USCA1 Opinion

February 23, 1993

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1070
JUAN A. DAMIANI
IVELISSE VAZQUEZ
AND THE CONJUGAL
COMPOSED BY

MONTALBAN,
DE DAMIANI,
PARTNERSHIP
BOTH,

Plaintiffs, Appellants,
v.
PUERTO RICO MARINE MANAGEMENT, INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
____________________
Before
Selya, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Boyle,* District Judge.
____________________
Guillermo Ramos Luina with whom Harry

Anduze Montano was on br

for appellants.
Gilberto Mayo Pagan with whom Gilberto
Mayo were on brief for appellee.
____

Mayo Aguayo

and Mayo

____________________
____________________
_____________________
*Of the District of Rhode Island, sitting by designation.

BOYLE, District Judge.

______________

Plaintiff-appellant

Juan

appeals an order granting summary

suit brought under

P.R. Laws

A.

Damiani

Montalban

judgment against him in a

Ann. tit. 29,

Jurisdiction exists pursuant to 28

U.S.C.

146

(1985).

1332(a)(1).

We

affirm.

I. Background
In

accord

with

Fed.R.Civ.P. 56,

the

facts are

considered in the light most favorable to the appellant.

March

On

24, 1989, after nearly ten years of service at Puerto

Rico Marine Management, Inc. (PRMMI), Damiani was dismissed.

At the time

of his

dismissal, Damiani was

Insurance in PRMMI's Department of

52 years old.

the Manager

Risk Management.

of

He was

The
represents a
at

PRMMI.

manner

in

which

Damiani

was

rather unceremonious conclusion to

dismissed
his career

On Friday, March 10, 1989, Fernando L. Guardiola

Lopez, the Manager of

PRMMI's Department of Loss Prevention

informed Damiani that Victor Carreras, the Vice-President of

Industrial Relations
the appellant that
24,

1989.

action.
get

back

Enrique

he would be

On Monday,

his supervisor,
Jeannot

at PRMMI, had asked

was unable

to Damiani.

Administration

By

would look into

for PRMMI's

the matter and

dated March

Vice-President

of PRMMI,

being terminated.

an explanation

letter,

March

the appellant asked

why he was

to provide

Jeannot stated he

Gonzalez,

"laid off" effective

March 13, 1989,

Juan Jeannot

Guardiola to tell

of

reiterated that

13, 1989,

Finance

and

Damiani's layoff

would be effective March 24, 1989 and advised him to contact

the Personnel Department to review his benefits.
concluded

with

the

offer

to provide

The letter

references

to

aid

Damiani

in finding a new position.

is unclear,

Although the exact date

Damiani acknowledges receipt of

this letter no

later than March 22, 1989.

After

March

13,

1989,

Damiani

Rafael Reyes, PRMMI's Personnel Director.

that

Mr. Reyes first learned

their

meeting.

explanation

At this

for his

met

Damiani

of his layoff

with

contends

the morning of

meeting, Damiani again demanded an

dismissal.

Reyes, however,

was also

unaware of the reasons for Damiani's dismissal.

From the start,
dismissal was

unjustified

PRMMI provide

an explanation

conversation
stated that

concerning

Damiani maintained that

and continually

his

for his

dismissal.

employment

the dismissal action was

requested

status,

his
that

In each
Damiani

"arbitrary and unfair

-3-

and

that

judicial
obtain

unless
action

redress

was

retained I

was necessary
for any

damages

to

would
protect

which

file

whatever

my rights

were going

to

and
be

substantial

because

of

my

time

with

the

company,

my

excellent job execution and my age."

Damiani's last
On

July 24,

President

day at

1989, he sent

of PRMMI.

PRMMI was March

a letter

In the

to J.

24, 1989.

P. Toomey, the

letter, Damiani

outlined his

contributions to the company and recommended PRMMI create an

independent

appeals

board

promotions, demotions,
that an

and

impartial review of

to

review

actions

dismissals.

such

Damiani

his situation would

as

asserted
result in

his reinstatement.
On March
district
1332.

23, 1990, Damiani sued

court invoking diversity jurisdiction, 28 U.S.C.

The

complaint asserted three

causes of action,

first, pursuant to P.R. Laws Ann. tit. 29,

80), for
he was
the

PRMMI in federal

an additional month's salary

terminated from

second

for

pursuant to P.R. Laws

185a (1989)(Law

as indemnity because

his employment without

monetary

damages

the

for age

just cause,

discrimination

Ann. tit. 29,

146 (1985)(Law 100)1
____________________

1 Section 146 provides in part:

"Any employer who discharges, lays off or discriminates
against an employee . . . on the basis of age . . . :
-4-

146 or Section 146), and

mental

distress

based on

age.

because

suffered

his
5-7.)

"caused

by

and/or negligent

front pay

lost benefits,

in lieu

damages for

pay, double payment of

the

three

($2,003,800.00).
summary

alleged that he

willful,

illegal,

the defendant"

of reinstatement, back

pain

and suffering,

pay,

severance

all sums as double indemnity,

limitations

thousand

costs

interest and any other just

eight

claim

contending
was

barred

and that the amount

standing alone,

hundred

On August 31, 1991, PRMMI

judgment

discrimination

that
by

did

was insufficient

not address

damages for mental anguish

dollars

filed a motion
Damiani's

the

statute

age
of

of Damiani's Law 80 claim,

to supply the

subject matter jurisdiction under 28 U.S.C.

motion

portion of his

which plaintiff estimated to equal not less than two

million

for

In the

actions of

and attorneys fees, prejudgment

relief

discriminatory discharge

"Request for Remedy" he

injury

discriminatory
and sought

of

(Complaint at

complaint entitled
had

the third for money damages for

Damiani's

third

court with

1332.
claim for

PRMMI's
money

because of his termination based

____________________

(a) shall incur civil liability

(1) for a sum equal to twice the amount of damages sustained
by the employee or applicant for employment on account of
such action;" P.R. Laws Ann. tit. 29,
146 (1985).

-5-

on

age.

That

cause

of

action,

discrimination, would also be

to return this

based

time barred.

to dismiss Count III.

granted the motion

as to Counts I and

that

Damiani, in

judgment.
is

alleged

We see

age

no need

matter to the district court to do what must

be done, that is

appeal

on

taken from

the

his

The
II.

district court
Damiani appeals

brief, states

determination that

that no

his

Law 80

claim, alone, does not meet the jurisdictional amount.

II. Discussion
Summary

judgment is

appropriate when

the record

reflects "no genuine issue as to any material fact and . . .

the

moving party

law."
used

Fed.R.Civ.P. 56(c).

Corp.,
note

to judgment

as a

matter of

In certain cases, Rule 56 may be

to determine whether a statutory time bar applies to a

particular
F.2d

is entitled

set of facts.

517, 520 (1st Cir.

887 F.2d 7,
that

See, e.g., Jensen

v. Frank, 912

1990); Kali Seafood,

Inc. v. Howe

9 (1st Cir.

the review

of a

1989).

grant

At

the outset, we

of summary

judgment is

plenary.

Garside v.

Cir. 1990).

Osco Drug, Inc., 895 F.2d

In the

whether the record

present case, our

46, 49 (1st

inquiry focuses

reveals a genuine issue

of any material

fact relative to the timeliness of Damiani's suit.

Shubs,

905 F.2d

1 (1st

Cir. 1990)(per

on

Doyle v.

curiam).

Damiani

-6-

contends that the

time of accrual of his action

whether the action was

tolled under the law of

as well as
Puerto Rico

constitute genuine issues of material fact.

In

Olmo

v. Young

Official Translations
of

Ribicam of

of the Opinions of

P.R.,

Inc., 10

the Supreme Court

Puerto Rico 967 (1981), the Supreme Court of Puerto Rico

addressed
action
an

&

the

applicable

brought under

action

because of

under
his race.

specific limitation
the one

year statute

statute

146.
146

of

limitations

for an

In Olmo, the plaintiff brought

alleging

he

had

Since the statute did

period, the Olmo court
of limitations

been discharged
not provide a
determined that

applicable

to other

civil actions for damages based on racial discrimination was

appropriate for an action under
The Olmo court
146

description

Damiani's

action

is

Id. at 972-73.

described actions brought

as actions for "tortious

That

146.

discrimination."

instructive

accrued.

in

under

Id. at 972.

determining

Under Puerto

Rico

law,

when
all

actions for civil liability based on fault or negligence are

time

barred after

person

one year

"from

had knowledge thereof."

5298 (1991).

In

the time

the aggrieved

P.R. Laws Ann.

the instant case, the district

tit. 31,
court held

-7-

that Damiani's cause

of action accrued

on March 10,

the date he was informed of his termination.

The
when an

Supreme Court

of Puerto

1989,

We agree.

Rico has

action for wrongful discharge accrues.

addressed
In Delgado

Rodriguez v. Nazario de Ferrer, 121 D.P.R. ___, 88 J.T.S. 63

(No. CE-86-417, official

translation) (1988), the plaintiff

was informed on March

effective

19, 1981 that he would

April 15, 1981.

Before

he was

plaintiff initiated an administrative

be terminated
terminated, the

claim with the

of Appeals of the Personnel Administration System.

7, 1984 the Board
March 1,
damages

Board

On March

of Appeals reinstated the plaintiff.

1985, the plaintiff

for wrongful

filed a civil

termination.

The

On

action seeking

Supreme Court

of

Puerto Rico determined that the statute of limitations began

to

run when the aggrieved party became aware of the damage.

The Delgado

Rodriguez court determined that the plaintiff's

cause of action was

he

time barred because it accrued

the day

received notice of his termination, March 19, 1981.

Id.

at 11 (No. CE-86-417, slip op. at 11).

A
termination

similar analysis has

been applied

in wrongful

cases

42

1983.

Rivera-Muriente

brought under
v.

U.S.C.

Agosto-Alicea, 959 F.2d

1992), the plaintiff was informed

-8-

In

349 (1st Cir.

that his name was removed

from an employment roster.

filed

an action

in federal

actions had deprived him of

law.

the plaintiff

court alleging

his employer's

property without due process of

The Rivera-Muriente court stated that:

[i]n
involving wrongful

Id. at 353.

employment
discrimination
cases
discharges,
the
statute
of
limitations begins to run when the
plaintiff learns of the decision to
terminate his employment (even if
the
notice
he
receives
is
informal).

In determining when Damiani's action

our inquiry is
terminated?
not

Two years later,

when did

Damiani become aware

Damiani argues that Guardiola's

commence the

running

of the

accrued,

he would

be

statement did

statute of

limitations.

Damiani contends that a fellow manager could not provide the

requisite

notice

of his

Guardiola's

statement

limitations

because it

rumor.
the

dismissal.

fails

amounts

This contention

to

the

trigger
to

the

mere

motion

In an affidavit
for summary

view,

statute

speculation

fails, however, when

notice are analyzed.

opposition

to

In Damiani's

of
and

the facts of

attached to his

judgment,

Damiani

admits that Guardiola stated he was acting under orders from

Victor Carreras,
PRMMI.

Thus,

unfortunate

Vice-President of Industrial
Guardiola

was dispatched

news by a superior.
-9-

to

This action

Relations at
deliver

the

was not mere

gossip or speculation, but a sanctioned delegation of duties

by PRMMI's administration.

Although Damiani felt the use of

Guardiola as a messenger was not appropriate, it effectively

conveyed notice to Damiani that he would be terminated.
Damiani further argues that
did not

effectively

provide notice

Guardiola's statement
of

dismissal

because

Guardiola was unaware of the reasons for PRMMI's action.

As

we

of

have

noted,

in cases

such

as

this,

the statute

limitations begins to run when the aggrieved party learns of

the decision

to terminate

Alicea, 959 F.2d at

to

provide

an

353.

aggrieved

him. Rivera-Muriente

v. Agosto-

An employer's failure

or refusal

employee with

the

reasons

for

termination has no effect on the commencement of the statute

of
has

limitations.

The date an employee becomes aware that he

been damaged by a

action

decision to terminate,

begins and the longevity

of the statute of

the

of that claim for purposes

limitations is set.

Damiani became aware that

his cause of

On March 10,

1989,

he would be terminated, therefore

statute of limitations for any claim of damages under

146 then began to run.

Damiani next contends

that his conversations with

various

PRMMI

personnel

sufficient to toll

constitute

extrajudicial

the statute of limitations.

claims

Tolling of

-10-

the statute of limitations is provided for in P.R. Laws Ann.

tit. 31,

5303

(1991)

5303

or Section

5303).

That

section states:
[p]rescription of actions is interrupted by their
institution before the courts, by extrajudicial
claim of
the creditor, and by
any act of
acknowledgement of the debt by the debtor.
P.R. Laws

Ann. tit. 31,

5303.

that Damiani

relied principally

26, 1989, as

evidence of an

Montalban v.

Puerto Rico

The district

court noted

on his letter,

dated July

extrajudicial claim.

Marine Management, Inc.,

1426, slip op. at 6 (D.P.R. Sept. 18, 1991).

however, he

Damiani

relies exclusively

on

his oral

No. 90-

In this forum,
conversations

with PRMMI personnel.

Under
interrupted

by

5303, the
the

statute of limitations

"unequivocal

statement

of

one

may be
who,

threatened
not to

with the loss

lose it."

of his right,

Feliciano

expresses his will

v. A.J.A., 93

P.R.R. 638, 643

(1966).

The Supreme Court of Puerto Rico has noted that the

tolling

exception to

the

statute of

interpreted restrictively.

limitations must

Diaz de Diana

be

v. A.J.A.S. Ins.

Co., 10 Official Translations of the Opinions of the Supreme

Court of Puerto Rico 604, 607-608, n. 1 (1980).
toll the statute

of limitations,

must be precise and specific.

In order to

the extrajudicial

claims

Jimenez v. District Court, 65

-11-

P.R.R.
and

35, 42 (1945).

The purpose of

requiring a precise

specific claim is to alert the defendant of claims that

would otherwise lapse.

In Riofrio
1149

Co., 959 F.2d

(1st Cir. 1992), the plaintiff was hired under an oral

contract.
with

Anda v. Ralston Purina,

After his

termination, the plaintiff negotiated

his employer

concerning

relocation

compensation which

he claimed

was required under

agreement.

His attorney wrote

and

to the employer

termination
his oral
and stated

his

intention to

"file

against the employer.

an

unlawful discharge

The plaintiff then filed an action in

the United States District Court

Rico

seeking money

employment

with

mental

pain

committed

and

remuneration

suffering

resulting

contract of

and

relocation

termination, and

from

willful

by the defendants at the time of termination.

of

and

letter was inadequate to toll

limitations because

defendant "fair
contract

to

of his

discharge and unlawful

held that the attorney's

statute

for the District of Puerto

damages for breach

respect

expenses, wrongful

complaint"

notice that
wrongful

the

letter

a lawsuit based

discharge

were

in

did not
on breach
the

acts
We
the
give
of

offing."

Riofrio Anda v. Ralston Purina, Co., 959 F.2d at 1154.

-12-

In addition, tolling
must
suit.

claim the same relief

Hernandez Del Valle

requires that the

that is later

plaintiff

requested in the

v. Santa Aponte,

575 F.2d 321,

323-24 (1st Cir. 1978).

In Del

Valle, the plaintiff sent a

letter contending that his dismissal was illegal and seeking

reinstatement.
toll

the statute

unlawful
The

The court held

that the

of limitations

discharge which sought

court

emphasized

plaintiff's
reasoned

sole

that

for a

1983

to

action for

reinstatement and damages.

the

interest

letter failed

letter

indicated

was reemployment.

The

that
court

that the letter failed to give the defendant "fair

notice that he would be called upon to defend a damages suit

with

different

issues

injunctive relief."
v.

Ralston Purina

not

applicable

Id. at 324.
Co.,

that

to

effectively

limitations

an extrajudicial

applied Del
toll

the

claim must

Purina

claim does
claims

not

effective only

1154.

toll the

statute

of limitations

same facts.

same

An extrajudicial
for

all

Rather, tolling is

to identical causes

-13-

of

Ralston Anda v.

F.2d at

with regard

for

Valle, by

statute

Co., 959

arising out of the

suit

request the

relief ultimately sought in a federal suit.

Ralston

Similarly, in Riofrio Anda

this court

emphasizing

to

of action.

Rodriguez

Narvaez

v. Nazario,

895 F.2d

38, 43

(1st Cir.

1990).
In

the present

case,

retention as

an employee

while alluding to

action.

Damiani's statements

His complaint, however,

including

damages

in

lieu

seek

possible legal

seeks a variety of damages

of

reinstatement.

Damiani's

statement can not be deemed a precise and specific claim for

relief

ultimately

sought

comment

suggesting that

because

of his age did

that

it would

be

in

his lawsuit.

his damages

would

not provide PRMMI

called upon

to

His

cryptic

be substantial
with fair notice

defend a

suit

seeking

damages resulting from age discrimination.

Damiani's final
more recent
modified

argument is that a

vintage from the

tolling

Supreme Court of

requirements.

proposition,

Damiani

Commonwealth

of Puerto Rico,

(1992)(Translation

points

Provided).

decision of a

As
to

Puerto Rico

support

Zambrana

130 D.P.R.

for

Maldonado

__, 92

In Zambrana

this
v.

J.T.S. 12

Maldonado, the

plaintiff sent a letter to the Secretary of Justice alleging

he

had a

plaintiff's

claim for
letter

damages against
stated

that

he

the government.
was

notifying

government of a claim and provided the date, place,

suffered,

the

cause

and

nature thereof

and

The
the

damages
list

of

-14-

possible

witnesses.

Id. at 15.

P.R. Laws Ann. tit. 32,

3077a (1968) (Section 3077a) requires a claimant against the

government to give

notice of the claim

including the date,

place, cause and general nature of the damages suffered, the

names of witnesses,
the

place where

the address of the claimant as well

medical treatment

3077a requires that

days
notice

of the awareness of

the damages.

Failure to provide

within the ninety day period bars a suit against the

plaintiff's

written claim

limitations.

of Puerto Rico held

of damage

Zambrana Maldonado

(translation at

maintained

that

limitations
tractably and

the

requires
more or

35).

The

that the

statue of

v. Commonwealth

of Puerto

Zambrana Maldonado

interruption

of

"conduct

which,

in

the

statute
more

less categorically or

notice which

that the

tolled the

decision to obtain payment is shown."

held

Section

such notice be given within ninety (90)

government. The Supreme Court

Rico

was received.

as

of
less

urgently, the

Id. at 23.

complied with the

or

court

The court
statute was

sufficient
points
the

toll the

statute of

limitations. Plaintiff

to language in the court's opinion which states that

law does not require any particular form of notice. The

court
has

to

observed that "[n]o matter

interruptive

value..."

how the claim

Id.

In this

is made it

context,

the

-15-

opinion cannot be read as a broadening of the type of notice

required.

The issue is not

the content of the

to

support

the

notice.
legal

the form of the

notice, it is

Here, the content

is deficient

action

Damiani's statements did not

which

has

been

brought.

evidence an urgent decision to

obtain payment for damages under

146.

III. Conclusion
Damiani's

statements did

not toll

the

one year

statute of
limitations.
Affirmed.

Dismissal was required as a matter of law.

________

-16-