Damiani v. Puerto Rico

February 23, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1070
JUAN A. DAMIANI MONTALBAN,
IVELISSE VAZQUEZ DE DAMIANI,
AND THE CONJUGAL PARTNERSHIP
COMPOSED BY BOTH,
Plaintiffs, Appellants,
v.
PUERTO RICO MARINE MANAGEMENT, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
Before
Selya, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Boyle,* District Judge.
Guillermo Ramos Luina with whom Harry Anduze Montano was on brief
for appellants.
Gilberto Mayo Pagan with whom Gilberto Mayo Aguayo and Mayo &
Mayo were on brief for appellee.
*Of the District of Rhode Island, sitting by designation.
BOYLE, District Judge.
Plaintiff-appellant Juan A. Damiani Montalban
appeals an order granting summary judgment against him in a
suit brought under P.R. Laws Ann. tit. 29, 146 (1985).
Jurisdiction exists pursuant to 28 U.S.C. 1332(a)(1). We
affirm.
I. Background
In accord with Fed.R.Civ.P. 56, the facts are
considered in the light most favorable to the appellant. On
March 24, 1989, after nearly ten years of service at Puerto
Rico Marine Management, Inc. (PRMMI), Damiani was dismissed.
At the time of his dismissal, Damiani was the Manager of
Insurance in PRMMI's Department of Risk Management. He was
52 years old.
The manner in which Damiani was dismissed
represents a rather unceremonious conclusion to his career
at PRMMI. On Friday, March 10, 1989, Fernando L. Guardiola
Lopez, the Manager of PRMMI's Department of Loss Prevention
informed Damiani that Victor Carreras, the Vice-President of
Industrial Relations at PRMMI, had asked Guardiola to tell
the appellant that he would be "laid off" effective March
24, 1989. On Monday, March 13, 1989, the appellant asked
his supervisor, Juan Jeannot why he was being terminated.
Jeannot was unable to provide an explanation for PRMMI's
action. Jeannot stated he would look into the matter and
get back to Damiani. By letter, dated March 13, 1989,
Enrique Gonzalez, Vice-President of Finance and
Administration of PRMMI, reiterated that Damiani's layoff
would be effective March 24, 1989 and advised him to contact
the Personnel Department to review his benefits. The letter
concluded with the offer to provide references to aid
Damiani in finding a new position. Although the exact date
is unclear, Damiani acknowledges receipt of this letter no
later than March 22, 1989.
After March 13, 1989, Damiani met with
Rafael Reyes, PRMMI's Personnel Director. Damiani contends
that Mr. Reyes first learned of his layoff the morning of
their meeting. At this meeting, Damiani again demanded an
explanation for his dismissal. Reyes, however, was also
unaware of the reasons for Damiani's dismissal.
From the start, Damiani maintained that his
dismissal was unjustified and continually requested that
PRMMI provide an explanation for his dismissal. In each
conversation concerning his employment status, Damiani
stated that the dismissal action was "arbitrary and unfair
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and that unless I was retained I would file whatever
judicial action was necessary to protect my rights and
obtain redress for any damages which were going to be
substantial because of my time with the company, my
excellent job execution and my age."
Damiani's last day at PRMMI was March 24, 1989.
On July 24, 1989, he sent a letter to J. P. Toomey, the
President of PRMMI. In the letter, Damiani outlined his
contributions to the company and recommended PRMMI create an
independent appeals board to review actions such as
promotions, demotions, and dismissals. Damiani asserted
that an impartial review of his situation would result in
his reinstatement.
On March 23, 1990, Damiani sued PRMMI in federal
district court invoking diversity jurisdiction, 28 U.S.C.
1332. The complaint asserted three causes of action, the
first, pursuant to P.R. Laws Ann. tit. 29, 185a (1989)(Law
80), for an additional month's salary as indemnity because
he was terminated from his employment without just cause,
the second for monetary damages for age discrimination
pursuant to P.R. Laws Ann. tit. 29, 146 (1985)(Law 100)1
1 Section 146 provides in part:
"Any employer who discharges, lays off or discriminates
against an employee . . . on the basis of age . . . :
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( 146 or Section 146), and the third for money damages for
mental distress because of his discriminatory discharge
based on age. (Complaint at 5-7.) In the portion of his
complaint entitled "Request for Remedy" he alleged that he
had suffered injury "caused by the willful, illegal,
discriminatory and/or negligent actions of the defendant"
and sought front pay in lieu of reinstatement, back pay,
lost benefits, damages for pain and suffering, severance
pay, double payment of all sums as double indemnity, costs
and attorneys fees, prejudgment interest and any other just
relief which plaintiff estimated to equal not less than two
million three thousand eight hundred dollars
($2,003,800.00). On August 31, 1991, PRMMI filed a motion
for summary judgment contending that Damiani's age
discrimination claim was barred by the statute of
limitations and that the amount of Damiani's Law 80 claim,
standing alone, was insufficient to supply the court with
subject matter jurisdiction under 28 U.S.C. 1332. PRMMI's
motion did not address Damiani's third claim for money
damages for mental anguish because of his termination based
(a) shall incur civil liability
(1) for a sum equal to twice the amount of damages sustained
by the employee or applicant for employment on account of
such action;" P.R. Laws Ann. tit. 29, 146 (1985).
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on age. That cause of action, based on alleged age
discrimination, would also be time barred. We see no need
to return this matter to the district court to do what must
be done, that is to dismiss Count III. The district court
granted the motion as to Counts I and II. Damiani appeals
that judgment. Damiani, in his brief, states that no
appeal is taken from the determination that his Law 80
claim, alone, does not meet the jurisdictional amount.
II. Discussion
Summary judgment is appropriate when the record
reflects "no genuine issue as to any material fact and . . .
the moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). In certain cases, Rule 56 may be
used to determine whether a statutory time bar applies to a
particular set of facts. See, e.g., Jensen v. Frank, 912
F.2d 517, 520 (1st Cir. 1990); Kali Seafood, Inc. v. Howe
Corp., 887 F.2d 7, 9 (1st Cir. 1989). At the outset, we
note that the review of a grant of summary judgment is
plenary. Garside v. Osco Drug, Inc., 895 F.2d 46, 49 (1st
Cir. 1990). In the present case, our inquiry focuses on
whether the record reveals a genuine issue of any material
fact relative to the timeliness of Damiani's suit. Doyle v.
Shubs, 905 F.2d 1 (1st Cir. 1990)(per curiam). Damiani
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contends that the time of accrual of his action as well as
whether the action was tolled under the law of Puerto Rico
constitute genuine issues of material fact.
In Olmo v. Young & Ribicam of P.R., Inc., 10
Official Translations of the Opinions of the Supreme Court
of Puerto Rico 967 (1981), the Supreme Court of Puerto Rico
addressed the applicable statute of limitations for an
action brought under 146. In Olmo, the plaintiff brought
an action under 146 alleging he had been discharged
because of his race. Since the statute did not provide a
specific limitation period, the Olmo court determined that
the one year statute of limitations applicable to other
civil actions for damages based on racial discrimination was
appropriate for an action under 146. Id. at 972-73.
The Olmo court described actions brought under
146 as actions for "tortious discrimination." Id. at 972.
That description is instructive in determining when
Damiani's action accrued. Under Puerto Rico law, all
actions for civil liability based on fault or negligence are
time barred after one year "from the time the aggrieved
person had knowledge thereof." P.R. Laws Ann. tit. 31,
5298 (1991). In the instant case, the district court held
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that Damiani's cause of action accrued on March 10, 1989,
the date he was informed of his termination. We agree.
The Supreme Court of Puerto Rico has addressed
when an action for wrongful discharge accrues. In Delgado
Rodriguez v. Nazario de Ferrer, 121 D.P.R. , 88 J.T.S. 63
(No. CE-86-417, official translation) (1988), the plaintiff
was informed on March 19, 1981 that he would be terminated
effective April 15, 1981. Before he was terminated, the
plaintiff initiated an administrative claim with the Board
of Appeals of the Personnel Administration System. On March
7, 1984 the Board of Appeals reinstated the plaintiff. On
March 1, 1985, the plaintiff filed a civil action seeking
damages for wrongful termination. The Supreme Court of
Puerto Rico determined that the statute of limitations began
to run when the aggrieved party became aware of the damage.
The Delgado Rodriguez court determined that the plaintiff's
cause of action was time barred because it accrued the day
he received notice of his termination, March 19, 1981. Id.
at 11 (No. CE-86-417, slip op. at 11).
A similar analysis has been applied in wrongful
termination cases brought under 42 U.S.C. 1983. In
Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349 (1st Cir.
1992), the plaintiff was informed that his name was removed
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from an employment roster. Two years later, the plaintiff
filed an action in federal court alleging his employer's
actions had deprived him of property without due process of
law. The Rivera-Muriente court stated that:
[i]n employment discrimination cases
involving wrongful discharges, the statute of
limitations begins to run when the
plaintiff learns of the decision to
terminate his employment (even if
the notice he receives is
informal).
Id. at 353. In determining when Damiani's action accrued,
our inquiry is when did Damiani become aware he would be
terminated? Damiani argues that Guardiola's statement did
not commence the running of the statute of limitations.
Damiani contends that a fellow manager could not provide the
requisite notice of his dismissal. In Damiani's view,
Guardiola's statement fails to trigger the statute of
limitations because it amounts to mere speculation and
rumor. This contention fails, however, when the facts of
the notice are analyzed. In an affidavit attached to his
opposition to the motion for summary judgment, Damiani
admits that Guardiola stated he was acting under orders from
Victor Carreras, Vice-President of Industrial Relations at
PRMMI. Thus, Guardiola was dispatched to deliver the
unfortunate news by a superior. This action was not mere
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gossip or speculation, but a sanctioned delegation of duties
by PRMMI's administration. Although Damiani felt the use of
Guardiola as a messenger was not appropriate, it effectively
conveyed notice to Damiani that he would be terminated.
Damiani further argues that Guardiola's statement
did not effectively provide notice of dismissal because
Guardiola was unaware of the reasons for PRMMI's action. As
we have noted, in cases such as this, the statute of
limitations begins to run when the aggrieved party learns of
the decision to terminate him. Rivera-Muriente v. Agosto-
Alicea, 959 F.2d at 353. An employer's failure or refusal
to provide an aggrieved employee with the reasons for
termination has no effect on the commencement of the statute
of limitations. The date an employee becomes aware that he
has been damaged by a decision to terminate, his cause of
action begins and the longevity of that claim for purposes
of the statute of limitations is set. On March 10, 1989,
Damiani became aware that he would be terminated, therefore
the statute of limitations for any claim of damages under
146 then began to run.
Damiani next contends that his conversations with
various PRMMI personnel constitute extrajudicial claims
sufficient to toll the statute of limitations. Tolling of
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the statute of limitations is provided for in P.R. Laws Ann.
tit. 31, 5303 (1991) ( 5303 or Section 5303). That
section states:
[p]rescription of actions is interrupted by their
institution before the courts, by extrajudicial
claim of the creditor, and by any act of
acknowledgement of the debt by the debtor.
P.R. Laws Ann. tit. 31, 5303. The district court noted
that Damiani relied principally on his letter, dated July
26, 1989, as evidence of an extrajudicial claim. Damiani
Montalban v. Puerto Rico Marine Management, Inc., No. 90-
1426, slip op. at 6 (D.P.R. Sept. 18, 1991). In this forum,
however, he relies exclusively on his oral conversations
with PRMMI personnel.
Under 5303, the statute of limitations may be
interrupted by the "unequivocal statement of one who,
threatened with the loss of his right, expresses his will
not to lose it." Feliciano v. A.J.A., 93 P.R.R. 638, 643
(1966). The Supreme Court of Puerto Rico has noted that the
tolling exception to the statute of limitations must be
interpreted restrictively. Diaz de Diana v. A.J.A.S. Ins.
Co., 10 Official Translations of the Opinions of the Supreme
Court of Puerto Rico 604, 607-608, n. 1 (1980). In order to
toll the statute of limitations, the extrajudicial claims
must be precise and specific. Jimenez v. District Court, 65
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P.R.R. 35, 42 (1945). The purpose of requiring a precise
and specific claim is to alert the defendant of claims that
would otherwise lapse.
In Riofrio Anda v. Ralston Purina, Co., 959 F.2d
1149 (1st Cir. 1992), the plaintiff was hired under an oral
contract. After his termination, the plaintiff negotiated
with his employer concerning relocation and termination
compensation which he claimed was required under his oral
agreement. His attorney wrote to the employer and stated
his intention to "file an unlawful discharge complaint"
against the employer. The plaintiff then filed an action in
the United States District Court for the District of Puerto
Rico seeking money damages for breach of his contract of
employment with respect to remuneration and relocation
expenses, wrongful discharge and unlawful termination, and
mental pain and suffering resulting from willful acts
committed by the defendants at the time of termination. We
held that the attorney's letter was inadequate to toll the
statute of limitations because the letter did not give
defendant "fair notice that a lawsuit based on breach of
contract and wrongful discharge were in the offing."
Riofrio Anda v. Ralston Purina, Co., 959 F.2d at 1154.
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In addition, tolling requires that the plaintiff
must claim the same relief that is later requested in the
suit. Hernandez Del Valle v. Santa Aponte, 575 F.2d 321,
323-24 (1st Cir. 1978). In Del Valle, the plaintiff sent a
letter contending that his dismissal was illegal and seeking
reinstatement. The court held that the letter failed to
toll the statute of limitations for a 1983 action for
unlawful discharge which sought reinstatement and damages.
The court emphasized that the letter indicated that
plaintiff's sole interest was reemployment. The court
reasoned that the letter failed to give the defendant "fair
notice that he would be called upon to defend a damages suit
with different issues not applicable to a suit for
injunctive relief." Id. at 324. Similarly, in Riofrio Anda
v. Ralston Purina Co., this court applied Del Valle, by
emphasizing that to effectively toll the statute of
limitations an extrajudicial claim must request the same
relief ultimately sought in a federal suit. Ralston Anda v.
Ralston Purina Co., 959 F.2d at 1154. An extrajudicial
claim does not toll the statute of limitations for all
claims arising out of the same facts. Rather, tolling is
effective only with regard to identical causes of action.
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Rodriguez Narvaez v. Nazario, 895 F.2d 38, 43 (1st Cir.
1990).
In the present case, Damiani's statements seek
retention as an employee while alluding to possible legal
action. His complaint, however, seeks a variety of damages
including damages in lieu of reinstatement. Damiani's
statement can not be deemed a precise and specific claim for
relief ultimately sought in his lawsuit. His cryptic
comment suggesting that his damages would be substantial
because of his age did not provide PRMMI with fair notice
that it would be called upon to defend a suit seeking
damages resulting from age discrimination.
Damiani's final argument is that a decision of a
more recent vintage from the Supreme Court of Puerto Rico
modified tolling requirements. As support for this
proposition, Damiani points to Zambrana Maldonado v.
Commonwealth of Puerto Rico, 130 D.P.R. , 92 J.T.S. 12
(1992)(Translation Provided). In Zambrana Maldonado, the
plaintiff sent a letter to the Secretary of Justice alleging
he had a claim for damages against the government. The
plaintiff's letter stated that he was notifying the
government of a claim and provided the date, place, damages
suffered, the cause and nature thereof and a list of
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possible witnesses. Id. at 15. P.R. Laws Ann. tit. 32,
3077a (1968) (Section 3077a) requires a claimant against the
government to give notice of the claim including the date,
place, cause and general nature of the damages suffered, the
names of witnesses, the address of the claimant as well as
the place where medical treatment was received. Section
3077a requires that such notice be given within ninety (90)
days of the awareness of the damages. Failure to provide
notice within the ninety day period bars a suit against the
government. The Supreme Court of Puerto Rico held that the
plaintiff's written claim of damage tolled the statue of
limitations. Zambrana Maldonado v. Commonwealth of Puerto
Rico (translation at 35). The Zambrana Maldonado court
maintained that the interruption of the statute of
limitations requires "conduct in which, more or less
tractably and more or less categorically or urgently, the
decision to obtain payment is shown." Id. at 23. The court
held that the notice which complied with the statute was
sufficient to toll the statute of limitations. Plaintiff
points to language in the court's opinion which states that
the law does not require any particular form of notice. The
court observed that "[n]o matter how the claim is made it
has interruptive value..." Id. In this context, the
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opinion cannot be read as a broadening of the type of notice
required. The issue is not the form of the notice, it is
the content of the notice. Here, the content is deficient
to support the legal action which has been brought.
Damiani's statements did not evidence an urgent decision to
obtain payment for damages under 146.
III. Conclusion
Damiani's statements did not toll the one year
statute of
limitations. Dismissal was required as a matter of law.
Affirmed.
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