United States Court of Appeals
For the First Circuit
No. 11-1991
WANDA CORDERO-SUÁREZ,
Plaintiff, Appellant,
v.
ORLANDO RODRÍGUEZ; FABIAN SERRANO; JOSÉ J. FAS-QUIÑONES,
Defendants, Appellees,
ÁNGEL A. ORTIZ-GARCÍA; JUAN C. PUIG,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Thompson, Circuit Judges.
Israel Roldán González for appellant.
Luis R. Román-Negrón, Acting Solicitor General, and Susana
I. Peñagarícano-Brown, Assistant Solicitor General, for
appellees.
August 3, 2012
THOMPSON, Circuit Judge. Wanda Cordero-Suárez appeals a
district judge's grant of summary judgment in favor of three
defendants, each of whom she claims had some hand in discriminating
against her at work because of her political affiliation. Although
some of Cordero's allegations are unsettling, we nevertheless hold
that summary judgment was appropriate because Cordero's suit was
untimely. We therefore affirm.
Because this is an appeal from a summary-judgment grant, we
sketch the facts as they appear on the record, viewed in the light
most favorable to Cordero. See Galera v. Johanns, 612 F.3d 8, 10
n.2 (1st Cir. 2010). In 1996, Wanda Cordero began working as an
agent in the Internal Revenue Division of the Puerto Rico Treasury
Department. For some years her supervisor was Orlando Rodríguez,
whose brother was the mayor of Mayagüez, Puerto Rico, and head of
the Popular Democratic Party's ("PDP") city office. Politically,
Cordero affiliates herself with the New Progressive Party ("NPP"),
while Rodríguez affiliates himself with the PDP. Cordero says that
on many occasions Rodríguez made disparaging comments about the NPP
within her earshot.1 She also claims that Rodríguez took many
subtle steps to inconvenience her, such as repeatedly changing her
1
Cordero claims she maintained a notebook with details of
Rodríguez's regular harassment, but that the notebook was stolen at
some point and her recollection of specific instances of harassment
is hazy.
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schedule and falsely claiming that she left early so he could
deduct ten minutes of pay from her check.
But more important are some specific instances of misconduct
Cordero describes. For example, in February 2006 Rodríguez
"physically and verbally assaulted" her in an incident neither
party details but that apparently resulted in Rodríguez's filing a
complaint "to the Municipal Police where his brother, who is the
mayor, is the chief." Then on February 23, 2007, Rodríguez
approached Cordero's desk with his work-issued gun "in front of
him." He said "I'm going to screw you up," and Cordero, crying,
fled to a restroom. She reported the incident to "Internal
Affairs, to Mr. Fabián," but nothing ever came of her report.
Sometime later in 2007, Rodríguez came into Cordero's office and
said that "he could give a fuck about the NPP winning" an upcoming
election because his brother would still be the mayor and he could
continue doing "whatever the fuck he wanted."
A serious scheduling incident also occurred in late 2007. On
December 7, Rodríguez told Cordero that she had to cover a
coworker's shifts from December 11-31. Then on December 19,
Rodríguez issued a memo instructing Cordero to work on Sunday,
December 23 in addition to covering her coworker's shift. Within
the next couple days, Cordero told Rodríguez that she was sick and
could not work on the 23rd or 24th. Then on December 28, Rodríguez
issued another memo instructing Cordero to work on Sunday, December
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30 too. Cordero claims that she never received the memo (though
there is some evidence to the contrary) and thus did not show up
for work that day.
At some point during all of these 2007 incidents, Cordero
requested that the Department transfer her to a different office.
In February 2008, Deputy Secretary of Human Resources José Fas
Quiñones2 acquiesced and transferred Cordero from the Bureau of
Alcoholic Beverages and Licenses to the Bureau of Taxpayer
Services, where she remained part of the Treasury Department but
Rodríguez was no longer her supervisor. But even the transfer
could not keep Rodríguez away from Cordero: he continued to visit
her new office and harass her.
In May 2008 Cordero met with Fas and with one Fabián Serrano
-- apparently a Treasury Department higher-up -- separately to
complain about Rodríguez's continued harassment, but both said they
could not help; the record is silent as to their reasons. Fas then
sent Cordero a letter at her new office on July 3, 2008, stating
that she would be suspended for thirty days because she had missed
the shifts on December 23, 24, and 30, 2007 -- the ones that
Rodríguez had assigned her, allegedly at the eleventh hour and
without adequate notice. After internally appealing the decision,
Cordero received another letter from Fas on November 5, 2008 (one
2
"Fas" is spelled at various places in the record as "Fas,"
"Fax," and "Faz." "Fas" is the spelling borne out by documentary
evidence in the record and, accordingly, the one we'll use.
-4-
day after the NPP won a big election) stating that her suspension
would proceed.
Finally, after Cordero returned from her suspension, Rodríguez
approached her at her new office and again informed her that he did
not care about the NPP's having won the recent general election
because his brother still retained power in Mayagüez. He also
added (according to Cordero) that he "would not rest until
[Cordero] was permanently dismissed from the Treasury Department."
On June 26, 2009, Cordero filed a federal-court complaint
asserting several federal- and local-law claims against Rodríguez,
Serrano, and Fas in their personal and official capacities, and
against former Treasury Secretary Angel Ortiz Garcia and current
Treasury Secretary Juan Carlos Puig as well. A partially-
successful motion to dismiss whittled the defendants down to
Rodríguez, Serrano, and Fas in their personal capacities only, and
the complaint down to political-harassment claims seeking
injunctive and monetary relief under 42 U.S.C. § 1983.
After discovery, the remaining defendants filed a motion for
summary judgment. They said the incidents Cordero complained of
had all occurred more than a year before she filed her complaint,
and they therefore argued that the action was barred by the
applicable one-year statute of limitations. See Santana-Castro v.
Toledo-Dávila, 579 F.3d 109, 114 (1st Cir. 2009). They also argued
that, if these incidents were excluded on timeliness grounds, the
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only possible adverse employment action supported by the record was
Cordero's suspension for skipping work, which would have been
imposed regardless of her political affiliation. Cordero responded
with an objection and memorandum opposing summary judgment on the
ground that incidents had still been ongoing in the year before her
complaint's filing; these ongoing incidents, she argued, rendered
the older incidents actionable under the continuing violation
doctrine. And along with her objection, Cordero filed a sworn
statement bolstering her evidence of the defendants' misconduct.
The district judge refused to consider the sworn statement -- he
called it self-serving and "incongruent with" her deposition
testimony.3 He nevertheless found Cordero's claim timely on
continuing-violation grounds, but in the end he granted summary
judgment on the merits anyway and dismissed the case, primarily on
the ground that the workplace incidents Cordero described were not
sufficiently severe and pervasive.
Cordero appeals the district judge's exclusion of her sworn
statement and his grant of summary judgment. Because we would
3
The district judge also refused to consider some of
Cordero's responses to the defendants' proffered statement of
material facts -- specifically those not backed up with record
cites. This practice was appropriate, see CMI Capital Market
Investment, Inc. v. González-Toro, 520 F.3d 58, 62 (1st Cir. 2008)
(applying Puerto Rico's Local Rules 56(c) and 56(e)), and is not at
issue on appeal.
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affirm summary judgment even with the sworn statement as part of
the record, we bypass that issue and proceed to summary judgment.
This case presents questions involving both the timeliness and
the merits of Cordero's political-discrimination claim. Normally
we would begin with timeliness, because if Cordero's claim is
barred by the applicable statute of limitations then we have no
occasion to reach the merits. But in the case of an alleged
continuing violation constituting a politically-motivated hostile
work environment, the question of timeliness is closely intertwined
with the substance of the claim. See O'Rourke v. City of
Providence, 235 F.3d 713, 732 (1st Cir. 2001). We therefore
address the two issues together. And because they arise in the
context of summary judgment, both the statute-of-limitations and
hostile-work-environment issues receive de novo review.4 See
Rosario v. Dept. of Army, 607 F.3d 241, 246 (1st Cir. 2010)
(hostile work environment); Montalvo v. Gonzalez-Amparo, 587 F.3d
43, 46 (1st Cir. 2009) (statute of limitations).
We begin our analysis with the political-discrimination
framework, which finds its roots in the First Amendment's free-
speech protections. To establish a prima facie case of political
4
Of course, the other usual summary-judgment standards apply
too: we may affirm on any grounds supported by the record, as long
as there is no genuine issue of material fact and the defendants
are entitled to judgment as a matter of law. Collazo v. Nicholson,
535 F.3d 41, 44 (1st Cir. 2008).
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discrimination, a plaintiff must be able to show: "(1) the
plaintiff and the defendant belong to opposing political
affiliations; (2) the defendant has knowledge of the plaintiff's
. . . affiliation; (3) . . . a challenged employment action
[occurred]; and (4) . . . political affiliation was a substantial
or motivating factor" behind it. Peguero-Moronta v. Santiago, 464
F.3d 29, 48 (1st Cir. 2006) (internal quotation marks omitted). If
a plaintiff makes this showing, the burden shifts to the defendant
to point out evidence that it would have taken the same action
regardless of the plaintiff's political affiliation. Rodríguez v.
Municipality of San Juan, 659 F.3d 168, 176-77 (1st Cir. 2011).
Applying this framework, Cordero says that elements one and
two above are easily satisfied. She goes on to say that in deeming
her complaint timely on continuing-violation grounds the court
necessarily determined that she had suffered a hostile work
environment, which would satisfy the third element -- an adverse
employment action. See Martinez-Vélez v. Rey-Hernández, 506 F.3d
32, 42 (1st Cir. 2007). The fourth element depends on Cordero's
satisfaction of the third. The defendants, too, focus on the third
element and counter that their conduct was not "severe and
pervasive" enough to be actionable, adding that in their view the
district court got its timeliness ruling wrong.
In the political-discrimination context, "[a]ctions of
informal harassment, as opposed to formal employment actions like
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transfers or demotions," amounting to a hostile work environment
can rise to the level of a challengeable employment action, id.,
but only if the discriminatory acts are "'sufficiently severe to
cause reasonably hardy individuals to compromise their political
beliefs and associations in favor of the prevailing party.'" Id.
(quoting Agosto-de-Feliciano v. Aponte-Roque, 889 F.2d 1209, 1217
(1st Cir. 1989) (en banc)). And because "hostile work environment
claims do not turn on single acts but on an aggregation of hostile
acts extending over a period of time," Marrero v. Goya of P.R.,
Inc., 304 F.3d 7, 18 (1st Cir. 2002) (internal quotation marks
omitted), the applicable statute of limitations "will not exclude
acts that are part of the same unlawful employment practice if at
least one act falls within the time period." Dressler v. Daniel,
315 F.3d 75, 79 (1st Cir. 2003). Again, this means that our
statute-of-limitations question and our substantive question are
closely intertwined. See O'Rourke, 235 F.3d at 732.
To establish a hostile work environment, Cordero relies on
Rodríguez's politically-charged comments, the gun incident, his
rearranging Cordero's schedule to the point that she missed days
and was suspended without pay,5 and his threat to get her fired, as
5
The defendants treat Cordero's thirty-day suspension as
potentially being a separate ground for suit, but Cordero only says
it "was part of the systematic and continuous . . . hostile work
enrivonment" she was subjected to. Given Cordero's treatment of
the issue, we need not consider whether the suspension would serve
to meet the adverse employment action test on its own, but merely
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well as his many less severe incidences of misconduct. All these
misdeeds implicate Rodríguez only. Fas and Serrano are barely
mentioned in Cordero's brief and are accused primarily of
inadequate supervision (specifically, failing to take action to
stop Rodríguez). But "Section 1983 does not impose purely
supervisory liability; it aims at persons who have actually abused
their positions of authority, and hence only persons who were
directly involved in the wrongdoing may be held liable."
Martinez-Vélez, 506 F.3d at 41 (internal citation and quotation
marks omitted). This rule means Fas and Serrano prevail unless
they actually did something wrong.
The record simply does not show any direct involvement between
Fas or Serrano and any harassment of Cordero. The only possible
tie between either Fas or Serrano and alleged misconduct is Fas's
having issued Cordero's suspension, but uncontested record evidence
shows that Fas would have ordered the suspension because of
Cordero's unexcused absences regardless of political opinion.
Rodríguez, 659 F.3d at 176-77 (a defendant may defeat a political-
discrimination claim by showing he would have taken the same action
regardless of political opinion). Because Rodríguez's misconduct
does not implicate Serrano or Fas, we affirm the summary-judgment
order to the extent it dismisses the claims against them.
bundle it into our hostile-work-environment discussion.
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Against Rodríguez, though, there may be some evidence to
support a hostile-work-environment claim. His day-to-day comments
to Cordero do not suffice without more, but there is more: the 2006
physical altercation and 2007 gun incident, both viewed in the
light most favorable to Cordero (as must be the case on summary
judgment), might show that Rodríguez's misconduct was severe. And
an objectively reasonable fear of physical assault and gun violence
-- an inference the record here could support -- could conceivably
cause even "reasonably hardy individuals to compromise their
political beliefs." Martinez-Vélez, 506 F.3d at 42.
That said, the defendants argue that "any claim that plaintiff
wanted to bring against defendant Rodríguez had to be brought
within a year of February 6, 2008" -- the date of Cordero's
transfer. The argument is not well fleshed-out, but we agree
nonetheless. Here is why:
Whether or not Rodríguez's conduct prior to Cordero's February
2008 transfer was actionable, his conduct thereafter was not.
Cordero's only allegations of misconduct after February 2008 are
some undefined number of occasions when Rodríguez "came near [her]
in an intimidating manner and stared at her fixedly" and his
comment that he "would not rest" until Cordero lost her job. But
Cordero says she ignored all this and that nothing else happened.
These acts alone fall well short of the conduct we have found
severe and pervasive in the past. See O'Rourke, 235 F.3d at 727;
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Tuli v. Brigham & Women's Hosp., 656 F.3d 33 (1st Cir. 2011). On
top of that, Rodríguez was no longer her supervisor, and she was
working with new people in a new department. Literally, her
environment changed at that point.
Nevertheless, Cordero argues that these post-transfer events
were part of the same continuing violation as the arguably
actionable pre-transfer events. "The continuing violation doctrine
is an equitable exception that allows an employee to seek damages
for otherwise time-barred allegations if they are deemed part of an
ongoing series of discriminatory acts." O'Rourke, 235 F.3d at
730. But although the continuing violation doctrine can render
otherwise time-barred conduct actionable, the doctrine still
requires some anchoring violation within the limitations period,
id., and we have just said that none of Rodríguez's post-transfer
conduct meets that test. The continuing violation doctrine
therefore does not apply here.
Cordero's transfer occurred more than a year before she filed
suit, and none of Rodríguez's conduct within that one-year
limitations period was actionable, so her claim against him is
untimely as a matter of law. See Santana-Castro, 579 F.3d at 114.
For that reason, we affirm also the district court's summary-
judgment order dismissing Cordero's hostile-work-environment claim
against Rodríguez.
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In the end, we affirm the district court's grant of summary
judgment dismissing Cordero's entire case. So ordered.
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