Morris v. Government Development Bank

                 UNITED STATES COURT OF APPEALS
                     FOR THE FIRST CIRCUIT

                                            

No. 93-2389

           EMILIO MORRIS, a/k/a EMILIO MORRIS-ANDINO

                     Plaintiff, Appellant,

                               v.

    THE GOVERNMENT DEVELOPMENT BANK OF PUERTO RICO, ET AL.,

                     Defendants, Appellees.

                                            

          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF PUERTO RICO

         [Hon. Raymond L. Acosta, U.S. District Judge]
                                                     

                                            

                             Before

             Selya, Cyr and Boudin, Circuit Judges.
                                                  

                                            

    Juan M.  Masini-Soler, with whom Ramon  Rivera-Iturbe was on
                                                         
brief, for appellant.
    John F. Nevares, with whom Ilsa Y. Figueroa-Arus and Smith &
                                                                
Nevares were on brief, for appellees.
      

                                            

                         June 29, 1994

                                            

          SELYA,  Circuit  Judge.   Plaintiff-appellant  Emilio
          SELYA,  Circuit  Judge.
                                

Morris-Andino (Morris)  appeals from  an order of  the district

court granting summary judgment  against him in a suit  that he

had brought under 42 U.S.C.   1983 (1988).  We affirm.

                               I.
                                 

                           Background
                                     

          Appellant  is   a  financial  analyst  who  has  been

employed by the  Government Development Bank, an agency  of the

Commonwealth  of Puerto  Rico, since  1965.   On June  6, 1989,

appellant received a letter  from Emilio Pena-Fonseca, a senior

vice  president  of the  bank, telling  him  that he  was under

investigation   for  alleged   illegalities   related  to   the

performance of  his  official  duties.1    Shortly  thereafter,

appellant appeared at an  administrative hearing and denied the

charges.  No other action was taken in this time frame.

          On  September 20, the Commonwealth preferred criminal

charges against  appellant, alleging that he  had committed the

felony of  undue influence.2   Following his  arrest, appellant

                   

    1All  dates  mentioned  in   this  opinion  describe  events
occurring in 1989 unless otherwise indicated.

    2The anti-corruption  statute under which Morris was charged
provides in pertinent part:

         Every  person  who  obtains  or  attempts  to
         obtain  from another any  benefit by claiming
         or  pretending that  he is  in a  position to
         influence,  in  any  way,  the conduct  of  a
         public  official or employee  with respect to
         the  exercise  of  his  functions,  shall  be
         punished [as provided by law].

P.R. Laws Ann. tit. 33,   4364 (1983).

                               2

received  a letter  from  Ramon Canter-Frau,  president of  the

bank,  suspending him  from his  post with  pay "until  further

notice."  This letter bore  a date of October 9, and  appellant

does not deny that he received it on that day.

          On  October 26,  appellant's prospects  brightened; a

commonwealth court  found no  probable cause and  dismissed the

pending criminal  charges.   Buoyed by this  victory, appellant

wrote a letter to the bank's board of directors inquiring about

the status of his suspension.  The chairman of the board, Ramon

Garcia  Santiago  (Garcia), acknowledged  appellant's  query by

letter dated November  27.  Garcia informed  appellant that the

suspension constituted a temporary measure that would remain in

effect  pending  the completion  of  an internal  investigation

being  conducted by the  bank.   Garcia's letter  further noted

that  there had not yet been any "final decision" that could be

appealed to the board of directors.

          On December  26,  appellant received  another  letter

from  Canter-Frau.   This missive  notified appellant  that two

internal charges had been lodged against him and offered him an

opportunity to defend himself in respect to these charges at an

administrative  hearing.   The  letter  stated  that a  failure

adequately  to refute  the  charges could  lead to  appellant's

discharge.

          Just under a year later, appellant filed suit against

the bank and various  bank officials, including Garcia, Canter-

Frau, and Pena-Fonseca.   Invoking 42 U.S.C.    1983, appellant

                               3

claimed that the defendants had suspended him based on his race

and political  beliefs, thus violating  his civil rights.   The

defendants denied the accusations and, in due season, moved for

summary  judgment.  They contended,  inter alia, that the suit,
                                               

which had been commenced on December 21, 1990, was time-barred.

The motion was referred  to a magistrate judge who  recommended

granting it.   The  district court honored  the recommendation.

Morris now appeals.

                              II.
                                 

                  Applicable Legal Principles
                                             

                               A.
                                 

                 The Summary Judgment Standard
                                              

          Summary  judgment  is  appropriate  when  the  record

reflects "no  genuine issue as to  any material fact and  . . .

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

Fed. R. Civ. P. 56(c).   "In this context, `genuine' means that

the  evidence about  the fact  is such  that a  reasonable jury

could resolve the point in favor of the nonmoving party. . . ."

United  States  v. One  Parcel  of Real  Property,  Etc. (Great
                                                               

Harbor Neck, New Shoreham,  R.I.), 960 F.2d 200, 204  (1st Cir.
                                

1992).  By like token, "`material'  means that the fact is  one

that might affect the  outcome of the suit under  the governing

law."  Id. (quoting  Anderson v. Liberty Lobby, Inc.,  477 U.S.
                                                    

242, 248 (1986)).

          Appellate  review  of   an  order  granting   summary

judgment  is plenary.  See  Pagano v. Frank,  983 F.2d 343, 347
                                           

                               4

(1st  Cir. 1993);  Rivera-Muriente v.  Agosto-Alicea, 959  F.2d
                                                    

349,  352 (1st  Cir. 1992).   In  undertaking such  review, the

court of appeals must scrutinize the summary judgment record in

the light  most  amiable  to the  party  opposing  the  motion,

indulging all reasonable inferences in that party's favor.  See
                                                               

Pagano,  983 F.2d at 347;  Griggs-Ryan v. Smith,  904 F.2d 112,
                                               

115 (1st Cir. 1990).

          Notwithstanding the liberality of this  standard, the

nonmovant cannot simply rest  on perfervid rhetoric and unsworn

allegations.  When, for example, defendants invoke Rule 56  and

identify a fatal  flaw in  a plaintiff's case,  it becomes  the

plaintiff's  burden  to  produce  specific  facts,  in suitable

evidentiary  form,  to  contradict  the  flaw's  existence  and

thereby  establish the presence  of a  trialworthy issue.   See
                                                               

Rivera-Muriente,  959 F.2d at 352.   If the  plaintiff fails to
               

shoulder this burden, then the court  may adjudicate the motion

as a matter of law.

          In an  appropriate case, Rule  56 can be  employed to

determine  the applicability  of  a  statutory  time bar  to  a

particular set of  facts.  See  id.; see also Jensen  v. Frank,
                                                              

912 F.2d 517, 520 (1st Cir. 1990).

                               B.
                                 

                     The Limitations Period
                                           

          Local  law  determines  the  limitations  period  for

section 1983 claims.  See  Wilson v. Garcia, 471 U.S. 261,  269
                                           

(1985).     As  a  general  rule,  federal  courts  borrow  the

                               5

limitations period  for personal injury actions  and apply that

period to  section 1983 claims.   See  id. at 276.   In  Puerto
                                          

Rico, the applicable  limita- tions  period is one  year.   See
                                                               

P.R.  Laws Ann.  tit. 31,    5298(2)  (1991); see  also Rivera-
                                                               

Muriente,  959 F.2d at  353; Rodriguez Narvaez  v. Nazario, 895
                                                          

F.2d  38,  42  (1st Cir.  1990);  Torres  v.  Superintendent of
                                                               

Police, 893 F.2d 404, 406 (1st Cir. 1990).
      

          In  cases  brought  pursuant   to  section  1983,  an

inquiring  court must consult federal  law in order  to fix the

point  in  time from  which  the limitations  period  begins to

accrue.   See Rivera-Muriente, 959 F.2d at 353; Street v. Vose,
                                                              

936 F.2d 38,  40 (1st Cir. 1991), cert. denied,  112 S. Ct. 948
                                              

(1992).    Under the  federal  rule, accrual  commences  when a

plaintiff knows, or has reason  to know, of the  discriminatory

act  that  underpins  his cause  of  action.    See Chardon  v.
                                                           

Fernandez, 454 U.S. 6, 8 (1981); Delaware State Coll. v. Ricks,
                                                              

449 U.S. 250, 258 (1980); Rivera-Muriente, 959 F.2d at 353.
                                         

                              III.
                                  

                            Analysis
                                    

          The  issue on  appeal is  whether the  district court

appropriately  entered summary  judgment  on  the  ground  that

appellant sued  beyond the one-year limitations  period.  Since

appellant  commenced  his  action  on December  21,  1990,  our

inquiry reduces to whether  appellant's cause of action accrued

more  than one year before  that date.   The defendants contend

that  the October  9 letter,  which  notified appellant  of the

                               6

suspension, sufficed to wind the limitations clock and start it

ticking.   Appellant  contends that  he was  not on  sufficient

notice of  his predicament until  he received  the December  26

letter, and  that the clock  did not begin  to tick until  that

moment.   The district  court found that  the defendants' clock

kept better, more accurate time.  We agree.

          The rule in an employment discrimination case is that

the limitations period begins to run when the claimant receives

unambiguous and authoritative notice  of the discriminatory act

(which is another way of saying  that the period begins to  run

when  the employee  learns of  the adverse  employment action).

See Rivera-Muriente, 959 F.2d  at 353 (holding that unequivocal
                   

notice of the adverse employment action is all that is required

to trigger the limitations period) (collecting cases); see also
                                                               

Sheldon H. Nahmod, Civil  Rights and Civil Liberties Litigation
                                                               

  9.05  at 265 (3d ed.  1991) ("[I]t is only  necessary for the

plaintiff in an employment situation to be effectively notified

of a discharge for the cause of action to accrue at the time of

notification.").  Thus, the key question to be answered here is

temporal:   at what juncture did appellant reliably know of the

injury to which this lawsuit relates?  See Rivera-Muriente, 959
                                                          

F.2d at 353.  In answering this question, the critical datum is

the  point in time  at which the  discriminatory act occurred.3

                   

    3We  believe it is vital  to this inquiry  that appellant is
only contesting his suspension.   The bank never  discharged him,
and, in fact, appellant's counsel reported at oral  argument that
the bank eventually cleared him of all charges and reinstated him
in his  position.   Moreover, appellant  received his salary  and

                               7

See Ricks, 449 U.S. at 258.
         

          We think that the October  9 letter speaks for itself

   and its tones  are stentorian.  That  letter stated in plain

terms  that the bank had  suspended appellant indefinitely.  It

provided ample and unequivocal notice of the adverse employment

action.  The  terms and  conditions of the  suspension did  not

vary  in any way from  that moment forward.   Consequently, the

limitations  clock began  to tick  when appellant  received the

letter.

          We reject appellant's asseveration that the letter of

December 26, rather  than the  letter of October  9, marks  the

beginning  of the  limitations  period.   The later  letter did

nothing  more   than  provide   notice  to  appellant   of  the

continuance  of  his suspension.    Hence,  this letter,  which

signifies a  particularly painful point in  the process because

it advises appellant,  presumably for  the first  time, of  the

possibility  that he might be cashiered, had no effect upon the

running of the  limitations period.   After all,  the point  in

time at which  the consequences  of the act  become hardest  to

bear   which may or may not coincide with the occurrence of the

act  itself    has  no relevance  for  purposes of  framing the

limitations period.  See Chardon, 454 U.S. at 8; Ricks 449 U.S.
                                                      

at 258.

          Appellant has another string  to his bow   but  it is

badly  frayed.    This  initiative  rests on  the  notion  that

                   

benefits throughout the period of his suspension.

                               8

appellant's  claim did  not accrue  until he  knew of  both the
                                                           

suspension and the defendants' discriminatory animus.  Stated a

different  way, appellant  contends  that his  cause of  action

existed in what amounts to a state of suspended animation until

he  became aware of the racial and political motives behind the

adverse  employment  decision.    We  cannot  countenance  this

contention.

          It  is by  now well  established that,  in employment

discrimination actions,  limitations periods normally  start to

run when the  employer's decision is  made and communicated  to

the affected employee.   See Ricks, 449  U.S. at 261; see  also
                                                               

Muniz-Cabrero v. Ruiz,      F.3d    ,     (1st Cir.  1994) [No.
                     

93-2099,  slip op. at 7]  (explaining that, in such situations,

the  "limitations  period  .  . .  ordinarily  starts  when the

plaintiff  knows .  . .  of  the harm  on which  the action  is

based") (citation and internal quotation marks omitted); Nahmod

supra,    9.04 at 252-53 (collecting  cases).  This rule of law
     

is grounded on a solid foundation:  when an employee knows that

he has been hurt and also knows that his employer has inflicted

the  injury, it is fair  to begin the  countdown toward repose.

And the plaintiff  need not know all the facts that support his

claim in order  for countdown  to commence.   See Sturniolo  v.
                                                           

Sheaffer,  Eaton, Inc., 15  F.3d 1023,  1025 (11th  Cir. 1994);
                      

Blumberg  v. HCA Mgmt. Co., 848 F.2d  642, 645 (5th Cir. 1988),
                          

cert. denied, 488 U.S. 1007 (1989); see also  Baker v. Board of
                                                               

Regents, 991  F.2d 628, 632 (10th  Cir. 1993); Rivera-Muriente,
                                                              

                               9

959  F.2d at 354; cf.  Jensen, 912 F.2d  at 521-22 (enunciating
                             

substantially  similar  rule  in respect  to  time  constraints

applicable to the filing of administrative notices in Title VII

cases).

          Morris's  case in  no way  warrants a  departure from

this settled rule of law.  By October 9,  appellant had learned

authoritatively of his suspension.   He knew the  stated reason

for  it and could  assess its legitimacy.   He knew  how he had

conducted himself  while on  official business.   As  a veteran

employee,  he  knew  (or,  alternatively, was  chargeable  with

knowledge of) the agency's policies, practices, and precedents.

No more was exigible.  Appellant had sufficient  information in

October  to enable him to  bring a discrimination claim against

the bank.4

          At the expense of  carting coal to Newcastle, we  add

two  final comments.    First,  we  note  that  the  rules  for

prescription  of  employment  discrimination  actions  are  not

inflexible.    In a  proper  case,  the doctrine  of  equitable

tolling ensures fundamental fairness.  See, e.g.,  Rivera-Gomez
                                                               

v. de  Castro, 843 F.2d 631,  633-36 (1st Cir. 1988).   In this
             

instance, however,  appellant, though  hinting at the  possible

                   

    4Of  course,  it might  be argued  that  a subtle  change in
circumstances occurred  on November  27, when appellant,  for the
first time, learned  that his  suspension did not  rise and  fall
with the outcome of the criminal  charges.  But appellant has not
cited November 27 as the trigger date, and, moreover, appellant's
suit, measured from  that date, would still be out  of time.  For
these reasons, it would  serve no useful purpose to  explore this
possibility.

                               10

applicability  of equitable  tolling,  has  neither  explicitly

claimed the doctrine's benefit  nor demonstrated an entitlement

to it.   Any such argument is, therefore, waived.   See Ryan v.
                                                            

Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990) (ruling "that
              

issues  adverted   to  on  appeal  in   a  perfunctory  manner,

unaccompanied  by some  developed argumentation, are  deemed to

have been abandoned"); United States v. Zannino, 895 F.2d 1, 17
                                               

(1st Cir.) (same), cert. denied, 494 U.S. 1082 (1990).
                               

          In any event, the facts of this case do not  lend any

encouragement to the possibility of equitable modification.  To

prevail on such a  claim, an employee must prove not  only that

he was unaware of the employer's discriminatory animus but also

that the employer actively  misled him, to his detriment.   See
                                                               

Jensen, 912 F.2d at 521.   There is no evidence in  the instant
      

record  to suggest  either  misleading  conduct or  detrimental

reliance.

          Second, we  think that deviating from  the usual rule

as  appellant entreats  would undermine  the core  principle on

which  statutes of  limitations  in  employment  discrimination

cases rest,  namely, protecting  employers "from the  burden of

defending claims  arising from  employment decisions which  are

long  past," while,  concomitantly, protecting  those employees

who  act  celeritously  to enforce  their  perceptible  rights.

Ricks,  449 U.S. at 256-57 (citation omitted).  Charting such a
     

course  could  cause  perpetual   insecurity  on  the  part  of

employers,  for, unlike the giving of notice   a matter that is

                               11

subject to  objective verification   the time  when an employee

suspects   an  employer's   discriminatory  animus   is  almost

impossible to verify, especially  since the employer most often

will deny that the animus  exists at all.  We see  no basis for

importing such uncertainty into the law.

                               IV
                                 

                           Conclusion
                                     

          We need go no  further.5  "Come what, come  may, time

and  the  hour  runs  through   the  roughest  day."    William

Shakespeare,  Macbeth, act  I, sc. 3  (1606).   Here, appellant
                     

allowed  too  much  time  to  run  for  too  many  days  before

instituting legal  action.  Because the  limitations period had

expired,  the lower court appropriately granted the defendants'

motion for brevis disposition.
                 

Affirmed.
        

                   

    5Because Morris's claims are time-barred, we take no view of
any  other  possible  deficiencies  in his  case,  including  the
intriguing  question  of  what  (if  any)  damages  he  may  have
suffered.

                               12