USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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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.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, U.S. District Judge]
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Before
Selya, Cyr and Boudin, Circuit Judges.
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Juan M. Masini-Soler, with whom Ramon Rivera-Iturbe was on
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brief, for appellant.
John F. Nevares, with whom Ilsa Y. Figueroa-Arus and Smith &
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Nevares were on brief, for appellees.
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June 29, 1994
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SELYA, Circuit Judge. Plaintiff-appellant Emilio
SELYA, Circuit Judge.
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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.
I.
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Background
Background
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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
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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
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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,
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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.
II.
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Applicable Legal Principles
Applicable Legal Principles
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A.
A.
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The Summary Judgment Standard
The Summary Judgment Standard
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Summary judgment is appropriate when the record
reflects "no genuine issue as to any material fact and . . .
the moving party is entitled to 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
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Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.
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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.
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242, 248 (1986)).
Appellate review of an order granting summary
judgment is plenary. See Pagano v. Frank, 983 F.2d 343, 347
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4
(1st Cir. 1993); Rivera-Muriente v. Agosto-Alicea, 959 F.2d
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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
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Pagano, 983 F.2d at 347; Griggs-Ryan v. Smith, 904 F.2d 112,
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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
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Rivera-Muriente, 959 F.2d at 352. If the plaintiff fails to
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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,
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912 F.2d 517, 520 (1st Cir. 1990).
B.
B.
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The Limitations Period
The Limitations Period
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Local law determines the limitations period for
section 1983 claims. See Wilson v. Garcia, 471 U.S. 261, 269
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(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
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Rico, the applicable limita- tions period is one year. See
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P.R. Laws Ann. tit. 31, 5298(2) (1991); see also Rivera-
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Muriente, 959 F.2d at 353; Rodriguez Narvaez v. Nazario, 895
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F.2d 38, 42 (1st Cir. 1990); Torres v. Superintendent of
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Police, 893 F.2d 404, 406 (1st Cir. 1990).
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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,
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936 F.2d 38, 40 (1st Cir. 1991), cert. denied, 112 S. Ct. 948
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(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.
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Fernandez, 454 U.S. 6, 8 (1981); Delaware State Coll. v. Ricks,
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449 U.S. 250, 258 (1980); Rivera-Muriente, 959 F.2d at 353.
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III.
III.
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Analysis
Analysis
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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
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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
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notice of the adverse employment action is all that is required
to trigger the limitations period) (collecting cases); see also
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Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation
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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
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F.2d at 353. In answering this question, the critical datum is
the point in time at which the discriminatory act occurred.3
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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.
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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.
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at 258.
Appellant has another string to his bow but it is
badly frayed. This initiative rests on the notion that
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benefits throughout the period of his suspension.
8
appellant's claim did not accrue until he knew of both the
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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
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Muniz-Cabrero v. Ruiz, ___ F.3d ___, ___ (1st Cir. 1994) [No.
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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
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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.
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Sheaffer, Eaton, Inc., 15 F.3d 1023, 1025 (11th Cir. 1994);
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Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 645 (5th Cir. 1988),
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cert. denied, 488 U.S. 1007 (1989); see also Baker v. Board of
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Regents, 991 F.2d 628, 632 (10th Cir. 1993); Rivera-Muriente,
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9
959 F.2d at 354; cf. Jensen, 912 F.2d at 521-22 (enunciating
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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
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v. de Castro, 843 F.2d 631, 633-36 (1st Cir. 1988). In this
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instance, however, appellant, though hinting at the possible
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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.
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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.
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Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990) (ruling "that
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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
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(1st Cir.) (same), cert. denied, 494 U.S. 1082 (1990).
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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
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Jensen, 912 F.2d at 521. There is no evidence in the instant
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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
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course could cause perpetual insecurity on the part of
employers, for, unlike the giving of notice a matter that is
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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
IV
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Conclusion
Conclusion
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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
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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.
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Affirmed.
Affirmed.
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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.
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