Ayala-Sepúlveda v. Municipality of San Germán

• Decision Date: 18 January 2012
• Docket Number: No. 10–2123.,10–2123.
• Citation: 95 Empl. Prac. Dec. P 44394,114 Fair Empl.Prac.Cas. (BNA) 234,671 F.3d 24
• Parties: Luis Aik AYALA–SEPÚLVEDA, Plaintiff, Appellant, v. MUNICIPALITY OF SAN GERMÁN; Isidro Negrón–Irizarry, Mayor of San Germán, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

114 Fair Empl.Prac.Cas. (BNA) 234

671 F.3d 24

95 Empl. Prac. Dec. P 44,394

Luis Aik AYALA–SEPÚLVEDA, Plaintiff, Appellant,

v.MUNICIPALITY OF SAN GERMÁN; Isidro Negrón–Irizarry, Mayor of San Germán, Defendants, Appellees.

No. 10–2123.

United States Court of Appeals, First Circuit.

Heard Nov. 7, 2011.Decided Jan. 18, 2012.

Bámily López–Ortiz, with whom Estudio López Toro was on brief, for appellant.

Jorge Martínez–Luciano, with whom Law Offices of Pedro Ortiz Álvarez was on brief, for appellee Municipality of San Germán.

Susana I. Peñagarícano–Brown, Assistant Solicitor General, with whom Irene S. Soroeta–Kodesh, Solicitor General, Leticia Casalduc–Rabell, Acting Deputy Solicitor General, and Zaira Z. Girón–Anadón, Acting Deputy Solicitor General, were on brief, for appellee Isidro Negrón–Irizarry.

Before LYNCH, Chief Judge, TORRUELLA and THOMPSON, Circuit Judges.

TORRUELLA, Circuit Judge.

Plaintiff–Appellant Luis Aik Ayala–Sepúlveda (“Ayala”) appeals the district court's award of summary judgment to his employer, the Municipality of San Germán, Puerto Rico (“San Germán” or “the City”), and to the mayor of San Germán, Isidro Negrón–Irizarry (“Negrón”), on his claim under 42 U.S.C. § 1983 for sex discrimination and retaliation in violation of the Equal Protection Clause of the Fourteenth Amendment. We conclude that the district court's award of summary judgment was proper. We therefore affirm the decision of the district court.

I. Background

A. Ayala's Employment and Alleged Harassment

Ayala, a homosexual man, has held various positions with the City. At the start of the time period relevant to this case, Ayala was an employee of the Municipal Office of Emergency Management (“OMME”) ¹. Ayala alleges that at various times during 2006 and 2007, while he was studying for his certification as a rescuer, his co-workers at OMME ridiculed him for being a homosexual; specifically, Ayala alleges that his co-workers told him that he could not perform physically demanding tasks because of his sexual orientation. Ayala did not identify those co-workers who allegedly teased him as defendants in his complaint.

On September 10, 2007, Ayala commenced a four-month extended vacation from OMME. Ayala claims that during this vacation, he began a romantic relationship with a male co-worker at OMME, José J. Rodríguez–Vega (“Rodríguez”). This relationship allegedly ended when Rodríguez became involved with a female co-worker at OMME. Upon returning to work at OMME in January of 2008, Ayala told his supervisor, Nelson Cruz–Malavé (“Cruz”), that he was concerned that Rodríguez might physically attack him. Ayala requested that Cruz assign work in such a way that Ayala and Rodríguez would not have to work together.

Ayala alleges that when he returned to OMME, his work conditions changed substantially. He claims that he was assigned to “graveyard” shifts not on his regular schedule, that he went for days without being assigned work, and that he was moved from his regular office into a storage closet. Ayala complained about these changes to Negrón, who ordered Cruz to return Ayala to his regular working hours. In the meantime, the situation with Rodríguez escalated, culminating in an incident on February 15, 2008. According to Ayala, Rodríguez threatened him with physical harm, and Cruz had to call the Puerto Rico Police to the scene. Ayala also alleges that around this time, another OMME employee, Pablo Miranda–Santana (“Miranda”), falsely accused Ayala of making unwanted advances and threatened to file a sexual harassment claim against him.

On February 25, 2008, Ayala met with the City's Director of Human Resources, Juan Crespo (“Crespo”), and with Negrón's Special Aide, José Iván Torres (“Torres”), to discuss the situation at OMME. At this meeting, Crespo and Torres recommended that Ayala transfer to an administrative position with the Municipal Cemetery, since the City needed to replace an absent worker there. Ayala refused the transfer. The next day, Ayala met directly with Negrón, who again suggested that Ayala transfer to the Cemetery. The following day, Ayala met with Negrón again; however, Negrón also invited Rodríguez and Miranda to the meeting, allegedly without warning Ayala. Ayala claims that he was so distressed by this that he had to seek medical treatment for anxiety. Some time later, Ayala's mother and sister met with Negrón to complain about Negrón's treatment of Ayala. Ayala alleges that at this meeting, Negrón attempted to “out” Ayala by telling his mother that his “sexual definition” was the source of his problems; however, Ayala's family already knew about his sexual orientation.

It is not clear whether Ayala spent any time working at the Cemetery. Nevertheless, on May 29, 2008, Ayala filed a complaint with the Comisión Apelativa del Sistema de Administración de Recursos Humanos del Servicio Público (“CASARH”), the Puerto Rico administrative agency in charge of reviewing personnel actions. The next day, Negrón sent a letter to Ayala informing him that he was being transferred effective immediately to the City's Finance Department. The letter stated that the transfer was part of a reorganization program that had been announced one year earlier under which employees could be transferred between various departments based on personnel needs. The transfer to the Finance Department did not affect Ayala's salary or rank, although Ayala claims that his duties changed substantially.

One of Ayala's duties in the Finance Department was to process the payment of invoices. Ayala claims that one of the invoices he was required to process was for payment to the private attorney whom the City hired to represent it in Ayala's CASARH proceeding. Ayala claims that having to process this invoice made him so nervous and depressed that he required hospitalization.

B. Procedural History

On May 26, 2009, Ayala filed his complaint in this case against Negrón and the City in the U.S. District Court for the District of Puerto Rico. Ayala claimed that the harassment by his co-workers at OMME constituted sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Ayala contended that Negrón and the City were liable for this discrimination because they did not prevent the harassment. Ayala also claimed that Negrón and the City were liable for retaliation under Title VII because, following the filing of his CASARH complaint, the City transferred him to the Finance Department. Ayala additionally brought a claim under 42 U.S.C. § 1983, claiming that Negrón and the City violated his due process and equal protection rights under the Fourteenth Amendment by failing to stop the harassment at OMME and by transferring him to the Finance Department.²

On August 11, 2009, the defendants moved for judgment on the pleadings under Fed.R.Civ.P. 12(c) on Ayala's Title VII and due process claims. On September 30, 2009, the district court granted the motion. See Ayala–Sepúlveda v. Municipality of San Germán, et al., 661 F.Supp.2d 130 (D.P.R.2009) (“ Ayala I ”). The court dismissed Ayala's Title VII claims on the ground that “Title VII does not proscribe harassment simply because of sexual orientation.” Id. at 136 (quoting Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir.1999)) (internal quotation marks omitted). The court also found that Ayala had failed to state a claim for gender stereotyping. Id. at 136–37. Additionally, the court dismissed Ayala's procedural due process claim under 42 U.S.C. § 1983, noting that under Puerto Rico law, public employees “have a property interest in their continued employment, not in the functions they perform.” Id. at 139 (quoting Ruiz–Casillas v. Camacho–Morales, 415 F.3d 127, 134 (1st Cir.2005)) (internal quotation marks omitted). Since Ayala only alleged that he was transferred from one equivalent job to another, the court ruled that he had not suffered a deprivation of a property interest that could sustain a due process claim. Id.

On April 30, 2010, the defendants moved for summary judgment on Ayala's one remaining claim, his equal protection claim under 42 U.S.C. § 1983. The district court granted the defendants' motion for summary judgment and dismissed the equal protection claim on August 2, 2010. See Ayala–Sepúlveda v. Municipality of San Germán, et al., 727 F.Supp.2d 67 (D.P.R.2010) (“ Ayala II ”). The court held that because of the one-year statute of limitations applicable to § 1983 claims in Puerto Rico, ³ only the transfer to the Finance Department and subsequent incidents were actionable. Id. at 72–73. In so holding, the court rejected Ayala's argument that the otherwise time-barred allegations were actionable under the “continuing violation” doctrine; this doctrine “allows a plaintiff to incorporate allegations that would ordinarily be time-barred if they are part of the same unlawful employment practice and at least one act falls within the time period.” Id. at 73 (quoting Quiles–Marcucci v. Cooperativa de Ahorro y Crédito de Juana Díaz, Inc., No. 08–1913, 2009 WL 1941219, *3 (D.P.R. Jun. 30, 2009)) (internal quotation marks omitted). The court then held that because Ayala's transfer to the Finance Department did not materially change his working conditions, Ayala had suffered no adverse employment action and thus could not sustain a claim for retaliation. Id. at 74. The court then addressed Ayala's claim that he had been singled out for discriminatory treatment based on his sexual orientation. Id. at 75. The court rejected this claim for two reasons.

First, the court held that there was no basis for holding Negrón or the City liable for any of the discriminatory acts alleged in the complaint. In Puerto Rico, because mayors “are the government officials ultimately responsible for employment decisions of the municipality,” a municipality can be held liable for employment decisions by its mayor. Rodríguez–García v....