Rassam v. San Juan College Bd. ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
MAY 15 1997
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
HORMUZD Y. RASSAM and TECH,
INC., a New Mexico corporation,
Plaintiffs - Counterdefendants -
Appellants, No. 95-2292
v. (D. New Mexico)
SAN JUAN COLLEGE BOARD; SAN (D.C. No. CIV-92-1247-PJK/MV)
JUAN COLLEGE; JAMES C.
HENDERSON, individually and in his
capacity as an appointed executive of San
Juan College Board and as President of
San Juan College; SAN JUAN COUNTY
BOARD OF COUNTY
COMMISSIONERS; SAN JUAN
COUNTY; ROBERT E. KARLIN,
individually and as a member and
Chairman of the Board of County
Commissioners of San Juan County;
RICHARD P. CHENEY, individually and
as principal of Brewer Associates, Inc.;
JOHN DOE, any and all, as persons
associated with one or more of the above
defendants; JANE DOE, any and all, as
persons associated with any of the
defendants; CHENEY, WALTERS AND
ECHOLS, INC.,
Defendants - Appellees,
and
BREWER ASSOCIATES, INC., fka
Brewer & Associates, fka Lawrence A.
Brewer and Associates, Inc.;
LAWRENCE A. BREWER, individually
and principal of Brewer Associates, Inc.,
as a member and President of San Juan
College Board and as member of
Farmington City Council,
Defendants - Counterclaimants -
Appellees.
ORDER AND JUDGMENT*
Before ANDERSON, TACHA, and BALDOCK, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
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Plaintiffs and appellants Hormuzd Y. Rassam and Tech, Inc., Mr. Rassam’s
architectural, engineering and planning firm, appeal the grant of summary judgment to
defendants, Lawrence A. Brewer, James C. Henderson, San Juan County, Richard
Cheney, Robert Karlin, Brewer Associates, Inc., and Cheney-Walters-Echols, Inc., and
the consequent dismissal of plaintiffs’ civil rights action. Mr. Rassam and his company
alleged that defendants violated 42 U.S.C. §§ 1981, 1983, and 1985, as well various New
Mexico state laws, by engaging in a conspiracy to prevent plaintiffs from receiving public
contracts in San Juan County. The district court held that plaintiffs’ claims were barred
by the applicable statutes of limitations. We affirm.
BACKGROUND
Mr. Rassam is a civil engineer and his company, Tech, Inc., offers architectural,
engineering and planning services in San Juan County, New Mexico. Mr. Rassam was
born in Iraq, but is a naturalized American citizen. He and his company have provided
their services in the San Juan County area for many years. Defendants Larry Brewer and
Richard Cheney own another engineering company, Brewer Associates, Inc.1 Mr. Brewer
was elected to the San Juan College Board in 1983, becoming chairman in 1986. Since
1990, he has served on the Farmington City Council and the San Juan County Water
Mr. Brewer’s and Mr. Cheney’s company has apparently gone by various names:
1
Brewer Associates, Brewer Associates, Inc. and Cheney-Walter-Echols, Inc.
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Commission. Between 1984 and 1992 Mr. Cheney served in the New Mexico House of
Representatives. Mr. Henderson is President of San Juan Community College. Mr.
Karlin was a member of and chairman of the San Juan County Commission from 1979-82
and 1985-89.
The gist of Mr. Rassam’s civil rights action is that defendants conspired over a
long period of time, beginning in 1983 and continuing until the present time, to drive him
and his company out of the public contract business, out of hostility towards Mr.
Rassam’s ethnic background, and because of Mr. Rassam’s outspokenness on matters of
public concern, his refusal to engage in corruption, and the “aggrandizement of various
Defendants.” Appellants’ App. Vol. VII at 1969 (Rassam v. Brewer, No. CIV 92-1247
MV/PJK/LCS (D.N.M. filed Sept. 25, 1995),. The district court granted summary
judgment, and denied plaintiffs’ motion for reconsideration, on the ground that plaintiffs’
claims were barred by the applicable statutes of limitations, concluding that the
“uncontroverted evidence makes it clear that Dr. Rassam was aware of the conspiracy he
now alleges by not later that 1987.” Id. at 1977. With respect to incidents occurring
during the applicable limitations period, and which plaintiffs claim established material
factual disputes under a “continuing violation” theory, the district court held plaintiffs
“have not produced anything other than speculation.” Id. at 1984.
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DISCUSSION
We review de novo a district court decision granting summary judgment, applying
the same standard as did the district court. Kaul v. Stephan, 83 F.3d 1208, 1212 (10th
Cir. 1996). “‘Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.’” Id. (quoting Wolf v. Prudential Ins. Co. of America, 50
F.3d 793, 796 (10th Cir. 1995)). We review the facts and the reasonable inferences
therefrom in a light most favorable to the party opposing the motion (the plaintiffs in this
case). Id. Additionally, while the moving party bears the initial burden of showing the
absence of any genuine issues of material fact, the party opposing the motion “‘may not
rest upon its pleadings, but must set forth specific facts showing a genuine issue for trial
as to those dispositive matters for which it carries the burden of proof.’” Id. (quoting
Wolf, 50 F.3d at 796).
No one disputes that the applicable statute of limitations for a civil rights action in
New Mexico is three years. See Wilson v. Garcia, 471 U.S. 261, 280 (1985); Robinson v.
Maruffi, 895 F.2d 649, 654 (10th Cir. 1990); N.M. Stat. Ann. § 37-1-8.2 “While state law
2
As the district court observed, the same three-year limitations period applies to
plaintiffs’ claims for intentional interference with contractual relations, civil conspiracy,
defamation, and intentional infliction of emotional distress. N.M. Stat. Ann. § 37-1-8.
Plaintiffs’ fraud claim is subject to a four-year statute of limitations. N.M. Stat. Ann.
(continued...)
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governs limitations and tolling issues, federal law determines the accrual of section 1983
claims.” Fratus v. Deland, 49 F.3d 673, 675 (10th Cir. 1995). A civil rights claim
accrues when “‘facts that would support a cause of action are or should be apparent.’” Id.(quoting Blumberg v. HCA Management Co., 848 F.2d 642, 645 (5th Cir. 1988)); see
also Johnson v. Johnson County Comm’n Bd., 925 F.2d 1299, 1301 (10th Cir. 1991).
Although the record contains undisputed evidence that plaintiffs were aware of the
claimed conspiracy against them as early as 1983, clearly outside the three-year
limitations period, they argue that the doctrine of “continuing violations” applies to
preserve this action, and that there are disputed factual issues concerning incidents
claimed to be part of the conspiracy and which occurred within the applicable limitations
period. Thus, they seek compensation for injuries occurring both within and outside of
the limitations period.
Plaintiffs rely upon our decision in Martin v. Nannie and the Newborns Inc., 3
F.3d 1410, 1415 (10th Cir. 1993) to support their argument that the “continuing violation
doctrine” applies to this civil rights case. Martin was a Title VII case, in which we
recognized the “equitable” doctrine under which “a claim of discrimination may include
challenges to incidents which occurred outside the statutory time limitations of Title VII
if the various acts constitute a ‘continuing pattern of discrimination.’” Id. (quoting Furr
(...continued)
2
§ 37-1-4.
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v. AT & T Techs., Inc., 824 F.2d 1537, 1543 (10th Cir. 1987). In a subsequent case, we
noted that the plaintiff, seeking to apply the continuing violation doctrine to a § 1983
case, “cite[d] no case in which a court has extended the continuing violation doctrine to a
§ 1983 claim.” Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994) (prisoner sued
various state actors for allegedly violating his constitutional rights during criminal
investigation and trial resulting in felony convictions). We further observed that “what
matters for statute of limitations purposes is the date on which the conspiracy claim
accrued, not the date that the defendants allegedly commenced their conspiracy.” Id.(citing Robinson, 895 F.2d at 654-55).3
Some courts have observed that the “continuing violation doctrine” has rarely been
applied outside of the Title VII employment discrimination context. See, e.g., LRL
Properties v. Portage Metro Housing Auth., 55 F.3d 1097, 1105 n.3 (6th Cir. 1995)
(“Courts have been extremely reluctant to apply [the continuing violation] doctrine
outside of the context of Title VII.”); McGregor v. Louisiana State Univ. Bd. of
3
Plaintiffs argue that Robinson supports the application of the continuing violation
doctrine to this case, citing Robinson for the proposition that “with respect to civil rights
conspiracy claims, the Tenth Circuit has held that such claims do not even accrue until
the conspiracy has run its course.” Appellants’ Brief-in-Chief at 47. Plaintiffs misstate
the holding of Robinson. Robinson involved a claimed conspiracy to cause the malicious
prosecution of the plaintiff. We rejected the defendants’ statute of limitations defense,
based on their claim that the conspiracy commenced before the applicable limitations
period, because we held that the plaintiff’s malicious prosecution claim did not accrue
until the plaintiff was acquitted, in his second criminal trial. Robinson does not purport to
establish an accrual rule for all types of conspiracy claims.
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Supervisors, 3 F.3d 850, 866 n.27 (5th Cir. 1993) (“[C]ourts, including this one, are wary
to use the continuing violation doctrine to save claims outside the area of Title VII
discrimination cases.”); Young v. City of Allentown, 882 F. Supp. 1490, 1496 n.7 (E.D.
Pa.) (while noting that the continuing violation doctrine as a tolling device in Title VII
cases is “quite common,” the court observed that the “Third Circuit does not appear to
have decided . . . whether the continuing violation theory should apply in the context of
Monell municipal liability under s. 1983"), aff’d, 66 F.3d 314 (3d Cir. 1995); but see,
Gutowsky v. County of Placer, 108 F.3d 256, 259 (9th Cir. 1997) (holding that the
continuing violations doctrine used in Title VII cases applies to § 1983 cases). Other
courts, while not expressly stating any limitations to its application, have discussed it as if
it were a concept which applies only to employment discrimination cases. See, e.g., Jones
v. Merchants Nat’l Bank & Trust Co., 42 F.3d 1054, 1058 (7th Cir. 1994); Gandy v.
Sullivan County, 24 F.3d 861, 864 (6th Cir. 1994); Cornwell v. Robinson, 23 F.3d 694,
703-04 (2d Cir. 1994); Pike v. City of Mission, 731 F.2d 655, 660 (10th Cir. 1984); Duke
v. Pfizer, Inc., 668 F. Supp. 1031, 1041 (E.D. Mich. 1987), aff’d, 867 F.2d 611 (6th Cir.
1989).
In any event, it is to be narrowly applied, and is not intended to excuse plaintiffs
from diligently pursuing their claims. As we expressly stated in Martin, “[t]he
continuing violation doctrine is premised on the equitable notion that the statute of
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limitations should not begin to run until a reasonable person would be aware that his or
her rights have been violated.” Martin, 3 F.3d at 1415 n.6. Accordingly:
[I]f an event or series of events should have alerted a reasonable person to
act to assert his or her rights at the time of the violation, the victim cannot
later rely on the continuing violation doctrine to overcome the statutory
requirement of filing a charge with the EEOC with respect to that event or
series of events.
Id.This is exactly the kind of case to which the continuing violation doctrine should
not apply. As the district court held:
[I]t is uncontroverted that Dr. Rassam knew or claimed to know that there
was a conspiracy to deprive him of work -- the predicate of all of his
claims--at the very latest by August 1987, when he addressed the San Juan
College Board, and surely by September 1, 1987, the date of a lengthy letter
to the San Juan College Board in care of Defendant Brewer. Indeed,
according to the complaint, Dr. Rassam had notice of Defendant Brewer’s
conflict of interest in 1983.
Appellants’ App. Vol. III at 1976. We agree that the uncontroverted evidence in the
record, including Mr. Rassam’s own affidavit, establish that he was aware of the claimed
conspiracy, as well as the conduct giving rise to his various state law claims, well outside
of the limitations period.
To the extent he claims injury from defendants’ conduct within the statutory
period, we agree with the district court that the evidence of any prohibited or actionable
conduct is vague and conclusory. For example, Ron Helland, the Superintendent of Aztec
Schools, testified by deposition that defendant Henderson described Mr. Rassam as
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difficult to work with, but that Mr. Helland could not recall the specifics of Mr.
Henderson’s dissatisfaction. Appellants’ App. Vol. V at 1612-14. Plaintiffs also rely on
the testimony of Darla Whitney-Welles, who served in the New Mexico Legislature from
1991 to 1994. Her testimony was that “[i]t’s just commonly known in government
communities that they don’t do work with Dr. Rassam.” Id. at 1565. When asked if
anyone had told her that the county was “blacklisting” Mr. Rassam, Ms. Whitney-Welles
responded that the current county manager “told me about eight or nine months ago that
they wouldn’t even consider contacting Dr. Rassam or talking with him.” Id. at 1566.
She further testified that defendant Henderson said Mr. Rassam was “hard to deal with.”
Id. at 1564. Robert Stannard, a local engineer, testified that he believed that Mr. Rassam
was “on the outs” but did not have any specific information on it, “[i]t’s more of a
background noise is what I hear.” Id. at 1623. All of this evidence, even construed most
favorably to plaintiffs, establishes no more than that Mr. Rassam was perceived as a
difficult person with whom people did not enjoy working. They do not establish even a
dispute as to whether the defendants conspired to drive him and his company out of
business.
To support his claim that the alleged conspiracy was in part motivated by ethnic
animosity, Mr. Rassam points to the following testimony by defendant Brewer, in an
unrelated case:
Dr. Henderson . . . feels -- I think he would not want to enter into a contract
with Dr. Rassam again, because I think it is a diversion. It is an expense,
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not only of cash, but of time and it is -- I guess my time as a consultant,
working with elected officials and the success of it, has been tied to no
surprises, and I think with Dr. Rassam, there are surprises. Things pop up
that turn into mountains that normally could be worked out over a cup of
coffee.
So, surprises are dangerous and are aggravating, and there is enough
problems dealing with all of the bureaucracy and the funding and the equal
opportunity and everything else that is just connected with doing business in
this society today . . . and not haggling over the fine line of some very -- I
am not discounting Dr. Rassam’s feelings in his legacy that he brings from
the country that he was born in. He has very strong feelings, and they
become paramount to him. And I understand that, but they can be
detrimental to the operation of a public institution . . . .
Id. at 1573. We agree with the district court that, at best, the statement shows defendant
Brewer’s opinion that Mr. Rassam was difficult to deal with, and very opinionated. Even
construed most favorably to plaintiffs, it does not establish that there is a disputed fact as
to whether defendant Brewer’s reluctance to do business with plaintiffs stemmed from
ethnic prejudice.
Plaintiffs also rely heavily on conduct concerning the “Loop Road” contracts with
San Juan College, in support of their claim that material disputed factual issues remain
regarding incidents within the limitations period. Plaintiffs argue that, in essence, the two
purportedly separate contracts were really part of the same project, and were awarded to
Brewer Associates in a sham competitive bidding process, prior to the date when
plaintiffs were even interviewed about their bid. Despite plaintiffs’ claims to the
contrary, our careful review of the record indicates that there were indeed two separate
contracts, one of which required the issuance of a request for proposals, which request
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was sent to Tech, Inc., and one of which did not require the issuance of a request for
proposals. Brewer Associates was awarded the non-competitive contract. Tech, Inc.
submitted a bid on the other (competitive) one and was interviewed, prior to the award of
the contract to Brewer Associates. The record contains evidence of legitimate reasons for
that award, and does not support plaintiffs’ claim that the entire process was a sham,
orchestrated by defendants, to prevent plaintiffs from receiving the contract.4
Finally, we agree with the district court that the record does not support plaintiffs’
argument that defendants’ conduct in connection with a March 1994 request for proposals
suggests discrimination or even suggests a factual dispute about such discrimination. Nor
does the record support the existence of a material disputed fact about whether plaintiffs
have even submitted any bids to San Juan County since November, 1989.5
4
Plaintiffs have taken some liberties with the record. For example, as part of their
argument that there was no real selection committee to choose the firm to whom the
competitive bid would be awarded, they argue that, while defendants claimed Stan
Vollmert was a member of the committee, in fact Mr. Vollmert admitted he was not. Mr.
Vollmert’s deposition testimony was that, while he was not part of a “team” which
selected engineers for San Juan College projects, he “was asked opinions and asked to
look at submittals” and “gave comments as requested.” Appellants’ App. Vol. V at 1501-
02. Thus, he clearly participated in the selection process, albeit not as part of a
committee.
5
As plaintiffs acknowledge, defendant San Juan County submitted an affidavit
from its purchasing director who stated that the County had no record of any proposal
submitted by Tech, Inc. after November 1989. Plaintiffs’ only rebuttal to this is Mr.
Rassam’s own otherwise unsupported statement that he had submitted several project
bids, all of which were rejected. Obviously, plaintiffs’ claim that defendants have denied
them the opportunity to participate in public contract projects is undermined if in fact they
have not even submitted bids. Plaintiffs’ argument that they felt such submission would
(continued...)
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In sum, we affirm the district court’s conclusion that plaintiffs’ cause of action
accrued as early as 1983, and certainly no later that 1987, well outside the applicable
limitations period. The continuing violation doctrine does not “revive” any of his claims
relating to conduct occurring outside the limitations period, and his evidence of
prohibited conduct occurring within the limitations period is vague, speculative and
conclusory. We therefore AFFIRM the judgment of the district court, granting summary
judgment to defendants.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
5
(...continued)
be futile is supported only by speculation.
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