Muniz-Cabrero v. Ruiz

                United States Court of Appeals
                    For the First Circuit
                                         

No. 93-2099

                    MANUEL MUNIZ-CABRERO,

                    Plaintiff, Appellant,

                              v.

                 DR. ALEJANDRO RUIZ, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

        [Hon. Hector M. Laffitte, U.S. District Judge]
                                                     

                                         

                            Before

                      Cyr, Circuit Judge,
                                        
                Bownes, Senior Circuit Judge,
                                            
                  and Stahl, Circuit Judge.
                                          

                                         

Jesus  E.  Cuza  with  whom  Vicente  & Cuebas  was  on  brief for
                                              
appellant.
James D.  Noel, III  with whom  Ledesma, Palou  &  Miranda was  on
                                                          
brief for appellees.

                                         

                         May 18, 1994
                                         

          Stahl, Circuit Judge.   Plaintiff-appellant  Manuel
                              

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.
                                

           FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
                                                   

          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

                    

1.  Under Puerto Rico law, employees with career status enjoy
property rights  in their continued employment.   See Rivera-
                                                             
Ruiz  v. Gonzalez-Rivera, 983 F.2d 332,  334 (1st Cir. 1993);
                        
Kauffman  v. Puerto Rico Tel.  Co., 841 F.2d  1169, 1173 (1st
                                  
Cir. 1988).

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                              2

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

                    

2.  Both Ruiz and Hernandez are members of the Administrative
Board.  

3.  The second semester ended in May 1991.

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                              3

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
                    

activity"  since November 1984, such activity intensifying in

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                              4

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
                                    

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.
                                

                      STANDARD OF REVIEW
                                        

          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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                              5

Rodriguez-Pinto v. Tirado-Delgado, 982  F.2d 34, 38 (1st Cir.
                                 

1993)  (internal  quotations  and  citations  omitted).    As

always,  we  review  grants  of  summary  judgment  de  novo,
                                                            

indulging all reasonable inferences in the nonmovant's favor.

See  Levy v.  FDIC,  7  F.3d  1054,  1056  (1st  Cir.  1993).
                  

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.
                                                          

Agosto-Alicia, 959 F.2d 349,  352 (1st Cir. 1992).   "A party
             

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-
                                                             

Pinto,  982 F.2d  at  41 (internal  quotations and  citations
     

omitted).  Finally,  "Rule 56  may be used  to determine  the

applicability  of a statutory time bar to a particular set of

facts."  Id.
            

                             III.
                                 

                          DISCUSSION
                                    

          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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                              6

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
                          

          "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
                                                       

F.2d 104, 108 (1st  Cir. 1991), cert. denied, 112  S. Ct. 948
                                            

(1992). Whereas the personal injury statute of limitations of

the forum state governs in   1983 actions, see, e.g. Owens v.
                                                          

Okure, 488 U.S. 235,  236 (1989), the date of  accrual, i.e.,
     

the  date on which the  limitations clock begins  to tick, is

determined by reference to federal law.  Rivera-Muriente, 959
                                                        

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.
                                                             

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
                                                      

(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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                              7

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
                                 

          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
                                          

(1st Cir. 1988)  (quoting Velazquez v. Chardon, 736 F.2d 831,
                                              

833  (1st Cir. 1984)).  There are two varieties of continuing

violations:  serial and systemic.  Kassaye v. Bryant College,
                                                            

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,
                                              

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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                              8

and  Pac. Tea  Co.,  871  R.2d  179,  183  (1st  Cir.  1989);
                  

Velazquez, 736  F.2d at 833.   It is not enough  to show that
         

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,
                                                            

943 F.2d at  108 (internal citations omitted); see also Mack,
                                                            

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,
                                                             

Roebuck  & Co.,  607  F.2d 1014,  1018  (1st Cir.  1979)  ("A
              

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
             

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
                

is that plaintiff  has been  harmed by the  application of  a

discriminatory  policy  or  practice  and  that  such  policy
                                    

continues into the limitations period.  Id.
                                           

          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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                              9

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
                               

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
                                                             

Leon  Ortero v.  Rubero,  820 F.2d  18,  20 (1st  Cir.  1987)
                       

(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
                                 

followed  by  defendant's  repeated  refusals   to  reinstate

plaintiff did not constitute a continuing violation).  

                    

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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                              10

          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
         

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

                    

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.  
                                        

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
                                                        

                             -11-
                              11

          Because "`the proper focus [in continuing violation

analysis] is on the  time of the discriminatory act,  not the
                                                   

point at which the consequences  of the act become painful,'"
                               

Mack  871 F.2d at 182 (quoting Chardon v. Fernandez, 454 U.S.
                                                   

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.
                                                             

Co.,  No. 93-1697,  slip op. at  12 (1st Cir.  Apr. 22, 1994)
   

(collecting cases).  Such arguments are deemed waived.  Id.
                                                           

                             IV.
                                

                          CONCLUSION
                                    

          For  the foregoing  reasons,  the judgment  of  the

district court is

          Affirmed.
                   

                    

U.S.  363, 380  (1982).   Plaintiff's  interpretation of  the
continuing violation  theory would  reduce this purpose  to a
nullity.

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