Martinez-Rivera v. Commonwealth of Puerto Rico , 812 F.3d 69 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 13-1772
EDNA MARTÍNEZ-RIVERA, on her own behalf and on behalf of her
minor child, RCM; LYDIA RIVERA-O'FARRIL; LYDIA MARTÍNEZ-RIVERA,
Plaintiffs, Appellants,
v.
COMMONWEALTH OF PUERTO RICO; DEPARTMENT OF JUSTICE OF PUERTO
RICO; DEPARTMENT OF LABOR AND HUMAN RESOURCES OF PUERTO RICO;
VOCATIONAL REHABILITATION ADMINISTRATION; NYDIA COLÓN-ZAYAS,
MYRNA CAMBRELEN, JUAN ORTIZ-ORTIZ, ENRIQUE DEL CUETO-PÉREZ, all
in their official and personal capacities,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
Carlos Rodríguez García, with whom Rodríguez García PSC was
on brief, for appellants.
Roberto Ariel Fernández, with whom González Castañer PSC was
on brief, for appellees.
January 29, 2016
THOMPSON, Circuit Judge.
Overview
Edna Martínez Rivera ("Martínez") is a former employee
of Puerto Rico's Vocational Rehabilitation Administration ("VRA"),
an agency tasked with integrating persons with disabilities into
the workforce. Sometime after the VRA let her go, Martínez filed
a federal-court suit against the defendants listed in our caption.
Essentially believing that they had discriminated against her
because of her disability, age, and politics, her complaint
seemingly alleges various violations of federal and local law.1
We say "essentially" and "seemingly" because her complaint is quite
muddled in key ways, forcing us to spend a lot of time piecing
together what claims she makes against whom (which isn't fair to
other litigants waiting in line for our attention, by the way).
Adding to the confusion, the district judge homed in on one federal
claim (under 42 U.S.C. § 1983), concluded that it ought to be
dismissed for failure to exhaust administrative remedies, and then
— without explaining why — dismissed the remaining claims too.
Martínez appeals. Unfortunately, her briefs are, like
her complaint, disorganized and opaque — they float legal theories
1 Martínez's son, mother, and sister joined as parties plaintiffs.
The district judge found — and Martínez does not argue otherwise
— that their claims are derivative of hers. So we treat the case
as if Martínez were the only plaintiff and appellant.
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but do not always ground them in the case, for example.2 Yet she
still ends up with a partial victory, as we affirm in part and
reverse in part. We explain our thinking below. First, a little
background.
How the Case Got Here
A lawyer by training, Martínez worked for years as a
Puerto Rico government employee. In the late 2000s, for example,
she held key posts — director of the office of legal affairs and
auxiliary administrator of the office of administration — within
the VRA. A member of the Popular Democratic Party — one of Puerto
Rico's two main political parties, the other being the New
Progressive Party — Martínez has a visibly-apparent disability
that affects her mobility. And our defendants knew about her
political affiliation and her disability.
Martínez's professional life was going along swimmingly
— until the New Progressive Party's Luis Fortuño Burset became
Puerto Rico's governor in January 2009. Sadly for Martínez, over
the next six months VRA personnel stripped her of meaningful
2Her opening brief's jurisdictional statement, for instance, makes
passing reference to the possibility that defendants violated her
Fifth- and Fourteenth-Amendment rights. But she never explains
how or why this is so. Obviously then, any argument based on these
theories is waived. See, e.g., HSBC Realty Credit Corp. (USA) v.
O'Neill, 745 F.3d 564, 577 (1st Cir. 2014) (explaining that
arguments "not developed in a party's opening brief are waived").
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duties, banished her to a subpar office, and made fun of her
disability (to list just a few of the indignities inflicted on
her). As a coup de grâce, the VRA told her in a letter dated
January 14, 2010 — which she acknowledged receiving the next day,
January 15 — that she was "being terminated" effective February
19, 2010 as part of a government downsizing required by law. That
law (known as "Law 7") called for (among other things) the
termination of certain commonwealth employees based on seniority,
all in the hopes of putting Puerto Rico on a better financial
footing. See generally Álamo-Hornedo v. Puig, 745 F.3d 578, 580
(1st Cir. 2014) (discussing Law 7). She could not work after
January 20, 2010, the complaint says, because the stress caused by
all the "political [and] disability discrimination" perpetrated by
defendants "exacerbated her physical disability."
Not willing to go away without a fight, Martínez
"attempted" (her word, not ours) to file an administrative appeal
with the Public Service Labor Relations Commission on February 12,
2010. Accusing the VRA of discriminating against her because of
her political affiliation and disability, her "attempted" filing
asked the commission to "declare void and null the layoff that was
notified." As best we can tell, Martínez never says what became
of her "attempted" filing. Anyway, the VRA let her go 7 days
later, on February 19, 2010.
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Still upset about the termination, Martínez filed a
complaint with the EEOC on July 12, 2010 and an amended complaint
on August 17, 2010, alleging political and disability
discrimination.3 Her amended EEOC complaint specifically accused
the VRA of replacing her with two nondisabled "female lawyers" who
"are politically affiliated [with] the governing party." She asked
the EEOC for a right-to-sue letter on February 2, 2011. But before
getting one, she sued our defendants in federal court on February
17, 2011. The EEOC gave her a right-to-sue letter about a month
later, on March 18.
Martínez's 103-paragraph federal complaint is hardly a
picture of clarity. Giving that document a generous read, she
seemingly alleges (as best we can discern) four categories of
claims. The first involves a political-discrimination claim tied
to 42 U.S.C. § 1983 (dealing with deprivations of federally-
protected rights at the hands of state actors), 42 U.S.C. § 1981
(declaring all persons "have the same right" to be free from
discrimination in specific activities, like making and enforcing
contracts and bringing suits), and 42 U.S.C. § 2000d (forbidding
racial discrimination by federal-grant recipients). The second
involves a disability-discrimination claim under Title I of the
3 EEOC stands for Equal Employment Opportunity Commission.
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Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.
The third involves an age-discrimination claim under the Age
Discrimination in Employment Act ("AEDA"), 29 U.S.C. § 621 et seq.
And the fourth involves a grab-bag of claims under Puerto Rico
law.
To Martínez's complaint, defendants responded with a
motion to dismiss for lack of subject-matter jurisdiction. See
Fed. R. Civ. P. 12(b)(1). Basically they argued that the statute
of limitation had run out on any section 1983 claim: the
applicable one-year limitations period, they wrote, started
running no later than January 20, 2010 (the date when she could no
longer work because of all the alleged discrimination she had
experienced) — but she filed her complaint on February 19, 2011,
they added, nearly one month after the limitations period had
expired. Oddly, defendants cited no authority (as far as we can
see) for the idea that a late-filed section-1983 claim is
jurisdictionally barred from federal court. See generally
Williams v. Henderson, No. 14-5150, 2015 WL 5638015, at *1 n.3
(10th Cir. Sept. 25, 2015) (unpublished) (agreeing with cases from
the Seventh and Ninth circuits holding that section 1983's
limitation period is not jurisdictional). Odder still, they argued
— without supporting reasoning — that because she filed her
section-1983 claim out of time, the judge had to dismiss all
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federal claims (not just the section-1983 claim). And then they
suggested that the judge should decline jurisdiction over the
local-law claims.
Focusing with laser-like intensity on the section-1983
claim, Martínez fired back that the one-year limitations clock did
not start ticking until after February 19, 2010, when she learned
that the VRA had replaced her with persons who — unlike her — were
politically affiliated with the new administration (she does not
specify the precise date, regrettably). Alternatively, she argued
that her August 2010 EEOC filing tolled section 1983's limitations
period (tolling typically operates to interrupt and so postpone
the limitation period's running), making her section-1983 claim
(filed less than a year later) timely.
Taking up defendants' Rule 12(b)(1) motion, the district
judge (like the parties) zeroed in on section 1983. And he ruled,
first, that the limitations period began running on January 15,
2010 when Martínez got the termination letter, not when the VRA
hired her replacement — though he then concluded that the
limitations clock reset when she filed her EEOC complaint on July
12, 2010. So far, so good, for Martínez. But noting that she had
sued defendants before getting an EEOC right-to-sue letter, the
judge ruled that she had not exhausted her section-1983 claim
administratively (remember, the judge keyed his analysis to
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section 1983). And — here's the kicker — he then dismissed all
claims (not just the section-1983 claim) with prejudice: as best
we can discern, he jettisoned all federal claims on exhaustion
grounds and relinquished jurisdiction over the supplemental local-
law claims.
Which brings us to today, with the parties fighting over
the judge's section-1983-driven decision. Essentially, Martínez
argues that she did not have to exhaust her section-1983 claim for
political discrimination with the EEOC.4 She also insists that
she timely filed her federal complaint, either because she brought
it within a year after learning that the VRA had replaced her with
persons politically simpatico with the party in power (she did not
know about the VRA's politically-discriminatory motives until the
replacements appeared, the theory goes) or because her EEOC filings
reset the limitations clock. And, wrapping up, she contends that
4Reader alert: Recall how Martínez's complaint seemingly suggests
that three statutes drive her political-discrimination claim —
section 1983, section 1981, and section 2000d. Well, her brief
does not seriously discuss whether or how sections 1981 and 2000d
apply in the context of this case, meaning she has waived any
possible arguments tied to those provisions. See, e.g., Rivera-
Muriente v. Agosto-Alicea, 959 F.2d 349, 351 n.2 (1st Cir. 1992)
(citing United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990),
for the canonical rule that arguments not developed in any
meaningful way are waived); see also Rodríguez v. Mun. of San Juan,
659 F.3d 168, 175 (1st Cir. 2011) (adding that "claims not made"
and claims "'confusingly constructed and lacking in coherence'"
are considered waived too (quoting United States v. Eirby, 515
F.3d 31, 36 n.4 (1st Cir. 2008))).
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her receipt of the EEOC's right-to-sue letter before the judge
dismissed the case cured her failure to exhaust her disability-
and age-discrimination claims. Defendants' brief disagrees with
just about everything Martínez says — though they changed their
tune a bit on the disability-discrimination issue at oral argument,
as we'll soon see.
Time to roll up our sleeves and sort this all out.
Standard of Review
Relying on Rule 12(b)(1), the judge (to repeat
ourselves) decided the statute-of-limitations and exhaustion
issues as if they implicated the court's subject-matter
jurisdiction. On both scores, we have our doubts. As a general
matter, statutes of limitations are affirmative defenses rather
than jurisdictional bars. See, e.g., Bowles v. Russell, 551 U.S.
205, 218-19 (2007). And, for reasons that we get to shortly, the
exhaustion requirements involved here — though compulsory — are
not jurisdictional either. Perhaps then the judge should have
analyzed the case under Federal Rule of Civil Procedure 12(b)(6)
(failure to state a claim) rather than under Rule 12(b)(1) (lack
of subject-matter jurisdiction). See Mercado v. Ritz–Carlton San
Juan Hotel, Spa & Casino, 410 F.3d 41, 46 n.6 (1st Cir. 2005).
No matter, because under either rule we review the
judge's order de novo, accepting Martínez's well-pleaded facts as
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true and drawing all reasonable inferences in her favor. See
McCloskey v. Mueller, 446 F.3d 262, 266 (1st Cir. 2006); see also
Román–Oliveras v. P.R. Elec. Power Auth., 655 F.3d 43, 45 (1st
Cir. 2011). And we can affirm a dismissal under either rule on
any ground supported by the record. See, e.g., McCloskey, 446
F.3d at 266. The parties (and we) rely on facts outside the
pleadings. But that is okay given the particular circumstances
here. See, e.g., Aversa v. United States, 99 F.3d 1200, 1210 (1st
Cir. 1996) (explaining that a court can "consider whatever evidence
has been submitted" in deciding a Rule 12(b)(1) motion); Arturet–
Vélez v. R.J. Reynolds Tobacco Co., 429 F.3d 10, 13 n.2 (1st Cir.
2005) (noting, among other things, that a court faced with a Rule
12(b)(6) motion can consider "facts" susceptible to "judicial
notice" and "concessions" in plaintiff's "response" to the
dismissal motion); Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)
(adding also that a court confronted with a Rule 12(b)(6) motion
can consider "documents the authenticity of which are not disputed
by the parties").
Political Discrimination (Section-1983 Claim)
Administrative Exhaustion
Whether Martínez had to administratively exhaust her
section-1983 claim for political discrimination is easy.
Controlling caselaw holds that for a person in her shoes,
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exhaustion is not a precondition to bringing a section-1983 claim
in federal court. See, e.g., Patsy v. Bd. of Regents of State of
Fla., 457 U.S. 496, 501-02, 516 (1982); Álamo-Hornedo, 745 F.3d at
581.5 So we have no trouble concluding that the judge erred in
holding otherwise.
Now on to the more difficult issue: whether the statute
of limitations ran out on Martínez's section-1983 claim.
Statute of Limitations
For anyone not up-to-speed on how a statute-of-
limitations analysis works for a section-1983 claim, here's a quick
primer.
Because section 1983 does not have its own statute of
limitations (i.e., a provision intended to protect defendants from
having to defend against stale claims), courts use the personal-
injury limitations period adopted by the state where the injury
supposedly occurred — in Puerto Rico, one year.6 See, e.g., Morris
v. Gov't Dev. Bank of P.R., 27 F.3d 746, 748 (1st Cir. 1994)
5 Fyi: A federal statute — providing that "'[n]o action shall be
brought with respect to prison conditions under section 1983 . . .
by a prisoner . . . until such administrative remedies as are
available are exhausted'" — requires prisoners (and only
prisoners) to exhaust administrative remedies before bringing a
section-1983 suit. See Woodford v. Ngo, 548 U.S. 81, 87-88 (2006)
(quoting 42 U.S.C. § 1997e(a)).
6 Our cases treat Puerto Rico as a state for section-1983 purposes.
See, e.g., Grajales v. P.R. Ports Auth., 682 F.3d 40, 46 (1st Cir.
2012).
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(citing, among other things, P.R. Laws Ann. tit. 31, § 5298(2)).
Courts use federal law, though, to figure out when the limitation
clock starts ticking. So for, say, an ousted public employee
pushing a political-discrimination claim, our rule is that the
ticking starts when she knew or had reason to know of the injury
on which her claim rests. And this is true even if she did not
know that political animus had caused her injury. See id. at 749-
50 (explaining that a plaintiff "need not know all the facts that
support [her] claim in order for [the limitations] countdown to
commence"); see also Morales-Tañon v. P.R. Elec. Power Auth., 524
F.3d 15, 18 (1st Cir. 2008) (citing Marrero-Gutiérrez v. Molina,
491 F.3d 1, 5-6 (1st Cir. 2007)). But just as we borrow the
state's limitations period in section-1983 cases, so too we borrow
the state's tolling rulings — unless of course they are hostile to
federal interests. See, e.g., Rodríguez, 659 F.3d at 173; López–
González v. Mun. of Comerío, 404 F.3d 548, 552 (1st Cir. 2005).
One tolling rule — a rule courts construe narrowly against the
person seeking its protection — provides that an "extrajudicial
claim" can "interrupt[]" the statute of limitations, causing the
limitations period to restart. See P.R. Laws Ann. tit. 31, § 5303;
Rodríguez Narváez v. Nazario, 895 F.2d 38, 43-44 (1st Cir. 1990)
(discussing Puerto Rico law).
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Back to our case. Like the district judge, we believe
the limitations countdown began on January 15, 2010 — the day
Martínez learned authoritatively of her termination, plus the
reason for it (the legitimacy of which she could then assess),
even though, as she points out, the missive made the ouster
effective February 19, 2010. And we reach this conclusion because
"in employment discrimination actions, limitations periods
normally start to run when the employer's decision is made and
communicated to the affected employee." Morris, 27 F.3d at 750
(collecting caselaw); see also Rivera-Muriente, 959 F.2d 349, 353
(emphasizing 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)").
"Normally" implies that exceptions exist, Martínez
protests. And she thinks that the circumstances of her case are
among them because (her argument continues) she did not know that
political animus lay behind her firing until the VRA replaced her
with persons affiliated with a party different from hers sometime
after February 19, 2010 — meaning (by her lights) that she timely
filed her section-1983 claim on February 17, 2011 (i.e., before
the one-year limitation period had expired).
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We are unmoved. Put to one side that Martínez's
complaint suggests she knew (or at least had chargeable knowledge)
of the political animus well before her replacements came on board
— don't forget, the complaint alleged that the stress caused by
the "political . . . discrimination" heaped on her affected her
ability to work in and around the time of January 2010. What dooms
her effort here is that our cases (as we noted a few paragraphs
back) flatly reject the idea that a claim only accrues — and the
limitations countdown only starts — when "the plaintiff knows of
both the injury and the discriminatory animus." See Marrero-
Gutiérrez, 491 F.3d at 6. Stated differently (and more
colorfully), a plaintiff's "cause of action" does not "exist[] in
what amounts to a state of suspended animation until" she is "aware
of the . . . political motives behind the adverse employment
decision." See Morris, 27 F.3d at 749-50.
So again, the limitations period expired one year after
January 15, 2010 — i.e., about a month before Martínez filed suit.
Her only hope then is to convince us that some tolling act
occurred. And she tries to do just that. Citing section 5303,
Martínez argues that her August 2010 EEOC filing is an
"extrajudicial claim" that caused the limitations term to start
anew — meaning (at least in her mind) that she did file her February
2011 federal complaint within the one-year period.
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Call us unconvinced. The parties cite no translated
case from the Puerto Rico Supreme Court (and no case from us or
the United States Supreme Court interpreting Puerto Rico law)
holding that an EEOC complaint can toll the limitations period for
a section-1983 claim based on the same core of facts. But,
thankfully, the caselaw out there does provide enough light to
illuminate the path to decision.
For instance, cases say that to have any tolling effect,
an extrajudicial claim must be identical to the later suit in
several respects: the two "must be asserted against the same
defendants in the same capacities" — "new defendants should not be
added"; they "must be based on the same substantive claims"; and
they "must seek the same form of relief." Rodríguez–García v.
Mun. of Caguas, 354 F.3d 91, 98 (1st Cir. 2004) (discussing tolling
under section 5303). The purpose behind the identicality
requirement is to stop plaintiffs from sidestepping "the notice
function of the statute[] of limitations" when they file their
"belated federal court complaints." Id. at 97.
The first problem for Martínez all but leaps off the
pages of the record: her EEOC charge named only the VRA and its
administrator, Nydia Colón Zayas — conspicuously absent are the
other defendants named in this suit. And so we easily conclude
that the limitations period cannot be tolled as to the parties
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unnamed in the EEOC charge, even without getting into thicket of
whether an EEOC complaint can toll a political-discrimination-
based section-1983 claim.
But we cannot avoid this thicket in dealing with the VRA
and its administrator. Taking it one step at a time, though, we
see that the Puerto Rico Supreme Court says that the filing of an
administrative complaint will not toll the statute of limitations
if the agency lacks jurisdiction over the charge — the idea
apparently being that in such a situation, the administrative
complaint and the later-filed judicial claim cannot be identical
for tolling purposes. See Cintrón v. E.L.A., 127 D.P.R. 582, 594
(1990) (English translation available at 1990 WL 658719); see also
Secretario del Trabajo v. Finetex Hosiery Co., 16 P.R. Offic.
Trans. 1014, 1019-20 (1986). The parties — who agree on little
else — agree that the EEOC does not have jurisdiction over section-
1983 claims for political discrimination.7 Having uncovered no
authority to the contrary, and given Puerto Rico's tolling caselaw,
we conclude that Martínez's EEOC filing did not reset the
7 After stressing that the EEOC is responsible for enforcing laws
prohibiting employers from discriminating against job applicants
or employees on the basis of race, color, religion, sex (including
pregnancy), national original, disability, age (40 or over), or
genetic information, Martínez, for example, writes that notably
missing from this list is anything granting the EEOC "jurisdiction"
over "political discrimination claims."
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limitations clock for her section-1983 political-discrimination
claim.
As for whether this result jibes with federal interests,
we think that it does. Here is why. Our judicial superiors have
said that Reconstruction-Era civil-rights acts like sections 1981
and 1983 "exist independent of any other legal or administrative
relief that may be available as a matter of federal or state law."
Burnett v. Grattan, 468 U.S. 42, 50 (1984) (emphasis added). They
have also said that a discrimination charge filed with the EEOC
does not toll the limitations period for a section-1981 action
based on the same facts (section 1981, remember, protects certain
rights against racial discrimination). See Johnson v. Ry. Express
Agency, 421 U.S. 454, 466 (1975). For our part, we have indicated
— without holding — that the logic of Johnson suggests "no" is the
right answer to the question of whether filing an EEOC charge
affects the limitations period for a section-1983 claim. See
Cintrón-Lorenzo v. Fondo del Seguro del Estado, 634 F.3d 1, 2 (1st
Cir. 2011). And ultimately, Martínez offers no compelling argument
as to why today's decision — which makes explicit what Cintrón-
Lorenzo implies — contravenes federal interests.
The net result of all this is that Martínez's section-
1983 claim is time-barred. So we affirm the dismissal of this
claim (albeit on different grounds) and push ahead.
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Disability Discrimination (ADA Claim)
As we said many pages ago, the judge did not explain why
he kicked out Martínez's ADA claim of disability discrimination.
But based on our reading of his order, we believe that he intended
to dismiss that claim on the same grounds as the section-1983
claim: i.e., failure to exhaust administrative remedies, because
she sued about a month before getting the right-to-sue letter.
The parties are of the same view, apparently, because their briefs
spill much ink over whether the ADA claim fails on failure-to-
exhaust grounds.
Let's step back to gain some perspective. The ADA,
broadly speaking, prohibits "covered entit[ies]" from
"discriminat[ing] against" qualified persons because of their
disabilities. See 42 U.S.C. § 12112(a), (b)(1). Modeled on Title
VII of the Civil Rights Act of 1964, the ADA incorporates that
statute's enforcement provisions, including (as relevant to the
type of ADA claim in play here) the requirement that a plaintiff
exhaust her administrative remedies before seeking judicial
redress. See, e.g., Bonilla v. Muebles J.J. Alvarez, Inc., 194
F.3d 275, 277-78 (1st Cir. 1999). More specifically (and
simplifying slightly, without affecting the analysis), one part of
the statutory schematic creates federal jurisdiction over all
"actions brought under" the statute, see 42 U.S.C. § 2000e-5(f)(3);
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and another sets out conditions precedent to bringing suit, among
which are filing a timely charge with the EEOC, see id. § 2000e-
5(e)(1), and receiving an EEOC right-to-sue letter before suing in
federal court, see id. § 2000e-5(f)(1).
As far as precedents go, the Supreme Court holds that
the timely-charge requirement is mandatory but not jurisdictional
— the rationale being that the timeliness provision is entirely
separate from the statute's jurisdictional provision and "does not
speak in jurisdictional terms." See Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393, 394 (1982). All of this means that the
timeliness requirement is subject to waiver, estoppel, and tolling
when equity requires. See id. at 393; see also generally Arbaugh
v. Y & H Corp., 546 U.S. 500, 516 (2006) (stressing that "when
Congress does not rank a statutory limitation on coverage as
jurisdictional, courts should treat the restriction as
nonjurisdictional in character"). The provision requiring notice
of a right to sue is also separate from the jurisdictional
provision. And in a case touching on that requirement, we said
that "[a]lthough [plaintiff] filed her original court complaint
before she filed her EEOC complaint, [she] did receive a right to
sue letter" eventually and defendants have not argued the point;
so — consistent with Zipes's holding about delay in filing charges
not affecting jurisdiction and the applicability of equitable
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exceptions like waiver — we found "the point . . . waived."
O'Rourke v. City of Providence, 235 F.3d 713, 725 n.3 (1st Cir.
2001) (quoting Zipes); see also Frederique-Alexandre v. Dep't of
Nat. & Envtl. Res. of P.R., 478 F.3d 433, 440 (1st Cir. 2007)
(holding "that the exhaustion requirement is not a jurisdictional
prerequisite, but rather is subject to" equitable exceptions, but
noting that "futility" does not fall within the small field of
exceptions). O'Rourke echoes the prevailing view elsewhere, which
we now expressly adopt as our own: i.e., that while the right-
to-sue-letter requirement remains, it is simply "a precondition to
bringing" suit, not a jurisdictional bar, and thus "can be waived
by the parties or the court." Pietras v. Bd. of Fire Comm'rs of
Farmingville Fire Dist., 180 F.3d 468, 474 (2d Cir. 1999)
(collecting caselaw); see also Surrell v. Ca. Water Serv. Co., 518
F.3d 1097, 1104-05 (9th Cir. 2008); Worth v. Tyer, 276 F.3d 249,
259 (7th Cir. 2001); Jones v. Am. State Bank, 857 F.2d 494, 499,
500 (8th Cir. 1988).
At oral argument, defendants' lawyer changed his
position, waiving any argument about the right-to-sue letter by
essentially agreeing with Martínez that the judge should not have
dismissed the ADA claim on that ground. Consistent with O'Rourke,
we accept defendants' waiver and reverse the dismissal of that
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claim.8 And given our conclusion, we need not ponder Martínez's
theory that the EEOC's eventually giving her a right-to-sue letter
cured any issues with her prematurely filing suit.
Age Discrimination (ADEA Claim)
As for Martínez's supposed ADEA claim — the ADEA, roughly
speaking, protects persons 40 years old or older from age-based
employment discrimination, see Adamson v. Walgreens Co., 750 F.3d
73, 78 (1st Cir. 2014) — we need only say this. Martínez's had to
exhaust her administrative remedies before bringing an age-
discrimination claim under the ADEA to court. See Jorge v.
Rumsfeld, 404 F.3d 556, 561 (1st Cir. 2005) (citing 29 U.S.C.
§ 626(d)); see also generally Kale v. Combined Ins. Co., 861 F.2d
746, 751-52 (1st Cir. 1988) (noting that the charge-filing
requirement is mandatory, though not jurisdictional). And she
rightly concedes as much. But she did not mention age
discrimination in her EEOC charge; she alleged only political and
8 Defendants' counsel did note before us that he thought Martínez's
ADA claim should not get to a jury. And his clients' brief does
argue that Martínez has not shown that her disability
"substantially limits" a major life activity. But courts must
construe the "substantially limited" standard "broadly in favor of
expansive coverage," without "demand[ing] extensive analysis."
29 C.F.R. § 1630.2(j)(i), (iii). Martínez does allege that her
disability "impairs her mobility at a regular rate than other
nondisabled individuals." And we must accept this allegation as
true at this stage of the litigation. Defendants' argument is at
best fodder for a summary-judgment motion, not a motion to dismiss.
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disability discrimination. And given her fatal failure to exhaust,
her supposed ADEA claim does not belong in federal court — which
compels us to affirm the dismissal of this claim.
Local-Law Claims
That leaves one loose end. The judge (we remind the
reader) did not explain why Martínez's local-law claims had to go
(he spent no time on whether any of these claims has legs, for
example) — though we assume that having dismissed the federal
claims, he declined to exercise supplemental jurisdiction over the
local-law claims. The parties give us no reason to assume
otherwise. Given that assumption, and because we are reversing
the dismissal of the ADA claim, the judge on remand must reinstate
the local-law claims too. Of course if the judge again gets rid
of the ADA claim before trial, he "can reassess whether to keep
jurisdiction over the local-law claims." Rivera-Corraliza v.
Puig-Morales, 794 F.3d 208, 227 (1st Cir. 2015).
Final Words
To the extent that Martínez's briefs hint at other
arguments, they lack coherence, development, or both.9 And instead
9 One example is her mentioning the continuing-violation exception
to the section-1983 limitations period. Putting aside the fact
that she débuted this concept in her reply brief, see Eirby, 515
F.3d at 37 n.4 (holding that an argument omitted from an
appellant's opening brief is generally deemed waived), she makes
nothing more than a passing reference to it. Thus any argument in
that direction is waived. See Roland M. v. Concord Sch. Comm.,
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of trying to hazard our own guess as to "what these arguments may
or may not portend," we do what we have done before (including in
this very opinion) — rely on the familiar rule that insufficiently-
developed arguments are waived. See Marek v. Rhode Island, 702
F.3d 650, 655 (1st Cir. 2012) (quoting Zannino, 895 F.2d at 17).10
So our work is at an end, with the bottom line being
that we affirm the judge in every respect, except that we reverse
the dismissal of both Martínez's ADA claim and her local-law
claims.
Affirmed in part, reversed in part, and remanded for
further proceedings consistent with this opinion. No costs to
either side.
910 F.2d 983, 997 n.8 (1st Cir. 1990) (relying on Zannino for the
point that "issues adverted to in passing, without any attempt at
developed argumentation, are waived").
10 See also generally United States v. Cunningham, 429 F.3d 673,
678 (7th Cir. 2005) (Posner, J.) (emphasizing that "appellate
judges" are not required "to discuss every argument made by a
litigant; arguments clearly without merit can, and for the sake of
judicial economy should, be passed over in silence"); United States
v. Mena, 933 F.2d 19, 30 (1st Cir. 1991) (implicitly recognizing
that very point).
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