Velazquez-Rivera v. Danzig

• Decision Date: 15 September 2000
• Docket Number: VELAZQUEZ-RIVER,P,No. 00-1309,00-1309
• Parties: (1st Cir. 2000) ZOILOlaintiff, Appellant, v. RICHARD J. DANZIG, SECRETARY OF THE NAVY, ISRAEL PAGAN, DIRECTOR OF HUMAN RESOURCES OFFICE, EFRAIN FELICIANO, PEDRO AYALA, AND BIENVENIDO BURGOS, Defendants, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 790

234 F.3d 790 (1st Cir. 2000)

ZOILO VELAZQUEZ-RIVERA, Plaintiff, Appellant, v. RICHARD J. DANZIG, SECRETARY OF THE NAVY, ISRAEL PAGAN, DIRECTOR OF HUMAN RESOURCES OFFICE, EFRAIN FELICIANO, PEDRO AYALA, AND BIENVENIDO BURGOS, Defendants, Appellees.

No. 00-1309

United States Court of Appeals For the First Circuit

Heard September 15, 2000

Decided December 19, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge] [Copyrighted Material Omitted]

Gino Negretti-Lavergne for appellant.

Lilliam Mendoza-Toro, Assistant U.S. Attorney, with whom Guillermo Gil, United States Attorney, and Miguel A. Fernandez, Assistant U.S. Attorney, were on brief for appellee.

Before Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Boudin, Circuit Judge.

COFFIN, Senior Circuit Judge.

This appeal caps an elongated, unhappy saga leading up to and including the termination of appellant's employment by the U.S. Navy in Vieques, Puerto Rico. Appellant, a civilian Navy firefighter, brought suit in federal court against the Secretary of the Navy, and his former superiors at Roosevelt Roads Naval Station in Ceiba, Puerto Rico, and on the nearby island of Vieques.¹ After a history of injuries sustained by appellant and various efforts to accommodate him in a more restricted capacity, the Navy finally terminated his employment.

Appellant alleged, as the district court interpreted the complaint, violations of the Rehabilitation Act, 29 U.S.C. §§ 702-794(a), the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a(c), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(c), and 42 U.S.C. § 1983 (due process rights). Also included were invocations of the federal Constitution and certain labor laws of Puerto Rico. The gravamen of the claims involved discriminatory action based on disability, age, and retaliation.

The district court granted summary judgment for defendants on all claims. We conclude that all but one of its rulings were solidly based in fact and in law; one claim based on appellant's final termination, alleging discrimination because of his disability, merits further exploration.

FACTUAL BACKGROUND

Despite an appendix of nearly a thousand pages, the essential facts may be briefly stated, leaving further details to the discussion of the several issues. Appellant, a 55-year-old man who worked for the Navy since 1967, was a firefighter at the Navy's air facility on Vieques since 1988. In 1994, he suffered an injury to his left knee and, after surgery, was assigned to temporary light duty as a Fire Communications Operator. In 1995, appellant sustained further injury to his knee. Upon evaluation, he was found to be unable to perform a firefighter's duties and was offered a job as a Tools and Parts Attendant at his previous pay level. While considering this offer, he had a third accident involving the same knee. Appellant subsequently refused the offer, saying that the Tools and Parts Attendant job called for physical activities, such as climbing, lifting, and kneeling, that exceeded conditions prescribed by his doctor.

Appellant was removed from his job on June 24, 1996, and appealed this action to the Merit Systems Protection Board (MSPB). Although unlawful discrimination was not explicitly raised, he did say that he was fired as a result of his injury. On January 30, 1997, the MSPB dismissed his appeal as untimely. Although advised of his rights, appellant did not appeal this action to the Court of Appeals for the Federal Circuit, which has exclusive jurisdiction to hear such appeals from the MSPB. See 5 U.S.C. § 7703(b)(1).

Shortly thereafter, on April 11, 1997, the Navy offered appellant a permanent job as a Fire Communications Operator on Vieques, which he accepted. According to the Department of Labor, which was paying him benefits under the Federal Employees' Compensation Act (FECA), appellant had no choice but to take the job or risk losing his right to further compensation. See 5 U.S.C. § 8106(c)(2) ("A partially disabled employee who . . . refuses or neglects to work after suitable work is offered to, procured by, or secured for him is not entitled to compensation.").

What happened next is not clear. We do know that a meeting, involving appellant, his counsel, and Navy personnel, occurred on May 5 at which the particulars of the new position were discussed. We also know that appellant reported for work a week later, on May 12, but was told to leave a few hours later. Following his termination, appellant brought the instant action in January 1999. Because the record is not clear on precisely what happened preceding his termination, we must remand for further factual development.

ANALYSIS

We divide our analysis into two sections. In the first, we discuss briefly a number of issues as to which we are in agreement with the district court's analysis and conclusions. In the second, we address in some detail the issue that cannot be resolved without further proceedings.

I. SECONDARY ISSUES

A. Rulings on Discovery and Conversion of Motion to Dismiss

Appellant assigns as error the court's conversion of a motion to dismiss, filed by defendants, into a motion for summary judgment. He buttresses his argument by asserting that he was denied discovery of documents vital to his case.

Defendants filed their motion to dismiss, memorandum of law, and attachments in a document occupying 181 pages. Plaintiff-appellant filed his opposition, memorandum of law, which included a section entitled "Standard Applicable to Motion for Summary Judgment," and some 76 documents in a 455-page submission. Noting that matters outside the pleadings were submitted by both sides, the district court properly converted defendants' motion to dismiss to a motion for summary judgment pursuant to Fed. R. Civ. P. 12(b). See, e.g., Garita Hotel Ltd. P'ship v. Ponce Fed. Bank, 958 F.2d 15, 18-19 (1st Cir. 1992).

Appellant's own submission to the court, in a Rule 60(b) motion, undermines his contention that he was prejudiced by the inability to continue discovery. He sought relief from judgment based on an item in an allegedly newly discovered Naval Inspection File, which concerned thirteen asserted occasions of harassment against him. A Navy inspector had found twelve of the harassment allegations to be unsubstantiated. Appellant claimed prejudice from being deprived of the thirteenth finding that, although plaintiff's doctor had indicated that plaintiff was not to work from September 9, 1995, to October 18, 1995, he was improperly ordered back to work on October 18. It should not be necessary to say that this claim is transparently thin.

B. The June 1996 Termination

The district court properly ruled that any claim of a civil service nature resulting from appellant's termination from the firefighter position had been forfeited by his failure to appeal the MSPB's decision to the Court of Appeals for the Federal Circuit. See 5 U.S.C. § 7703(b)(1). It was also correct in holding that, even if appellant's claim was not solely of a civil service nature, but included a discrimination claim, then administrative remedies had not been exhausted, since there had been no contact with an Equal Employment Opportunity Commission (EEOC) counselor within 45 days, as required by 29 C.F.R. § 1614.105(a)(1). See, e.g., Roman-Martinez v. Runyon, 100 F.3d 213, 216-18 (1st Cir. 1996) (holding that a federal employee's failure to contact an EEOC counselor within the limitations period causes him to lose his right to pursue a later de novo action in court).

Appellant attempts to revive his unexhausted discrimination claim by alleging a continuous pattern of discrimination prior to his termination, arguing that the limitation period is therefore extended. As the district court correctly noted, however, even where such continuing violations are of the type we have recognized as tolling the limitations period, that would excuse only an untimely filing, not the failure to exhaust an administrative requirement. In any event, the alleged pattern was not the type of serial or systemic violation that we have recognized as amounting to a continuing violation. See, e.g., Andreu v. Banco Bilbao Vizcaya, 233 F.3d 73, 75(lst Cir. 2000). The district court found that the alleged continuing pattern, which included false accusations and assigning extraneous duties, such as washing and waxing vehicles, was nothing more than discrete instances of harassment that did not relieve appellant of the duty to file within the prescribed period. We therefore affirm the court's rejection of the applicability of the continuing violation theory.

C. The May 1997 Termination

Appellant also pressed several claims attendant to his second termination on May 12, 1997, from the Fire Communications Operator position. We uphold the district court's dismissal of these claims, with the exception of the disability claim discussed in Part II infra.

1. Age Discrimination Claim. Appellant initiated an administrative ADEA claim on May 13, 1997, by filing with the Navy's EEOC counselor a "pre-complaint" letter that alleged discrimination only on account of his physical handicap. On July 24, he filed a formal complaint, checking both age and physical handicap on the preprinted government form. In the four page letter accompanying the form, however, there is no mention of any age-related conduct or statement. In a later report, the EEOC counselor confirmed that "[d]uring the informal counseling stage complainant did not define age as a basis for discrimination." By not bringing his age discrimination claim to the attention of the EEOC, he foreclosed the administrative investigation and ameliorative action contemplated by the exhaustion requirement. The district court's reasoning and citations of authority adequately support its ruling that any ADEA claim failed for lack of exhaustion of administrative...