Navarro v. Chardon

• Decision Date: 14 November 1980
• Docket Number: Civ. No. 79-324.
• Parties: Claudio Aviles NAVARRO, Plaintiff, v. Carlos CHARDÓN, Individually and as Secretary of Public Education of the Commonwealth of Puerto Rico and Oscar Ramos, Individually and as Assistant Secretary, in charge of Personnel of Public Education of the Commonwealth of Puerto Rico, Defendants.
• Court: U.S. District Court — District of Puerto Rico

506 F. Supp. 229

Claudio Aviles NAVARRO, Plaintiff, v. Carlos CHARDÓN, Individually and as Secretary of Public Education of the Commonwealth of Puerto Rico and Oscar Ramos, Individually and as Assistant Secretary, in charge of Personnel of Public Education of the Commonwealth of Puerto Rico, Defendants.

Civ. No. 79-324.

United States District Court, D. Puerto Rico.

November 14, 1980.

Harry Nadal Arcelay, San Juan, P. R., for plaintiff.

Dept. of Justice, Roberto Córdova, San Juan, P. R., for defendants.

OPINION AND ORDER

GIERBOLINI, District Judge.

The plaintiff instituted this civil rights action under 42 U.S.C. § 1983, 28 U.S.C. §§ 2201, 2202, and by virtue of this Court's pendant jurisdiction under local law, 18 LPRA §§ 211, 214, 249e, alleging a work demotion based on political considerations.

Defendants in this suit are the Secretary and the Personnel Director of the Department of Education of the Commonwealth of Puerto Rico. Plaintiff is a tenured employee of the Department as a Secondary Teacher. During the month of September, 1975 he was reassigned on a non-permanent basis to the position of Second Unit Director III and in October, 1976 he was reclassified to Director IV. He performed at those positions during the 1975-1976 and 1976-1977 school years. Between the 13th and 15th of June, 1977 plaintiff was notified that his non-permanent appointment would expire at the end of that school year¹ and that he would be reassigned to his permanent position as a secondary teacher in the Quebradillas District effective the beginning of the next school year.² On August 12, 1977, in a letter to the Honorable Carlos Chardón, plaintiff informed his disagreement and expressed that although he would comply, he would refer the matter to the Teachers' Association in order for its legal division to take the necessary action.³ At the beginning of the 1977-78 school year, Plaintiff returned to his tenured position which, according to the complaint, he still holds to this date. Plaintiff claims his return to his tenured position was a demotion politically motivated and, therefore, violative of his constitutional rights. We are not ready at this time to determine whether in fact and in law plaintiff's return from his non-permanent to his permanent position was a demotion or not, but for the purpose of this Opinion, we assume without deciding, that it was.

Defendants have filed a Motion to Dismiss premised on the argument that Plaintiff's cause of action accrued on or about June 15, 1977, date of the notice of reassignment, and that a complaint filed on January 26, 1979⁴ is hence time-barred by the statute of limitations. On the other hand, Plaintiff's position is that the correct accrual date is August 1, 1977, the date the alleged demotion became effective.⁵

The time of accrual of a tort action in the Commonwealth of Puerto Rico under 31 LPRA 5298(2) is similar to the federal law since Section 5298 reads that: "the actions to demand civil liability ... or negligence prescribe in one year `from the time the aggrieved person had knowledge thereof'". See Cátala v. Coca-Cola, 101 DPR 608 (1973); Comunidad Agrícola Bianchi v. Trib. Superior, 99 DPR 376 (1970).

As a general rule, where a federal statute creates a wholly federally protected right, but no provision is made for a specific statute of limitations, the state statute of limitations for analogous types of actions is to be applied. Board of Regents of the Univ. of New York v. Mary Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). Both parties concede that this action is governed by the one-year statute of limitations period provided by 31 LPRA Section 5298(2). See: Gual Morales v. Hernández Vega, 579 F.2d 677, 679 (1 Cir. 1978); Hernández Jiménez v. Calero Toledo, 576 F.2d 402, 404 (1 Cir. 1978); Ramírez de Arellano v. Alvarez de Choudens, 575 F.2d 315, 318-319 (1 Cir. 1978).

However, the problem to be solved is the time of accrual of the present cause of action and, accordingly, when the one-year time period commenced running. If we accept that any day between the 13th and 15th of June, 1977, i. e., the date of the notice of reassignment, this action is without doubt time barred. Conversely, if we accept August 1, 1977, or August 12, 1977, i. e. the date the reassignment became effective or the date of Plaintiff's protest letter⁶ or Plaintiff's alternate argument that the action has yet to accrue, the action must be considered timely.

While the time limitation itself is borrowed from state law, the federal law determines the time of accrual of a right of action. Bireline v. Seagondollar, 567 F.2d 260, 263 (4th Cir. 1977), Cert. den. 444 U.S. 842, 100 S.Ct. 83, 62 L.Ed.2d 54 (1979); Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975), Briley v. State of California, 564 F.2d 849, 854 (9th Cir. 1977), cf. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Federal Law holds that the time of accrual is when plaintiff knows or has reason to know the injury which is the basis of the action.⁷ Cox v. Stanton, supra, at 50 citing Young v. Clinchfield R. R. Co., 288 F.2d 499, 503 (4th Cir. 1961); Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir. 1980).

In the instant case, plaintiff adduces that the official notice of reassignment constituted a threat of future harm not yet realized and that their suit became actionable only upon their demotion, the time at which they suffered a real injury. We disagree.

This notice was not a mere threat of future harm not yet realized.⁸ This was clearly defendants' final position and not just a threat. A threat can be defined as an expression of intention to inflict harm or injury on another in the future, being such occurrence uncertain. cf. Heywood v. Tillson, 75 Me. 225. Defendants' letter was a notice of his final determination, with prospective effects indeed, but undoubtedly not just an uncertain promise to do something in the future. At this time defendant had all the critical facts and all the necessary knowledge of injury, breach, duty and damages. No more is needed to trigger the start of the one year limitation, within which the action must be filed or lost forever. Cf. Stoleson v. U. S. (7 Cir.) 629 F.2d 1265 (1980).

Accordingly, we find that upon the receipt of the official notice of reassignment, whereby through competent authority plaintiff knew the alleged harm, a complete cause of action existed and it should have been filed within the next year. Our conclusion is buttressed by Bireline v. Seagondollar, supra, where the Circuit Court upheld the district judge's decision which states as follows:

"On May 19, 1970, the Plaintiff was given a termination notice by Chancellor Caldwell and that notice was intended to be and was in fact a final notice of termination of employment. On or before May 19, 1970, I find as a fact that plaintiff's cause of action accrued and that she could have at any time thereafter sued ... with regard to the termination of her employment ..."

Even though plaintiff herein has tendered several cases in support of his argument, i. e., Morelock v. N. C. R. Corp., 586 F.2d 1096 (6th Cir. 1978); Jackson v. Alcan Sheet & Plate, 462 F.Supp. 82 (D.C.N.Y. 1979); Taliaferro v. Willett, 411 F.Supp. 595 (ED Va.1976) upon close examination of these authorities we find that they can be easily distinguished from the case at bar and thus, merit no discussion here, with the exception of the Taliaferro case.

The Taliaferro case, supra, presents a factual situation which is analogous to the case before us. There, Mrs. Taliaferro, a college professor, instituted a civil rights action on a claim of an allegedly unconstitutional notice of retirement from her position as a tenured teacher. She had been notified of her retirement by letter from the Dean early in June 1973 to become effective at the end of that school year, June 30, 1973. The controversy therein, as in the instant case, was when had the action accrued; when she was notified or when it became effective. The Court selected the latter, concluding:

"While an aggrieved party may contest termination procedures before the actual termination is effective, see Board of Regents of State Colleges v. Roth, 408 U.S. 564, 568, 92 S.Ct. 2701, 2704, 33 L.Ed.2d 548, 555 (1972), such a party also has an election to treat an employment contract as in force until actual termination of the employment relationship occurs in hopes of negotiating a reconciliation without judicial intervention. If such an election is made, and attempts at settlement fail, the cause of action accrues at the time the employment relationship ceases. In the instant case, the plaintiff elected to treat the employment relationship as continuing until actually terminated and pressed for reconsideration of the decision by College officials. Accordingly, her cause of action can be said to have accrued on the date of her release...." Id. p. 596-597.

The Court figured that her cause of action could not accrue until the school year had ended and the employment contract could not be considered terminated. However, the case at bar involves a reinstatement, not a dismissal. After plaintiff received official notice that his nonpermanent appointment would expire at the end of that school year and that he was being reassigned to his previous permanent position, plaintiff could have no reasonable expectations that he would occupy the Director's position at the beginning of the next school year. At that moment plaintiff's cause of action accrued and the one year period began running.

Moreover, we refuse to follow the Taliaferro rationale because of its inherent contradictions. While it admits that an aggrieved party may contest termination procedures before the actual termination is effective, it also states that the cause of action can accrue at the time the employment relationship ceases. Undoubtedly, if the cause of action is ripe before the actual termination of the...