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Wanda Cordero-Su_rez v. Orlando Rodr_guez; Fabian Serrano; Jos_ J. Fas-Qui_ones

August 3, 2012



The opinion of the court was delivered by: Thompson, Circuit Judge.

Before Lynch, Chief Judge, Selya and Thompson, Circuit Judges.

Wanda Cordero-Su_rez appeals a district judge's grant of summary judgment in favor of three defendants, each of whom she claims had some hand in discriminating against her at work because of her political affiliation. Although some of Cordero's allegations are unsettling, we nevertheless hold that summary judgment was appropriate because Cordero's suit was untimely. We therefore affirm.

Because this is an appeal from a summary-judgment grant, we sketch the facts as they appear on the record, viewed in the light most favorable to Cordero. See Galera v. Johanns, 612 F.3d 8, 10 n.2 (1st Cir. 2010). In 1996, Wanda Cordero began working as an agent in the Internal Revenue Division of the Puerto Rico Treasury Department. For some years her supervisor was Orlando Rodr_guez, whose brother was the mayor of Mayag_ez, Puerto Rico, and head of the Popular Democratic Party's ("PDP") city office. Politically, Cordero affiliates herself with the New Progressive Party ("NPP"), while Rodr_guez affiliates himself with the PDP. Cordero says that on many occasions Rodr_guez made disparaging comments about the NPP within her earshot.*fn1 She also claims that Rodr_guez took many subtle steps to inconvenience her, such as repeatedly changing her schedule and falsely claiming that she left early so he could deduct ten minutes of pay from her check.

But more important are some specific instances of misconduct Cordero describes. For example, in February 2006 Rodr_guez "physically and verbally assaulted" her in an incident neither party details but that apparently resulted in Rodr_guez's filing a complaint "to the Municipal Police where his brother, who is the mayor, is the chief." Then on February 23, 2007, Rodr_guez approached Cordero's desk with his work-issued gun "in front of him." He said "I'm going to screw you up," and Cordero, crying, fled to a restroom. She reported the incident to "Internal Affairs, to Mr. Fabi_n," but nothing ever came of her report. Sometime later in 2007, Rodr_guez came into Cordero's office and said that "he could give a fuck about the NPP winning" an upcoming election because his brother would still be the mayor and he could continue doing "whatever the fuck he wanted."

A serious scheduling incident also occurred in late 2007. On December 7, Rodr_guez told Cordero that she had to cover a co-worker's shifts from December 11-31. Then on December 19, Rodr_guez issued a memo instructing Cordero to work on Sunday, December 23 in addition to covering her co-worker's shift. Within the next couple days, Cordero told Rodr_guez that she was sick and could not work on the 23rd or 24th. Then on December 28, Rodr_guez issued another memo instructing Cordero to work on Sunday, December 30 too. Cordero claims that she never received the memo (though there is some evidence to the contrary) and thus did not show up for work that day.

At some point during all of these 2007 incidents, Cordero requested that the Department transfer her to a different office. In February 2008, Deputy Secretary of Human Resources Jos_ Fas Qui_ones*fn2 acquiesced and transferred Cordero from the Bureau of Alcoholic Beverages and Licenses to the Bureau of Taxpayer Services, where she remained part of the Treasury Department but Rodr_guez was no longer her supervisor. But even the transfer could not keep Rodr_guez away from Cordero: he continued to visit her new office and harass her.

In May 2008 Cordero met with Fas and with one Fabi_n Serrano -- apparently a Treasury Department higher-up -- separately to complain about Rodr_guez's continued harassment, but both said they could not help; the record is silent as to their reasons. Fas then sent Cordero a letter at her new office on July 3, 2008, stating that she would be suspended for thirty days because she had missed the shifts on December 23, 24, and 30, 2007 -- the ones that Rodr_guez had assigned her, allegedly at the eleventh hour and without adequate notice. After internally appealing the decision, Cordero received another letter from Fas on November 5, 2008 (one day after the NPP won a big election) stating that her suspension would proceed.

Finally, after Cordero returned from her suspension, Rodr_guez approached her at her new office and again informed her that he did not care about the NPP's having won the recent general election because his brother still retained power in Mayag_ez. He also added (according to Cordero) that he "would not rest until [Cordero] was permanently dismissed from the Treasury Department."

On June 26, 2009, Cordero filed a federal-court complaint asserting several federal- and local-law claims against Rodr_guez, Serrano, and Fas in their personal and official capacities, and against former Treasury Secretary Angel Ortiz Garcia and current Treasury Secretary Juan Carlos Puig as well. A partially-successful motion to dismiss whittled the defendants down to Rodr_guez, Serrano, and Fas in their personal capacities only, and the complaint down to political-harassment claims seeking injunctive and monetary relief under 42 U.S.C. _ 1983.

After discovery, the remaining defendants filed a motion for summary judgment. They said the incidents Cordero complained of had all occurred more than a year before she filed her complaint, and they therefore argued that the action was barred by the applicable one-year statute of limitations. See Santana-Castro v. Toledo-D_vila, 579 F.3d 109, 114 (1st Cir. 2009). They also argued that, if these incidents were excluded on timeliness grounds, the only possible adverse employment action supported by the record was Cordero's suspension for skipping work, which would have been imposed regardless of her political affiliation. Cordero responded with an objection and memorandum opposing summary judgment on the ground that incidents had still been ongoing in the year before her complaint's filing; these ongoing incidents, she argued, rendered the older incidents actionable under the continuing violation doctrine. And along with her objection, Cordero filed a sworn statement bolstering her evidence of the defendants' misconduct. The district judge refused to consider the sworn statement -- he called it self-serving and "incongruent with" her deposition testimony.*fn3 He nevertheless found Cordero's claim timely on continuing-violation grounds, but in the end he granted summary judgment on the merits anyway and dismissed the case, primarily on the ground that the workplace incidents Cordero described were not sufficiently severe and pervasive.

Cordero appeals the district judge's exclusion of her sworn statement and his grant of summary judgment. Because we would affirm summary judgment even with the sworn statement as part of the record, we bypass that issue and proceed to summary judgment.

This case presents questions involving both the timeliness and the merits of Cordero's political-discrimination claim. Normally we would begin with timeliness, because if Cordero's claim is barred by the applicable statute of limitations then we have no occasion to reach the merits. But in the case of an alleged continuing violation constituting a politically-motivated hostile work environment, the question of timeliness is closely intertwined with the substance of the claim. See O'Rourke v. City of Providence, 235 F.3d 713, 732 (1st Cir. 2001). We therefore address the two issues together. And because they arise in the context of summary judgment, both the statute-of-limitations and hostile-work-environment issues receive de novo review.*fn4 See Rosario v. Dept. of Army, 607 F.3d 241, 246 (1st Cir. 2010) (hostile work environment); Montalvo v. Gonzalez-Amparo, 587 F.3d 43, 46 (1st Cir. 2009) (statute of limitations).

We begin our analysis with the political-discrimination framework, which finds its roots in the First Amendment's free-speech protections. To establish a prima facie case of political discrimination, a plaintiff must be able to show: "(1) the plaintiff and the defendant belong to opposing political affiliations; (2) the defendant has knowledge of the plaintiff's . . . affiliation; (3) . . . a challenged employment action [occurred]; and (4) . . . political affiliation was a substantial or motivating factor" behind it. Peguero-Moronta v. Santiago, 464 F.3d 29, 48 (1st Cir. 2006) (internal quotation marks omitted). If a plaintiff makes this showing, the burden shifts to the defendant to point out ...

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