Marrero-Colón v. Puerto Rico Electric Power Authority , 341 F. App'x 652 ( 2009 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2824
RAÚL MARRERO-COLÓN,
Plaintiff, Appellant,
v.
PUERTO RICO ELECTRIC POWER AUTHORITY; LUIS A. VÁZQUEZ-GARCÍA, in
his official capacity; MIGUEL A. LÓPEZ-RIVERA, in his official
capacity; INSURANCE COMPANY XYZ; JOHN DOE; RICHARD DOE,
Defendants, Appellees,
HÉCTOR R. ROSARIO, Executive Director of PREPA; RAMÓN L.
RODRÍGUEZ-MELÉNDEZ, General Administrator of the Labor Affairs
Office; ANA T. BLANES-RODRÍGUEZ, Former Director of PREPA’s Human
Resources Division; RAMÓN COLLAZO-SANTINI,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colon, U.S. District Judge]
Before
Torruella, Selya, and Leval*,
Circuit Judges
Rosa M. Nogueras de Gonzalez for appellant.
Marie L. Cortés Cortés with whom Llovet Zurinaga & López,
PSC, was on the brief for PREPA, Luis A. Vázquez-García and Miguel
A. López-Rivera.
*
Of the Second Circuit, sitting by designation.
Zaira Z. Girón Anadón, Assistant Solicitor General, with
whom Ileana M. Oliver Falero, Acting Deputy Solicitor General, and
Maite Oronoz-Rodríguez, Acting Solicitor General, were on the brief
for Rosario, et al.
July 17, 2009
Per Curiam. Plaintiff Raúl Marrero-Colon appeals from
the judgments of the United States District Court for the District
of Puerto Rico, dismissing Plaintiff’s case. Plaintiff brought the
suit against his employer, the Puerto Rico Electric Power Authority
(“PREPA”), and individual defendants Héctor Rosario, Ramón L.
Rodríguez-Meléndez, Ana T. Blanes-Rodríguez, Ramón Collazo-Santini,
Luis A. Vázquez-García, and Miguel A. López-Rivera, who are
administrators and supervisors at PREPA, who were sued in both
their personal and official capacities.
Plaintiff is a member of Puerto Rico’s New Progressive
Party (“NPP”). His suit alleged discrimination against him in his
employment resulting from the preference of various PREPA officials
for Puerto Rico’s Popular Democratic Party (“PDP”). The suit
asserted a host of claims under the First, Fifth, and Fourteenth
Amendments, 42 U.S.C. §§ 1983, 1985, 1986, and 1988, the Uniformed
Services Employment and Re-employment Rights Act (38 U.S.C. § 4301et seq.), the Veterans Preference Act (5 U.S.C. § 3501 et seq.), 42
U.S.C. § 2000e-3(a), and the Fair Labor and Standards Act (29
U.S.C. §§ 215(a)(3) and 216). He also raised various local law
claims.
The district court dismissed all of the federal claims on
the pleadings, except for the discrimination and retaliation claims
brought under § 1983 against López-Rivera and Vázquez-García. The
court granted Defendants’ motion for summary judgment dismissing
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the remaining federal claims. The court dismissed the supplemental
state law claims without prejudice. We conclude that the district
court properly dismissed many claims as time-barred and properly
granted summary judgment on the § 1983 discrimination and
retaliation claims. Finding no merit in any of Plaintiff’s
multitudinous arguments, we AFFIRM the judgment.
DISCUSSION
The complaint alleged numerous instances in which
Plaintiff failed to receive a promotion or some other benefit. We
discuss only some of his numerous claims on appeal, finding the
others too insubstantial to warrant discussion.
Many of Plaintiff’s claims alleged unconstitutional
discrimination under § 1983 and were dismissed as untimely. State
law governs the statute of limitations for claims brought under §
1983. Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 352-53 (1st
Cir. 1992). In Puerto Rico, one must bring a claim under 42 U.S.C.
§ 1983 within one year of the time the cause of action accrues.
Id. at 353. Plaintiff filed his complaint on October 14, 2004.
Therefore, under this general rule, any claims brought under § 1983
which accrued prior to October 14, 2003 are barred by the statute
of limitations. The vast majority of the instances of
discrimination alleged in Plaintiff’s complaint accrued prior to
October 14, 2003, and thus they are time-barred. They were
correctly dismissed by the district court.
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The complaint alleges only two instances of
discrimination which are not time-barred. The first instance was
Plaintiff’s promotion on October 26, 2003 to a permanent position
of Line Supervisor II, which Plaintiff contends was inferior to
other similarly classified positions held by PDP members in
“responsibilities, work to be done, opportunity to work overtime
hours, [and] persons supervised, among other things.”
The second instance was the conversion in 2004 of a Line
Supervisor III position into a Supervisor Engineer II position,
which Plaintiff claimed was done in order to justify awarding the
position to a PDP sympathizer, Engineer Martin Wah, rather than to
him. Plaintiff alleges that these actions taken by his
supervisors, who were PDP members or sympathizers, were motivated
by discriminatory animus against him by reason of his membership in
the NPP, as well as in retaliation for his complaints of
discrimination.
In order to establish a case of political discrimination
or retaliation under the First Amendment, a plaintiff must not only
show that he or she engaged in conduct which was constitutionally
protected, but also that in making the adverse employment decision
against him, the defendants were substantially motivated by the
plaintiff’s protected activity or status. Powell v. Alexander, 391
F.3d 1, 17 (1st Cir. 2004). If the defendants, moving for summary
judgment, show entitlement to judgment by evidence that they were
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not motivated by the illegal considerations alleged, the plaintiff
must offer evidence capable of rebutting the defendants’ showing,
demonstrating that there is a material issue of fact in dispute.
Id. “[U]nsupported and speculative assertions regarding political
discrimination will not be enough to survive summary judgment.”
Rivera-Cotto v. Rivera, 38 F.3d 611, 614 (1st Cir. 1994).
As for Plaintiff’s promotion to the position of Line
Supervisor II in 2003, Plaintiff failed to point to any evidence
showing that this action was an adverse employment decision. Apart
from conclusory characterizations, he showed no evidence which
would demonstrate that he was treated in a manner inferior to PDP
sympathizers or that the responsibilities given his position were
inferior to those of similarly classified PDP sympathizers. While
Plaintiff submitted time-sheets for two PDP sympathizers, one of
whom Plaintiff alleged had superior work responsibilities and
benefits for the same position that Plaintiff occupied, Plaintiff
submitted no time-sheets or other evidence of his own work which
would provide a basis for such comparison. He failed to raise an
issue of material fact.
As to the 2004 reclassification, Defendants submitted
evidence that the Line Supervisor III position was reclassified in
order to recruit a needed engineer to the district of Barranquitas.
Plaintiff did not point to any evidence in the record which could
show that this reclassification was done for the purpose of
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discrimination. Indeed, Plaintiff provided no references to
evidence even indicating that Wah was a member of the PDP.
Plaintiff failed to put forth any evidence capable of rebutting
Defendants’ showing.
We have reviewed Plaintiff’s other contentions and find
them to be without merit. The district court did not err in its
rulings in favor of Defendants.
Judgment AFFIRMED.
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