Morris-Andino v. Development Bank

Opinion

USCA1 Opinion

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.
                                          I.
                                          __

                                      Background
                                      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.
                                         II.
                                         ___

                             Applicable Legal Principles
                             Applicable Legal Principles
                             ___________________________

                                          A.
                                          A.
                                          __

                            The Summary Judgment Standard
                            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.
                                          B.
                                          __

                                The Limitations Period
                                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.
                                         III.
                                         ____

                                       Analysis
                                       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
                                          IV
                                          __

                                      Conclusion
                                      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.
           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