558 F.3d 1 (1st Cir. 2009), 07-2501, Otero-Burgos v. Inter American University

Docket Nº:07-2501.
Citation:558 F.3d 1
Party Name:Edwin OTERO-BURGOS, Nievelyn Marrero-Pe
Case Date:February 19, 2009
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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558 F.3d 1 (1st Cir. 2009)

Edwin OTERO-BURGOS, Nievelyn Marrero-Peña, Conjugal Partnership Otero-Marrero, Plaintiffs, Appellants,


INTER AMERICAN UNIVERSITY, Irene Fernández-Aponte, Juan Negrón-Berríos, A-Z Insurance Companies, Defendants, Appellees.

No. 07-2501.

United States Court of Appeals, First Circuit.

February 19, 2009

Heard May 9, 2008.

Charles S. Hey-Maestre, with whom Manuel Moraza-Choisne, Adalina de Jesús Morales, and Manuel Moraza-Ortiz were on brief, for appellants.

Seth A. Tucker, John E. Bies, and M. Ryan Calo on brief for American Association of University Professors, amicus curiae.

Raul S. Mariani-Franco and Guillermo J. Ramos Luiña on brief for Asociación de Profesores y Profesoras del Recinto Universitario de Mayagüez (APRUM) and the Former President of Inter American University, Ramón A. Cruz, Ph.D., amici curiae.

Amancio Arias-Guardiola, for appellees.

Arturo Díaz Angueira, Lillian T. De La Cruz-Torres, Roberto Feliberti, and Victoria D. Pierce-King on brief for Ana G. Méndez University System, amicus curiae.

Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

This case requires us to decide whether Puerto Rico Law 80, which provides a severance pay remedy for an employee " contracted without a fixed term, who is discharged from his/her employment without just cause," applies to a university professor who claims to have been terminated in violation of his tenure contract. Appellee Inter American University (" IAU" or " the University" ), a private educational institution, argues that the tenure contract at issue here is a contract " without

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a fixed term," and is subject to Law 80 and its exclusive severance pay remedy. Appellants Professor Edwin Otero-Burgos and his wife, Nievelyn Marrero-Peña, contend that the tenure contract does have a fixed term. Therefore, Law 80 does not apply and does not bar their claim for breach of contract.

The appellants filed suit against IAU and several University officials, alleging, inter alia, breach of contract and employment discrimination.1 After initially denying appellees' motion for summary judgment on the breach of contract claim, the district court granted their request to reconsider the matter and issued an Amended Partial Judgment which set aside its earlier ruling and dismissed the claim with prejudice on the basis of Law 80. For the reasons set forth below, we vacate the district court's order dismissing Otero-Burgos's breach of contract claim.


A. Factual Background

Although we are not ruling on the merits of Otero-Burgos's claim, we provide the background to this dispute for context. At the time of his termination in 2003, Otero-Burgos had worked at IAU for nearly three decades, most of them in the Business Department. He was first employed by the University in an administrative capacity in 1974. Over a period of twenty years, he occupied various teaching and administrative positions, until he was awarded tenure effective August 1, 1994. As a professor, Otero-Burgos consistently enjoyed positive evaluations from students and faculty alike, and he received numerous awards and honors for his contributions to the University, including the award of " Distinguished Professor" in 1996.2

In the fall of 1999, Otero-Burgos taught a course on business theory at the Barranquitas campus of IAU. One student enrolled in the class, Gilberto Berríos-Blanco, received a " D" as his final grade for the semester. Unhappy with this result, the student met with Otero-Burgos and asked for an opportunity to improve his grade. The professor denied this request.

On March 28, 2000, the student filed a complaint with the Dean of Academic Affairs,3 Juan A. Negrón-Berríos, accusing Otero-Burgos of a number of unfair grading practices and alleging other irregularities in the way the course had been taught and administered. The student's chief complaint was that Otero-Burgos had inappropriately changed the course syllabus mid-semester by eliminating one of the previously scheduled exams and instead giving more weight to the students' grades on a group project. Berríos-Blanco argued that he had been unfairly prejudiced in two ways: first, because he did not participate in the group project, which turned out to have unexpected significance for his grade in the course, and second, because the cancellation of the exam deprived him of an opportunity to improve his performance.

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On April 5, 2000, Otero-Burgos discussed the situation with Negrón-Berríos. After this meeting, Otero-Burgos wrote a detailed letter to Negrón-Berríos, rebutting the aggrieved student's allegations of impropriety and unfairness and setting forth his own position on the matter. The dean rejected the professor's explanations and instead sent Otero-Burgos written instructions to devise a supplemental exam or project that would enable the student to make up the missing points. When Otero-Burgos once again refused, Negrón-Berríos referred the matter to María H. Ramos, Director of the Department of Business Administration, the department to which Otero-Burgos belonged.

Professor Ramos, in turn, involved IAU's attorney, Vladimir Román. After her consultation with the attorney, Ramos sent Otero-Burgos a letter offering him two options. Otero-Burgos could either prepare a supplemental " evaluation instrument" which would allow the student to earn the missing points, or the department would appoint another professor to prepare a similar instrument. Otero-Burgos refused to devise the supplemental evaluation. On the advice of IAU's attorney, Negrón-Berríos selected another professor to design and administer a supplemental evaluation. The student's grade was subsequently changed to a " C" at the direction of Negrón-Berríos and appellee Irene Fernández-Aponte, chancellor of IAU's Barranquitas campus.

On May 29, 2000, Otero-Burgos filed a complaint with the Faculty Appeals Committee 4 for the academic year 1999-2000, claiming that the University administration had violated his academic freedom.5The professor's letter recounted the relevant events and included both a general exposition of the teaching methodology he had employed in the business theory course and a specific defense of his actions in connection with the student complaint. Because the academic year was at an end, the Committee deferred consideration of the matter to the 2000-2001 Faculty Appeals Committee. 6

During the fall of 2000, the Faculty Appeals Committee held a series of " extraordinary meetings" to consider Otero-Burgos's grievance. Both Ramos and Negrón-Berríos spoke to the Committee, which ultimately concluded, in a 3-1 opinion dated May 4, 2001, that the " imposition of the suggested alternatives made

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by the Legal Division and put into practice by these [sic] would pose a violation to Prof. Edwin Otero Burgos' right to academic freedom to lecture and teach."

On June 15, 2001, Chancellor Fernández-Aponte wrote a letter to the Faculty Appeals Committee, stating that she considered Otero-Burgos's academic freedom claim to be meritless. She added, " I understand that the claim of a violation to his academic freedom does not proceed. I hope this matter is considered a finished matter." 7

Upon learning of the chancellor's letter, Otero-Burgos, invoking section 4.2 of the Faculty Handbook, responded by appealing to IAU President Manuel J. Fernós, in a letter dated November 8, 2001. Otero-Burgos once again accused IAU of violating his right to academic freedom under the Handbook and described several ways in which the chancellor's intervention was inappropriate in light of the grievance procedure set forth in the Handbook. Finally, the professor requested several specific " remedies" in connection with his grievance, including the reinstatement of Berríos-Blanco's original " D" grade, a letter ratifying the decision of the Faculty Appeals Committee, a warning letter to Dean Negrón-Berríos for his alleged " defamation" of Otero-Burgos, and a warning letter to Chancellor Fernández-Aponte for her failure to follow the procedures in the Faculty Handbook. In response, Fernández-Aponte wrote her own December 5, 2001 letter to President Fernós, rebutting these charges and asking him to take the necessary " relevant action." 8

Meanwhile, in a separate proceeding pursuant to section 5.9.9 of the Handbook, Dean Negrón-Berríos selected three professors who would comprise an Ad Hoc Committee charged with reviewing the performance of the Faculty Appeals Committee and, more generally, the performance of Professor Otero-Burgos.9 Chancellor Fernández-Aponte sent a letter to Otero-Burgos, notifying him that an Ad Hoc Committee had been appointed to commence an investigation because " it ha[d] been determined, in a preliminary manner, that [Otero-Burgos's] action probably constituted a violation" of numerous provisions of the Handbook.

After an inquiry that lasted several months, the Ad Hoc Committee issued its Final Report in June 2002. The Committee

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found, inter alia, that Otero-Burgos had been insubordinate; violated faculty rules, institutional policies, or operational norms of the University; violated the rights of his faculty colleagues, the administration, and his students; and breached the contract between the University and a student. Citing these infractions (most of which constitute " just cause" for the dismissal of tenured faculty under the Handbook), the Ad Hoc Committee recommended the " permanent and definite" termination of Otero-Burgos's contract with IAU.10

On August 16, 2002, in a letter from Dean Negrón-Berríos, IAU formally notified Otero-Burgos that his employment had been terminated. The letter...

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