42 U.S.C. § 1997e(a)).
6 Our cases treat Puerto Rico as a state for section-1983 purposes.
See, e.g., Grajales v. P.R. Ports Auth., 682 F.3d 40, 46 (1st Cir.
2012).
- 11 -
(citing, among other things, P.R. Laws Ann. tit. 31, § 5298(2)).

Courts use federal law, though, to figure out when the limitation

clock starts ticking. So for, say, an ousted public employee

pushing a political-discrimination claim, our rule is that the

ticking starts when she knew or had reason to know of the injury

on which her claim rests. And this is true even if she did not

know that political animus had caused her injury. See id. at 749-

50 (explaining that a plaintiff "need not know all the facts that

support [her] claim in order for [the limitations] countdown to

commence"); see also Morales-Tañon v. P.R. Elec. Power Auth., 524

F.3d 15, 18 (1st Cir. 2008) (citing Marrero-Gutiérrez v. Molina,

491 F.3d 1, 5-6 (1st Cir. 2007)). But just as we borrow the

state's limitations period in section-1983 cases, so too we borrow

the state's tolling rulings — unless of course they are hostile to

federal interests. See, e.g., Rodríguez, 659 F.3d at 173; López–

González v. Mun. of Comerío, 404 F.3d 548, 552 (1st Cir. 2005).

One tolling rule — a rule courts construe narrowly against the

person seeking its protection — provides that an "extrajudicial

claim" can "interrupt[]" the statute of limitations, causing the

limitations period to restart. See P.R. Laws Ann. tit. 31, § 5303;

Rodríguez Narváez v. Nazario, 895 F.2d 38, 43-44 (1st Cir. 1990)

(discussing Puerto Rico law).

- 12 -
 Back to our case. Like the district judge, we believe

the limitations countdown began on January 15, 2010 — the day

Martínez learned authoritatively of her termination, plus the

reason for it (the legitimacy of which she could then assess),

even though, as she points out, the missive made the ouster

effective February 19, 2010. And we reach this conclusion because

"in employment discrimination actions, limitations periods

normally start to run when the employer's decision is made and

communicated to the affected employee." Morris, 27 F.3d at 750

(collecting caselaw); see also Rivera-Muriente, 959 F.2d 349, 353

(emphasizing that "[i]n employment discrimination cases involving

wrongful discharges, the statute of limitations begins to run when

the plaintiff learns of the decision to terminate his employment

(even if the notice he receives is informal)").

"Normally" implies that exceptions exist, Martínez

protests. And she thinks that the circumstances of her case are

among them because (her argument continues) she did not know that

political animus lay behind her firing until the VRA replaced her

with persons affiliated with a party different from hers sometime

after February 19, 2010 — meaning (by her lights) that she timely

filed her section-1983 claim on February 17, 2011 (i.e., before

the one-year limitation period had expired).

- 13 -
 We are unmoved. Put to one side that Martínez's

complaint suggests she knew (or at least had chargeable knowledge)

of the political animus well before her replacements came on board

— don't forget, the complaint alleged that the stress caused by

the "political . . . discrimination" heaped on her affected her

ability to work in and around the time of January 2010. What dooms

her effort here is that our cases (as we noted a few paragraphs

back) flatly reject the idea that a claim only accrues — and the

limitations countdown only starts — when "the plaintiff knows of

both the injury and the discriminatory animus." See Marrero-

Gutiérrez, 491 F.3d at 6. Stated differently (and more

colorfully), a plaintiff's "cause of action" does not "exist[] in

what amounts to a state of suspended animation until" she is "aware

of the . . . political motives behind the adverse employment

decision." See Morris, 27 F.3d at 749-50.

So again, the limitations period expired one year after

January 15, 2010 — i.e., about a month before Martínez filed suit.

Her only hope then is to convince us that some tolling act

occurred. And she tries to do just that. Citing section 5303,

Martínez argues that her August 2010 EEOC filing is an

"extrajudicial claim" that caused the limitations term to start

anew — meaning (at least in her mind) that she did file her February

2011 federal complaint within the one-year period.

- 14 -
 Call us unconvinced. The parties cite no translated

case from the Puerto Rico Supreme Court (and no case from us or

the United States Supreme Court interpreting Puerto Rico law)

holding that an EEOC complaint can toll the limitations period for

a section-1983 claim based on the same core of facts. But,

thankfully, the caselaw out there does provide enough light to

illuminate the path to decision.

For instance, cases say that to have any tolling effect,

an extrajudicial claim must be identical to the later suit in

several respects: the two "must be asserted against the same

defendants in the same capacities" — "new defendants should not be

added"; they "must be based on the same substantive claims"; and

they "must seek the same form of relief." Rodríguez–García v.

Mun. of Caguas, 354 F.3d 91, 98 (1st Cir. 2004) (discussing tolling

under section 5303). The purpose behind the identicality

requirement is to stop plaintiffs from sidestepping "the notice

function of the statute[] of limitations" when they file their

"belated federal court complaints." Id. at 97.

The first problem for Martínez all but leaps off the

pages of the record: her EEOC charge named only the VRA and its

administrator, Nydia Colón Zayas — conspicuously absent are the

other defendants named in this suit. And so we easily conclude

that the limitations period cannot be tolled as to the parties

- 15 -
unnamed in the EEOC charge, even without getting into thicket of

whether an EEOC complaint can toll a political-discrimination-

based section-1983 claim.

But we cannot avoid this thicket in dealing with the VRA

and its administrator. Taking it one step at a time, though, we

see that the Puerto Rico Supreme Court says that the filing of an

administrative complaint will not toll the statute of limitations

if the agency lacks jurisdiction over the charge — the idea

apparently being that in such a situation, the administrative

complaint and the later-filed judicial claim cannot be identical

for tolling purposes. See Cintrón v. E.L.A., 127 D.P.R. 582, 594

(1990) (English translation available at 1990 WL 658719); see also

Secretario del Trabajo v. Finetex Hosiery Co., 16 P.R. Offic.

Trans. 1014, 1019-20 (1986). The parties — who agree on little

else — agree that the EEOC does not have jurisdiction over section-

1983 claims for political discrimination.7 Having uncovered no

authority to the contrary, and given Puerto Rico's tolling caselaw,

we conclude that Martínez's EEOC filing did not reset the

7 After stressing that the EEOC is responsible for enforcing laws
prohibiting employers from discriminating against job applicants
or employees on the basis of race, color, religion, sex (including
pregnancy), national original, disability, age (40 or over), or
genetic information, Martínez, for example, writes that notably
missing from this list is anything granting the EEOC "jurisdiction"
over "political discrimination claims."
- 16 -
limitations clock for her section-1983 political-discrimination

claim.

As for whether this result jibes with federal interests,

we think that it does. Here is why. Our judicial superiors have

said that Reconstruction-Era civil-rights acts like sections 1981

and 1983 "exist independent of any other legal or administrative

relief that may be available as a matter of federal or state law."

Burnett v. Grattan, 468 U.S. 42, 50 (1984) (emphasis added). They

have also said that a discrimination charge filed with the EEOC

does not toll the limitations period for a section-1981 action

based on the same facts (section 1981, remember, protects certain

rights against racial discrimination). See Johnson v. Ry. Express

Agency, 421 U.S. 454, 466 (1975). For our part, we have indicated

— without holding — that the logic of Johnson suggests "no" is the

right answer to the question of whether filing an EEOC charge

affects the limitations period for a section-1983 claim. See

Cintrón-Lorenzo v. Fondo del Seguro del Estado, 634 F.3d 1, 2 (1st

Cir. 2011). And ultimately, Martínez offers no compelling argument

as to why today's decision — which makes explicit what Cintrón-

Lorenzo implies — contravenes federal interests.

The net result of all this is that Martínez's section-

1983 claim is time-barred. So we affirm the dismissal of this

claim (albeit on different grounds) and push ahead.

- 17 -
 Disability Discrimination (ADA Claim)

As we said many pages ago, the judge did not explain why

he kicked out Martínez's ADA claim of disability discrimination.

But based on our reading of his order, we believe that he intended

to dismiss that claim on the same grounds as the section-1983

claim: i.e., failure to exhaust administrative remedies, because

she sued about a month before getting the right-to-sue letter.

The parties are of the same view, apparently, because their briefs

spill much ink over whether the ADA claim fails on failure-to-

exhaust grounds.

Let's step back to gain some perspective. The ADA,

broadly speaking, prohibits "covered entit[ies]" from

"discriminat[ing] against" qualified persons because of their

disabilities. See 42 U.S.C. § 12112(a), (b)(1). Modeled on Title

VII of the Civil Rights Act of 1964, the ADA incorporates that

statute's enforcement provisions, including (as relevant to the

type of ADA claim in play here) the requirement that a plaintiff

exhaust her administrative remedies before seeking judicial

redress. See, e.g., Bonilla v. Muebles J.J. Alvarez, Inc., 194

F.3d 275, 277-78 (1st Cir. 1999). More specifically (and

simplifying slightly, without affecting the analysis), one part of

the statutory schematic creates federal jurisdiction over all

"actions brought under" the statute, see 42 U.S.C. § 2000e-5(f)(3);

- 18 -
and another sets out conditions precedent to bringing suit, among

which are filing a timely charge with the EEOC, see id. § 2000e-

5(e)(1), and receiving an EEOC right-to-sue letter before suing in

federal court, see id. § 2000e-5(f)(1).

As far as precedents go, the Supreme Court holds that

the timely-charge requirement is mandatory but not jurisdictional

— the rationale being that the timeliness provision is entirely

separate from the statute's jurisdictional provision and "does not

speak in jurisdictional terms." See Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 393, 394 (1982). All of this means that the

timeliness requirement is subject to waiver, estoppel, and tolling

when equity requires. See id. at 393; see also generally Arbaugh

v. Y & H Corp., 546 U.S. 500, 516 (2006) (stressing that "when

Congress does not rank a statutory limitation on coverage as

jurisdictional, courts should treat the restriction as

nonjurisdictional in character"). The provision requiring notice

of a right to sue is also separate from the jurisdictional

provision. And in a case touching on that requirement, we said

that "[a]lthough [plaintiff] filed her original court complaint

before she filed her EEOC complaint, [she] did receive a right to

sue letter" eventually and defendants have not argued the point;

so — consistent with Zipes's holding about delay in filing charges

not affecting jurisdiction and the applicability of equitable

- 19 -
exceptions like waiver — we found "the point . . . waived."

O'Rourke v. City of Providence, 235 F.3d 713, 725 n.3 (1st Cir.

2001) (quoting Zipes); see also Frederique-Alexandre v. Dep't of

Nat. & Envtl. Res. of P.R., 478 F.3d 433, 440 (1st Cir. 2007)

(holding "that the exhaustion requirement is not a jurisdictional

prerequisite, but rather is subject to" equitable exceptions, but

noting that "futility" does not fall within the small field of

exceptions). O'Rourke echoes the prevailing view elsewhere, which

we now expressly adopt as our own: i.e., that while the right-

to-sue-letter requirement remains, it is simply "a precondition to

bringing" suit, not a jurisdictional bar, and thus "can be waived

by the parties or the court." Pietras v. Bd. of Fire Comm'rs of

Farmingville Fire Dist., 180 F.3d 468, 474 (2d Cir. 1999)

(collecting caselaw); see also Surrell v. Ca. Water Serv. Co., 518

F.3d 1097, 1104-05 (9th Cir. 2008); Worth v. Tyer, 276 F.3d 249,

259 (7th Cir. 2001); Jones v. Am. State Bank, 857 F.2d 494, 499,

500 (8th Cir. 1988).

At oral argument, defendants' lawyer changed his

position, waiving any argument about the right-to-sue letter by

essentially agreeing with Martínez that the judge should not have

dismissed the ADA claim on that ground. Consistent with O'Rourke,

we accept defendants' waiver and reverse the dismissal of that

- 20 -
claim.8 And given our conclusion, we need not ponder Martínez's

theory that the EEOC's eventually giving her a right-to-sue letter

cured any issues with her prematurely filing suit.

Age Discrimination (ADEA Claim)

As for Martínez's supposed ADEA claim — the ADEA, roughly

speaking, protects persons 40 years old or older from age-based

employment discrimination, see Adamson v. Walgreens Co., 750 F.3d

73, 78 (1st Cir. 2014) — we need only say this. Martínez's had to

exhaust her administrative remedies before bringing an age-

discrimination claim under the ADEA to court. See Jorge v.

Rumsfeld, 404 F.3d 556, 561 (1st Cir. 2005) (citing 29 U.S.C.

§ 626(d)); see also generally Kale v. Combined Ins. Co., 861 F.2d

746, 751-52 (1st Cir. 1988) (noting that the charge-filing

requirement is mandatory, though not jurisdictional). And she

rightly concedes as much. But she did not mention age

discrimination in her EEOC charge; she alleged only political and

8 Defendants' counsel did note before us that he thought Martínez's
ADA claim should not get to a jury. And his clients' brief does
argue that Martínez has not shown that her disability
"substantially limits" a major life activity. But courts must
construe the "substantially limited" standard "broadly in favor of
expansive coverage," without "demand[ing] extensive analysis."
29 C.F.R. § 1630.2(j)(i), (iii). Martínez does allege that her
disability "impairs her mobility at a regular rate than other
nondisabled individuals." And we must accept this allegation as
true at this stage of the litigation. Defendants' argument is at
best fodder for a summary-judgment motion, not a motion to dismiss.
- 21 -
disability discrimination. And given her fatal failure to exhaust,

her supposed ADEA claim does not belong in federal court — which

compels us to affirm the dismissal of this claim.

Local-Law Claims

That leaves one loose end. The judge (we remind the

reader) did not explain why Martínez's local-law claims had to go

(he spent no time on whether any of these claims has legs, for

example) — though we assume that having dismissed the federal

claims, he declined to exercise supplemental jurisdiction over the

local-law claims. The parties give us no reason to assume

otherwise. Given that assumption, and because we are reversing

the dismissal of the ADA claim, the judge on remand must reinstate

the local-law claims too. Of course if the judge again gets rid

of the ADA claim before trial, he "can reassess whether to keep

jurisdiction over the local-law claims." Rivera-Corraliza v.

Puig-Morales, 794 F.3d 208, 227 (1st Cir. 2015).

Final Words

To the extent that Martínez's briefs hint at other

arguments, they lack coherence, development, or both.9 And instead

9 One example is her mentioning the continuing-violation exception
to the section-1983 limitations period. Putting aside the fact
that she débuted this concept in her reply brief, see Eirby, 515
F.3d at 37 n.4 (holding that an argument omitted from an
appellant's opening brief is generally deemed waived), she makes
nothing more than a passing reference to it. Thus any argument in
that direction is waived. See Roland M. v. Concord Sch. Comm.,
- 22 -
of trying to hazard our own guess as to "what these arguments may

or may not portend," we do what we have done before (including in

this very opinion) — rely on the familiar rule that insufficiently-

developed arguments are waived. See Marek v. Rhode Island, 702

F.3d 650, 655 (1st Cir. 2012) (quoting Zannino, 895 F.2d at 17).10

So our work is at an end, with the bottom line being

that we affirm the judge in every respect, except that we reverse

the dismissal of both Martínez's ADA claim and her local-law

claims.

Affirmed in part, reversed in part, and remanded for

further proceedings consistent with this opinion. No costs to

either side.

910 F.2d 983, 997 n.8 (1st Cir. 1990) (relying on Zannino for the
point that "issues adverted to in passing, without any attempt at
developed argumentation, are waived").
10 See also generally United States v. Cunningham, 429 F.3d 673,
678 (7th Cir. 2005) (Posner, J.) (emphasizing that "appellate
judges" are not required "to discuss every argument made by a
litigant; arguments clearly without merit can, and for the sake of
judicial economy should, be passed over in silence"); United States
v. Mena, 933 F.2d 19, 30 (1st Cir. 1991) (implicitly recognizing
that very point).
- 23 -