864 F.2d 881 (1st Cir. 1988), 87-1931, Lipsett v. University of Puerto Rico

Docket Nº:87-1931.
Citation:864 F.2d 881
Party Name:Annabelle LIPSETT, Plaintiff, Appellant, v. UNIVERSITY OF PUERTO RICO, et al., Defendants, Appellees.
Case Date:October 26, 1988
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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864 F.2d 881 (1st Cir. 1988)

Annabelle LIPSETT, Plaintiff, Appellant,

v.

UNIVERSITY OF PUERTO RICO, et al., Defendants, Appellees.

No. 87-1931.

United States Court of Appeals, First Circuit

October 26, 1988

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[Copyrighted Material Omitted]

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Charles S. Hey-Maestre with whom Jose Antonio Lugo and Judith Berkan, Santurce, P.R., were on brief, for plaintiff, appellant.

James D. Noel, III with whom Ledesma, Palou & Miranda, Hato Rey, P.R., were on brief, for defendants, appellees University of Puerto Rico, et al.

Wanda Rubianes-Collazo, Asst. U.S. Atty., and Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., on brief, for appellee Dr. Ernesto Rive-Mora.

Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges.

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BOWNES, Circuit Judge.

This appeal arises out of an action for declaratory and injunctive relief and damages brought in the United States District Court for the District of Puerto Rico pursuant to the equal protection and due process clauses of the Constitution, Title IX of the Education Amendments of 1972, 20 U.S.C. Sec. 1681 (Title IX), 42 U.S.C. Sec. 1983, the Constitution of Puerto Rico, and several Puerto Rico laws. Plaintiff-appellant, Annabelle Lipsett, claims that she was subjected to sex discrimination while she attended the General Surgery Residency Training Program at the University of Puerto Rico School of Medicine (Program). The district court granted summary judgment in favor of the defendants.

THE CASE

The particular claims of the plaintiff were that she was sexually harassed while in the Program and that she was dismissed from the Program because of her sex. The defendant-appellees are: the University of Puerto Rico (University); Norman Maldonado, individually and in his capacity as Chancellor of the Medical Science Campus of the University; Pedro Juan Santiago Borrero, individually and in his capacity as Dean of the School of Medicine of the University; Gumersindo Blanco, individually and in his capacity as Director of the Department of Surgery and Chairman of the University of Puerto Rico and Affiliated Hospitals Residency Training Program; and Jose R. Gonzalez Inclan, individually and in his capacity as Acting Director of the Department of Surgery Residency Training Program; and Ernesto Rive Mora, individually and in his capacity as Director of the Training Program of the San Juan Veterans Administration Hospital. The district court granted summary judgment in favor of the University, Maldonado, Santiago, Gonzalez and Blanco in an opinion and order issued on June 12, 1986, Lipsett v. Univ. of Puerto Rico, 637 F.Supp. 789 (D.P.R.1986) (Lipsett II ), and in favor of Rive in an opinion and order issued on September 16, 1987, Lipsett v. Rive-Mora, 669 F.Supp. 1188 (D.P.R.1987) (Lipsett III ). 1 The latter order expressly incorporated the former one. Lipsett III, 669 F.Supp. at 1192. Plaintiff appeals from Lipsett III, challenging the grant of summary judgment in favor of the University, Maldonado, Santiago, Gonzalez, and Blanco (the state defendants) and Rive (the federal defendant). 2

It is important to clarify the basis for the plaintiff's cause of action against each of the defendants. Plaintiff alleged that she was subjected to sex discrimination by the University through the actions of its agents, in violation of Title IX 3; by Maldonado, Santiago, Gonzalez, and Blanco, in their individual and official capacities, in violation of 42 U.S.C. Sec. 1983 (the equal protection clause); 4 and by Rive, in his individual and official capacities, in violation of the due process clause of the fifth amendment as well as of 42 U.S.C. Sec. 1983 (the equal

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protection clause). 5 Because we find that the plaintiff has sustained her burden of showing that there is a genuine issue of material fact regarding her claims against all of these defendants, except for Dr. Maldonado, we reverse the grant of summary judgment in both Lipsett II and Lipsett III. We express no opinion, however, on whether the University is entitled to sovereign immunity as an instrumentality of the Commonwealth of Puerto Rico, 6 nor on whether the University is an "educational institution" receiving "federal financial assistance" within the meaning of Title IX. 7

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BACKGROUND

The Atmosphere in the Program

The record in this case is quite large, comprising over seven thick volumes of motions, depositions, affidavits, and hospital documents. At the outset, we need to make clear a number of crucial points. First, we have reviewed every page carefully, viewing the material presented in the light most favorable to the plaintiff, the party before us who opposed summary judgment. See Kauffman v. Puerto Rico Telephone Co., 841 F.2d 1169, 1171 (1st Cir.1988); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). We express no opinion, however, about the accuracy of the plaintiff's allegations nor their sufficiency in the face of conflicting testimony. Second, we draw this version of events primarily from the affidavit and deposition testimony of the plaintiff herself, and from the affidavit and deposition testimony of two supporting witnesses, Dr. Bensen and Dr. Mendez. Finally, we give in detail the plaintiff's description of the behavior of various men not named as defendants. We do this because it supports the plaintiff's position that the atmosphere in the Program was so charged with animus toward her and other women that it could be found that at least two of the named defendants, specifically Drs. Blanco and Gonzalez, were on constructive notice of this hostile atmosphere.

With these points of clarification in mind, we find that the following version of events could be found at trial.

The General Surgery Residency Training Program is a five-year program which integrates the surgical training programs of the San Juan Veterans Administration Hospital and the University Hospital under the direction of the Department of Surgery of the University. Trainees pass through three distinct levels of training: from assistant resident (first two years), to associate resident (second two years) to senior resident (last year). In addition, the faculty chooses one of the senior residents who has shown exceptional qualities of leadership, organization, maturity, and responsibility to serve as chief resident. He or she becomes the official representative of the resident staff in all departmental activities and is responsible for the implementation of departmental policy at the house staff level. The trainees perform under the guidance and supervision of the participating faculty and those residents who have reached a higher position in the five-year hierarchy. Competition in the Program can be intense, particularly during the first and second years when residents seek promotion to the limited number of second and third year positions. Those who make it to the third year are expected to finish all five years of the Program.

The plaintiff entered the Program as a first year resident in July 1980, after having completed her medical studies at the Caribbean School of Medicine in Cayey, a private college. For the first year and a half, she did very well. Her evaluation forms for work performed from July 1980 through September 1981 reflect ratings of "very satisfactory" and "satisfactory," with the great majority in the former category. Comments on the forms described the plaintiff as a "hard working resident who has done above average work," as one who "has an excellent fund of knowledge and is well motivated," and as one whose "discussions and presentation are excellent." And in May 1981, Dr. Gonzalez, then the acting director of the Program, informed the plaintiff and four other residents that they had been promoted to the second year, that they should expect to complete the Program, and that they should look forward to making family and living arrangements for this period.

In spite of these optimistic signs, however, the plaintiff was having trouble. In general, she claimed that the predominant professional view of surgery as a medical field appropriate only for men made it difficult, and at times impossible, for her to

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gain acceptance and respect in the Program. As specific indicators of this bias, she presented the following. First, the men in the Program dramatically outnumbered the women: in 1980, thirty-one men and four women; in 1981, thirty-four men and four women; and in 1982, thirty-one men and five women (including the plaintiff, who by this time, was appealing her discharge). In the past twenty-two years, sixty-eight men and five women completed the Program. Second, facilities for women were different from and inferior to those for men. The "on-call" rooms--the resting areas used by residents on the night shift--were divided into male and female sections. The room for the men, called "La Cueva," (the Cave) had a huge living room with a color television, a pool parlor, seats, a stove, a refrigerator, and a mural, and four private bedrooms; the room for the women, called "La Cuevita," had only a small ante-room with a sofa, a stove, and a refrigerator, and two semi-private rooms. At times, the telephone in this room was out of order, thereby making it difficult for women on duty to respond to medical calls.

Even more upsetting to the plaintiff than these deficiencies in the facilities were the attitudes she perceived of her co-workers and superiors. The chief resident during her first year, Dr. Marcelo Oben Martinez, made clear to the plaintiff that surgery was a male preserve not hospitable to women. He warned the plaintiff not to complain about this or any resultant problems that she might have, specifically holding out the case of Dr. Ana del C...

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