Velazquez v. Chardon

• Decision Date: 02 April 1980
• Docket Number: Civ. No. 79-71.
• Citation: 500 F. Supp. 10
• Parties: Angel Luis Allende VELAZQUEZ, Plaintiff, v. Carlos CHARDON, 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

500 F. Supp. 10

Angel Luis Allende VELAZQUEZ, Plaintiff, v.Carlos CHARDON, individually and as Secretary of Public Education of the Commonwealth of Puerto Rico and Oscar Ramos, individually and as AssistantSecretary, in charge of Personnel of Public Education of the Commonwealth of Puerto Rico, Defendants.

Civ. No. 79-71.

United States District Court, D. Puerto Rico.

April 2, 1980.

Harry Nadal Arcelay, Cancio, Nadal & Rivera, San Juan, P. R., for plaintiff.

Dept. of Justice, Com. of P. R., Old San Juan, P. R., for defendants.

DECISION AND ORDER

TORRUELLA, District Judge.

The present civil rights action is now before us on Defendant's "Motion to Dismiss and/Or For Judgment on the Pleadings" and Plaintiff's "Motion to Strike Affirmative Defenses."Each Motion has been duly opposed and extensively argued.

The basic facts, and chronological history of this case are simple and generally not disputed.Defendants in this suit are the Secretary and the Personnel Director of the Department of Education of the Commonwealth of Puerto Rico.Plaintiff is an employee of the Department.During the latter part of 1976Plaintiff was promoted on a non-permanent basis to the position of Elementary School Director III.He held, and performed duties at this position during the 1976-1977 school year.On June 9.1977¹Plaintiff was notified that his non-permanent appointment would expire at the end of that school year and that he was being reassigned to his previous permanent position.²This notice stated that the demotion would be effective August 8, 1977, see note 2.Shortly after receipt of this notice, on June 5, 1977, Plaintiff replied his disagreement and noted he would comply, but stated he would refer the matter to the Teachers Association for the "necessary action."³At the start of the 1977-1978 school year Plaintiff returned to his demoted tenured position where, according to the complaint, he labors to this date.Plaintiff claims the demotion was motivated entirely by political considerations and is therefore violative of several constitutional provisions.He invokes a cause of action under federal law, 42 U.S.C. § 1983, and by virtue of this Court's pendent jurisdiction under local law, 18 L.P.R.A. §§ 211, 214, 249e.

Defendants' Motion to Dismiss is premised on the argument that Plaintiff's cause of action accrued on June 9, 1977, date of the notice of reassignment, and that a complaint filed on January 10, 1979⁴ is therefore time barred.On the other hand Plaintiff's opposition retorts that the correct accrual date is August 8, 1977, the date the demotion became effective.⁵Because both parties concede, as they must,⁶ that this action is governed by the one year time limitation set out in Article 1868(2) of the Civil Code of Puerto Rico, 31 L.P.R.A. § 5298(2), the issue, simply stated, is when the one year time period commenced running.If we accept either June 9, 1977, or June 15, 1977,⁷ i. e., the date of the notice of reassignment or the date of Plaintiff's protest note, this action is without a doubt time barred.Conversely, if we accept August 8, 1977, the date the reassignment became effective, or Plaintiff's alternate argument that the action has yet to accrue, the action must be considered timely.

Although the limitations period is borrowed from local law, see fn. 6 supra, the question of when a federal action accrues is one to be determined by federal law.Bireline v. Seagondollar,567 F.2d 260, 263(C.A.1, 1977);Briley v. California,564 F.2d 849(C.A.9, 1977);Cox v. Stanton,529 F.2d 47(C.A.4, 1975), 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 of the injury which is the basis of the action."⁸Cox v. Stanton,supra, p. 50; cited at Michell v. Hendricks,431 F.Supp. 1295, 1298(E.D.Pa.1977);cf. alsoUrie v. Thompson,337 U.S. 163, 169-70, 69 S.Ct. 1018, 1024, 93 L.Ed. 1282(1949).In essence, Defendants' theory is that Plaintiff knew of the injury from receipt of the notice of reassignment on June 15, 1977 while Plaintiff's position is that there was no "actual injury," and therefore no basis for an action until the reassignment became effective on August 8, 1977.

Our reading of the material before us reveals that: first, no claim is made by Plaintiff that he did not know, or did not have reason to know of the alleged political motivations behind the June 9, 1977 notice of reassignment.⁹Second, there is no allegation that Defendants fraudulently concealed from Plaintiff their injury causing acts.Cf.Hernández Jiménez v. Calero Toledo,576 F.2d 402, 404(C.A.1, 1978);see also: Holmberg v. Armbrecht,327 U.S. 392, 396-97, 66 S.Ct. 582, 584-85, 90 L.Ed. 743(1946).Third, no conspiracy of any kind is alleged.SeeGual Morales v. Hernández Vega,579 F.2d 677(C.A.1, 1979);Hernández Jiménez v. Calero Toledo,supra;Kadar v. Milbury,549 F.2d 230(C.A.1, 1977).

Plaintiff's position is instead premised on the argument that after receipt of the official notice of reassignment he could not bring suit because there was still lacking a necessary element for a valid cause of action, viz., the actual harm.This is not correct.Depending on the circumstances, even the "threat of dismissal" for political motivations is enough to trigger a civil rights cause of action and entitlement to immediate specific relief.Elrod v. Burns,427 U.S. 347, 359, 96 S.Ct. 2673, 2682, 49 L.Ed.2d 547(1976);see also: Abood v. Detroit Board of Education,431 U.S. 209, 235-36, 77 S.Ct. 1782, 1799-1800, 52 L.Ed.2d 261(1977);cf.Board of Regents v. Roth,408 U.S. 564, 568, 92 S.Ct. 2701, 2704, 33 L.Ed.2d 548(1972).We realize that the relief that may have been requested, or that may have been available, at any point prior to August 8, 1977 would certainly vary from what would be the case after this date.But surely if Plaintiff's claim had any merit, temporary injunctive relief would have been available, Elrod v. Burns,supra, 373-74, 96 S.Ct. 2689-90, and certainly this would have mitigated any damages that would have been realized.In this sense much of what the complaint seeks in the way of relief, viz., reinstatement, back pay and damage amounts, would have been lessened if not mooted.

Further, it is not entirely accurate to characterize an official notice of reassignment as a "threat of future harm, not yet realized",¹⁰Plf's Memorandum of Law, January 24, 1980, p. 9, nor is it fair to say that this situation only involves "... fears from another's possible conduct ..."Plf's Memorandum of Law, January 24, 1980, p. 6, or only "knowledge that their civil rights will be attacked in the future", Plf's Memorandum, October 25, 1979, p. 13.An official notice that one has been demoted coupled with knowledge of the reasons for the demotion is harm realized.The official notice of reassignment cannot, under any guise, be viewed as an indication that Plaintiff's right will be attacked in the future.If Plaintiff's allegations of political motivation are true, as we construe them to this point,¹¹ on receipt of the notice his rights were violated then and there and a "complete and present cause of action existed."Rawlings v. Ray,312 U.S. 96, 98, 61 S.Ct. 473, 474, 85 L.Ed. 605(1941);Cf.Blake v. Town of Delaware,441 F.Supp. 1189, 1199-1200(D.Del.1977).

We admit Plaintiff's position finds superficial support in cases cited by him in his argument: Morelock v. N.C.R. Corp.,586 F.2d 1096(C.A.6, 1978);Jackson v. Alcan Sheet & Plate,462 F.Supp. 82(N.D.N.Y.1978);Taliaferro v. Willett,411 F.Supp. 595(F.D.Vir.1976).But see also: Bireline v. Seagondollar,567 F.2d 260(C.A.4, 1977).Greater scrutiny, however, would reveal crucial differences between this authority and the case at bar.For example, in Morelock v. N.C.R. Corp.supra, an action was brought under the Age Discrimination in Employment Act (ADEA),29 U.S.C. § 621, et seq. by employees who had lost their jobs by a reduction in work force through the operations of the employer's seniority system.The employer argued that the action was timebarred on the grounds that Plaintiffs' cause of action accrued on the date the seniority system was adopted by the company.Plaintiffs retorted that the effective accrual date was the date when they were in fact laid off.Because the employer's argument signified that an employee hired "more than three years¹² after the implementation of a seniority system could never challenge its validity,"the Court specifically held that: "An employee's cause of action for an alleged act of age discrimination caused by a discriminatory seniority system, does not accrue until his employment opportunities are adversely affected by the application to him of the provisions of that seniority system."Id. at p. 1103.The facts before us are noticeably different from those before the Court in Morelock.

Nor is Jackson v. Alcan Sheet & Plate,supra, much authority for Plaintiff's position.In this action, also involving an ADEA claim, the Plaintiff was first notified of his dismissal, and a few days later actually ceased working.After termination of his employment, however, he continued to press for reinstatement before the corporate headquarters of his employer and a state administrative agency.The Court's entire analysis centers on whether the action accrued on the date he ceased working or whether his subsequent attempts to gain reinstatement had tolled the limitations period.In choosing the dismissal date as the date of accrual the Court rejected the argument that continuing contacts could be considered as suspending the limitations period insofar as they are not necessarily determinative of when a Plaintiff was in fact adversely affected.Because the case at bar involves a reassignment which is to become effective from one school year to the next and because Plaintiff here was notified after the preceding...