Ayala-Sepúlveda v. Municipality of San Germán , 671 F.3d 24 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 10-2123
LUIS AIK AYALA-SEPÚLVEDA,
Plaintiff, Appellant,
v.
MUNICIPALITY OF SAN GERMÁN;
ISIDRO NEGRÓN-IRIZARRY, Mayor of San Germán,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
Bámily López-Ortiz, with whom Estudio López Toro was on brief,
for appellant.
Jorge Martínez-Luciano, with whom Law Offices of Pedro Ortiz
Álvarez was on brief, for appellee Municipality of San Germán.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
with whom Irene S. Soroeta-Kodesh, Solicitor General, Leticia
Casalduc-Rabell, Acting Deputy Solicitor General, and Zaira Z.
Girón-Anadón, Acting Deputy Solicitor General, were on brief, for
appellee Isidro Negrón-Irizarry.
January 18, 2012
TORRUELLA, Circuit Judge. Plaintiff-Appellant Luis Aik
Ayala-Sepúlveda ("Ayala") appeals the district court's award of
summary judgment to his employer, the Municipality of San Germán,
Puerto Rico ("San Germán" or "the City"), and to the mayor of San
Germán, Isidro Negrón-Irizarry ("Negrón"), on his claim under 42
U.S.C. § 1983 for sex discrimination and retaliation in violation
of the Equal Protection Clause of the Fourteenth Amendment. We
conclude that the district court's award of summary judgment was
proper. We therefore affirm the decision of the district court.
I. Background
A. Ayala's Employment and Alleged Harassment
Ayala, a homosexual man, has held various positions with
the City. At the start of the time period relevant to this case,
Ayala was an employee of the Municipal Office of Emergency
Management ("OMME")1. Ayala alleges that at various times during
2006 and 2007, while he was studying for his certification as a
rescuer, his co-workers at OMME ridiculed him for being a
homosexual; specifically, Ayala alleges that his co-workers told
him that he could not perform physically demanding tasks because of
his sexual orientation. Ayala did not identify those co-workers
who allegedly teased him as defendants in his complaint.
1
This acronym comes from the Spanish name "Oficina Municipal para
el Manejo de Emergencias."
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On September 10, 2007, Ayala commenced a four-month
extended vacation from OMME. Ayala claims that during this
vacation, he began a romantic relationship with a male co-worker at
OMME, José J. Rodríguez-Vega ("Rodríguez"). This relationship
allegedly ended when Rodríguez became involved with a female co-
worker at OMME. Upon returning to work at OMME in January of 2008,
Ayala told his supervisor, Nelson Cruz-Malavé ("Cruz"), that he was
concerned that Rodríguez might physically attack him. Ayala
requested that Cruz assign work in such a way that Ayala and
Rodríguez would not have to work together.
Ayala alleges that when he returned to OMME, his work
conditions changed substantially. He claims that he was assigned
to "graveyard" shifts not on his regular schedule, that he went for
days without being assigned work, and that he was moved from his
regular office into a storage closet. Ayala complained about these
changes to Negrón, who ordered Cruz to return Ayala to his regular
working hours. In the meantime, the situation with Rodríguez
escalated, culminating in an incident on February 15, 2008.
According to Ayala, Rodríguez threatened him with physical harm,
and Cruz had to call the Puerto Rico Police to the scene. Ayala
also alleges that around this time, another OMME employee, Pablo
Miranda-Santana ("Miranda"), falsely accused Ayala of making
unwanted advances and threatened to file a sexual harassment claim
against him.
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On February 25, 2008, Ayala met with the City's Director
of Human Resources, Juan Crespo ("Crespo"), and with Negrón's
Special Aide, José Iván Torres ("Torres"), to discuss the situation
at OMME. At this meeting, Crespo and Torres recommended that Ayala
transfer to an administrative position with the Municipal Cemetery,
since the City needed to replace an absent worker there. Ayala
refused the transfer. The next day, Ayala met directly with
Negrón, who again suggested that Ayala transfer to the Cemetery.
The following day, Ayala met with Negrón again; however, Negrón
also invited Rodríguez and Miranda to the meeting, allegedly
without warning Ayala. Ayala claims that he was so distressed by
this that he had to seek medical treatment for anxiety. Some time
later, Ayala's mother and sister met with Negrón to complain about
Negrón's treatment of Ayala. Ayala alleges that at this meeting,
Negrón attempted to "out" Ayala by telling his mother that his
"sexual definition" was the source of his problems; however,
Ayala's family already knew about his sexual orientation.
It is not clear whether Ayala spent any time working at
the Cemetery. Nevertheless, on May 29, 2008, Ayala filed a
complaint with the Comisión Apelativa del Sistema de Administración
de Recursos Humanos del Servicio Público ("CASARH"), the Puerto
Rico administrative agency in charge of reviewing personnel
actions. The next day, Negrón sent a letter to Ayala informing him
that he was being transferred effective immediately to the City's
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Finance Department. The letter stated that the transfer was part
of a reorganization program that had been announced one year
earlier under which employees could be transferred between various
departments based on personnel needs. The transfer to the Finance
Department did not affect Ayala's salary or rank, although Ayala
claims that his duties changed substantially.
One of Ayala's duties in the Finance Department was to
process the payment of invoices. Ayala claims that one of the
invoices he was required to process was for payment to the private
attorney whom the City hired to represent it in Ayala's CASARH
proceeding. Ayala claims that having to process this invoice made
him so nervous and depressed that he required hospitalization.
B. Procedural History
On May 26, 2009, Ayala filed his complaint in this case
against Negrón and the City in the U.S. District Court for the
District of Puerto Rico. Ayala claimed that the harassment by his
co-workers at OMME constituted sex discrimination in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. ("Title VII"). Ayala contended that Negrón and the City were
liable for this discrimination because they did not prevent the
harassment. Ayala also claimed that Negrón and the City were
liable for retaliation under Title VII because, following the
filing of his CASARH complaint, the City transferred him to the
Finance Department. Ayala additionally brought a claim under 42
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U.S.C. § 1983, claiming that Negrón and the City violated his due
process and equal protection rights under the Fourteenth Amendment
by failing to stop the harassment at OMME and by transferring him
to the Finance Department.2
On August 11, 2009, the defendants moved for judgment on
the pleadings under Fed. R. Civ. P. 12(c) on Ayala's Title VII and
due process claims. On September 30, 2009, the district court
granted the motion. See Ayala-Sepúlveda v. Municipality of San
Germán, et al., 661 F. Supp. 2d 130 (D.P.R. 2009) ("Ayala I"). The
court dismissed Ayala's Title VII claims on the ground that "Title
VII does not proscribe harassment simply because of sexual
orientation." Id. at 136 (quoting Higgins v. New Balance Athletic
Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999)) (internal quotation
marks omitted). The court also found that Ayala had failed to
state a claim for gender stereotyping. Id. at 136-37.
Additionally, the court dismissed Ayala's procedural due process
claim under 42 U.S.C. § 1983, noting that under Puerto Rico law,
public employees "have a property interest in their continued
employment, not in the functions they perform." Id. at 139
(quoting Ruiz-Casillas v. Camacho-Morales, 415 F.3d 127, 134 (1st
Cir. 2005)) (internal quotation marks omitted). Since Ayala only
alleged that he was transferred from one equivalent job to another,
2
Ayala included various claims under Puerto Rico law, but these
claims are not before us on appeal.
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the court ruled that he had not suffered a deprivation of a
property interest that could sustain a due process claim. Id.
On April 30, 2010, the defendants moved for summary
judgment on Ayala's one remaining claim, his equal protection claim
under 42 U.S.C. § 1983. The district court granted the defendants'
motion for summary judgment and dismissed the equal protection
claim on August 2, 2010. See Ayala-Sepúlveda v. Municipality of
San Germán, et al., 727 F. Supp. 2d 67 (D.P.R. 2010) ("Ayala II").
The court held that because of the one-year statute of limitations
applicable to § 1983 claims in Puerto Rico,3 only the transfer to
the Finance Department and subsequent incidents were actionable.
Id. at 72-73. In so holding, the court rejected Ayala's argument
that the otherwise time-barred allegations were actionable under
the "continuing violation" doctrine; this doctrine "allows a
plaintiff to incorporate allegations that would ordinarily be
time-barred if they are part of the same unlawful employment
practice and at least one act falls within the time period." Id.
at 73 (quoting Quiles-Marcucci v. Cooperativa de Ahorro y Crédito
de Juana Díaz, Inc., No. 08-1913, 2009 WL 1941219, *3 (D.P.R.
Jun. 30, 2009)) (internal quotation marks omitted). The court then
3
A claim under § 1983 is subject to the statute of limitations
imposed on personal injury claims under state law. See Centro
Médico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st
Cir. 2005). In Puerto Rico, the statute of limitations for § 1983
claims is one year. See Marrero-Gutiérrez v. Molina, 491 F.3d 1,
5 (1st Cir. 2007) (citing P.R. Laws Ann. tit. 31, § 5298(2)
(2009)).
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held that because Ayala's transfer to the Finance Department did
not materially change his working conditions, Ayala had suffered no
adverse employment action and thus could not sustain a claim for
retaliation. Id. at 74. The court then addressed Ayala's claim
that he had been singled out for discriminatory treatment based on
his sexual orientation. Id. at 75. The court rejected this claim
for two reasons.
First, the court held that there was no basis for holding
Negrón or the City liable for any of the discriminatory acts
alleged in the complaint. In Puerto Rico, because mayors "are the
government officials ultimately responsible for employment
decisions of the municipality," a municipality can be held liable
for employment decisions by its mayor. Rodríguez-García v.
Miranda-Marín, 610 F.3d 756, 770 (1st Cir. 2010). Therefore, the
district court held that the City could be liable for
discrimination against Ayala if Negrón condoned discrimination or
himself acted with discriminatory intent. See Ayala II, 727 F.
Supp. 2d at 75. The court found that there was no evidence that
Negrón authorized or condoned the allegedly hostile work
environment at OMME. See id. As for the transfer, the sole piece
of evidence Ayala provided to show discriminatory intent was
Negrón's alleged statement to Ayala's mother that his "sexual
definition" was causing his problems. The court held that this was
insufficient to establish Negrón's discriminatory intent. See id.
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(citing Ríos-Jiménez v. Sec'y of Veterans' Affairs, 520 F.3d 31,
43-44 (1st Cir. 2008), to note in parenthetical that "offhand
comments 'are not sufficiently severe or pervasive' to amount to
discriminatory changes in employment").
Second, the court concluded that even if Ayala had been
singled out for transfer because of his sexual orientation, his
transfer to the Finance Department satisfied rational basis review.
The defendants had introduced evidence that Ayala was transferred
based on service needs and in order to resolve the conflict between
Ayala and his co-workers at OMME. See id. at 76. Ayala provided
no rebuttal evidence. Id.
Ayala now appeals only the grant of summary judgment to
the defendants on the § 1983 claim under the Equal Protection
Clause. He does not appeal the judgment on the pleadings regarding
his Title VII or due process claims.
II. Discussion
We first discuss whether the alleged acts of
discrimination that occurred before the transfer to the Finance
Department are actionable. We then consider whether Ayala suffered
any act of retaliation in violation of his equal protection
rights.4 Finally, we consider whether Ayala was singled out for
4
Negrón contends that there is no cause of action for retaliation
under the Fourteenth Amendment. However, this issue was never
raised to the district court and was only cursorily addressed in
Negrón's brief. Thus, this argument is waived on appeal. See
Farris v. Shinseki, 660 F.3d 557, 562 n.5 (1st Cir. 2011). We
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disparate treatment in any way because of his sexual orientation in
violation of his equal protection rights.
A. Standard of Review
We review a district court's grant of summary judgment de
novo, resolving all evidentiary conflicts and drawing all
reasonable inferences in favor of the nonmoving party. Kuperman v.
Wrenn, 645 F.3d 69, 73 (1st Cir. 2011). "Summary judgment is
appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law."
Cortés-Rivera v. Dep't of Corr. & Rehab. of P.R., 626 F.3d 21, 26
(1st Cir. 2010). "[W]e are not married to the trial court's
reasoning but, rather, may affirm on any independently sufficient
ground made manifest by the record." Cahoon v. Shelton, 647 F.3d
18, 22 (1st Cir. 2011). "The nonmovant may defeat a summary
judgment motion by demonstrating, through submissions of
evidentiary quality, that a trialworthy issue persists." Iverson
v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 322-24 (1986)). However, "a
conglomeration of conclusory allegations, improbable inferences,
and unsupported speculation is insufficient to discharge the
nonmovant's burden." DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st
Cir. 2005) (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896
assume for the purposes of this case that the Fourteenth Amendment
supports a cause of action for retaliation.
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F.2d 5, 8 (1st Cir. 1990)) (internal quotation marks omitted).
"[T]he party seeking to avoid summary judgment 'must be able to
point to specific, competent evidence to support his claim.'"
Soto-Ocasio v. Fed. Exp. Corp., 150 F.3d 14, 18 (1st Cir. 1998)
(quoting August v. Offices Unlimited, Inc., 981 F.2d 576, 580 (1st
Cir. 1992)).
B. Continuing Violation Doctrine and Hostile Work Environment
In Puerto Rico, § 1983 claims are subject to a one-year
statute of limitations. Marrero-Gutiérrez, 491 F.3d at 5. Based
on the May 26, 2009 filing date of Ayala's complaint, the only
alleged discriminatory act that occurred within the one-year
limitations period was Ayala's transfer to the Finance Department.5
Ayala argues, however, that the earlier alleged incidents were also
actionable under the "continuing violation" doctrine, which allows
a plaintiff to incorporate allegations that would otherwise be
time-barred if they "are part of the same unlawful employment
practice and at least one act falls within the time period." Nat'l
R.R. Passenger Corp. v. Morgan (AMTRAK), 536 U.S. 101, 122 (2002).6
5
Ayala also claims that he suffered an emotional breakdown after
having to process an invoice for payment to the lawyer the City
hired to defend his CASARH claim. However, Ayala makes no argument
in his brief that the defendants made him process the invoice as an
act of discrimination or retaliation. Thus, Ayala has waived any
argument based on this allegation. See United States v. DiTomasso,
621 F.3d 17, 26 n.7 (1st Cir. 2010) (arguments not made in a
party's opening brief are deemed waived).
6
Although AMTRAK discusses the continuing violation doctrine in
the Title VII context, the doctrine also applies to cases under
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Ayala argues that the "unlawful employment practice" here was the
creation of a hostile work environment. We thus consider whether
there is sufficient evidence to support Ayala's claim that he
suffered a hostile work environment.
When determining whether a work environment is hostile,
the court considers "'all the circumstances,' including 'the
frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance.'" Id. at 116 (quoting Harris v.
Forklift Sys., 510 U.S. 17, 23 (1993)). None of these factors is
individually determinative of the inquiry. Bhatti v. Trs. of
Boston Univ., 659 F.3d 64, 73-74 (1st Cir. 2011).
Looking at "all the circumstances," we agree with the
district court that the discriminatory acts alleged did not rise to
the level of a hostile work environment. While Ayala claims that
he was ridiculed by his co-workers at OMME, he cites to no evidence
regarding the severity or pervasiveness of the ridicule. Ayala
mentions the incident on February 15, 2008 in which Rodríguez
allegedly threatened him, but he also notes that Cruz called the
Puerto Rico Police to the scene to defuse the situation. Finally,
Ayala has presented almost no evidence to suggest that the alleged
§ 1983. See, e.g., Muñiz-Cabrero v. Ruiz, 23 F.3d 607, 610 (1st
Cir. 1994).
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harassment at OMME "unreasonably interfere[d] with [his] work
performance." AMTRAK, 536 U.S. at 116. The only factual averment
that comes close to such a showing is Ayala's uncontested claim
that he had to seek medical treatment for anxiety after meeting
with Negrón, Rodríguez and Miranda. However, there is no evidence
on the record that Ayala's work performance suffered as a result of
his anxiety. Compare Bhatti, 659 F.3d at 74 (upholding grant of
summary judgment against plaintiff in hostile work environment suit
where plaintiff "sought psychological counseling" but "pointed to
no effect whatsoever on her work performance"), with Arrieta-Colón
v. Wal-Mart P.R., Inc., 434 F.3d 75, 89 (1st Cir. 2006) (upholding
hostile work environment verdict where there was "constant mockery
and harassment" that led to resignation) and Marrero v. Goya of
P.R., Inc., 304 F.3d 7, 19-20 (1st Cir. 2002) (upholding hostile
work environment verdict where there was repeated sexual harassment
that led to decreased performance).
Because Ayala has not demonstrated that he was subjected
to a hostile work environment to which the continuing violation
doctrine could apply, his allegations regarding events occurring
prior to the one-year statute of limitations period are time-
barred. Thus, only the transfer to the Finance Department is
actionable.
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C. Retaliatory Transfer
Ayala claims that his transfer to the Finance Department
violated his equal protection rights because the transfer was
ordered as retaliation for Ayala's filing of the CASARH complaint.
In order to succeed on a claim of retaliation, Ayala must prove
that "the employer took a materially adverse employment action
against him." Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996).
An employment action is "adverse" if it "results in a work
situation 'unreasonably inferior' to the norm for the position."
Rodríguez-García, 610 F.3d at 766 (quoting Agosto-de-Feliciano v.
Aponte-Roque, 889 F.2d 1209, 1218 (1st Cir. 1989)).
Here, there is no evidence to suggest that Ayala's pay,
rank, or duties changed after he was transferred to the Finance
Department.7 Moreover, Ayala has failed to present any evidence or
explanation as to how the transfer affected him in any other
material way. Thus, we find that Ayala's transfer to the Finance
Department was not an adverse employment action. Because Ayala did
not suffer any adverse employment action, we find that the district
7
Ayala contends in his brief that his duties did change. In
support of this claim, he points to various excerpts from his
deposition that were included in the record before the district
court. However, these deposition excerpts do not contain any
coherent explanation of how Ayala's duties changed. This will not
do. "[T]he party seeking to avoid summary judgment must be able to
point to specific, competent evidence to support his claim."
Soto-Ocasio, 150 F.3d at 18 (emphasis added) (quoting August, 981
F.2d at 580) (internal quotation marks omitted).
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court properly granted summary judgment as to Ayala's Fourteenth
Amendment retaliation claim.
D. Improper Classification Based on Sexual Orientation
In addition to arguing that the defendants transferred
him to the Finance Department to retaliate against him, Ayala
argues that the defendants singled him out for transfer because of
his sexual orientation. Ayala argues that this singling out
violated his equal protection rights.
In an equal protection case, the court considers "(1)
whether the [plaintiff] was treated differently than others
similarly situated, and (2) whether such difference was based on an
impermissible consideration, such as race." Lopera v. Town of
Coventry, 640 F.3d 388, 402 (1st Cir. 2011) (quoting Macone v. Town
of Wakefield, 277 F.3d 1, 10 (1st Cir. 2002)). Some evidence of
actual disparate treatment is a "threshold requirement" of a valid
equal protection claim -- and one Ayala fails. Estate of Bennett
v. Wainwright, 548 F.3d 155, 166 (1st Cir. 2008).
Ayala points to no evidence that he was treated
differently than others similarly situated. "Plaintiffs claiming
an equal protection violation must first 'identify and relate
specific instances where persons situated similarly in all relevant
aspects were treated differently, instances which have the capacity
to demonstrate that plaintiffs were singled out for unlawful
oppression.'" Buchanan, 469 F.3d at 178 (quoting Rubinovitz v.
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Rogato, 60 F.3d 906, 910 (1st Cir. 1995)) (alterations to quotation
omitted). Ayala presents no evidence regarding, for example,
instances in which heterosexual employees with similar rank and
qualifications were not transferred. Our case law requires
evidence of this nature. See, e.g., Goncalves v. Plymouth Cnty.
Sherrif's Dep't, 659 F.3d 101, 106 (1st Cir. 2011) (upholding
summary judgment in favor of defendant where plaintiff failed to
show she had comparable qualifications to hired candidates);
Buchanan, 469 F.3d at 178 (upholding summary judgment in favor of
defendant where plaintiff failed to show that patients with similar
mental conditions were treated differently). Having failed to meet
his threshold requirement, Ayala cannot succeed on his equal
protection claim. Our inquiry, therefore, is at an end.
Because Ayala has not presented sufficient evidence of
an equal protection violation to warrant a trial, we find that the
district court properly granted summary judgment to the defendants
on this claim.
III. Conclusion
For the reasons stated, we affirm the district court's
grant of summary judgment.
Affirmed.
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