Hernandez-Loring v. Universidad Metropolitana

• Decision Date: 02 August 2000
• Docket Number: PRESIDENT,NON-PROFIT,DIAZ-RIVER,DR,No. 99-2116,HERNANDEZ-LORIN,N-PROFIT,99-2116
• Parties: (1st Cir. 2000) MARIA VIRGINIA, Plaintiff, Appellant, v. UNIVERSIDAD METROPOLITANA; RENE LABARCA, CHANCELLOR OF UNIVERSIDAD METROPOLITANA; LUIS R.OF COMMITTEE FOR EVALUATION OF RANK; CARMEN BIGAS, MEMBER OF COMMITTEE FOR EVALUATION OF RANK; MARTHA RAMOS, MEMBER OF COMMITTEE FOR EVALUATION OF RANK; NILDA LOPEZ, MEMBER OF COMMITTEE FOR EVALUATION OF RANK; MARIA DEL C. MONSERRAT, MEMBER OF COMMITTEE FOR EVALUATION OF RANK; SISTEMA UNIVERSITARIO ANA G. MENDEZ (A PUERTO RICOCORPORATION), Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 49

233 F.3d 49 (1st Cir. 2000)

MARIA VIRGINIA HERNANDEZ-LORING, DR., Plaintiff, Appellant, v. UNIVERSIDAD METROPOLITANA; RENE LABARCA, CHANCELLOR OF UNIVERSIDAD METROPOLITANA; LUIS R. DIAZ-RIVERA, PRESIDENT OF COMMITTEE FOR EVALUATION OF RANK; CARMEN BIGAS, MEMBER OF COMMITTEE FOR EVALUATION OF RANK; MARTHA RAMOS, MEMBER OF COMMITTEE FOR EVALUATION OF RANK; NILDA LOPEZ, MEMBER OF COMMITTEE FOR EVALUATION OF RANK; MARIA DEL C. MONSERRAT, MEMBER OF COMMITTEE FOR EVALUATION OF RANK; SISTEMA UNIVERSITARIO ANA G. MENDEZ (A PUERTO RICO NON-PROFIT CORPORATION), Defendants, Appellees.

No. 99-2116.

United States Court of Appeals, For the First Circuit.

Heard Aug. 2, 2000.

Decided December 1, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO.

Hon. Salvador E. Casellas, U.S. District Judge.

Wilfredo A. Geigel for appellant.

Jose E. De La Cruz-Skerrett with whom De La Cruz Skerrett Law Offices was on brief for appellees.

Before Selya, Circuit Judge, Wallace,^* Senior Circuit Judge, and Boudin, Circuit Judge.

BOUDIN, Circuit Judge.

In 1973 Dr. Maria Virginia Hernandez-Loring was first employed as a teacher in the Ana G. Mendez University System, a group of private institutions of higher learning in Puerto Rico. In 1981, after receiving her Ph.D. in education, she became an instructor at Universidad Metropolitana, one of the units in the system. She was promoted to auxiliary professor in 1983 and associate professor in 1988. However, in February 1995, a five-member academic committee declined to recommend Hernandez-Loring for promotion to full professor. In February 1997 she brought the present action in the federal district court in Puerto Rico based on diversity jurisdiction, Hernandez-Loring by then having moved to Virginia to live with her husband.

In the first of two counts, the complaint charged that the denial of promotion constituted a denial of due process for a number of reasons (e.g., because the committee members were not competent in Hernandez-Loring's field of applied linguistics). The second count charged sexual harassment; it said that the head of the committee--Dr. Luis R. Diaz-Rivera--had harassed her and that her denial of promotion occurred because "she refused to date him." The named defendants were Universidad Metropolitana, its chancellor Rene Labarca, all five members of the committee that had refused to recommend Hernandez-Loring's promotion, and the university system of which Universidad Metropolitana is a part.

After a good deal of discovery including the deposition of Hernandez-Loring, the defendants moved for summary judgment. In opposition, Hernandez-Loring offered an affidavit expanding on her deposition testimony. On August 20, 1999, the district court granted the motion for summary judgment and dismissed the complaint. Hernandez-Loring v. Universidad Metropolitana, 62 F. Supp. 2d 450, 463 (D.P.R. 1999). The court's reasoning, discussed below, was different as to each of the three claims--the due process claim (count I) and what the court took to be distinct claims for quid pro quo and hostile environment sexual harassment (count II).¹ Hernandez-Loring has now appealed to this court.

In general, the grant of summary judgment is reviewed de novo, reasonable doubts and issues of credibility being resolved in favor of the non-moving party. Landrau-Romero v. Banco Popular de Puerto Rico, 212 F.3d 607, 611 (1st Cir. 2000). At the threshold, Hernandez-Loring argues that the district court should be reversed because the summary judgment motion was filed after the original deadline fixed by the court's scheduling order. However, such an order may be modified for "good cause," Fed. R. Civ. P. 16(b), and the district court's finding of good cause, based on Hernandez-Loring's own discovery delays, was not an abuse of discretion.

Turning to the grant of summary judgment on count I, we readily affirm the district court. In making academic appointments or promotions, a private university is not directly governed by the due process requirements of the Fifth and Fourteenth Amendments. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). Still, Puerto Rico law apparently regards private-university tenure decisions as subject to an implicit contractual constraint that the university will follow its own regulations. This is the holding of Selosse v. Fundacion Educativa Ana G. Mendez, 122 D.P.R. 534, 545-51 (P.R. 1988), a case that resulted from a suit by a different teacher for denial of tenure by the same university system involved in the present case.

Hernandez-Loring does not allege a violation of any specific university promotion regulation. Instead, she criticizes inter alia the failure to include on the committee persons who shared her own specialty, the scoring system used (she placed fourth out of four candidates for one promotion), the vagueness of the standards employed in the promotion process, the disregard of her published work insofar as it was for pay, the inadequacy of the appeals process, and the choice as head of the committee of a man (Diaz-Rivera) whose promotion to the university administration Professor Hernandez-Loring had previously opposed.

Academic promotion disputes, as the district court noted, often pit concerns about fair procedure against the autonomy of universities; but in this case there is no balancing to be done nor any basis for considering whether the processes employed were "fair." There is no constitutional claim asserted, no contract claim beyond the right to have regulations followed, and no asserted violation of any specific regulation. Nothing in Hernandez-Loring's argument indicates that something else is required by Puerto Rico law. Perhaps Puerto Rico law offers more and, if so, future litigants are welcome to make that showing.

The second claim--that of quid pro quo harassment--is far more difficult to assess. The district court assumed (perhaps wrongly) that Hernandez-Loring was invoking Title VII, 42 U.S.C. 2000e-2(a)(1) (1994).² On appeal, Hernandez-Loring has cited only Puerto Rico statutory law, including the ban on sexual harassment. 29 P.R. Laws Ann. 155b (1995). Nevertheless, the substantive law of Puerto Rico on sexual harassment appears to be aligned, so far as pertinent here, with Title VII law, and Title VII precedents are used freely in construing Commonwealth law. Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 854 (1st Cir. 1998).

Under Title VII, quid pro quo sexual harassment can be shown where a supervisor uses employer processes to punish a subordinate for refusing to comply with sexual demands. Wills v. Brown Univ., 184 F.3d 20, 25 (1st Cir. 1999); Lipsett v. University of Puerto Rico, 864 F.2d 881, 897 (1st Cir. 1988). The gist of Hernandez-Loring's quid pro quo claim here is that Diaz-Rivera made advances to her, was rebuffed, and then used his position as head of the committee to revenge himself by blocking her promotion. The district court assumed that such a claim would be legally viable but ruled that Hernandez-Loring had not offered credible evidence sufficient to withstand a motion for summary judgment against her.

During her deposition, Hernandez-Loring offered general allegations, but when pressed for specifics, became vague, said she did not recollect, or simply repeated her general assertions. Later, in her affidavit prepared in response to defendants' summary judgment motion, she furnished details, quotations, and in one case a wholly new incident that had not been offered in her deposition. The district court declined to consider these "eleventh hour recollections." Hernandez-Loring, 62 F. Supp. 2d at 461. We will have more to say about this issue but think it clearer to explain first what appeared in the deposition pertinent to the quid pro quo claim and what was added thereafter.

In the deposition, Hernandez-Loring said that Diaz-Rivera had repeatedly used foul and salacious language in the classroom, that she had complained to the university chancellor or others on a number of occasions, that Diaz-Rivera had interrupted her own classes to request dates with her and pressed his requests on other occasions, that he had greeted her in the hallways with the phrase, "Listen, you haven't greeted me today, did I sleep with you last night," that although married he had carried on with students, and that at a faculty workshop in August 1995 after she had been denied promotion, the following occurred:

Q. What did [Dr. Diaz's] remark consist of?

A. Dr. Diaz told me that if I had done other things the results of my evaluation would have been different.

. . .

Q. What other words did he use?

. . .

A. "That [if] you had gone out with me you would have... - something like that - like going to bed with me, we would have had another... another result."

When Hernandez-Loring filed her affidavit, she was far more explicit about specific coarse and sexually explicit and suggestive language used by Diaz-Rivera toward his students and to Hernandez-Loring herself. Further, in describing what Diaz-Rivera allegedly said to her at the faculty workshop in August 1995, Hernandez-Loring's affidavit discarded paraphrase; Diaz-Rivera, according to the affidavit, said: "Maria Virginia, this happened to you for being such a bitch . . . and [for] not [being] willing to go out with me." Finally, Hernandez-Loring alleged for the first time that in July 1995 she had been pawed, and lasciviously addressed, by the chancellor (Labarca), at a faculty lunch while the latter was inebriated.

In rejecting the quid pro quo claim, the district court gave two different reasons for granting summary judgment. First, the court ruled that the affidavit should not be considered because it did not square with Hernandez-Loring's earlier deposition testimony. And, second, the court said that even if it accepted the affidavit's more detailed description of Diaz-Rivera's conduct, "plaintiff must...