Lipsett v. University of Puerto Rico

• Decision Date: 16 December 1983
• Docket Number: Civ. 83-1516CC.
• Citation: 576 F. Supp. 1217
• Parties: Annabelle LIPSETT, Plaintiff, v. UNIVERSITY OF PUERTO RICO; Norman Maldonado, individually and as Chancellor of the Medical Science Campus of the University of Puerto Rico, Pedro Juan Santiago Borrero, individually and in his capacity as Dean of the School of Medicine of the University of Puerto Rico; Jose R. Gonzalez Inclan, individually and in his capacity as Acting Director of the Department of Surgery and as Acting Director of the Surgery Residency Training Program; Gumersindo Blanco, individually and in his capacity as Director of Department of Surgery and Chairman of the University of Puerto Rico and Affiliated Hospitals Residency Training Program; 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 Veteran's Administration; James G. Martin, in his capacity as Director of the United States Veterans Administration; The United States Government, Defendants.
• Court: U.S. District Court — District of Puerto Rico

576 F. Supp. 1217

Annabelle LIPSETT, Plaintiff, v. UNIVERSITY OF PUERTO RICO; Norman Maldonado, individually and as Chancellor of the Medical Science Campus of the University of Puerto Rico, Pedro Juan Santiago Borrero, individually and in his capacity as Dean of the School of Medicine of the University of Puerto Rico; Jose R. Gonzalez Inclan, individually and in his capacity as Acting Director of the Department of Surgery and as Acting Director of the Surgery Residency Training Program; Gumersindo Blanco, individually and in his capacity as Director of Department of Surgery and Chairman of the University of Puerto Rico and Affiliated Hospitals Residency Training Program; 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 Veteran's Administration; James G. Martin, in his capacity as Director of the United States Veterans Administration; The United States Government, Defendants.

Civ. 83-1516CC.

United States District Court, D. Puerto Rico.

December 16, 1983.

COPYRIGHT MATERIAL OMITTED

Esther Vicente and José A. Lugi, "Instituto Puertorriqueño de Derechos Civiles" Rio Piedras, P.R., Judith Berkan, Santurce, P.R., for plaintiff.

Francisco A. Besosa, James D. Noel, III, Ledesma, Palou & Miranda, Hato Rey, P.R., Edgardo Colón Arrarás, Comm. of P.R., San Juan, P.R., for defendants.

OPINION AND ORDER

CEREZO, District Judge.

This is an action by a female surgery intern seeking damages, declaratory and injunctive relief against the University of Puerto Rico's (UPR) School of Medicine and several of its officers. She claims that a decision taken by these defendants refusing to promote her to the fourth year residency level at the School of Medicine's Surgery Training Program was the result of unconstitutional and illegal discrimination on account of her sex and that the procedure used to arrive at this decision also violated her right to due process of law. The complaint is brought against administrative officials and professors of the UPR and the School of Medicine¹ in their individual as well as official capacity for violations of the Civil Rights Act, 42 U.S.C. Sec. 1983, the Fourteenth Amendment, Title IX of the Education Amendments of 1972, 20 U.S.C. Sec. 1681 et seq. and for violations of various state laws annexed to the main cause of action by the allegation of pendent jurisdiction. Plaintiff also directs her complaint against several federal government officials of the Veterans Administration (VA) (Dr. Ernesto Rivé Mora, Director of the Training Program of the San Juan VA Hospital; Charles C. Freeman, Center Director of the San Juan VA and James G. Martin, the Administrator of the VA) for violation of her right to be free from discrimination as provided by the Fifth Amendment, the Civil Rights Act and Title IX. The complaint crosses into federal terrain due to a special arrangement between the VA and UPR whereby the Program's residents conduct part of their training at the VA Regional Hospital facilities and, apparently, are evaluated by VA personnel. The VA also pays for some of the residents' stipends. In essence, the complaint alleges that defendants have either permitted by inaction and/or participated directly in encouraging the biased attitudes prevailing at the Program against women who, like plaintiff, do not conform to the predominantly male faculty's conception of womanhood; an attitude which plaintiff alleges resulted in an unequal and discriminatory application of the standards of evaluation leading to the denial of her promotion. Plaintiff also alleges that federal defendant Ernesto Rivé Mora engaged in acts of sexual harassment against her and that the procedures used to evaluate her were conducted before a biased examining board without giving her an adequate opportunity to examine the evidence against her and without following the procedure established by the UPR's student regulations. The Commonwealth Government defendants have filed Motions to Dismiss and a Motion for Summary Judgment challenging the complaint for failing to state a cause of action against them and/or that they had no knowledge of the alleged discriminatory attitudes and incidents at the Program and that the decision to deny promotion was based on valid reasons as well as the result of fair proceedings. These motions will be dealt with by a separate opinion and order. Now before us is the federal defendants' Motion to Dismiss.

Before discussing this motion it should be indicated that this action was originally brought solely against the Commonwealth defendants and Ernesto Rivé Mora. However, at the hearing to discuss a petition for a temporary restraining order, the United States attorneys, appearing on behalf of Dr. Rivé Mora, joined in the argument raised by the other defendants based on the possibility that the interests of the United States could be affected by an order reinstating plaintiff as a surgery resident who would practice in the VA Regional Hospital and who could engage in negligent conduct and expose the United States to monetary liability in a malpractice action. In view of the Commonwealth defendants' allegations that plaintiff was refused continuance in the Program because of conduct which could have affected the health and well being of the patients entrusted to her care (e.g.: abandonment of her on-call duty, refusal to follow treatment procedures or instructions from her immediate supervisors) and the possibility, which in the magnified light of urgency cast by an expedient hearing appeared to be less than remote, that the United States through its agency the VA could be exposed to liability of this sort, the Court in striking a balance between plaintiff's request for immediate reinstatement and the potential for damage to the absent parties, decided that these parties should be permitted to participate in the proceedings to protect their interests. The court denied the temporary relief and ordered plaintiff to file an amended complaint to join these parties and to summon them accordingly. After the amended, and later corrected, complaint was filed and the additional parties were summoned, the court issued an order stating that any reference during the hearing to the absent parties as indispensable should not be construed as a finding of indispensability within the technical meaning of Rule 19 Fed.R.Civ.P. It was expressly stated in that order that the additional parties were to be considered merely as necessary and proper and not as indispensable.²

The federal defendants' Motion to Dismiss challenges the complaint on grounds of sovereign immunity, inapplicability of the law invoked to support part of the action and on the incorrect naming of the Director of the VA. Plaintiff's opposition asserts that Title IX applies to a federal agency, that the unique relationship between the VA Regional Hospital and the UPR exposed the VA's staff to liability under the Civil Rights Act, that the VA's staff participation in her unfavorable evaluation tainted by discriminatory attitudes makes the agency's action one reviewable under the Administrative Procedure Act (APA), 5 U.S.C. Sec. 702, and that the federal officials are liable for their unconstitutional conduct and subject to a Bivens action. Plaintiff indicated that it was not her intention to make the federal defendants liable on the state law causes of action. Plaintiff also filed a Motion to Amend the Complaint where she expands on the federal defendants' alleged liability. The amended pleading tendered refers to the relationship between Rivé Mora and the School of Medicine's faculty and his involvement in the surgery training program evaluation process, ascribes liability to defendants Freeman and Martin based on their duty to know or to have known of the discriminatory attitude and sexual harassment going on at the VA regional hospital, specifies additional types of damages, e.g.: loss of income, adds actions under the Puerto Rico Civil Rights Act, P.R. Laws Ann., Tit. 32 Sec. 3524 and Article 1802 of the Civil Code, P.R. Laws Ann., Tit. 31 Sec. 5141³ and corrects the name of the VA's Administrator who had been improperly named as Martin due to a misunderstanding of no consequence with the Assistant U.S. Attorneys (the correct name being Harry N. Walters). The motion to amend the complaint has not been opposed by any of the parties and we see no reason to deny it given the liberal criteria of Rule 15, Fed.R.Civ.P., and the absence of any indication by the other parties of the amendments' adverse effects.

Upon examining the federal defendants' Motion to Dismiss, it is important to first note that the standard enunciated in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) requires that we assume, for purposes of this analysis, that plaintiff's factual allegations of sexual discrimination and lack of due process are true. Under this standard we are compelled to conclude that these pleadings, prima facie, set forth a cause of action based on a state agency's participation with federal officers in a decision arrived at by the use of a tainted procedure and unequal treatment because of sex which resulted in depriving plaintiff of a legitimate expectancy in being evaluated fairly. Even though one may argue, based on the same reasons later discussed regarding the VA's liability for injunctive relief, that this liberal reading could lead to the conclusion that the sovereign may be held liable on equitable relief, we find that the absence of challenge to the non-indispensable status of the United States as a defendant makes it unnecessary for the court to rule on this matter. If the United States, which originally gave the impression through the qualified representations of the Assistant U.S. Attorneys that it had an interest worth protecting by its participation in these proceedings, no longer...