
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
