Velez-Velez v. Puerto Rico Highway and Transp

United States Court of Appeals
For the First Circuit
No. 14-1176
SONIA I. VÉLEZ-VÉLEZ; PEDRO A. RODRÍGUEZ-CINTRÓN;
and CONJUGAL PARTNERSHIP RODRÍGUEZ-VÉLEZ,
Plaintiffs, Appellants,
v.
PUERTO RICO HIGHWAY AND TRANSPORTATION AUTHORITY;
RUBÉN HERNÁNDEZ-GREGORAT, in his individual and official
capacity as Secretary of Transportation and Public Works and
Director of the Highway and Transportation Authority; and
BRENDA GOMILA-SANTIAGO, in her individual and official capacity
as Executive Director of Human Resources,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Torruella, Lynch, and Thompson,
Circuit Judges.
Juan M. Frontera-Suau, with whom Kenneth Colón and Frontera
Suau Law Offices, PSC, were on brief, for appellants.
Yassmin González-Vélez, with whom Puerto Rico Legal
Advocates, PSC, was on brief, for Puerto Rico Highway and
Transportation Authority, Rubén Hernández-Gregorat, in his
official capacity, and Brenda Gomila-Santiago, in her official
capacity.
Michelle Camacho Nieves, with whom Margarita Mercado-
Echegaray, Solicitor General, and Susana I. Peñagarícano-Brown,
Assistant Solicitor General, Puerto Rico Department of Justice,
were on brief, for Rubén Hernández-Gregorat and Brenda Gomila-
Santiago, in their individual capacities.
July 29, 2015
LYNCH, Circuit Judge. The question presented is whether
plaintiff Sonia Vélez-Vélez's political discrimination claim was
timely brought within the one-year statute of limitations for such
42 U.S.C. § 1983 actions filed in Puerto Rico. We agree with the
district court that the logic of the Supreme Court's decisions in
Delaware State College v. Ricks, 449 U.S. 250 (1980), and Chardon
v. Fernandez, 454 U.S. 6 (1981) (per curiam), requires finding
that the claim here was untimely. See Vélez-Vélez v. P.R. Highway
& Transp. Auth., No. 11-2231, 2014 WL 104928 (D.P.R. Jan. 9, 2014).
We affirm the entry of summary judgment for the defendants.
Vélez-Vélez's political belief discrimination
termination claim is all too familiar after Puerto Rico elections.
Vélez-Vélez, a Popular Democratic Party ("PDP") member, worked for
the Puerto Rico Highway and Transportation Authority (the
"Transportation Authority") under a prior PDP administration,
after being hired under that administration's interpretation of a
set of policies. But, she lost her job after an election returned
the opposing political party, the New Progressive Party ("NPP"),
to office. The new NPP administration undertook a review of
whether the former administration's hiring policies in fact
complied with Puerto Rico law. They determined that one such set
of policies was contrary to Puerto Rico law and that the employment
of those hired under the erroneous determinations must be
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terminated. This decision, Ruling No. 2010-01, was announced on
January 19, 2010, almost two years before Vélez-Vélez brought suit.
Vélez-Vélez was in the group of employees who had been
hired under the erroneous determinations. There is no evidence
that the members of that group were not all terminated or that the
new interpretation of the policies was not uniformly applied.
Vélez-Vélez was individually informed by letter, dated February
10, 2010, that she would be terminated under the new ruling. She
received this letter on February 11, 2010, some twenty-two months
before she brought suit.
Vélez-Vélez was told that she could have a hearing, which
she did on June 7, 2010. At no time did she say an error had been
made as to whether she was an employee under the policy regarding
termination. On November 8, 2010, the Examining Officer
recommended affirming the decision to terminate Vélez-Vélez's
employment.
Her claim is that the clock did not begin to run until
she was formally terminated after the hearing. But, the purpose
of the hearing was not to revisit the re-interpretation of policy
that her superiors had already made in Ruling No. 2010-01. Vélez-
Vélez has never denied that Ruling No. 2010-01 did, in fact,
nullify the Rulings on which her transfer was based. The statute
of limitations began to run when she was informed of this relevant
decision, and its undisputed effect on her position, by letter on
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February 11, 2010. To hold otherwise would be to pervert the
holdings of Ricks and Chardon.
I.
In 2001, Vélez-Vélez was transferred from the Puerto
Rico Labor Relations Board to the Transportation Authority to be
the Director of Human Resources Transactions. Vélez-Vélez
concedes that her transfer was based on Ruling No. 2001-13, issued
on April 25, 2001, and Ruling No. 2001-24, issued on June 18, 2001,
by the Secretary of the Puerto Rico Department of Transportation
and Public Works at that time, José Izquierdo Encarnación.1
In November of 2008, Luis Fortuño Burset won the general
election in Puerto Rico as the NPP candidate for Governor. The
result was a change in the administration from the PDP to the NPP.
Two months later, Fortuño appointed Rubén Hernández-Gregorat to be
the new Secretary of the Puerto Rico Department of Transportation
and Public Works, and the Executive Director of the Transportation
Authority.
Hernández-Gregorat then appointed Luis Sánchez Casanova
to be the Director of Human Resources at the Transportation
Authority. When Sánchez Casanova left this position on May 31,
2009, Hernández-Gregorat appointed Brenda Gomila-Santiago. Vélez-
1 The parties' filings occasionally misidentify Ruling No.
2001-24 as "Ruling No. 2001-14." There is no dispute that, in
these instances, the parties are referring to the same ruling which
was issued on June 18, 2001.
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Vélez alleges that both Hernández-Gregorat and Gomila-Santiago
were members of the NPP.
Vélez-Vélez, in contrast, is an open member of the PDP.
The defendants allege that Vélez-Vélez never told them of her
political affiliation and she does not say that she did. But,
Vélez-Vélez asserts that "every one knew the political affiliation
of the other employees because everyone talked about politics in
the office" and because she attended campaign events when
politicians visited the office's cafeteria.
Vélez-Vélez alleges that Sánchez Casanova told her,
before he left in May of 2009, that "Hernandez Gregorat was putting
pressure upon him to issue letters of intention to terminate the
employment of the Popular Democratic employees that worked at the
[Transportation Authority] Human Resources office," including her.
Hernández-Gregorat allegedly told Sánchez Casanova that he was
"looking for an attorney that was willing to justify the manner in
which he wanted to terminate the employment of the Popular
Democratic employees."
Vélez-Vélez alleges that, "immediately" after Gomila-
Santiago replaced Sánchez Casanova in June of 2009, Gomila-
Santiago diminished Vélez-Vélez's working responsibilities. As
examples, Gomila-Santiago allegedly removed Vélez-Vélez's
responsibility to supervise the personnel appointment process,
excluded her from Directors' meetings which she had previously
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attended, and briefly denied her access to the human resources
database. In addition, Vélez-Vélez alleges that she was "moved
. . . from office space to office space and finally assigned . . .
an office that did not compl[y] with her work requirements," and
that Gomila-Santiago "took away equipment assigned to [Vélez-
Vélez's] office."
On January 19, 2010, Hernández-Gregorat issued Ruling
No. 2010-01, which declared Ruling No. 2001-13 and Ruling No. 2001-
24 to be null and void since both were "in express contradiction"
of Puerto Rico's regulations concerning the merit principle.
Ruling No. 2010-01, which went into effect immediately upon its
approval, "authorize[d] the Deputy Executive Director of the
Authority to take those measures which [were] legally pertinent in
order for the transactions of personnel enacted by the
[Transportation Authority] under the aforesaid Rulings be revised,
corrected, or annulled pursuant to applicable law."
An audit of personnel files, conducted by Iris Azalia
Ocasio Sandoval, identified Vélez-Vélez's transfer as having been
authorized by the Rulings recently rendered null and void. That
meant that her appointment was nullified. See Kauffman v. P.R.
Tel. Co., 841 F.2d 1169, 1174 (1st Cir. 1988). Vélez-Vélez asserts
that this audit selectively targeted transfers during the prior
PDP administration, but admits that she does not know the details
of the audit and has no evidence of that. Vélez-Vélez alleges
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that nine other employees -- all members of the PDP -- were
dismissed "as a result of the resolution being declared null and
void."
In a letter dated February 10, 2010, Hernández-Gregorat
informed Vélez-Vélez of the results of the audit. He explained
that her transfer was authorized by Ruling No. 2001-13 and Ruling
No. 2001-24, which were "declared to be fully null and void
according to Decision 2010-1 from January 19, 2010, since said
provisions, among others, violated the state of the law in effect
at that time as to [the] transfer of human resources." On the
basis of Ruling No. 2010-01, Hernández-Gregorat advised Vélez-
Vélez of his "intention to declare [her] original transfer to the
. . . Transportation Authority to be fully null and void and
consequently to order that [her] service therein be terminated."
In the same letter, Hernández-Gregorat informed Vélez-
Vélez of her right "to request an informal administrative hearing"
within twenty days. Hernández-Gregorat explained that, "[o]nce
the aforementioned period has elapsed or once the Report of the
Examining Officer presiding [over] the informal hearing if you
request one is received, we shall notify you of the legally
appropriate final decision."
Vélez-Vélez acknowledged receipt of the letter on
February 11, 2010. After a timely request, an informal
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administrative hearing was held on June 7, 2010. Vélez-Vélez
appeared at the hearing with counsel, Ramón Rodríguez.
On November 8, 2010, the Examining Officer issued a
Report and Recommendation that recommended that "the decision of
the Executive Director notified by way of his letter dated February
10, 2010 be upheld, and that consequently Ms. Sonia I. Velez be
terminated from service and employment." The Examining Officer
agreed that "Ruling No. 2001-13 and Ruling No. 2001-24 had the
effect of rendering the principle of merit and open competition
null and void as mechanisms for determining who serves and who is
chosen to serve in a position within the [Transportation
Authority]." For example, in Vélez-Vélez's case, the Examining
Officer found that she "did not apply in response to a call for
the position," "[t]here was no registry of eligible candidates,"
and "[t]here was . . . no equivalency in the position." In effect,
it was a "'transfer through promotion without opposition.'"
Since Puerto Rico law "prohibit[s] every personnel
transaction that is contrary to the merit principle," the Examining
Officer concluded that Vélez-Vélez's appointment must be rendered
null and void. "Therefore," the Examining Officer explained,
"invoking the intrinsic qualities and other good aptitudes of
[Vélez-Vélez] [was] not a valid argument." Nor was the argument
that "everything has been rectified over time." The Examining
Officer certified that a copy of his decision had been sent to
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Vélez-Vélez's counsel, but did not specify the date on the
certification.
By letter dated December 23, 2010, Hernández-Gregorat
informed Vélez-Vélez of her formal termination. Vélez-Vélez
received this letter on January 7, 2011.
Vélez-Vélez and her husband, Pedro Rodríguez-Cintrón,
filed the instant complaint on December 20, 2011. Vélez-Vélez
alleged (1) that her treatment and the audit that resulted in her
termination were politically motivated, in violation of the First
Amendment; (2) that the February 10, 2010, intent-to-terminate
letter failed to comply with Due Process; and (3) that the
defendants had violated her rights under the laws and constitution
of Puerto Rico.2
On January 9, 2014, the district court granted the
defendants' motion for summary judgment. Vélez-Vélez, 2014 WL
104928, at *1. The district court held that "Defendants are
correct that the discrimination claim is time-barred." Id. at *3.
In addition, the district court dismissed the Due Process and state
law claims since Vélez-Vélez failed to sufficiently advance either
at the summary judgment stage. Id. at *7-8.
2 An additional Equal Protection claim was dismissed "as it
[was] based on the same cause of action as [plaintiff's] First
Amendment claim," and a conspiracy claim was dismissed as
insufficiently pled.
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Vélez-Vélez now appeals. She argues, primarily, that
her political discrimination claim is not time-barred. She also
asserts that the district court erred when it dismissed her
supplemental state law claim under Puerto Rico's
antidiscrimination statute, Puerto Rico Law No. 100. Vélez-Vélez
has not appealed the district court's dismissal of her due process
claim or any state law claim other than Puerto Rico Law No. 100.
We review the district court's decision to grant summary
judgment de novo, "taking the facts in the light most favorable to
the non-moving party and drawing all reasonable inferences in its
favor." Barraford v. T & N Ltd., 778 F.3d 258, 263 (1st Cir.
2015). "Issues of timely filing may be decided under Rule 56 if
the relevant facts are sufficiently clear." Jensen v. Frank, 912
F.2d 517, 520 (1st Cir. 1990).
II.
"Section 1983, which borrows its limitations period from
state law, carries a one-year statute of limitations in Puerto
Rico." Morán Vega v. Cruz Burgos, 537 F.3d 14, 20 (1st Cir. 2008);
see also P.R. Laws Ann. tit 31, § 5298(2) (providing the one-year
limitations period for personal injury claims). The statute of
limitations begins to run "'when the plaintiff knows, or has reason
to know of the injury on which the action is based.'" Id. (quoting
Marrero-Gutierrez v. Molina, 491 F.3d 1, 5 (1st Cir. 2007)). In
other words, we ask, "at what juncture did appellant reliably know
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of the injury to which this lawsuit relates?" Morris v. Gov't
Dev. Bank of P.R., 27 F.3d 746, 749 (1st Cir. 1994).
In this case, Vélez-Vélez asserts that she has suffered
two injuries: harassment while she was employed and her later
termination as a result of the audit. We begin with the timing of
Vélez-Vélez's termination. Since Vélez-Vélez filed this lawsuit
on December 20, 2011, her claim is time-barred if she knew, or had
reason to know, of her termination before December 20, 2010.
The Supreme Court has made clear that the statute of
limitations for a terminated employee's claim can begin to run
before he or she has a chance to contest the relevant employment
decision and before he or she is formally terminated. In Delaware
State College v. Ricks, 449 U.S. 250 (1980), the plaintiff argued
that his denial of tenure and ultimate termination were
discriminatorily motivated. Id. at 257. The Court concluded that
"the only alleged discrimination occurred -- and the filing
limitations period therefore commenced -- at the time the tenure
decision was made and communicated to Ricks." Id. at 258; see
also id. at 257 n.8. His later termination was not an independent
discriminatory act; it was the "delayed, but inevitable,
consequence of the denial of tenure." Id. at 257-58; see also
Knox v. Davis, 260 F.3d 1009, 1014 (9th Cir. 2001).
The Supreme Court then rejected the argument that the
relevant tenure decision was not final until after Ricks' grievance
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was denied. Ricks, 449 U.S. at 260-61. The Court recognized the
possibility that the Board of Trustees could "change its prior
decision if Ricks' grievance were found to be meritorious." Id.
at 261. "But," the Court explained, "entertaining a grievance
complaining of the tenure decision does not suggest that the
earlier decision was in any respect tentative." Id. The Court
highlighted that "[t]he grievance procedure, by its nature, is a
remedy for a prior decision, not an opportunity to influence that
decision before it is made." Id.
One year later, in Chardon v. Fernandez, 454 U.S. 6
(1981) (per curiam), the Supreme Court applied the logic of Ricks
to plaintiffs' claims that their employment had been terminated
for political reasons. Id. at 7-8. In that case, the plaintiffs
received notice that their appointments would later end. Id. at
7. The Court held that the statute of limitations began to run
when the plaintiffs received the notification that their
employment would be terminated, and not when the employment was
actually terminated. Id. at 8. The relevant date was when the
"operative decision" had been made and communicated to the
plaintiffs. Id. The Court reiterated that "'[m]ere continuity of
employment, without more, is insufficient to prolong the life of
a cause of action for employment discrimination.'" Id. (alteration
in original) (quoting Ricks, 449 U.S. at 257).
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Here, Vélez-Vélez's termination was a "delayed, but
inevitable, consequence" of the decision to render the Rulings
that authorized her original transfer null and void. See Ricks,
449 U.S. at 257-58. Specifically, on January 19, 2010, Hernández-
Gregorat issued Ruling No. 2010-01, which declared Ruling No. 2001-
13 and Ruling No. 2001-24 to be null and void. The audit identified
Vélez-Vélez's transfer as being authorized by the now-nullified
Rulings -- a fact which Vélez-Vélez has never disputed. Hernández-
Gregorat informed Vélez-Vélez of Ruling No. 2010-01, and the effect
on her transfer, in a letter dated February 10, 2010. As a result,
he advised Vélez-Vélez of his "intention to declare [her] original
transfer to the [Transportation Authority] to be fully null and
void and consequently to order that [her] service therein be
terminated."
Vélez-Vélez argues that, regardless of Hernández-
Gregorat's initial intent to terminate her under his new Ruling,
she was given an opportunity to change his mind at a pre-
termination hearing held on June 7, 2010. She has presented no
evidence that she contested the legality of the nullification
decision, or its applicability to her own transfer. Nevertheless,
Vélez-Vélez argues that she did not reliably know of her
termination until she learned that the pre-termination hearing had
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been unsuccessful by virtue of Hernández-Gregorat's final
decision, dated December 23, 2010.3
Generally, due process requires a pre-termination
hearing to resolve "factual disputes" as well as "the
appropriateness or necessity of the discharge" for an employee
with a state-protected property interest. Cleveland Bd. of Educ.
v. Loudermill, 470 U.S. 532, 542-43 (1985); see also Jones v. City
of Boston, 752 F.3d 38, 56-57 (1st Cir. 2014). In this case, the
only factual issue, which Vélez-Vélez does not dispute, was whether
she fell within the group of employees whose employment had been
nullified as contrary to the merit principle by Ruling No. 2010-
01. The decisionmaker had no further discretion since "[e]mployees
whose hiring contravened Commonwealth laws and regulations . . .
are not vested with a property interest in their career positions."
Casiano-Montañez v. State Ins. Fund Corp., 707 F.3d 124, 129 (1st
Cir. 2013); see also González-De-Blasini v. Family Dep't, 377 F.3d
81, 86 (1st Cir. 2004); De Feliciano v. De Jesus, 873 F.2d 447,
452-55 (1st Cir. 1989); Kauffman, 841 F.2d at 1173-76. Instead,
"'[t]heir career appointments are null and void ab initio.'"
3We note the implausibility of Vélez-Vélez's assertion that
"it was not until she received the termination letter dated
December 23, 2010, that she learned that her responses in the
Loudermill pre-termination hearing . . . had been to no avail."
After all, the Examining Officer issued his report and
recommendation on November 8, 2010, which affirmed Hernández-
Gregorat's intent to terminate Vélez-Vélez's employment in no
uncertain terms.
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Casiano-Montañez, 707 F.3d at 129 (quoting Kauffman, 841 F.2d at
1173).
The underlying basis for Vélez-Vélez's termination thus
proves critical. The "operative decision" to nullify Ruling No.
2001-13 and Ruling No. 2001-24 had been made and formally issued
in Ruling No. 2010-01 as of January 19, 2010. See Chardon, 454
U.S. at 8. As Vélez-Vélez recognized in her opposition to the
defendants' motion for summary judgment, it was "Hernandez
Gregorat's execution of Resolution 2010-01 which was the one that
actually provoked [her] dismissal of employment." The pre-
termination hearing provided Vélez-Vélez with a chance to contest
the applicability of Ruling No. 2010-01 to her position, but it
was "not an opportunity to influence that decision before it [was]
made." See Ricks, 449 U.S. at 261.
Vélez-Vélez cites Pastrana-López v. Puerto Rico Fire
Department, 338 F. App'x 8 (1st Cir. 2009) (per curiam)
(unpublished opinion), as support for her contrary position, but
that case is inapposite. There, the plaintiff alleged that he was
terminated from his position in the Puerto Rico Fire Department
for speaking about corruption. Id. at 9. We held that it was not
until the plaintiff received notice of his actual termination --
"after [he] requested and received a pre-termination hearing" --
that he reliably knew that he had been terminated. Id. at 10.
But, the termination in that case was the allegedly discriminatory
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decision at issue rather than the necessary result of an earlier,
allegedly discriminatory, decision -- such as the denial of tenure
in Ricks or the nullification Ruling in this case. See id. at 9-
10.
Here, Vélez-Vélez reliably knew of her impending
termination when she received Hernández-Gregorat's letter, dated
February 10, 2010, on February 11, 2010. At that time, the
relevant decision had been made and communicated to Vélez-Vélez
even if the "effects of [that decision] . . . did not occur until
later." See Ricks, 449 U.S. at 258; see also Chardon, 454 U.S. at
8. Her claim of political discrimination twenty-two months later,
on December 20, 2011, is time-barred.
This conclusion also dooms Vélez-Vélez's harassment
claim. Vélez-Vélez does not dispute the district court's
conclusion that the reduction in her responsibilities occurred
before December 20, 2010. See Vélez-Vélez, 2014 WL 104928, at *6-
7. As the district court noted, most of Vélez-Vélez's allegations
on this front occurred "'immediately after [Gomila-Santiago] was
appointed'" in June of 2009. Id. at *7. Instead, Vélez-Vélez
argues that these earlier actions "cannot be separated and
balkanized from the discriminatory application of the audit which
ended up in the intention to terminate [her] and finally
terminating her from the same on December 23, 2010."
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Vélez-Vélez attempts to seek refuge under the continuing
violation doctrine, by which a plaintiff can "seek damages for
otherwise time-barred allegations if they are deemed part of an
ongoing series of discriminatory acts." Cordero-Suárez v.
Rodríguez, 689 F.3d 77, 83 (1st Cir. 2012) (citation and internal
quotation marks omitted). "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. Here, Vélez-Vélez attempts to anchor
her earlier allegations to the formal termination that occurred
within the statute of limitations period.4
We need not decide whether the continuing violation
doctrine would apply to the facts of this case since, even if it
did, no violation occurred within the relevant time frame. Vélez-
Vélez knew, or should have known, of her termination prior to
December 20, 2010. The final signature on the formal notice of
termination on December 23, 2010, saves neither her termination
4 For this reason, we reject Vélez-Vélez's assertion that
the district court's summary judgment decision on her termination
claim should be vacated as a sua sponte ruling. According to
Vélez-Vélez, the defendants "had only argued that [her] harassment
discrimination claim was time barred" in their motion for summary
judgment and, thus, the timeliness of her termination
discrimination claim was not properly raised in the district court.
Yet, Vélez-Vélez's own argument makes clear that the timeliness of
her harassment claim relies on the timeliness of her termination
claim. Hence, the defendant's motion sufficiently raised the
statute of limitations for both claims.
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claim nor her harassment claim. See Rivera-Muriente v. Agosto-
Alicea, 959 F.2d 349, 353 (1st Cir. 1992).
III.
Vélez-Vélez also argues that her discrimination claim
under Puerto Rico Law No. 100 should have survived summary
judgment. But, she did not present these arguments to the district
court. Instead, in opposition to the defendants' motion for
summary judgment, Vélez-Vélez cursorily stated: "Defendants'
arguments regarding Law 100 and Civil [C]ode Article 1802 and 1803
[are] a frivolous rehash of the same arguments that were already
rejected, as a matter of law, by this Court [on the defendants'
motions to dismiss]." Her arguments on appeal are therefore
waived. See Landrau-Romero v. Banco Popular De P.R., 212 F.3d
607, 612 (1st Cir. 2000). As we have explained, "where a plaintiff
fails to present arguments to the district court in opposition to
a defendant's motion for summary judgment, we have refused to
consider those arguments for the first time on appeal." Davis v.
Lucent Techs., Inc., 251 F.3d 227, 232 (1st Cir. 2001).
IV.
We affirm the district court's grant of summary judgment
to the defendants.
So ordered.
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