
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                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.                                          I.                                          __                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS                       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).                                         -2-                                          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.                                         -3-                                          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                                         -4-                                          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.                                         II.                                         ___                                  STANDARD OF REVIEW                                  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."                                         -5-                                          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.                                         III.                                         ____                                      DISCUSSION                                      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                                         -6-                                          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            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                                         -7-                                          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            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.                                             ___ ___  ____     __________                                         -8-                                          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                                         -9-                                          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.                  ___                                         -10-                                          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.                                         IV.                                         ___                                      CONCLUSION                                      CONCLUSION                                      __________                      For  the foregoing  reasons,  the judgment  of  the            district court is                      Affirmed.                      Affirmed.                      _________                                            ____________________            U.S.  363, 380  (1982).   Plaintiff's  interpretation of  the            continuing violation  theory would  reduce this purpose  to a            nullity.                                         -12-                                          12
