
USCA1 Opinion

	




          May 07, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2165                            MARIA DE LOS ANGELES-SANCHEZ,                                Plaintiff, Appellant,                                          v.                               CARLOS ALVARADO, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                             and Boudin, Circuit Judge.                                          _____________                                 ____________________            Juan G. Nieves Cassas for appellant.            _____________________            Carlos Lugo Fiol, Assistant Solicitor General, with whom  Anabelle            ________________                                          ________        Rodriguez,  Solicitor General,  and Reina  Colon de  Rodriguez, Deputy        _________                           __________________________        Solicitor General, were on brief for appellee.                                 ____________________                                 ____________________               COFFIN,  Senior  Circuit Judge.    This  appeal arises  from                        _____________________          plaintiff  Maria  Sanchez's  claim that  Omar  Santiago  sexually          harassed  her and that their employer condoned his behavior.  The          district  court dismissed the suit as time-barred.  We vacate and          remand.                                          I.               In 1988, Sanchez  was employed at  the Puerto Rico  Electric          Power  Authority (PREPA).   She alleged that  from September 1988          for a period of approximately two years, Santiago, a fellow PREPA          employee,  harassed  her  sexually.     The  harassment  included          invitations  to dinner and to accompany Santiago to a motel, wolf          whistles,  taunts,  stalking,  threats  to harm  her  if  Sanchez          complained  of  his  behavior,  and a  threat  against  Sanchez's          boyfriend.               Sanchez lodged  a number of complaints against Santiago.  In          November  1988,  Santiago  met   with  his  supervisor  regarding          Sanchez's complaints.   He denied any wrongdoing.   Sanchez filed          complaints with the Equal Employment Opportunity Office (EEOC) of          PREPA  in December  1988 and  May 1989.   In  July 1989,  an EEOC          officer  allegedly  attempted to  persuade  Sanchez  to drop  the          charges  against  Santiago  and  recommended  that  she  confront          Santiago  on  her own.    At  some point  in  1989,  PREPA issued          Santiago a warning to desist his behavior.               Nonetheless, Santiago continued  to harass Sanchez, and  she          filed  a third  EEOC  complaint  in  April  1990.    A  drawn-out          investigation followed.   On  July 2, 1990,  Sanchez submitted  a          letter  of resignation,  effective  July  20.   She  stated  that          Santiago's offensive  behavior, compounded by PREPA's  failure to          discipline him, forced her to resign.  On  July 18, 1990, Sanchez          met a final time with  an EEOC officer.  She left  PREPA two days          later.               On July  17, 1991, Sanchez  filed suit against  Santiago and          various  other  employees of  PREPA  (collectively "defendants"),          alleging violations of Title VII of the Civil Rights Act of 1964,          42 U.S.C.    1983, and  the Puerto Rico  Civil Code.1   The basis          for the suit was  the sexual harassment, condoned by  PREPA, that          culminated in her constructive discharge.               Defendants  moved on  various grounds  to dismiss  the suit.          The motion was  referred to a  magistrate judge, who  recommended          that  the Title VII claim  be dismissed for  Sanchez's failure to          comply  with  administrative  filing requirements  and  that  the          remaining claims proceed as timely filed.  Defendants objected to          the  latter  recommendation.    The district  court  agreed  with          defendants and  dismissed the entire complaint.   Sanchez appeals          only  that portion of the  order dismissing the  section 1983 and          tort claims as time-barred.                                         II.               We  review  the  dismissal  of plaintiff's  suit  under  the          summary judgment  standard because  the district court  relied on                                        ____________________               1   Sanchez's  sister Teresa  also sued,  claiming emotional          distress damages  incurred  from supporting  Sanchez through  her          ordeal.  She was not, however, designated as an appellant  in the          notice to appeal.  Accordingly, she is not a party to the present          appeal.  Pontarelli v. Stone, 930 F.2d 104, 108 (1st Cir. 1991).                   __________    _____                                         -3-          material other than the pleadings to determine defendants' motion          to dismiss.  The  federal rules of civil procedure  provide that,          on a motion to dismiss for failure to state a cause of action, if          "matters  outside the pleading are  presented to and not excluded          by the  court, the  motion shall  be treated  as one  for summary          judgment and disposed of as provided in Rule 56 . . . ."  Fed. R.          Civ. P. 12(b)(6).   Defendants' motion  to dismiss therefore  was          converted to a motion for summary judgment.               Our review of summary  judgment is plenary, and we  read the          record  in the light most  favorable to the  party contesting it.          Pagano v.  Frank, 983 F.2d 343,  347 (1st Cir. 1993).   We affirm          ______     _____          the decision  below only  if we are  satisfied that  there is  no          genuine dispute of material fact and that defendants are entitled          to judgment  as a matter of law.  Advance Financial Corp. v. Isla                                            _______________________    ____          Rica  Sales, Inc.,  747 F.2d  21,  26 (1st  Cir. 1984).   We  now          _________________          consider  whether the  district court  erred in  determining that          Sanchez's suit was time-barred as a matter of law.               The limitations period for a  section 1983 claim is governed          by the law of the  forum state.  Wilson v. Garcia, 471  U.S. 261,                                           ______    ______          276,  280  (1985).   In Puerto  Rico,  the applicable  statute of          limitations is the one-year  period established for tort actions.          P.R. Laws Ann., tit. 31,   5298(2);   Torres v. Superintendent of                                                ______    _________________          Police, 893 F.2d 404,  406 (1st Cir.  1990).  Accordingly, to  be          ______          timely filed,  Sanchez's section 1983  and tort claims  must have                                         -4-          accrued within  one year  of July 17,  1991, the  date she  filed          suit.               The  district court found that Sanchez  filed her suit late.          Because  Sanchez  based her  resignation  on  PREPA's failure  to          address her complaints against Santiago, the court concluded that          the limitations period began  on the date she learned  that PREPA          would not  act and that this date was July  2, 1990, the date she          tendered her resignation.  It thus ignored evidence in the record          of events following that date.               Sanchez argues that the district court erred in finding that          the limitations period commenced July 2.  She contends that PREPA          continued to refuse to discipline Santiago after that date.  From          1988 through the date of her departure, Sanchez met with officers          of PREPA  several  times to  seek redress  but failed,  allegedly          because of PREPA's ongoing  policy not to discipline an  employee          affiliated with the Popular  Democratic Party.  Her last  bid for          action occurred July 18.  Sanchez therefore asserts that, because          PREPA's   unlawful  practice  continued   until  she   left,  the          limitations period did not begin to run until July 20.               A claim  alleging a violation  that occurs over  an extended          period  is timely  so long  as some  of the challenged  acts fall          within  the statutory period.  See Bruno v. Western Electric Co.,                                         ___ _____    ____________________          829 F.2d 957,  960 (10th Cir. 1987); Goldman  v. Sears, Roebuck &                                               _______     ________________          Co., 607 F.2d 1014, 1018 (1st Cir. 1979).  This claim will not be          ___          saved, however, if only the consequences of the alleged violation                                         -5-          fall within the limitations period.  De Leon Otero v. Rubero, 820                                               _____________    ______          F.2d 18, 19 (1st Cir. 1987) (citations omitted).               We  conclude  that Sanchez  has raised  sufficient questions          regarding  the  continuation  of  PREPA's  alleged  violation  to          preclude  summary judgment  for  defendants at  this  preliminary          stage  of   the  proceeding.    After  July  2,  both  Santiago's          supervisor and the director  of human resources assured Sanchez's          supervisor that  the investigation  of her charges  was still  in          progress.   Sanchez  also met  with the  EEOC on  July 18,  in an          apparent last-ditch  effort to determine whether  relief could be          obtained.    A  factfinder  could  determine  that  these  events          demonstrate  foot-dragging by  PREPA,  consistent with  Sanchez's          theory that it did  not want to discipline Santiago, or that they          demonstrate  that Sanchez could  not be  certain until  after the          July 18 meeting that PREPA would  not act.  Based on this record,          we are persuaded  that defendants have  not shown that  Sanchez's          suit is time-barred as a matter of law.2                 Defendants rely heavily on  Delaware State College v. Ricks,                                           ______________________    _____          449  U.S.  250,  257-58  (1980),  to  argue  that  Sanchez cannot          demonstrate a violation that continues past July 2.  In our view,          however, this case is distinguishable from Ricks.   The plaintiff                                                     _____          there  was  denied tenure  in March  1974.   Following  its usual          practice, the  college offered him a  one-year terminal contract,          which expired in June 1975.   In April 1975, Ricks filed a charge                                        ____________________               2  Because we find that the district court was  premature in          determining the  accrual date  of Sanchez's claims,  we need  not          discuss the issue of equitable tolling.                                         -6-          of discrimination with the EEOC.  The Supreme Court held that the          filing was not timely because Ricks's claim accrued from the date          of the alleged discriminatory  action -- the denial of  tenure --          not  from the  date of  actual termination,  which was  merely "a          delayed,  but inevitable,  consequence"  of the  unlawful action.          Id. at 257-58.            __               The  Court  placed  great   emphasis  on  the  finality  and          certainty of the  college's decision to deny tenure,  noting that          it capped an "unbroken array of negative decisions."  Id. at 262.                                                                __          No  subsequent action  by  Ricks  alone  could secure  tenure  or          prevent his eventual departure.  We therefore understand Ricks to                                                                   _____          require  that   a  decision  to  terminate   employment  must  be          "unequivocal,  and   communicated  in  a  manner   such  that  no          reasonable  person could think there might be a retreat or change          in  position prior to the termination."  See Hoesterey v. City of                                                   ___ _________    _______          Cathedral City, 945 F.2d 317, 320 (9th Cir. 1991).            ______________               By contrast,  the letter of resignation  from Sanchez lacked          such  finality.   Although Sanchez  submitted her  resignation on          July 2, she reserved 18 days for it to take effect.  This waiting          period reasonably could indicate, as Sanchez avers, that if PREPA          ended  the hostile  atmosphere forcing  her departure,  she might          rescind  her  resignation.   Thus,  until she  actually  left her          employment, her constructive discharge was not certain.               We emphasize  that our decision  expresses no view  upon the          merits of Sanchez's claims.  On remand, she still must prove that                                         -7-          defendants refused to  act and that  they maintained this  policy          during the limitations period.               Vacated and remanded.  No costs.               ____________________   ________                                         -8-
