
USCA1 Opinion

	




          February 23, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1070                              JUAN A. DAMIANI MONTALBAN,                             IVELISSE VAZQUEZ DE DAMIANI,                             AND THE CONJUGAL PARTNERSHIP                                  COMPOSED BY BOTH,                               Plaintiffs, Appellants,                                          v.                         PUERTO RICO MARINE MANAGEMENT, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                             and Boyle,* District Judge.                                         ______________                                 ____________________            Guillermo Ramos Luina with whom Harry  Anduze Montano was on brief            _____________________           _____________________        for appellants.            Gilberto Mayo  Pagan with  whom Gilberto  Mayo Aguayo  and Mayo  &            ____________________            _____________________      _______        Mayo were on brief for appellee.        ____                                 ____________________                                 ____________________        _____________________        *Of the District of Rhode Island, sitting by designation.             BOYLE, District Judge.                    ______________                       Plaintiff-appellant  Juan   A.  Damiani  Montalban             appeals an order granting summary  judgment against him in a             suit brought under  P.R. Laws  Ann. tit. 29,    146  (1985).             Jurisdiction exists pursuant to 28  U.S.C.   1332(a)(1).  We             affirm.                                    I. Background                       In  accord  with  Fed.R.Civ.P. 56,  the  facts are             considered in the light most favorable to the appellant.  On             March  24, 1989, after nearly ten years of service at Puerto             Rico Marine Management, Inc. (PRMMI), Damiani was dismissed.             At the time  of his  dismissal, Damiani was  the Manager  of             Insurance in PRMMI's Department of  Risk Management.  He was             52 years old.                       The   manner  in   which  Damiani   was  dismissed             represents a  rather unceremonious conclusion to  his career             at  PRMMI.  On Friday, March 10, 1989, Fernando L. Guardiola             Lopez, the Manager of  PRMMI's Department of Loss Prevention             informed Damiani that Victor Carreras, the Vice-President of             Industrial Relations  at PRMMI, had asked  Guardiola to tell             the appellant that  he would be  "laid off" effective  March             24,  1989.  On Monday,  March 13, 1989,  the appellant asked             his supervisor,  Juan Jeannot  why he was  being terminated.             Jeannot  was unable  to provide  an explanation  for PRMMI's             action.   Jeannot stated he  would look into  the matter and             get  back  to Damiani.   By  letter,  dated March  13, 1989,             Enrique    Gonzalez,    Vice-President   of    Finance   and             Administration  of PRMMI,  reiterated that  Damiani's layoff             would be effective March 24, 1989 and advised him to contact             the Personnel Department to review his benefits.  The letter             concluded  with  the  offer  to provide  references  to  aid             Damiani  in finding a new position.  Although the exact date             is unclear,  Damiani acknowledges receipt of  this letter no             later than March 22, 1989.                             After  March  13,  1989,  Damiani  met  with             Rafael Reyes, PRMMI's Personnel Director.  Damiani  contends             that  Mr. Reyes first learned  of his layoff  the morning of             their  meeting.  At this  meeting, Damiani again demanded an             explanation  for his  dismissal.   Reyes, however,  was also             unaware of the reasons for Damiani's dismissal.                            From the start,  Damiani maintained that  his             dismissal was  unjustified  and continually  requested  that             PRMMI provide  an explanation  for his  dismissal.   In each             conversation  concerning  his  employment   status,  Damiani             stated that  the dismissal action was  "arbitrary and unfair                                         -3-                                          3             and  that  unless  I  was  retained I  would  file  whatever             judicial  action  was necessary  to  protect  my rights  and             obtain  redress  for any  damages  which  were going  to  be             substantial  because  of  my   time  with  the  company,  my             excellent job execution and my age."                        Damiani's last  day at  PRMMI was March  24, 1989.             On  July 24,  1989, he sent  a letter  to J.  P. Toomey, the             President  of PRMMI.   In the  letter, Damiani  outlined his             contributions to the company and recommended PRMMI create an             independent  appeals   board  to  review  actions   such  as             promotions, demotions,  and  dismissals.   Damiani  asserted             that an  impartial review of  his situation would  result in             his reinstatement.                       On March  23, 1990, Damiani sued  PRMMI in federal             district  court invoking diversity jurisdiction, 28 U.S.C.               1332.  The  complaint asserted three  causes of action,  the             first, pursuant to P.R. Laws Ann. tit. 29,   185a (1989)(Law             80), for  an additional month's salary  as indemnity because             he was  terminated from  his employment without  just cause,             the  second  for  monetary  damages  for age  discrimination             pursuant to P.R. Laws  Ann. tit. 29,   146  (1985)(Law 100)1                                              ____________________             1 Section 146 provides in part:             "Any  employer  who  discharges, lays  off  or discriminates             against an employee . . . on the basis of age . . . :                                         -4-                                          4             (  146 or Section 146), and  the third for money damages for             mental  distress  because  of  his  discriminatory discharge             based on  age.  (Complaint at  5-7.)  In the  portion of his             complaint entitled  "Request for Remedy" he  alleged that he             had  suffered  injury  "caused  by   the  willful,  illegal,             discriminatory  and/or negligent  actions of  the defendant"             and sought  front pay  in lieu  of reinstatement, back  pay,             lost benefits,  damages for  pain  and suffering,  severance             pay, double payment of  all sums as double indemnity,  costs             and attorneys fees, prejudgment  interest and any other just             relief  which plaintiff estimated to equal not less than two             million    three    thousand    eight     hundred    dollars             ($2,003,800.00).   On August 31, 1991, PRMMI  filed a motion             for  summary   judgment   contending  that   Damiani's   age             discrimination  claim   was  barred   by   the  statute   of             limitations  and that the amount  of Damiani's Law 80 claim,             standing alone,  was insufficient  to supply the  court with             subject matter jurisdiction under 28 U.S.C.   1332.  PRMMI's             motion  did  not address  Damiani's  third  claim for  money             damages for mental anguish  because of his termination based                                              ____________________             (a) shall incur civil liability             (1) for a sum equal to twice the amount of damages sustained             by the  employee or applicant  for employment on  account of             such action;"  P.R. Laws Ann. tit. 29,   146 (1985).                                         -5-                                          5             on  age.   That  cause  of  action,  based  on  alleged  age             discrimination, would also be  time barred.  We see  no need             to return this  matter to the district court to do what must             be done, that is  to dismiss Count III.  The  district court             granted the motion  as to Counts I and  II.  Damiani appeals             that  judgment.     Damiani, in  his  brief, states  that no             appeal  is  taken from  the  determination that  his  Law 80             claim, alone, does not meet the jurisdictional amount.                                    II. Discussion                        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 certain cases, Rule 56 may be             used  to determine whether a statutory time bar applies to a             particular  set of facts.   See, e.g., Jensen  v. Frank, 912                                         ___  ____  ________________             F.2d  517, 520 (1st Cir.  1990); Kali Seafood,  Inc. v. Howe                                              ___________________________             Corp.,  887 F.2d 7,  9 (1st Cir.  1989).  At  the outset, we             _____             note  that  the review  of a  grant  of summary  judgment is             plenary.  Garside v.  Osco Drug, Inc., 895 F.2d  46, 49 (1st                       ___________________________             Cir. 1990).   In the  present case, our  inquiry focuses  on             whether the record  reveals a genuine issue  of any material             fact relative to the timeliness of Damiani's suit.  Doyle v.                                                                 ________             Shubs,  905 F.2d  1 (1st  Cir. 1990)(per  curiam).   Damiani             _____                                         -6-                                          6             contends that the  time of accrual of his action  as well as             whether the action was  tolled under the law of  Puerto Rico             constitute genuine issues of material fact.                       In  Olmo  v. Young  &  Ribicam of  P.R.,  Inc., 10                           __________________________________________             Official Translations  of the Opinions of  the Supreme Court             of  Puerto Rico 967 (1981), the Supreme Court of Puerto Rico             addressed  the  applicable  statute  of  limitations  for an             action  brought under   146.  In Olmo, the plaintiff brought                                              ____             an  action  under    146  alleging  he  had  been discharged             because of  his race.   Since the statute did  not provide a             specific limitation  period, the Olmo court  determined that                                              ____             the one  year statute  of limitations   applicable  to other             civil actions for damages based on racial discrimination was             appropriate for an action under   146.  Id. at 972-73.                                                     ___                       The Olmo court  described actions brought  under                             ____             146  as actions for "tortious  discrimination."  Id. at 972.                                                              ___             That   description  is   instructive  in   determining  when             Damiani's  action  accrued.    Under Puerto  Rico  law,  all             actions for civil liability based on fault or negligence are             time  barred after  one year  "from  the time  the aggrieved             person  had knowledge thereof."   P.R. Laws Ann.  tit. 31,               5298 (1991).  In  the instant case, the district  court held                                         -7-                                          7             that Damiani's cause  of action accrued  on March 10,  1989,             the date he was informed of his termination.  We agree.                       The  Supreme Court  of Puerto  Rico has  addressed             when an  action for wrongful discharge accrues.   In Delgado                                                                  _______             Rodriguez v. Nazario de Ferrer, 121 D.P.R. ___, 88 J.T.S. 63             ______________________________             (No. CE-86-417, official  translation) (1988), the plaintiff             was informed on March  19, 1981 that he would  be terminated             effective  April 15, 1981.   Before  he was  terminated, the             plaintiff initiated an administrative  claim with the  Board             of Appeals of the Personnel Administration System.  On March             7, 1984 the Board  of Appeals reinstated the plaintiff.   On             March 1,  1985, the plaintiff  filed a civil  action seeking             damages  for wrongful  termination.   The  Supreme Court  of             Puerto Rico determined that the statute of limitations began             to  run when the aggrieved party became aware of the damage.             The Delgado  Rodriguez court determined that the plaintiff's                 __________________             cause of action was  time barred because it accrued  the day             he  received notice of his termination, March 19, 1981.  Id.                                                                      ___             at 11 (No. CE-86-417, slip op. at 11).                       A  similar analysis has  been applied  in wrongful             termination  cases  brought under  42  U.S.C.    1983.    In             Rivera-Muriente   v.  Agosto-Alicea, 959 F.2d  349 (1st Cir.             ___________________________________             1992), the plaintiff was informed  that his name was removed                                         -8-                                          8             from an employment roster.   Two years later,  the plaintiff             filed  an action  in federal  court alleging  his employer's             actions had deprived him of  property without due process of             law.  The Rivera-Muriente court stated that:                       _______________                            [i]n    employment    discrimination    cases             involving wrongful       discharges,    the    statute    of                                      limitations begins to run  when the                                      plaintiff learns of the decision to                                      terminate  his employment  (even if                                      the    notice   he    receives   is                                      informal).             Id. at 353.   In determining when Damiani's action  accrued,             ___             our inquiry is  when did  Damiani become aware  he would  be             terminated?   Damiani argues that Guardiola's  statement did             not  commence the  running  of the  statute of  limitations.             Damiani contends that a fellow manager could not provide the             requisite  notice  of his  dismissal.    In Damiani's  view,             Guardiola's  statement  fails  to  trigger  the  statute  of             limitations  because it  amounts  to  mere  speculation  and             rumor.   This contention  fails, however, when  the facts of             the  notice are analyzed.   In an affidavit  attached to his             opposition  to  the  motion  for summary  judgment,  Damiani             admits that Guardiola stated he was acting under orders from             Victor Carreras,  Vice-President of Industrial  Relations at             PRMMI.    Thus,  Guardiola  was dispatched  to  deliver  the             unfortunate  news by a superior.   This action  was not mere                                         -9-                                          9             gossip or speculation, but a sanctioned delegation of duties             by PRMMI's administration.  Although Damiani felt the use of             Guardiola as a messenger was not appropriate, it effectively             conveyed notice to Damiani that he would be terminated.                       Damiani further argues that  Guardiola's statement             did not  effectively  provide notice  of  dismissal  because             Guardiola was unaware of the reasons for PRMMI's action.  As             we  have  noted,  in cases  such  as  this,  the statute  of             limitations begins to run when the aggrieved party learns of             the decision  to terminate  him. Rivera-Muriente  v. Agosto-                                              ___________________________             Alicea, 959 F.2d at  353.  An employer's failure  or refusal             ______             to  provide  an  aggrieved  employee with  the  reasons  for             termination has no effect on the commencement of the statute             of  limitations.  The date an employee becomes aware that he             has  been damaged by a  decision to terminate,  his cause of             action  begins and the longevity  of that claim for purposes             of the statute of  limitations is set.   On March 10,  1989,             Damiani became aware that  he would be terminated, therefore             the  statute of limitations for any claim of damages under               146 then began to run.                       Damiani next contends  that his conversations with             various  PRMMI  personnel  constitute  extrajudicial  claims             sufficient to toll  the statute of limitations.   Tolling of                                         -10-                                          10             the statute of limitations is provided for in P.R. Laws Ann.             tit. 31,    5303  (1991)  (  5303  or Section  5303).   That             section states:                       [p]rescription  of actions is interrupted by their                       institution  before  the courts,  by extrajudicial                       claim  of   the  creditor,  and  by   any  act  of                       acknowledgement of the debt by the debtor.             P.R. Laws  Ann. tit. 31,    5303.  The district  court noted             that Damiani  relied principally  on his letter,  dated July             26, 1989, as  evidence of an  extrajudicial claim.   Damiani                                                                  _______             Montalban v.  Puerto Rico  Marine Management, Inc.,  No. 90-             __________________________________________________             1426, slip op. at 6 (D.P.R. Sept. 18, 1991).  In this forum,             however, he  relies exclusively  on  his oral  conversations             with PRMMI personnel.                         Under    5303, the  statute of limitations  may be             interrupted  by  the  "unequivocal  statement  of  one  who,             threatened  with the loss  of his right,  expresses his will             not to  lose it."  Feliciano  v. A.J.A., 93  P.R.R. 638, 643                                ____________________             (1966).  The Supreme Court of Puerto Rico has noted that the             tolling  exception to  the  statute of  limitations must  be             interpreted restrictively.   Diaz de Diana  v. A.J.A.S. Ins.                                          _______________________________             Co., 10 Official Translations of the Opinions of the Supreme             ___             Court of Puerto Rico 604, 607-608, n. 1 (1980).  In order to             toll the statute  of limitations,  the extrajudicial  claims             must be precise and specific.  Jimenez v. District Court, 65                                            _________________________                                         -11-                                          11             P.R.R.  35, 42 (1945).   The purpose of  requiring a precise             and  specific claim is to alert the defendant of claims that             would otherwise lapse.                        In Riofrio  Anda v. Ralston Purina,  Co., 959 F.2d                          _____________________________________             1149  (1st Cir. 1992), the plaintiff was hired under an oral             contract.   After his  termination, the plaintiff negotiated             with  his employer  concerning  relocation  and  termination             compensation which  he claimed  was required under  his oral             agreement.   His attorney wrote  to the employer  and stated             his  intention to  "file  an  unlawful discharge  complaint"             against the employer.  The plaintiff then filed an action in             the United States District Court  for the District of Puerto             Rico  seeking money  damages for breach  of his  contract of             employment  with  respect  to  remuneration  and  relocation             expenses, wrongful  discharge and unlawful  termination, and             mental  pain  and  suffering  resulting  from  willful  acts             committed  by the defendants at the time of termination.  We             held that the attorney's  letter was inadequate to toll  the             statute  of  limitations because  the  letter  did not  give             defendant "fair  notice that  a lawsuit based  on breach  of             contract  and  wrongful  discharge  were  in  the   offing."             Riofrio Anda v. Ralston Purina, Co., 959 F.2d at 1154.             ___________________________________                                         -12-                                          12                       In addition, tolling  requires that the  plaintiff             must  claim the same relief  that is later  requested in the             suit.   Hernandez Del Valle  v. Santa Aponte,  575 F.2d 321,                     ____________________________________             323-24 (1st Cir. 1978).  In Del  Valle, the plaintiff sent a                                         __________             letter contending that his dismissal was illegal and seeking             reinstatement.   The court held  that the  letter failed  to             toll  the statute  of limitations  for a    1983  action for             unlawful  discharge which sought  reinstatement and damages.             The  court  emphasized  that   the  letter  indicated   that             plaintiff's  sole  interest  was reemployment.    The  court             reasoned  that the letter failed to give the defendant "fair             notice that he would be called upon to defend a damages suit             with  different   issues  not  applicable  to   a  suit  for             injunctive relief."  Id. at 324.  Similarly, in Riofrio Anda                                  ___                        ____________             v.  Ralston Purina  Co.,  this court  applied Del  Valle, by             _______________________                       __________             emphasizing  that  to  effectively   toll  the  statute   of             limitations  an extrajudicial  claim must  request the  same             relief ultimately sought in a federal suit.  Ralston Anda v.                                                          _______________             Ralston  Purina  Co., 959  F.2d at  1154.   An extrajudicial             ____________________             claim does  not  toll the  statute  of limitations  for  all             claims  arising out of the  same facts.   Rather, tolling is             effective only  with regard  to identical causes  of action.                                         -13-                                          13             Rodriguez  Narvaez  v. Nazario,  895 F.2d  38, 43  (1st Cir.             ______________________________             1990).                       In  the present  case,  Damiani's statements  seek             retention as  an employee  while alluding to  possible legal             action.  His complaint, however,  seeks a variety of damages             including  damages  in  lieu  of  reinstatement.   Damiani's             statement can not be deemed a precise and specific claim for             relief  ultimately  sought  in  his lawsuit.    His  cryptic             comment  suggesting that  his damages  would  be substantial             because  of his age did  not provide PRMMI  with fair notice             that  it would  be  called upon  to  defend a  suit  seeking             damages resulting from age discrimination.                        Damiani's final  argument is that a  decision of a             more recent  vintage from the  Supreme Court of  Puerto Rico             modified  tolling  requirements.     As  support   for  this             proposition,  Damiani  points   to  Zambrana  Maldonado   v.                                                 ________________________             Commonwealth  of Puerto Rico,  130 D.P.R.  __, 92  J.T.S. 12             ____________________________             (1992)(Translation  Provided).   In Zambrana  Maldonado, the                                                 ___________________             plaintiff sent a letter to the Secretary of Justice alleging             he  had a  claim for  damages against  the government.   The             plaintiff's  letter   stated  that  he   was  notifying  the             government of a claim and provided the date, place,  damages             suffered,  the  cause  and  nature thereof  and  a  list  of                                         -14-                                          14             possible  witnesses.  Id. at 15.   P.R. Laws Ann. tit. 32,                                     ___             3077a (1968) (Section 3077a) requires a claimant against the             government to give  notice of the claim  including the date,             place, cause and general nature of the damages suffered, the             names of witnesses,  the address of the claimant as well  as             the  place where  medical treatment  was received.   Section             3077a requires that  such notice be given within ninety (90)             days  of the awareness of  the damages.   Failure to provide             notice  within the ninety day period bars a suit against the             government. The Supreme Court  of Puerto Rico held  that the             plaintiff's  written claim  of damage  tolled the  statue of             limitations.  Zambrana Maldonado  v. Commonwealth  of Puerto                           ______________________________________________             Rico  (translation at  35).   The  Zambrana Maldonado  court             ____                               __________________             maintained  that   the  interruption  of   the  statute   of             limitations   requires  "conduct  in  which,  more  or  less             tractably and  more or  less categorically or  urgently, the             decision to obtain payment is shown."  Id. at 23.  The court                                                    ___             held  that the  notice which  complied with the  statute was             sufficient  to  toll the  statute of  limitations. Plaintiff             points  to language in the court's opinion which states that             the  law does not require any particular form of notice. The             court  observed that "[n]o matter  how the claim  is made it             has  interruptive  value..."   Id.    In this  context,  the                                            ___                                         -15-                                          15             opinion cannot be read as a broadening of the type of notice             required.   The issue is not  the form of the  notice, it is             the content of the  notice.  Here, the content  is deficient             to  support  the  legal   action  which  has  been  brought.             Damiani's statements did not  evidence an urgent decision to             obtain payment for damages under   146.                                   III. Conclusion                                   _______________                       Damiani's  statements did  not toll  the  one year             statute of              limitations.  Dismissal was required as a matter of law.             Affirmed.              ________                                                             -16-                                          16
