UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

 

No. 99-1708

FELIX A. LANDRAU-ROMERO,

Plaintiff-Appellant,

v.

BANCO POPULAR DE PUERTO RICO,

Defendant-Appellee.

__________

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Stahl, Circuit Judge.

__________

Order of Court

Entered: May 24, 2000

In his petition for rehearing, Landrau asserts error in the disposition of

his failure to promote and constructive discharge claims pursuant to Law 100,

P.R. Laws Ann. 29, § 146 et seq. We disagree and deny the petition.

 

Landrau contends that his failure to promote claim is not time-barred

under state law because Law 100 contains no administrative filing

requirement. Hence, he argues, his complaint in federal district court was

timely filed as to that count. Law 100, however, has a statute of limitations of

one year. See Iglesias v. Mutual Life Ins. Co., 156 F.3d 237, 240 (1st Cir.

1998). Landrau’s failure to promote claim accrued no later than April 1993,

when Bou filled the position Landrau had sought; Landrau filed his complaint

on April 16, 1996, some three years later. Hence, Landrau’s Law 100 failure

to promote claim is plainly untimely under the applicable statute of limitations

(even ignoring Landrau’s own failure to have referred to that statute, see

Landrau-Romero v. Banco Popular De Puerto Rico, NO. 99-1708, 2000 WL
343480 at *8 n.10 (1st Cir. Apr 06, 2000)).

 Landrau argues that defendant waived its time-bar defense as to the

state claim by not raising the defense in its motion for summary judgment.

However, in its answer to Landrau’s amended complaint, defendant stated

as an affirmative defense that “the complaint is untimely and time-barred.”

Later, in its motion for summary judgment, Banco Popular asserted that

Landrau’s “claims” for failure to promote were time-barred. It is true that

defendant did not specifically deal with Puerto Rico’s statute of limitations as

distinct from the federal limitations scheme; both parties appeared to

concentrate on the latter, as did the district court. Had Landrau wished to

argue that the state statute did not constitute a bar, and that the federal

statute was inapplicable, however, he was free to do so. Given that the

question of a time bar was put squarely in issue, we see no reason at the

present juncture for this court not to analyze timeliness under whichever

statute of limitations applies. We are permitted to affirm a district court's

grant of summary judgment on any ground supported by the record. See

Morais v. Central Beverage Corp. Union Employees' Supplemental

Retirement Plan, 167 F.3d 709, 712 (1st Cir. 1999). Accordingly, we are

satisfied, in any event, that Landrau’s Law 100 claim was time-barred.

Landrau also maintains that his state-law constructive discharge claim

should stand because his resignation was not unreasonably late following his

mistreatment. He contends that the panel opinion neglected to take into

account several events set forth in the record that occurred between July and

November, 1994. Landrau relies, inter alia, on evidence of his having

received adverse job evaluations; his employer’s refusal to provide copies

of certain records that Landrau requested; criticism because his computer

was used to process mortgages with errors; his written job description’s

inclusion of physical tasks despite Landrau’s inability to lift heavy objects; and

a meeting in which the bank stated its conclusion that there had been no

discrimination against Landrau.

Landrau’s argument is flawed for two reasons. First, as stated in our

opinion, Landrau did not affirmatively identify specific, dated incidents of

mistreatment after July in response to defendant’s untimeliness argument

(which was made below with regard to the Title VII claim). Moreover, none
of the alleged events he now names indicate mistreatment or harassment so

severe as to compel resignation. They do not amount to”working conditions

. . . so difficult or unpleasant that a reasonable person in the employee's

shoes would have felt compelled to resign.” See Aviles-Martinez v. Monroig,

963 F.2d 2, 6 (1st Cir. 1992).

Finally, Landrau argues that Puerto Rico law, unlike Title VII, does not

require that constructive discharge claims be filed in any particular proximity

to the unreasonable working conditions. Again, this distinction was not

argued earlier, although Landrau discussed the Law 100 claim at some

length in his appellate brief. It is well-settled that arguments not raised in an

appellant’s initial brief are waived. See Puerto Rico Tel. Co. v. Telecomm.

Regulatory Bd. of Puerto Rico, 189 F.3d 1, 17 n.14 (1st Cir. 1999).

Moreover, Landrau identifies no Puerto Rico case law rejecting the notion

that a plaintiff must resign within a reasonable time period following

mistreatment in order to state a claim for constructive discharge. It is by no

means clear that the Puerto Rico courts, if given the opportunity to address

the issue, would not apply the same limitation contained in federal law.

The petition for rehearing is denied.

By the Court,

Phoebe Morse, Clerk.

By:

______/s/____________

 Chief Deputy Clerk
[cc: Mr. Mellado-Gonzalez, Mr. Davila & Mr. Manzano-Yates]