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                      [NOT FOR PUBLICATION]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 &amp;
                                                                 

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-
