Lipsett v. Rive-Mora

• Decision Date: 16 September 1987
• Docket Number: Civ No. 83-1516CC.
• Citation: 669 F. Supp. 1188
• Parties: Annabelle LIPSETT, Plaintiff, v. Ernesto RIVE-MORA, individually and in his capacity as Director of the Training Program of the San Juan Veterans Administration Hospital; Charles C. Freeman, Center Director of the San Juan Veterans Administration; Harry N. Walters, in his capacity as Administrator of the United States Veterans Administration, Defendants.
• Court: U.S. District Court — District of Puerto Rico

669 F. Supp. 1188

Annabelle LIPSETT, Plaintiff, v. Ernesto RIVE-MORA, individually and in his capacity as Director of the Training Program of the San Juan Veterans Administration Hospital; Charles C. Freeman, Center Director of the San Juan Veterans Administration; Harry N. Walters, in his capacity as Administrator of the United States Veterans Administration, Defendants.

Civ No. 83-1516CC.

United States District Court, D. Puerto Rico.

September 16, 1987.

COPYRIGHT MATERIAL OMITTED

Judith Berkan, Santurce, P.R., Charles S. Hey-Maestre and José Antonio Lugo, Instituto Puertorriqueño Derechos Civiles, Rio Piedras, P.R., for plaintiff.

Daniel F. López-Romo, U.S. Atty., Wanda Rubianes-Collazo, Asst. U.S. Atty., Hato Rey, P.R., for defendants.

OPINION AND ORDER

CEREZO, District Judge.

This is a civil rights action for injunctive, declaratory, and monetary relief filed by a female doctor who alleges that her residency in general surgery at the University of Puerto Rico's (UPR) School of Medicine Residency Training Program (Program) was terminated in violation of her due process and equal protection rights, as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution, Title IX of the Education Amendments of 1972, 20 U.S.C. sec. 1681 (Title IX), and multiple local laws she has invoked through pendent jurisdiction.

This complaint was mainly directed against the UPR, the School of Medicine, the Program and their higher ranking officers; the UPR being sued pursuant to Title IX, because of the alleged sexually discriminatory practices at the institution, and the officers in their individual and official capacity through 42 U.S.C. sec. 1983, because of their alleged participation in the violations claimed. A minor portion of the pleadings charged alleged incidents of sexual harassment by Dr. Ernesto Rivé-Mora, a staff surgeon at the Veterans Administration (VA) Hospital, an affiliated hospital where the UPR residents would periodically rotate to perform surgery. Plaintiff sued Dr. Rivé-Mora in his individual and official capacity as Director of the Training Program of the San Juan Veterans Administration while Charles C. Freeman, Center Director of the San Juan Veterans Administration and Harry N. Walters, Administrator of the United States Veterans Administration, were sued only in their official capacities (the federal defendants).

In Lipsett v. University of Puerto Rico, 576 F.Supp. 1217 (D.P.R.1983) (Lipsett I), we denied the federal defendants' motion to dismiss based on sovereign immunity because the allegations could support a Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), type of action against Dr. Rivé-Mora. In view of the limited development of the facts at the time, we reserved ruling on whether a Title IX action could be asserted against the Veterans Administration through its higher officials or whether Dr. Rivé-Mora could also be held liable under 42 U.S.C. 1983 based on the acting-in-concert-with-state-officials theory. Lipsett I at 1222-24. However, in Lipsett v. University of Puerto Rico, 637 F.Supp. 789 (D.P.R.1986) (Lipsett II), the motions for summary judgment of the UPR and its officers' were granted and partial judgment entered dismissing all claims against them for failure to establish their liability under Title IX or section 1983 for the alleged due process violations and sexually discriminatory or harassing practices among the residents. The federal defendants had not filed their motion for summary judgment and the claims against them were not considered in Lipsett II because of a pending discovery request.

Having ruled on this matter, we now have before us the federal defendants' motion for summary judgment and plaintiff's oppositions and replies, the last of which was filed on May 15, 1987. The essential argument made by the federal defendants is that the conduct charged against Dr. Rivé-Mora does not amount to constitutionally proscribed sexual harassment and that plaintiff was not subjected to any unequal treatment based on sex by any of the remaining defendants. They also contend that the sex harassment and discrimination claims are time barred and that, at least, they are entitled to qualified immunity. Plaintiff counters that the high ranking Veterans Administration defendants were responsible for the sexually hostile environment at the Program and urges that we adopt an agency type of liability from Title VII of the Civil Rights Act of 1964, as advanced by Meritor Savings Bank v. Vinson 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). She claims that Dr. Rivé-Mora sexually harassed her by creating a hostile environment through repeated sexual advances and by treating her unfavorably when she rejected these advances and that the claims for the discriminatory practices did not accrue until the decision by the appeals committee was final or, at least, until December 1982, when Dr. Rivé-Mora participated in the faculty meeting that decided not to reconsider their decision.

Before proceeding further, it is important to note that the court has already ruled upon and entered partial judgment on the merits of most of plaintiff's claims. Plaintiff has attempted, in a subtle but deliberate manner, to relitigate many of the same issues already ruled upon in Lipsett II, which we make a part of this Opinion and Order. It should also be noted that plaintiff requested reconsideration of the Lipsett II Opinion and Order when she read in the newspaper that the Supreme Court had issued the Meritor Savings Bank v. Vinson opinion regarding an employer's liability for its supervisor's acts of sexual harassment in a Title VII case. As we stated in our Order of August 21, 1986 denying the motion for reconsideration:

The Meritor decision deals with the particular requirements and scope of liability in a Title VII action. The instant complaint is not based on Title VII and codefendants' liability, as discussed in our Opinion and Order, has been couched otherwise. Moreover, the particular view adopted in Title VII cases as to the employer's liability for acts of its supervisors discussed in Meritor did not pop out of the blue. See Anderson v. Methodist Evangelical Hospital, Inc., 464 F.2d 723, 725 (6th Cir.1972) cited by the Court in Meritor, 477 U.S. at p. ___, 106 S.Ct. at p. 2408 54 L.W. at p. 4707, and cases cited by concurring judges at p. ___, 106 S.Ct. at pp. 2409-2410 at p. 4708. Plaintiff has offered absolutely no justification for failing to include in her extensive oppositions to the motions for summary judgment an argument for the transposition of the Title VII supervisor-employee liability doctrine, available at the circuit court level way before the Meritor opinion was issued, to the particular factual and legal framework of this case. Likewise, she has also failed to request further amendments to her complaint to introduce such grounds for co-defendant's liability. We are not dealing with a pro-se civil rights litigant but with a professional represented by various attorneys associated with an institute which calls itself Instituto Puertorriqueño de Derechos Civiles and which is, presumably, knowledgeable of civil rights' litigation. Finally, plaintiff fails to elaborate in her Rule 60(b)(6) motion just how this special doctrine can be applied successfully to the specific factual framework of this case and to the disarrayed set of events discussed in our Opinion and Order. We see no reason why, at this stage of the proceedings, we should engage sua sponte in the complex and novel analysis of how this Title VII doctrine applies to this case when plaintiff herself has not cared to do so....

We find it necessary to refer to our prior rulings in Lipsett II for plaintiff's opposition is plagued by unexplainable repetition of adjudicated issues, as evinced in her statement of facts in controversy and poorly developed arguments which mix concepts from the various civil rights legislations and constitutional principles. In Lipsett II, we mentioned the difficulty in assessing plaintiff's claims since their factual basis rested on a "disarrayed group of events covering a three year period and involving a multitude of individuals and situations". Unfortunately that situation still persists as well as a poorly focused application of the pertinent legal principles to the relevant facts. There is no need to reexamine all the issues considered and ruled upon in Lipsett II. Suffice it to say that all the factual and legal analysis set forth therein is expressly incorporated and made a part of this opinion.

The facts underlying the parties' positions are derived from the documents and depositions in Lipsett II. Aside from these documents, defendants have also included the Veterans Administration Hospital's operations log book, an affidavit by Dr. Rivé-Mora, and resumes of the attendings at the Veterans Administration component of the Program to contest the contention that plaintiff operated less when she rejected Dr. Rivé-Mora's approaches. Plaintiff has also included a sworn statement dated December 1986 where she addresses many of the deficiencies of her case which were previously pointed out by the Court in Lipsett II and explains her motivations for the inconsistencies. She also tries to square the case with the Vinson decision as to the inexistence of an anti-discrimination policy or grievance procedure, indicating that she was never told in any of her initial orientations at the Program that sex discrimination was disfavored or that she could complain about it. She also adds other incidents of harassment by a senior resident during her first rotation at the V.A. Hospital and of unequal treatment at V.A., which she had never mentioned before. We examine the factual context of this record in light of the principles applicable to motions for summary judgment, as discussed in Lipsett II at pp. 798-800. We will first...