Velazquez v. Chardon

500 F. Supp. 10, 1980 U.S. Dist. LEXIS 14874
CourtDistrict Court, D. Puerto Rico
DecidedApril 2, 1980
DocketCiv. No. 79-71
StatusPublished
Cited by4 cases

This text of 500 F. Supp. 10 (Velazquez v. Chardon) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Velazquez v. Chardon, 500 F. Supp. 10, 1980 U.S. Dist. LEXIS 14874 (prd 1980).

Opinion

DECISION AND ORDER

TORRUELLA, District Judge.

The present civil rights action is now before us on Defendant’s “Motion to Dismiss and/Or For Judgment on the Pleadings” and Plaintiff’s “Motion to Strike Affirmative Defenses.” Each Motion has been duly opposed and extensively argued.

The basic facts, and chronological history of this case are simple and generally not disputed. Defendants in this suit are the Secretary and the Personnel Director of the Department of Education of the Commonwealth of Puerto Rico. Plaintiff is an employee of the Department. During the latter part of 1976 Plaintiff was promoted on a non-permanent basis to the position of Elementary School Director III. He held, and performed duties at this position during the 1976-1977 school year. On June 9, [11]*111977 1 Plaintiff was notified that his non-permanent appointment would expire at the end of that school year and that he was being reassigned to his previous permanent position.2 This notice stated that the demotion would be effective August 8, 1977, see note 2. Shortly after receipt of this notice, on June 5, 1977, Plaintiff replied his disagreement and noted he would comply, but stated he would refer the matter to the Teachers Association for the “necessary action.” 3 At the start of the 1977-1978 school year Plaintiff returned to his demoted tenured position where, according to the complaint, he labors to this date. Plaintiff claims the demotion was motivated entirely by political considerations and is therefore violative of several constitutional provisions. He invokes a cause of action under federal law, 42 U.S.C. § 1983, and by virtue of this Court’s pendent jurisdiction under local law, 18 L.P.R.A. §§ 211, 214, 249e.

Defendants’ Motion to Dismiss is premised on the argument that Plaintiff’s cause of action accrued on June 9, 1977, date of the notice of reassignment, and that a complaint filed on January 10, 19794 is therefore time barred. On the other hand Plaintiff’s opposition retorts that the correct accrual date is August 8, 1977, the date the demotion became effective.5 Because both parties concede, as they must,6 that this action is governed by the one year time limitation set out in Article 1868(2) of the Civil Code of Puerto Rico, 31 L.P.R.A. § 5298(2), the issue, simply stated, is when the one year time period commenced running. If we accept either June 9, 1977, or June 15, 1977,7 i. e., the date of the notice of [12]*12reassignment or the date of Plaintiff’s protest note, this action is without a doubt time barred. Conversely, if we accept August 8, 1977, the date the reassignment became effective, or Plaintiff’s alternate argument that the action has yet to accrue, the action must be considered timely.

Although the limitations period is borrowed from local law, see fn. 6 supra, the question of when a federal action accrues is one to be determined by federal law. Bireline v. Seagondollar, 567 F.2d 260, 263 (C.A.1, 1977); Briley v. California, 564 F.2d 849 (C.A.9, 1977); Cox v. Stanton, 529 F.2d 47 (C.A.4, 1975), cf. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). “Federal law holds that the time of accrual is when plaintiff knows or has reason to know of the injury which is the basis of the action.”8 Cox v. Stanton, supra, p. 50; cited at Michell v. Hendricks, 431 F.Supp. 1295, 1298 (E.D.Pa.1977); cf. also Urie v. Thompson, 337 U.S. 163, 169-70, 69 S.Ct. 1018, 1024, 93 L.Ed. 1282 (1949). In essence, Defendants’ theory is that Plaintiff knew of the injury from receipt of the notice of reassignment on June 15, 1977 while Plaintiff’s position is that there was no “actual injury,” and therefore no basis for an action until the reassignment became effective on August 8, 1977.

Our reading of the material before us reveals that: first, no claim is made by Plaintiff that he did not know, or did not have reason to know of the alleged political motivations behind the June 9, 1977 notice of reassignment.9 Second, there is no allegation that Defendants fraudulently concealed from Plaintiff their injury causing acts. Cf. Hernández Jiménez v. Calero Toledo, 576 F.2d 402, 404 (C.A.1, 1978); see also: Holmberg v. Armbrecht, 327 U.S. 392, 396-97, 66 S.Ct. 582, 584-85, 90 L.Ed. 743 (1946). Third, no conspiracy of any kind is alleged. See Gual Morales v. Hernández Vega, 579 F.2d 677 (C.A.1, 1979); Hernández Jiménez v. Calero Toledo, supra; Kadar v. Milbury, 549 F.2d 230 (C.A.1, 1977).

Plaintiff’s position is instead premised on the argument that after receipt of the official notice of reassignment he could not bring suit because there was still lacking a necessary element for a valid cause of action, viz., the actual harm. This is not correct. Depending on the circumstances, even the “threat of dismissal” for political motivations is enough to trigger a civil rights cause of action and entitlement to immediate specific relief. Elrod v. Burns, 427 U.S. 347, 359, 96 S.Ct. 2673, 2682, 49 L.Ed.2d 547 (1976); see also: Abood v. Detroit Board of Education, 431 U.S. 209, 235 36, 77 S.Ct. 1782, 1799 1800, 52 L.Ed.2d 261 (1977); cf. Board of Regents v. Roth, 408 U.S. 564, 568, 92 S.Ct. 2701, 2704, 33 L.Ed.2d 548 (1972). We realize that the relief that may have been requested, or that may have been available, at any point prior to August 8, 1977 would certainly vary from what would be the case after this date. But surely if Plaintiff’s claim had any merit, temporary injunctive relief would have been available, Elrod v. Burns, supra, 373 74, 96 S.Ct. 2689-90, and certainly this would have mitigated any damages that would have been realized. In this sense much of what the complaint seeks in the way of relief, viz., reinstatement, back pay and damage amounts, would have been lessened if not mooted.

Further, it is not entirely accurate to characterize an official notice of reassignment as a “threat of future harm, not yet realized”,10 Plf’s Memorandum of Law, January 24, 1980, p. 9, nor is it fair to say that this situation only involves “. . . fears from [13]*13another’s possible conduct ...” Plf’s Memorandum of Law, January 24, 1980, p. 6, or only “knowledge that their civil rights will be attacked in the future”, Plf’s Memorandum, October 25, 1979, p. 13.

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Bluebook (online)
500 F. Supp. 10, 1980 U.S. Dist. LEXIS 14874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/velazquez-v-chardon-prd-1980.