Ayala v. Shinseki , 780 F.3d 52 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-2260
BRUNILDA AYALA,
Plaintiff, Appellant,
v.
ERIC KEN SHINSEKI;
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS;
VETERANS HOSPITAL IN PUERTO RICO,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille L. Vélez-Rivé, U.S. Magistrate Judge]
Before
Torruella, Lipez, and Barron,
Circuit Judges.
Vladimir Mihailovich, for appellant.
Lisa E. Bhatia-Gautier, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Juan Carlos Reyes-Ramos, Assistant United States
Attorney, were on brief, for appellees.
March 6, 2015
TORRUELLA, Circuit Judge. Plaintiff-Appellant Brunilda
Ayala ("Ayala") challenges the district court's order granting
partial summary judgment for her former employer, the Department of
Veterans Affairs ("VA"). Specifically, Ayala contends that the
district court improperly refused to apply the continuing violation
doctrine to her otherwise time-barred Title VII retaliation claims
against the VA. After careful consideration, we affirm.
I. Background1
Ayala is a retired employee of the VA. She worked for
the VA for approximately thirteen years. While at the VA, she
worked primarily as a GS-4 Program Support Assistant in the VA's
Caribbean Healthcare System, Office of Geriatrics and Extended
Care.
Between 2001 and August 6, 2004, Ayala filed three Equal
Employment Opportunity ("EEO") complaints against the VA alleging
that, in retaliation for having reported her supervisor, José
Rivera, for allegedly sexually harassing interns in 2000, she
suffered the following retaliatory acts2: she was given a poor
1
The facts are drawn from the parties' statements of material
uncontested facts and the exhibits submitted by the parties at the
summary judgment stage. Because this is an appeal from a grant of
summary judgment, we recount the facts in the light most favorable
to the nonmovant, Ayala. See Franceschi v. U.S. Dep't. of Veterans
Affairs, 514 F.3d 81, 83 (1st Cir. 2008).
2
While the record is unclear as to the exact dates of these acts,
they must have taken place prior to August 6, 2004, as that was the
filing date of Ayala's third EEO complaint.
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recommendation that negatively affected her employment application
at the Drug Enforcement Agency; she was moved to an office located
in an empty and old part of the VA building; she was assigned to
work in an office known as the "Piss Room," a room where urine and
excrement would drop from the ceiling; she was transferred to work
under a new supervisor, Dr. Melba Feliciano ("Dr. Feliciano"); and
assigned sporadic work for which she did not have the proper
training to complete.
In September 2004, Ayala reported Dr. Feliciano to "top
management" at the VA for alleged fraud. According to Ayala, Dr.
Feliciano would come to the VA in the morning, punch her time card,
and leave shortly thereafter to treat patients at her private
practice. Ayala alleges that, in retaliation for having reported
Dr. Feliciano's activity, she was stripped of all of her duties and
transferred to a small windowless office. On June 11, 2007, Ayala
filed a fourth EEO complaint that recounted these allegations.
Ayala alleges that these employment conditions lasted until her
retirement on December 31, 2012.
Ayala also claims that, as a part of the VA's retaliation
against her, she periodically received false -- though largely
positive -– performance evaluations for work that she was not
assigned and did not do. Specifically, she received "fully
successful" performance evaluations in 2008, 2009, and 2010. She
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also claims that, starting in 2000, she was passed up for statutory
promotions and salary increases.
On March 13, 2009, Ayala filed a fifth EEO complaint
against the VA. The VA's Office of Resolution Management ("ORM")
investigated two of the claims included in that complaint3:
(1) whether unlawful retaliation occurred when, around October 3,
2008, Ayala was assigned sporadic work to assist a social worker
doing work she was unfamiliar with; and (2) whether unlawful
retaliation occurred when, around November 6, 2008, Ayala received
a performance evaluation based on work that she had not performed.
On January 28, 2010, the Office of Employment
Discrimination Complaint Adjudication ("OEDCA") denied Ayala's
fifth EEO complaint.4 The OEDCA found that, although Ayala had
stated a prima facie case of retaliation, the VA had articulated a
legitimate reason for Ayala's transfer and her performance
evaluations. In particular, the VA established that: (1) Ayala was
transferred because no other work was available and her new
assignment fit her job description, and (2) that Ayala's
performance evaluations were largely positive. Moreover, the OEDCA
3
The ORM partially dismissed the other claims included in Ayala's
fifth EEO complaint because they were not brought to the attention
of an EEO counselor or because the same claims had been previously
decided by the agency or the Equal Employment Opportunity
Commission ("EEOC").
4
The record is unclear as to what happened to Ayala's other four
EEO complaints.
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concluded that Ayala had failed to show that these proffered
reasons were in fact pretextual. The OEDCA informed Ayala of her
right to file a civil action in federal court.
On April 26, 2010, Ayala filed a civil action in the
district court pursuant to Title VII's antiretaliation provision,
42 U.S.C. § 2000e-3(a).5 The complaint recounts all of the
aforementioned alleged retaliatory acts, not only those contained
in her fifth EEO complaint. The VA moved for summary judgment.
The district court entered an Opinion and Order granting partial
summary judgment in favor of the VA, dismissing all but one of
Ayala's retaliation claims. In its Opinion and Order, the court
noted that, pursuant to Title VII's procedures, Ayala should have
filed her charges of discrimination within 300 days of the alleged
unlawful employment practice occurring.6 The court then held that
5
"Unlike its private-sector counterpart, Title VII does not
contain an express antiretaliation provision applicable to the
federal government as employer. See 42 U.S.C. § 2000e-16(a).
Nonetheless, we have assumed that the antiretaliation provision
applicable to private employers operates to prohibit retaliation in
the federal sector." Morales-Vallellanes v. Potter, 605 F.3d 27,
35-36 (1st Cir. 2010); see also Velázquez-Ortiz v. Vilsack, 657
F.3d 64, 72 (1st Cir. 2011).
6
The district court incorrectly ruled that Ayala had to file her
charges of discrimination against her "employer" within 300 days of
the alleged unlawful employment practice occurring. The applicable
limitations period was actually shorter.
Section 2000e-5(e)(1) sets out a general limitations period of
180 days for a plaintiff to file a charge of discrimination against
her employer. That period is extended to 300 days in deferral
jurisdictions if the plaintiff has initially instituted proceedings
with a State or local agency authorized "to grant or seek relief
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since Ayala filed her fifth EEO complaint on March 13, 2009, all
alleged retaliatory acts that took place before May 17, 2008, fell
outside the 300-day limitations period and, therefore, were time-
barred. The court rejected Ayala's argument that the continuing
violation doctrine saved her belated claims because, according to
the district court, each alleged retaliatory act was easily
identifiable and qualified as a "discrete discriminatory act."
The district court ruled that only two of Ayala's claims
were timely: (1) her allegation that her performance evaluations
since 2008 were unlawful retaliation because they supposedly rated
her for work that she did not perform; and (2) her contention that
the VA's failure to promote her or increase her salary since 2008
was unlawful retaliation for engaging in protected activity. The
court nevertheless granted summary judgment as to the first of
those claims finding that, inasmuch as her performance evaluations
from the allegedly illegal practice." Rivera-Díaz v. Humana Ins.
of P.R., Inc., 748 F.3d 387, 390 (1st Cir. 2014) (quoting 42 U.S.C.
§ 2000e-5(e)(1)) (internal quotation marks omitted). However,
federal agencies are excluded from the definition of the term
"employer." See 42 U.S.C. § 2000e(b). Instead, federal agencies
are covered under separate sections of Title VII, regardless of the
number of employees they have. 42 U.S.C. § 2000e-16(a). Complaints
against federal agencies are processed under the procedures set
forth in 29 C.F.R. § 1614. Pursuant to 29 C.F.R. § 1614.105(a)(1),
an individual wishing to initiate a complaint against a federal
agency, such as Ayala, must contact an EEO counselor within forty-
five days of the alleged unlawful employment practice. See also
Velázquez-Rivera v. Danzig, 234 F.3d 790, 794 (1st Cir. 2000) ("[A]
federal employee's failure to contact an EEOC counselor within the
limitations period causes him to lose his right to pursue a later
de novo action in court." (citing Román-Martínez v. Runyon, 100
F.3d 213, 216-18 (1st Cir. 1996))).
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were positive and not materially adverse, Ayala had failed to show
a prima facie case of retaliation.
Ayala then requested voluntary dismissal with prejudice
of the only remaining claim: that the VA unlawfully retaliated
against her by failing to promote her or increase her salary. The
district court granted her request and dismissed the entire
complaint with prejudice.
Ayala timely filed this appeal.
II. Discussion
A. Standard and Scope of Review
We review the district court's grant of summary judgment
de novo. Litz v. Saint Consulting Grp., Inc., 772 F.3d 1, 3 (1st
Cir. 2014). Summary judgment is appropriate only "if the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
Velázquez-Pérez v. Developers Diversified Realty Corp., 753 F.3d
265, 270 (1st Cir. 2014) (quoting Federal Rule of Civil Procedure
56(a)).
B. Analysis
Ayala challenges only the district court's conclusion
that the alleged adverse employment actions that took place more
than 300 days before she filed her EEO complaint constitute
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discrete acts that are time-barred.7 She contends that, because
the effects of those actions lasted until her retirement from the
VA, they constitute a continuing violation and, thus, her claims
were timely asserted. In the alternative, Ayala posits that if the
alleged adverse employment actions are indeed discrete acts, she
should at least be entitled to recover damages for the period
covering 300 days before filing her EEO complaint up until her
retirement. We disagree with both arguments.
Title VII, which protects employees against
discrimination based on race, color, religion, sex, or national
origin, requires a claimant seeking to recover for a discrete act
of discrimination to file her claims of unlawful employment
practices within either 45, 180, or 300 days of the occurrence of
that practice. The applicable term depends on whether the action
is filed against a federal or private employer, and on which agency
the action is filed.8 42 U.S.C. §§ 2000e-5(e)(1), 2000e-16(a). If
a claimant fails to do so, discrete discriminatory acts will be
time-barred, and thus not actionable, even if they are related to
acts alleged in timely filed charges. Nat'l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 113 (2002).
7
Ayala does not challenge the district court's other rulings
regarding her performance evaluations since 2008 or the dismissal
with prejudice of her claims related to VA's failure to promote her
or increase her salary.
8
See footnote 6, supra.
-8-
Courts have recognized a narrow exception to the
limitations period via the "continuing violation doctrine." See
Pérez-Sánchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir.
2008). "Under the 'continuing violation' doctrine, a plaintiff may
obtain recovery for discriminatory acts that otherwise would be
time-barred so long as a related act fell within the limitations
period." Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st
Cir. 2009). However, this doctrine does not apply to "discrete
acts" of alleged discrimination that occur on a "particular day."
Id. Instead, it applies only to claims that cannot be said to
occur on a particular day and that by their very nature require
repeated conduct to establish an actionable claim, such as hostile
work environment claims. Id. The continuing violation doctrine
simply "allow[s] suit to be delayed until a series of wrongful acts
blossoms into an injury on which suit can be brought."
Morales-Tañón v. P.R. Elec. Power Auth., 524 F.3d 15, 19 (1st Cir.
2008) (quoting Limestone Dev. Corp. v. Vill. of Lemont, Ill., 520
F.3d 797, 801 (7th Cir. 2008)); see also Morgan, 536 U.S. at 115("Hostile environment claims are different in kind from discrete
acts. Their very nature involves repeated conduct."); Johnson v.
Univ. of P.R., 714 F.3d 48, 53 (1st Cir. 2013) ("Discrete acts and
hostile work environment claims are 'different in kind,' because
hostile work environment claims by their nature involve repeated
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conduct and a single act of harassment may not be actionable on its
own." (internal citations omitted)).
The Supreme Court stated in Morgan that "termination,
failure to promote, denial of transfer, or refusal to hire" are
easily identifiable discrete acts instantaneously actionable.
Morgan, 536 U.S. at 114. In addition, we have held that the denial
of a reasonable accommodation, the failure to renew a contract, a
change of supervisor, a relocation to another floor, a transfer to
another office, and the failure to assign work to an employee also
constitute discrete acts. See Thornton v. United Parcel Serv.,
Inc., 587 F.3d 27, 30, 33-34 (1st Cir. 2009) (refusing to apply the
continuing violation doctrine to employer's failure to provide the
employee-plaintiff with reasonable accommodations for his
disability); Ruiz-Sulsona v. Univ. of P.R., 334 F.3d 157, 160 (1st
Cir. 2003) (finding that employer's failure to renew plaintiff's
contract constituted a discrete act); Rivera v. P.R. Aqueduct &
Sewers Auth., 331 F.3d 183, 186-89 (1st Cir. 2003) (holding that
moving plaintiff to a smaller office and transferring her from one
supervisor to another who did not assign her any work constituted
discrete acts). Similarly, a negative performance evaluation,
transfer to another area, and letter of warning also constitute
discrete acts. Miller v. N.H. Dep't. of Corr., 296 F.3d 18, 21-22
(1st Cir. 2002); see also Malone v. Lockheed Martin Corp., 610 F.3d
16, 20-22 (1st Cir. 2010) (refusing to find a hostile work
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environment and, subsequently, to apply the continuing violation
doctrine to the plaintiff's claims that he "received a series of
escalating reprimands, deteriorating performance reviews, and
eventually a demotion" on account of his race, because those
reprimands, reviews, and demotion were discrete acts).
"Each discrete discriminatory act starts a new clock for
filing charges alleging that act." Morgan, 536 U.S. at 113. It is
well-established that the statute is triggered upon the initial
occurrence of the discrete adverse employment action, even if "the
effect of the employer's [actions] continues to be felt by the
employee for as long as he remains employed." Tobin, 553 F.3d at
132 (quoting Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 135
(2d Cir. 2003)) (internal quotation marks omitted). Also, "an
employee may not extend or circumvent the limitations period by
requesting modification or reversal of an employer's prior action."
Id. at 131.
Here, Ayala does not advance a hostile work environment
claim. Instead, she claims that, between 2000 and September of
2004, her employer retaliated against her by giving her a negative
recommendation for an employment she was seeking, relocating her to
work at an empty and old part of the building, transferring her to
the so-called "Piss Room," and placing her under the supervision of
Dr. Feliciano. Ayala also claims that after she reported Dr.
Feliciano for fraud in September 2004, her employer further
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retaliated against her by stripping her of all her duties and
transferring her to a small windowless office.
On appeal, Ayala correctly concedes that all adverse
actions taken against her before September 2004 are discrete acts
and, thus, time-barred. Therefore, we need not dwell on those
claims. However, she alleges that the continuing violation
doctrine applies to the actions taken after said date, namely
stripping her of all duties and transferring her to a small
windowless office.
Although Ayala does not explain the reasoning behind her
allegation that the transfers prior to September 2004 are discrete
acts, while a similar transfer after September 2004 is not, it
seems that her reasoning is grounded on the fact that the effect of
the latter transfer continued until her retirement and, thus, she
alleges, it constituted a "continuing violation." Her reasoning is
flawed.
As explained above, the continuing violation doctrine is
meant to protect plaintiffs from losing the ability to file suit
for Title VII claims that might, by their nature, take time to
materialize. See Limestone Dev. Corp., 520 F.3d at 801 (holding
that the continuing violation doctrine simply "allow[s] suit to be
delayed until a series of wrongful acts blossoms into an injury on
which suit can be brought"). Plaintiffs might not realize that a
violation has occurred, or might not have sufficient evidence to
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support a Title VII claim until more than the general time limit to
file their claims has elapsed. See id. Therefore, courts have
been willing to toll Title VII's filing requirements in order to
preserve such legitimate claims.
This consideration is not applicable to discrete acts,
such as those alleged by Ayala, which are easy to identify and
immediately actionable. Our case law is clear that transfers to
other offices are easily identifiable discrete acts. Rivera, 331
F.3d at 187-89. Similarly, stripping an employee of all her duties
is also a discrete act. See id. (rejecting plaintiff's claim that
her transfer to a smaller office in the finance area and her
supervisor's failure to assign her work after said transfer,
despite plaintiff's repeated requests for assignments, constituted
a continuing violation). As such, and assuming that the transfer
was indeed to Ayala's detriment, upon being transferred to the
small windowless room and being stripped of all her duties, Ayala
should have known that she had been subjected to adverse employment
actions. Thus, she should have acted promptly, instead of waiting
almost three years to assert her rights.9 Since she failed to do
so, her claims are time-barred.
That the effect of these alleged actions lasted until her
retirement does not help Ayala. Title VII was triggered upon the
9
Ayala included this claim in her fourth EEO complaint, which was
filed on June 11, 2007.
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initial occurrence of the adverse employment actions, even if their
effects continued to be felt for as long as she remained employed.
See Tobin, 553 F.3d at 132. Nor is she entitled to recover damages
for the period comprised of forty-five10 days before filing her EEO
complaint up until her retirement, since it is clear that "[e]ach
discrete discriminatory act starts a new clock for filing charges
alleging that act." Morgan, 536 U.S. at 113.
III. Conclusion
Since both employment actions challenged by Ayala
constitute discrete acts, the continuing violation doctrine does
not apply to Ayala's claims and, thus, her claims are time-barred.
Therefore, we affirm the district court's amended judgment.11
Affirmed.
10
Although she claims entitlement to recover damages dating back
to 300 days before filing her EEO complaint, we have already
established that the limitations period applicable to her was
forty-five days after the alleged unlawful employment practice
occurred.
11
As an additional ground to affirm the dismissal of Ayala's
complaint, the VA alleges that Ayala failed to establish a prima
facie case of retaliation. The VA contends she alleges only that
the immediate cause of the adverse employment actions was her
reporting her supervisor for fraud and that reporting a supervisor
for fraud is not a protected ground under Title VII. See 42 U.S.C.
§§ 2000e-3(a), 16(a); Ponte v. Steelcase Inc., 741 F.3d 310, 321
(1st Cir. 2014). Our conclusion that Ayala's claims are time-
barred make it unnecessary to discuss this issue.
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