Rivera-Díaz v. Humana Insurance of Puerto Rico, Inc.

United States Court of Appeals
For the First Circuit
No. 13-1475
GIOVANNI RIVERA-DÍAZ ET AL.,
Plaintiffs, Appellants,
v.
HUMANA INSURANCE OF PUERTO RICO, INC. ET AL.,
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,
Selya and Howard, Circuit Judges.
José Enrico Valenzuela-Alvarado, with whom Carmen I. Ballesté-
Frank and Valenzuela-Alvarado, LLC were on brief, for appellants.
Carlos Concepción-Castro for appellee Caribbean Temporary
Services.
Elizabeth Pérez-Lleras, with whom Carl Schuster and Schuster
Aguiló LLP were on brief, for remaining appellees.
April 11, 2014
SELYA, Circuit Judge. When federal rights-creating
statutes are conditioned upon the prior exhaustion of
administrative remedies, time limits are often an essential part of
the regulatory scheme. In this case, the plaintiff managed to trip
over not one, but two, of these temporal benchmarks. Accordingly,
the district court dismissed his complaint. After careful
consideration, we affirm.
I. BACKGROUND
Inasmuch as this appeal follows the granting of a motion
to dismiss, we draw the relevant facts from the plaintiff's
complaint. See Jorge v. Rumsfeld, 404 F.3d 556, 558-59 (1st Cir.
2005). Although none of these facts has been tested in the
crucible of trial, we assume their accuracy. We draw additional
facts from documentation incorporated by reference in the
complaint. See id. at 559.
In August of 2011, plaintiff-appellant Giovanni Rivera-
Díaz, who had been recruited by defendant-appellee Caribbean
Temporary Services (CTS), embarked on new employment with
defendant-appellee Humana Health Plans of Puerto Rico, Inc.
(Humana). The plaintiff's odyssey at Humana would prove to be
short-lived: his supervisor, defendant-appellee Solciré Cardona,
orchestrated his ouster roughly six weeks later. The plaintiff
attributes this adverse employment action to disability
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discrimination and retaliation, alleging that Cardona repeatedly
mocked his diabetes and mental conditions.
According to the complaint, the means to Cardona's end
was a rigged test. The plaintiff says that his non-disabled
colleagues were given the answers to the test in advance, but he
was not. This artifice ensured that the plaintiff would post a
comparatively low score. When the test results predictably
conformed to this devious design, Humana cashiered the plaintiff.
The denouement occurred on September 16, 2011 (the day after the
examination): the plaintiff was given his walking papers.
The next stop for the plaintiff was the Equal Employment
Opportunity Commission (EEOC). There, less than two weeks after
his firing, the plaintiff charged Humana with discriminating
against him on account of his disability (the first charge). After
six and one-half months, the EEOC notified the plaintiff that it
was terminating its processing of his charge and that he had the
right, during the next ninety days, to initiate a civil action
based on the first charge. A copy of this letter (the first right-
to-sue letter) was simultaneously sent to the plaintiff's attorney.
It explicitly warned that a failure to file suit within ninety days
would result in the loss of any right to bring a suit based on the
first charge.
This warning went unrequited. Although the plaintiff
filed a new administrative charge (the second charge) against
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Humana some two months after the first right-to-sue letter issued,
he did not sue. Consequently, the ninety-day period lapsed.
The second charge covered the same time frame as the
first charge and reiterated the original claim of disability
discrimination. Withal, it added a new twist: the second charge
limned a claim for retaliation (a subject not mentioned in the
first charge). The second charge requested the prompt issuance of
a right-to-sue letter without further investigation. The EEOC
obliged, transmitting such a notice (the second right-to-sue
letter) within two months of the filing of the second charge.
Less than a month after the transmittal of the second
right-to-sue letter — but over four months after the transmittal of
the first right-to-sue letter — the plaintiff repaired to the
federal district court. He sued Humana, Cardona, and CTS,
asserting claims of discrimination and retaliation under the
Americans with Disabilities Act of 1990 (ADA), see 42 U.S.C.
§§ 12112(a), 12203(a), and supplemental claims under Puerto Rico
law.1
The defendants moved to dismiss the complaint, arguing
that both of the plaintiff's ADA claims flouted separate statutory
time limits. The district court agreed. The discrimination claim,
1
The plaintiff's wife and conjugal partnership joined him in
bringing the suit. Since their rights are wholly derivative, we
refer throughout to the plaintiff in the singular. Our decision
is, of course, binding on all parties.
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it held, should have been (but was not) brought within ninety days
of the plaintiff's receipt of the first right-to-sue letter. See
Rivera-Díaz v. Humana Health Plans of P.R., Inc., No. 12-1732, 2013
WL 496182, at *3 (D.P.R. Feb. 7, 2013). The retaliation claim
suffered from a different infirmity: the second charge, on which it
was premised, had been filed too late with the EEOC. See id.
Accordingly, the court dismissed both federal claims with prejudice
and, without a federal-law jurisdictional anchor, declined to
exercise supplemental jurisdiction over the local-law claims. Id.
at *4; see 28 U.S.C. § 1367(c)(3).
The plaintiff moved for reconsideration, beseeching the
district court to apply equitable tolling to save his untimely
claim. Relatedly, the plaintiff argued that his filing of the
second charge with the EEOC within ninety days of his receipt of
the first right-to-sue letter was the functional equivalent of an
agency reconsideration of the first charge. The district court
disagreed, explaining that the plaintiff should have presented
these arguments in his opposition to the motion to dismiss, but had
failed to do so. See Rivera-Díaz v. Humana Health Plans of P.R.,
Inc., No. 12-1732, 2013 WL 808634, at *1 (D.P.R. Mar. 5, 2013).
This appeal followed.
II. ANALYSIS
Because the plaintiff's principal assignments of error
rest on the premise that his efforts to exhaust his administrative
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remedies should be deemed timely, we begin with an overview of the
exhaustion process.
Claims of employment discrimination and retaliation under
the ADA are subject to the procedural requirements of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-5 to -9. See 42
U.S.C. §§ 12117(a), 12203(c); Loubriel v. Fondo del Seguro del
Estado, 694 F.3d 139, 142 (1st Cir. 2012). Under this procedural
regime, litigation "is not a remedy of first resort" for either
discrimination or retaliation cases. Jorge, 404 F.3d at 564
(internal quotation mark omitted). Rather, a would-be plaintiff
must first exhaust his administrative remedies. This task
embodies "two key components: the timely filing of a charge with
the EEOC and the receipt of a right-to-sue letter from the agency."
Id.
The first component contemplates the filing of an
administrative charge within either 180 or 300 days of the
offending conduct, depending on the particular jurisdiction in
which the charged conduct occurs. See Bonilla v. Muebles J.J.
Alvarez, Inc., 194 F.3d 275, 278 & n.4 (1st Cir. 1999). The
shorter of the two periods is "the general rule." Mohasco Corp. v.
Silver, 447 U.S. 807, 815 (1980); see 42 U.S.C. § 2000e-5(e)(1).
The longer period is available only in so-called "deferral"
jurisdictions, in which "a State or local agency [has] authority to
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grant or seek relief from" the allegedly illegal practice. 42
U.S.C. § 2000e-5(e)(1); see Mohasco, 447 U.S. at 815-16.
With respect to most charges of discrimination, Puerto
Rico is a deferral jurisdiction in which the longer filing period
applies. See Bonilla, 194 F.3d at 278 n.4. But with respect to
claims of retaliation, the Commonwealth's Department of Labor is
empowered only to grant or seek relief for charges stemming from an
opposition to sexual harassment. See 29 C.F.R. § 1601.74. This
case has nothing to do with sexual harassment. Consequently — as
the parties agree — the 180-day window applies with respect to the
plaintiff's retaliation claim. See 42 U.S.C. § 2000e-5(e)(1). An
unexcused failure to meet this deadline forecloses recourse to the
courts. See Jorge, 404 F.3d at 564.
The second component is equally straightforward. Upon
receiving a right-to-sue letter, a putative plaintiff has ninety
days to file suit. See Loubriel, 694 F.3d at 142. Failure to do
so creates a temporal barrier to the prosecution of an ADA claim.
See id.
With this primer in place, we turn to the dismissal of
the first charge. As the district court explained, the plaintiff
received the first right-to-sue letter on April 17, 2012, but did
not file suit until September 6, 2012. This was well after the
ninety-day period for filing suit had expired.
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The plaintiff does not gainsay this time line but,
rather, notes that the ninety-day filing period is not
jurisdictional and is subject to equitable tolling. See Irwin v.
Dep't of Vets. Affairs, 498 U.S. 89, 95 (1990). In his view, the
suit-filing period should have been tolled until the issuance of
the second right-to-sue letter.
For their part, the defendants initially characterize any
tolling argument as waived because the plaintiff waited until his
motion for reconsideration to proffer it to the district court.
While it is true that matters that are raised for the first time in
a motion for reconsideration are usually deemed waived, see, e.g.,
Dillon v. Select Portfolio Serv'g, 630 F.3d 75, 80 (1st Cir. 2011),
everything depends on context. In this instance, we need not
explore the context in exquisite detail as the plaintiff's
contention plainly fails on the merits.
We review a district court's refusal to apply equitable
tolling for abuse of discretion. See Abraham v. Woods Hole
Oceanographic Inst., 553 F.3d 114, 119-20 (1st Cir. 2009).
Generally, equitable tolling attaches only when "a claimant misses
a filing deadline because of circumstances effectively beyond her
control." Bonilla, 194 F.3d at 279. The doctrine is to be
employed sparingly and should be reserved for exceptional cases.
See id. at 278-79.
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The court below did not abuse its discretion in holding
that this case does not fit within those narrow confines. The
plaintiff identifies no circumstances beyond his control that might
have prevented him from filing suit in a timeous manner.
To be sure, the plaintiff makes much of case law
addressing the EEOC's ability to reconsider and vacate right-to-sue
letters. See, e.g., Brown v. Mead Corp., 646 F.2d 1163, 1166 & n.4
(6th Cir. 1981); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d
241, 245-46 (5th Cir. 1980). But there is no indication in this
case that the EEOC ever reconsidered, vacated, or otherwise
impugned its first right-to-sue letter. By the same token, the
agency never indicated to the plaintiff that it would do so.
The plaintiff also complains that he, a Spanish speaker,
received right-to-sue letters written exclusively in English. But
this argument is raised for the first time on appeal and is,
therefore, forfeit. See, e.g., Demelo v. U.S. Bank Nat'l Ass'n,
727 F.3d 117, 123 (1st Cir. 2013); Clauson v. Smith, 823 F.2d 660,
666 (1st Cir. 1987).
In any event, the argument is without merit. It ignores
the fact that the right-to-sue letters were simultaneously sent to
the plaintiff's counsel, who professes no inability to comprehend
English. As we have said, "notice to the attorney is notice to the
claimant." Loubriel, 694 F.3d at 143.
-9-
Stripped of these flourishes, the plaintiff's tolling
argument reduces to a bare plea to disregard a mandatory deadline
based on his subjective belief that filing a second administrative
charge within the ninety days allotted for suit would renew the
suit-filing period. This plea is futile. It flies in the teeth of
unambiguous precedent holding that if the proponent of a
discrimination claim fails to sue within the specified ninety-day
period, his claim expires and is not resuscitated by the filing of
a second administrative charge. See, e.g., Brown v. Unified Sch.
Dist. 501, 465 F.3d 1184, 1186 (10th Cir. 2006); Spears v. Mo.
Dep't of Corr. & Human Res., 210 F.3d 850, 853 (8th Cir. 2000);
Soso Liang Lo v. Pan Am. World Airways, Inc., 787 F.2d 827, 828 (2d
Cir. 1986) (per curiam).
In the last analysis, the plaintiff's attempt to wrap
himself in the mantle of equitable tolling comprises little more
than a hope that we will overlook his miscalculation regarding the
ADA's procedural requirements. But we cannot accommodate this
forlorn hope: equitable tolling does "not extend to what is at best
a garden variety claim of excusable neglect." Irwin, 498 U.S. at
96.
This brings us to the second charge, which constitutes
the embodiment of the plaintiff's retaliation claim. In trying to
salvage this claim, the plaintiff does not challenge the district
court's conclusion that the second charge was lodged after the 180-
-10-
day deadline for filing such a charge with the EEOC. Instead, he
suggests that the second charge ought to relate back to the filing
date of the first charge (a charge that was seasonably filed with
the agency, but which did not mention retaliation). See 29 C.F.R.
§ 1601.12(b) (stating that amendments that "cure technical defects
or omissions" or "clarify and amplify allegations made" in an
administrative charge "will relate back to the date the charge was
first received").
We need not dwell on the substance of this suggestion
because the suggestion comes too late. "If any principle is
settled in this circuit, it is that, absent the most extraordinary
circumstances, legal theories not raised squarely in the lower
court cannot be broached for the first time on appeal." Teamsters
Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st
Cir. 1992). This principle blocks the plaintiff's path: he never
brought to the district court's attention any argument that the
second charge could be deemed timely because of its status as an
amendment to the first charge. Although the plaintiff argued for
the timeliness of his claim in general terms and mentioned the word
"amendment," he never advanced a coherent relation-back theory.
His passing references were manifestly inadequate to preserve the
point for appellate review. See McCoy v. MIT, 950 F.2d 13, 22 (1st
Cir. 1991) (explaining that claims which "are merely insinuated
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rather than actually articulated in the trial court" are ordinarily
deemed unpreserved).
Since the plaintiff's defense of his retaliation charge
in the court below did not alert the court to any argument that the
charge might avoid the time bar by relating back to the date of the
first charge, such an argument is a dead letter here. There are no
extraordinary circumstances presented that might justify such a
failure and, thus, the consequences of the failure cannot be undone
on appeal.
In an effort to pull a rabbit from an otherwise empty
hat, the plaintiff insists that the district court abused its
discretion when it declined to exercise supplemental jurisdiction
over his local-law claims. This magic trick does not work.
In support of his position, the plaintiff heralds our
decision in Redondo Construction Corp. v. Izquierdo, 662 F.3d 42
(1st Cir. 2011). Redondo is readily distinguishable. That was a
long-running case, in which the district court, after completion of
discovery and only four days before the scheduled trial date,
granted summary judgment on the sole federal claim, yet refused to
exercise supplemental jurisdiction over the remaining local-law
claims. See id. at 47. We concluded that the litigation was so
far advanced that the district court's unwillingness to see the
matter through amounted to an abuse of discretion. See id. at 50
(explaining that "the age and advanced stage of the litigation" and
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"the enormous expense Redondo would incur in redoing the discovery
and trial preparation" made the discretionary refusal to exercise
jurisdiction over the local-law claims "both wasteful and
enormously harmful to Redondo").
The case at hand stands in an entirely different posture.
It is before us after the district court's dismissal of the federal
claims on an early-in-the-game motion to dismiss. The parties have
invested no significant time in pretrial discovery, trial
preparation, or the like.
The Supreme Court has made pellucid "that in the usual
case in which all federal-law claims are eliminated before trial,
the balance of factors . . . will point toward declining to
exercise jurisdiction over the remaining state-law claims."
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).
This is the usual case. Recognizing as much, the court below hewed
to the Supreme Court's guidance. Consequently, its decision not to
exercise supplemental jurisdiction over the plaintiff's local-law
claims was well within the encincture of its discretion. See
Rojas-Velázquez v. Figueroa-Sancha, 676 F.3d 206, 213 (1st Cir.
2012); Martinez v. Colon, 54 F.3d 980, 990-91 (1st Cir. 1995).
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III. CONCLUSION
We need go no further.2 For the reasons elucidated
above, the judgment of the district court is
Affirmed.
2
Cardona and CTS advance additional arguments for dismissal
of the plaintiff's claims against them. In light of what we
already have said, however, it is unnecessary for us to consider
these additional arguments.
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