Document Info

DocketNumber: 11-1991

Judges: Lynch, Selya, Thompson

Filed Date: 8/3/2012

Status: Precedential

Modified Date: 11/5/2024

  •           United States Court of Appeals
    For the First Circuit
    No. 11-1991
    WANDA CORDERO-SUÁREZ,
    Plaintiff, Appellant,
    v.
    ORLANDO RODRÍGUEZ; FABIAN SERRANO; JOSÉ J. FAS-QUIÑONES,
    Defendants, Appellees,
    ÁNGEL A. ORTIZ-GARCÍA; JUAN C. PUIG,
    Defendants.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Juan M. Pérez-Giménez, U.S. District Judge]
    Before
    Lynch, Chief Judge,
    Selya and Thompson, Circuit Judges.
    Israel Roldán González for appellant.
    Luis R. Román-Negrón, Acting Solicitor General, and Susana
    I. Peñagarícano-Brown, Assistant Solicitor General, for
    appellees.
    August 3, 2012
    THOMPSON,   Circuit    Judge.    Wanda   Cordero-Suárez   appeals   a
    district judge's grant of summary judgment in favor of three
    defendants, each of whom she claims had some hand in discriminating
    against her at work because of her political affiliation. Although
    some of Cordero's allegations are unsettling, we nevertheless hold
    that summary judgment was appropriate because Cordero's suit was
    untimely.   We therefore affirm.
    Because this is an appeal from a summary-judgment grant, we
    sketch the facts as they appear on the record, viewed in the light
    most favorable to Cordero.     See Galera v. Johanns, 
    612 F.3d 8
    , 10
    n.2 (1st Cir. 2010).   In 1996, Wanda Cordero began working as an
    agent in the Internal Revenue Division of the Puerto Rico Treasury
    Department.   For some years her supervisor was Orlando Rodríguez,
    whose brother was the mayor of Mayagüez, Puerto Rico, and head of
    the Popular Democratic Party's ("PDP") city office.        Politically,
    Cordero affiliates herself with the New Progressive Party ("NPP"),
    while Rodríguez affiliates himself with the PDP. Cordero says that
    on many occasions Rodríguez made disparaging comments about the NPP
    within her earshot.1       She also claims that Rodríguez took many
    subtle steps to inconvenience her, such as repeatedly changing her
    1
    Cordero claims she maintained a notebook with details of
    Rodríguez's regular harassment, but that the notebook was stolen at
    some point and her recollection of specific instances of harassment
    is hazy.
    -2-
    schedule and falsely claiming that she left early so he could
    deduct ten minutes of pay from her check.
    But more important are some specific instances of misconduct
    Cordero    describes.    For   example,     in   February    2006      Rodríguez
    "physically and verbally assaulted" her in an incident neither
    party details but that apparently resulted in Rodríguez's filing a
    complaint "to the Municipal Police where his brother, who is the
    mayor, is the chief."          Then on February 23, 2007, Rodríguez
    approached Cordero's desk with his work-issued gun "in front of
    him."     He said "I'm going to screw you up," and Cordero, crying,
    fled to a restroom.          She reported the incident to "Internal
    Affairs, to Mr. Fabián," but nothing ever came of her report.
    Sometime later in 2007, Rodríguez came into Cordero's office and
    said that "he could give a fuck about the NPP winning" an upcoming
    election because his brother would still be the mayor and he could
    continue doing "whatever the fuck he wanted."
    A serious scheduling incident also occurred in late 2007.                  On
    December    7,   Rodríguez   told   Cordero   that   she    had   to    cover   a
    coworker's shifts from December 11-31.               Then on December 19,
    Rodríguez issued a memo instructing Cordero to work on Sunday,
    December 23 in addition to covering her coworker's shift.                 Within
    the next couple days, Cordero told Rodríguez that she was sick and
    could not work on the 23rd or 24th.        Then on December 28, Rodríguez
    issued another memo instructing Cordero to work on Sunday, December
    -3-
    30 too.     Cordero claims that she never received the memo (though
    there is some evidence to the contrary) and thus did not show up
    for work that day.
    At some point during all of these 2007 incidents, Cordero
    requested that the Department transfer her to a different office.
    In February 2008, Deputy Secretary of Human Resources José Fas
    Quiñones2 acquiesced and transferred Cordero from the Bureau of
    Alcoholic    Beverages   and    Licenses   to   the   Bureau   of   Taxpayer
    Services, where she remained part of the Treasury Department but
    Rodríguez was no longer her supervisor.           But even the transfer
    could not keep Rodríguez away from Cordero: he continued to visit
    her new office and harass her.
    In May 2008 Cordero met with Fas and with one Fabián Serrano
    -- apparently a Treasury Department higher-up -- separately to
    complain about Rodríguez's continued harassment, but both said they
    could not help; the record is silent as to their reasons.           Fas then
    sent Cordero a letter at her new office on July 3, 2008, stating
    that she would be suspended for thirty days because she had missed
    the shifts on December 23, 24, and 30, 2007 -- the ones that
    Rodríguez had assigned her, allegedly at the eleventh hour and
    without adequate notice.       After internally appealing the decision,
    Cordero received another letter from Fas on November 5, 2008 (one
    2
    "Fas" is spelled at various places in the record as "Fas,"
    "Fax," and "Faz." "Fas" is the spelling borne out by documentary
    evidence in the record and, accordingly, the one we'll use.
    -4-
    day after the NPP won a big election) stating that her suspension
    would proceed.
    Finally, after Cordero returned from her suspension, Rodríguez
    approached her at her new office and again informed her that he did
    not care about the NPP's having won the recent general election
    because his brother still retained power in Mayagüez.                      He also
    added    (according   to    Cordero)    that    he    "would      not   rest   until
    [Cordero] was permanently dismissed from the Treasury Department."
    On June 26, 2009, Cordero filed a federal-court complaint
    asserting several federal- and local-law claims against Rodríguez,
    Serrano, and Fas in their personal and official capacities, and
    against former Treasury Secretary Angel Ortiz Garcia and current
    Treasury    Secretary      Juan   Carlos     Puig    as   well.     A   partially-
    successful motion to dismiss whittled the defendants down to
    Rodríguez, Serrano, and Fas in their personal capacities only, and
    the     complaint   down     to   political-harassment            claims   seeking
    injunctive and monetary relief under 
    42 U.S.C. § 1983
    .
    After discovery, the remaining defendants filed a motion for
    summary judgment.       They said the incidents Cordero complained of
    had all occurred more than a year before she filed her complaint,
    and they therefore argued that the action was barred by the
    applicable one-year statute of limitations.               See Santana-Castro v.
    Toledo-Dávila, 
    579 F.3d 109
    , 114 (1st Cir. 2009). They also argued
    that, if these incidents were excluded on timeliness grounds, the
    -5-
    only possible adverse employment action supported by the record was
    Cordero's suspension for skipping work, which would have been
    imposed regardless of her political affiliation. Cordero responded
    with an objection and memorandum opposing summary judgment on the
    ground that incidents had still been ongoing in the year before her
    complaint's filing; these ongoing incidents, she argued, rendered
    the older incidents actionable under the continuing violation
    doctrine.     And along with her objection, Cordero filed a sworn
    statement bolstering her evidence of the defendants' misconduct.
    The district judge refused to consider the sworn statement -- he
    called   it   self-serving   and   "incongruent   with"   her   deposition
    testimony.3     He nevertheless     found Cordero's claim       timely   on
    continuing-violation grounds, but in the end he granted summary
    judgment on the merits anyway and dismissed the case, primarily on
    the ground that the workplace incidents Cordero described were not
    sufficiently severe and pervasive.
    Cordero appeals the district judge's exclusion of her sworn
    statement and his grant of summary judgment.          Because we would
    3
    The district judge also refused to consider some of
    Cordero's responses to the defendants' proffered statement of
    material facts -- specifically those not backed up with record
    cites.   This practice was appropriate, see CMI Capital Market
    Investment, Inc. v. González-Toro, 
    520 F.3d 58
    , 62 (1st Cir. 2008)
    (applying Puerto Rico's Local Rules 56(c) and 56(e)), and is not at
    issue on appeal.
    -6-
    affirm summary judgment even with the sworn statement as part of
    the record, we bypass that issue and proceed to summary judgment.
    This case presents questions involving both the timeliness and
    the merits of Cordero's political-discrimination claim.                    Normally
    we would begin with timeliness, because if Cordero's claim is
    barred by the applicable statute of limitations then we have no
    occasion to reach the merits.                But in the case of an alleged
    continuing violation constituting a politically-motivated hostile
    work environment, the question of timeliness is closely intertwined
    with       the    substance    of   the   claim.     See   O'Rourke   v.   City   of
    Providence, 
    235 F.3d 713
    , 732 (1st Cir. 2001).                        We therefore
    address the two issues together.                 And because they arise in the
    context of summary judgment, both the statute-of-limitations and
    hostile-work-environment issues receive de novo review.4                          See
    Rosario v. Dept. of Army, 
    607 F.3d 241
    , 246 (1st Cir. 2010)
    (hostile work environment); Montalvo v. Gonzalez-Amparo, 
    587 F.3d 43
    , 46 (1st Cir. 2009) (statute of limitations).
    We        begin   our   analysis   with     the   political-discrimination
    framework, which finds its roots in the First Amendment's free-
    speech protections.            To establish a prima facie case of political
    4
    Of course, the other usual summary-judgment standards apply
    too: we may affirm on any grounds supported by the record, as long
    as there is no genuine issue of material fact and the defendants
    are entitled to judgment as a matter of law. Collazo v. Nicholson,
    
    535 F.3d 41
    , 44 (1st Cir. 2008).
    -7-
    discrimination,       a   plaintiff    must     be    able    to    show:    "(1)    the
    plaintiff     and     the    defendant       belong    to     opposing       political
    affiliations; (2) the defendant has knowledge of the plaintiff's
    . . . affiliation; (3) . . . a challenged employment action
    [occurred]; and (4) . . . political affiliation was a substantial
    or motivating factor" behind it.             Peguero-Moronta v. Santiago, 
    464 F.3d 29
    , 48 (1st Cir. 2006) (internal quotation marks omitted). If
    a plaintiff makes this showing, the burden shifts to the defendant
    to point out evidence that it would have taken the same action
    regardless of the plaintiff's political affiliation.                      Rodríguez v.
    Municipality of San Juan, 
    659 F.3d 168
    , 176-77 (1st Cir. 2011).
    Applying this framework, Cordero says that elements one and
    two above are easily satisfied.           She goes on to say that in deeming
    her complaint timely on continuing-violation grounds the court
    necessarily       determined    that   she     had    suffered      a    hostile     work
    environment, which would satisfy the third element -- an adverse
    employment action.          See Martinez-Vélez v. Rey-Hernández, 
    506 F.3d 32
    , 42 (1st Cir. 2007).          The fourth element depends on Cordero's
    satisfaction of the third. The defendants, too, focus on the third
    element   and     counter     that   their     conduct      was    not    "severe     and
    pervasive" enough to be actionable, adding that in their view the
    district court got its timeliness ruling wrong.
    In     the     political-discrimination          context,          "[a]ctions     of
    informal harassment, as opposed to formal employment actions like
    -8-
    transfers or demotions," amounting to a hostile work environment
    can rise to the level of a challengeable employment action, 
    id.,
    but only if the discriminatory acts are "'sufficiently severe to
    cause reasonably hardy individuals to compromise their political
    beliefs and associations in favor of the prevailing party.'"   
    Id.
    (quoting Agosto-de-Feliciano v. Aponte-Roque, 
    889 F.2d 1209
    , 1217
    (1st Cir. 1989) (en banc)).   And because "hostile work environment
    claims do not turn on single acts but on an aggregation of hostile
    acts extending over a period of time," Marrero v. Goya of P.R.,
    Inc., 
    304 F.3d 7
    , 18 (1st Cir. 2002) (internal quotation marks
    omitted), the applicable statute of limitations "will not exclude
    acts that are part of the same unlawful employment practice if at
    least one act falls within the time period."   Dressler v. Daniel,
    
    315 F.3d 75
    , 79 (1st Cir. 2003).       Again, this means that our
    statute-of-limitations question and our substantive question are
    closely intertwined.   See O'Rourke, 
    235 F.3d at 732
    .
    To establish a hostile work environment, Cordero relies on
    Rodríguez's politically-charged comments, the gun incident, his
    rearranging Cordero's schedule to the point that she missed days
    and was suspended without pay,5 and his threat to get her fired, as
    5
    The defendants treat Cordero's thirty-day suspension as
    potentially being a separate ground for suit, but Cordero only says
    it "was part of the systematic and continuous . . . hostile work
    enrivonment" she was subjected to. Given Cordero's treatment of
    the issue, we need not consider whether the suspension would serve
    to meet the adverse employment action test on its own, but merely
    -9-
    well as his many less severe incidences of misconduct.                   All these
    misdeeds implicate Rodríguez only.             Fas and Serrano are barely
    mentioned    in   Cordero's     brief   and     are    accused     primarily   of
    inadequate supervision (specifically, failing to take action to
    stop   Rodríguez).      But    "Section      1983   does    not   impose    purely
    supervisory liability; it aims at persons who have actually abused
    their positions of authority, and hence only persons who were
    directly    involved    in    the    wrongdoing       may   be    held   liable."
    Martinez-Vélez, 
    506 F.3d at 41
     (internal citation and quotation
    marks omitted).      This rule means Fas and Serrano prevail unless
    they actually did something wrong.
    The record simply does not show any direct involvement between
    Fas or Serrano and any harassment of Cordero.                The only possible
    tie between either Fas or Serrano and alleged misconduct is Fas's
    having issued Cordero's suspension, but uncontested record evidence
    shows that    Fas    would    have   ordered    the suspension       because   of
    Cordero's    unexcused absences       regardless       of   political opinion.
    Rodríguez, 
    659 F.3d at 176-77
     (a defendant may defeat a political-
    discrimination claim by showing he would have taken the same action
    regardless of political opinion).            Because Rodríguez's misconduct
    does not implicate Serrano or Fas, we affirm the summary-judgment
    order to the extent it dismisses the claims against them.
    bundle it into our hostile-work-environment discussion.
    -10-
    Against Rodríguez, though, there may be some evidence to
    support a hostile-work-environment claim.          His day-to-day comments
    to Cordero do not suffice without more, but there is more: the 2006
    physical altercation and 2007 gun incident, both viewed in the
    light most favorable to Cordero (as must be the case on summary
    judgment), might show that Rodríguez's misconduct was severe.            And
    an objectively reasonable fear of physical assault and gun violence
    -- an inference the record here could support -- could conceivably
    cause   even   "reasonably   hardy    individuals    to   compromise   their
    political beliefs."     Martinez-Vélez, 
    506 F.3d at 42
    .
    That said, the defendants argue that "any claim that plaintiff
    wanted to bring against defendant Rodríguez had to be brought
    within a year of February 6, 2008" -- the date of Cordero's
    transfer.      The argument is not well fleshed-out, but we agree
    nonetheless.     Here is why:
    Whether or not Rodríguez's conduct prior to Cordero's February
    2008 transfer was actionable, his conduct thereafter was not.
    Cordero's only allegations of misconduct after February 2008 are
    some undefined number of occasions when Rodríguez "came near [her]
    in an intimidating manner and stared at her fixedly" and his
    comment that he "would not rest" until Cordero lost her job.             But
    Cordero says she ignored all this and that nothing else happened.
    These acts alone fall well short of the conduct we have found
    severe and pervasive in the past.           See O'Rourke, 
    235 F.3d at 727
    ;
    -11-
    Tuli v. Brigham & Women's Hosp., 
    656 F.3d 33
     (1st Cir. 2011).                     On
    top of that, Rodríguez was no longer her supervisor, and she was
    working with new people in a new department.                         Literally, her
    environment changed at that point.
    Nevertheless, Cordero argues that these post-transfer events
    were    part   of   the    same   continuing    violation       as    the   arguably
    actionable pre-transfer events. "The continuing violation doctrine
    is an equitable exception that allows an employee to seek damages
    for otherwise time-barred allegations if they are deemed part of an
    ongoing series of discriminatory acts."              O'Rourke, 
    235 F.3d at 730
    .    But although the continuing violation doctrine can render
    otherwise      time-barred    conduct   actionable,       the    doctrine      still
    requires some anchoring violation within the limitations period,
    
    id.,
     and we have just said that none of Rodríguez's post-transfer
    conduct   meets     that    test.    The     continuing   violation         doctrine
    therefore does not apply here.
    Cordero's transfer occurred more than a year before she filed
    suit,    and   none   of    Rodríguez's    conduct   within          that   one-year
    limitations period was actionable, so her claim against him is
    untimely as a matter of law.         See Santana-Castro, 579 F.3d at 114.
    For that reason, we affirm also the district court's summary-
    judgment order dismissing Cordero's hostile-work-environment claim
    against Rodríguez.
    -12-
    In the end, we affirm the district court's grant of summary
    judgment dismissing Cordero's entire case.   So ordered.
    -13-