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Acevedo-Perez v. United States

United States Court of Appeals, First Circuit

October 6, 2014

SANTIAGO ACEVEDO-PÉREZ; ELIZABETH PRÍNCIPE-TRINIDAD, Plaintiffs, Appellants, CONJUGAL PARTNERSHIP ACEVEDO-PRÍNCIPE (Legal Society of Earnings), Plaintiff,
v.
UNITED STATES; DEPARTMENT OF HOMELAND SECURITY; IMMIGRATION AND CUSTOMS ENFORCEMENT; JANET NAPOLITANO; LYDIA ST. JOHN-MELLADO; JOHN DOE; RICHARD ROE, and their respective insurance companies, Defendants, Appellees

Page 52

APPEAL FROM THE UNITED STATES DISTRICT COURT, FOR THE DISTRICT OF PUERTO RICO. Hon. Daniel R. Domínguez, U.S. District Judge.

Juan R. Rodríguez, with whom Rodríguez López Law Offices, P.S.C. was on brief, for appellants.

Ginette L. Milanés, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Torruella and Lipez, Circuit Judges, and Gelpí ,[*] District Judge.

OPINION

Page 53

LIPEZ, Circuit Judge.

Plaintiff-appellant Santiago Acevedo-Pérez (" Acevedo" ) was an employee with United States Immigration and Customs Enforcement (" ICE" ) in the Department of Homeland Security (" DHS" ). Following the denial of his administrative claim for employment discrimination on the basis of age and national origin, he filed a lawsuit claiming liability under the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, Section 1983, the Federal Torts Claims Act, and Puerto Rico law. The district court awarded summary judgment to the defendants on the grounds that the plaintiff did not present an FTCA claim in his administrative complaint and that the other claims were time-barred. We affirm.

I. Background

Acevedo was stationed in the San Juan office. In July of 2005, DHS headquarters in Washington, D.C., was short of personnel and " sought special agent volunteers [at least two volunteers from the San Juan office] for lateral transfers."

The Special Agent in Charge of the San Juan office asked for volunteers to transfer. At least one employee, Edward Owens, volunteered and his transfer was approved. In order to fill the other transfer slot, the Special Agent in Charge prepared a list of four agents based on seniority. On or about September 7, 2005, Acevedo received a letter from the Director of ICE informing him of his reassignment to DHS headquarters. Acevedo accepted the reassignment on September 22, 2005.

Due to family problems, Acevedo requested two extensions of time to relocate, which were granted by DHS. His third request for an extension of time was denied. On March 3, 2006, Acevedo decided to retire rather than transfer.

On June 1, 2006, Acevedo filed a complaint of employment discrimination with the Office of Equal Employment Opportunity and Diversity Division of DHS (" EEO" ) alleging that he was constructively discharged on the basis of his age or national origin. The EEO ultimately denied Acevedo's claim in 2009. It sent him a letter explaining the decision as well as a " Notice of Appeal Rights" (also called the " Right to Sue Letter" ), which he received on July 1, 2009.

Acevedo commenced this action on September 30, 2009. His complaint alleges that he was " forced to resign (constructive discharge)" and that he was " humiliated, retaliated, discriminated, harassed, [and] persecuted" by his supervisors and his peers. He asserts claims under the Age Discrimination in Employment Act (" ADEA" ), 29 U.S.C. § § 621-634, and Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e-2. Acevedo also asserts a claim under 42 U.S.C. § 1983 that his constitutional right to due process has been violated, as well as claims ...


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