Alberti v. Univ. of Puerto Rico

Decision Date13 October 2011
Docket NumberCivil No. 08–1484 (DRD).
Citation277 Ed. Law Rep. 857,818 F.Supp.2d 452
PartiesDr. Rebecca ALBERTI, FNP, ND, Plaintiff v. UNIVERSITY OF PUERTO RICO; Dr. Jose R. Carlo Izquierdo; Dr. Suane E. Sánchez Colon; Dr. Gloria E. Ortiz Blanco; Dr. Angelica Matos Rios; Carmen T. Lopez Rodriguez; Leyra Figueroa Hernandez; Dr. Maria C. Declet Braña; Iris Ramos; Iris Rivera Colon; and Judith Miranda, Defendants.
CourtU.S. District Court — District of Puerto Rico


Manuel R. Suarez–Jimenez, Manuel R. Suarez Law Office, San Juan, PR, for Plaintiff.

Diego Ramirez–Bigott, Raquel M. Dulzaides, Jimenez, Graffam & Lausell, San Juan, PR, for Defendants.


DANIEL R. DOMINGUEZ, District Judge.

Pending before the Court is Defendants' Motion for Summary Judgment (Dockets # 161, # 163 and # 164), and Plaintiff's “Opposing Statement of Material Facts” (Docket # 179),1 accompanied by Defendants' “Opposition to Plaintiff's Opposing Statement of Material Facts” (Docket # 194).2 For the reasons set forth below, the Court will GRANT the Motion for Summary Judgment.


Plaintiff, Dr. Rebecca Alberti


or “Alberti”)

, who was born in the continental United States, is a Family Nurse Practitioner with a nursing doctorate. Alberti worked on two (2) separate occasions for the Co–Defendant University of Puerto Rico (“University” or “UPR”). Both times she was, inter alia, responsible for acquiring funds and developing a Family Nurse Practitioner (“FNP”) Program in the School of Nursing (“SON”). She first worked for the University from 2001 until November 2002, when she resigned. (Docket # 164, Exhibits 3, 4, 5, 6 and 7)

Three (3) years after the academic Senate approved the creation of the FNP Program, CoDefendant Dr. Suane Sánchez (Sánchez), the then Dean of the SON, recruited Alberti and offered Plaintiff a position as FNP Program and Grant Director of the SON (hereinafter collectively referred to as “FNP Program Director), a non-career trust position as discussed infra, and a probationary appointment as “Associate Professor”, also as discussed infra. (Docket # 164, Exhibits 8, 9, 10, 11, 12, 13, 14, 15, and 16).

Alberti accepted the job and worked as FNP Program Director from May 23, 2006 until February 14, 2008, when she was removed by Co–Defendant Dr. Jose Carlo (Carlo), the then Chancellor and nominating authority of the Medical Science Campus of the University. (Docket # 164, Exhibits 13 and 59) Approximately six (6) months later, on August 15, 2008, Alberti's probationary appointment as Associate Professor was terminated, because of a myriad of administrative issues and problems with Plaintiff's performance. (Docket # 164 Exhibits 21–55, 59, 64, 65, 66, 67, 68, 69, 70)

On April 25, 2008, Plaintiff filed a Complaint alleging that her removal as FNP Program Director, and later termination from of the probationary appointment as Associate Professor: (1) deprived her of property without due process of the law in violation of the Fourth, Fifth and Fourteenth Amendment of the United States Constitution and 42 U.S.C. §§ 1983; and (2) were acts of retaliation in violation of the First Amendment of the United States Constitution, 42 U.S.C. § 1983 and Puerto Rico Law No. 115 of December 20, 1991 (“Law 115”), 29 L.P.R.A. §§ 194–194b (Docket # 1). Later, Alberti amended the Complaint several times to include a cause of action under 42 U.S.C. § 1985(3) for an alleged conspiracy to deprive her of constitutional rights; under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e and Puerto Rico Law No. 100 of June 30, 1959 (“Law 100”), 29 L.P.R.A. §§ 146–151, alleging national origin discrimination. (Dockets # 8, # 9, # 56 and # 123).

Plaintiff also includes as Co–Defendants seven (7) officials of the UPR (Dr. José Carlo, Dr. Suane Sánchez, Dr. Gloria Ortiz, Dr. Carmen López, Virginia Santiago, Esq., Dr. Angélica Matos and Prof. Leyra Figueroa) and three (3) former students of the FNP Program (Ms. Judyth Miranda, Ms. Iris Ramos and Ms. Iris Rivera).

I. The Summary Judgment Standard

Generally, [s]ummary judgment is proper where ‘the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.’ Fed.R.Civ.P. 56(c).” Richardson v. Friendly Ice Cream Corporation, 594 F.3d 69, 74 (1st Cir.2010). See also Celotex Corp. v. Catrett, 477 U.S. 317, 324–325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Thompson v. Coca–Cola, Co., 522 F.3d 168, 175 (1st Cir.2008). “The object of summary judgment is ‘to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required’.” Dávila v. Corporación de Puerto Rico Para La Difusión Pública, 498 F.3d 9, 12 (1st Cir.2007), citing from Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir.2004), (quoting Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.1992)). In Dávila, the Court held:

For this purpose, an issue is genuine if a reasonable jury could resolve the point in favor of the nonmoving party. Suárez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir.2000). By like token, a fact is material if it has the potential to determine the outcome of the litigation. See Calvi v. Knox County, 470 F.3d 422, 426 (1st Cir.2006). Where, as here, the nonmovant has the burden of proof and the evidence on one or more of the critical issues in the case “is ... not significantly probative, summary judgment may be granted.” Acosta, 386 F.3d at 8 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

At the summary judgment stage, the Court “must scrutinize the evidence in the light most agreeable to the nonmoving party, giving that party the benefit of any and all reasonable inferences”. Noviello v. City of Boston, 398 F.3d 76, 84 (1st Cir.2005), citing Cox v. Hainey, 391 F.3d 25, 27 (1st Cir.2004). See also Richardson, 594 F.3d at 74. [T]he nonmovant bears ‘the burden of producing specific facts sufficient to deflect the swing of the summary judgment scythe.’ Noviello, 398 F.3d at 84. “Those facts, typically set forth in affidavits, depositions, and the like, must have evidentiary value; as a rule, [e]vidence that is inadmissible at trial, such as, inadmissible hearsay, may not be considered on summary judgment.’ Id. at 84, citing Vázquez v. López–Rosario, 134 F.3d 28, 33 (1st Cir.1998); accord Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). “The evidence presented by the non-moving party may not be ‘conclusory allegations, improbable inferences, [or] unsupported speculation.’ Torres–Negrón v. Merck & Company, Inc., 488 F.3d 34, 39 (1st Cir.2007), citing Medina–Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).

Lastly, whether a motion for summary judgment is formally opposed or unopposed, the Court is still obligated to resolve the motion on the merits. See Cordi–Allen v. Halloran, 470 F.3d 25, 28 (1st Cir.2006) (noting that a district court is bound to review an unopposed motion for summary judgment on the merits). Moreover, the court cannot grant a motion for summary judgment as a sanction. See De La Vega v. The San Juan Star, Inc., 377 F.3d 111, 113, 116 (1st Cir.2004). See also Sterling Merchandising, Inc. v. Nestle, S.A., et al., 656 F.3d 112 (1st Cir. (Puerto Rico) 2011) (Lynch, J.)); Curet–Velázquez, et al. v. ACEMLA de Puerto Rico, Inc., et al., 656 F.3d 47 (1st Cir. (Puerto Rico) 2011) (Torruella, J.).

Based on this premise, the Court proceeds with the analysis.

II. Eleventh Amendment Immunity

The Eleventh Amendment proscribes that [t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” 1 U.S.C. Const. Amend. XI. It has long been held that under the Eleventh Amendment, federal courts lack jurisdiction to hear suits seeking damages against a state or its instrumentalities. Rios–Montoya v. Puerto Rico, Civ. 09–2229(CCC), 2011 WL 3322556 (D.Puerto Rico 2011 (August 2, 2011)), (citing Figueroa–Rodríguez v. Aquino, 863 F.2d 1037, 1044 (1st Cir.1988); Ramírez v. Puerto Rico Fire Service, 715 F.2d 694, 697 (1st Cir.1983)).

Nonetheless, a state can waive its Eleventh Amendment immunity or it can be abrogated by Congress. “A state can waive its Eleventh Amendment immunity to suit in three ways: (1) by a clear declaration that it intends to submit itself to the jurisdiction of a federal court or administrative proceeding, Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 676, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999); Great N. Life Ins. Co. v. Read, 322 U.S. 47, 54, 64 S.Ct. 873, 88 L.Ed. 1121 (1944); (2) by consent to or participation in a federal program for which waiver of immunity is an express condition, Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246–47, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985); or (3) by affirmative conduct in litigation, Lapides v. Bd. of Regents, 535 U.S. 613, 620, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002); Gardner v. New Jersey, 329 U.S. 565, 574, 67 S.Ct. 467, 91 L.Ed. 504 (1947).” New Hampshire v. Ramsey, 366 F.3d 1, 15 (1st Cir.2004).

“Puerto Rico, despite the lack of formal statehood, enjoys the shelter of the Eleventh Amendment in all respects.” Ezratty v. Commonwealth of Puerto Rico, 648 F.2d 770, 776 (1st Cir.1981). Moreover, [a]n administrative arm of the state is treated as the state itself for the purposes of the Eleventh Amendment, and it thus shares the same immunity.” Vaquería Tres Monjitas v. Irizarry, 587 F.3d 464, 477 (1st Cir.2009) (citing Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)). “Indeed, the UPR has been deemed an arm of [Puerto Rico]...

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