Vargas-Figueroa v. Saldana

• Decision Date: 18 August 1987
• Docket Number: VARGAS-FIGUERO,P,No. 86-2014,86-2014
• Citation: 826 F.2d 160
• Parties: 41 Ed. Law Rep. 93 Fernandolaintiff, Appellee, v. Jose M. SALDANA, etc., et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 160

826 F.2d 160

41 Ed. Law Rep. 93

Fernando VARGAS-FIGUEROA, Plaintiff, Appellee, v. Jose M. SALDANA, etc., et al., Defendants, Appellants.

No. 86-2014.

United States Court of Appeals, First Circuit.

Submitted June 5, 1987.

Decided Aug. 18, 1987.

Ruben T. Nigaglioni, James D. Noel, III, Ledesma, Palou & Miranda, Hato Rey, P.R., and Lady Alfonso de Cumpiano, Legal Counsel, University of Puerto Rico, San Juan, P.R., on brief, for defendants, appellants.

Eliezer Aldarondo Ortiz, Hato Rey, P.R., Miguel Pagan, San Juan, P.R., and Aldarondo & Lopez Bras, Hato Rey, P.R., on brief, for plaintiff, appellee.

Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and RE, ^* Judge.

BREYER, Circuit Judge.

In August 1986 the chancellor of the University of Puerto Rico's medical sciences campus, Dr. Jose M. Saldana, and the dean of its medical school, Dr. Nydia de Jesus, removed the plaintiff, Dr. Fernando Vargas Figueroa, from his post as head of the physiology department and replaced him with Dr. Manuel Martinez Maldonado. Dr. Vargas then sued the chancellor and the dean (and Dr. Martinez), claiming under 42 U.S.C. Sec. 1983 that the chancellor and the dean had unlawfully removed him because of his political affiliation and national origin. After a hearing, the district court issued a preliminary injunction that required the university officials to permit Dr. Vargas to continue as head of the department. Vargas Figueroa v. Saldana, 646 F.Supp. 1362 (D.P.R.1986). Those officials appeal, claiming that the injunction is unlawful. We agree and now reverse.

I

The record indicates the following events:

1. Between 1973 and 1979 Dr. Martinez (plaintiff's eventual replacement) was acting head of the physiology department. 646 F.Supp. at 1364. In 1979 Dr. Martinez took sabbatical leave in Boston, and Dr. Jaime Bernstein replaced him as acting department head. (Tr. 282.) In November 1979 the evaluation committee of the department recommended against granting tenure to Dr. Susan Opava Stitzer, a native New Yorker and assistant professor of physiology who had often collaborated with Martinez. (A. 114-16, 126, 194, 208-12.) Dr. Martinez strongly supported Dr. Stitzer's tenure bid. (A. 121-25.) The then dean endorsed Dr. Stitzer for tenure, but also transferred her, over her strong objections, out of the department of physiology. (A. 134-40; Tr. 286-87.) Seven members of the physiology department--including Dr. Martinez and Dr. Kent Stitzer (Susan Stitzer's husband and a native Californian)--protested her transfer. (A. 144, 168.) The issue divided the faculty into two groups, which we shall call "pro-Stitzer (Martinez)" and "anti-Stitzer (Bernstein)."

2. The argument within the faculty about Susan Stitzer was apparently only one illustration of the acrimony and factionalization prevalent within the physiology department. A former dean characterized the department as one where "there were many problems, many quarrels, disagreements among the faculty for many years.... [p]ersonality problems, problems of communication, communication especially agreeing on simple things.... [on] day to day details that sometime[s] you look at from the outside seem to you ridiculous." (Tr. 341-42.)

3. In 1980 the university hired the plaintiff, Dr. Vargas, a Chilean-born American citizen who was then teaching at the University of Minnesota. 646 F.Supp. at 1363 (Tr. 5-6.) He became both a professor in the physiology department (at a $33,000 teaching salary) and permanent department head (a position carrying an annual $7000 administrative bonus). (Tr. 11.)

4. Other events continued to polarize the faculty along "pro-Stitzer (Martinez)" and "anti-Stitzer (Bernstein)" lines, and plaintiff seems to have sided with the "anti-Stitzers." When plaintiff assumed his post, Dr. Stitzer's transfer out of the physiology department had been discussed but not yet officially recommended. The plaintiff spoke to Dr. Bernstein but not to Dr. Stitzer about her transfer, and he allowed the transfer to proceed. (A. 106.) Later, Dr. Stitzer sued the university, claiming (unsuccessfully) that her transfer was motivated by sexual bias. See Stitzer v. University of Puerto Rico, 617 F.Supp. 1246 (D.P.R.1985). Plaintiff testified against her (Tr. 56, 58); Dr. Martinez testified for her (Tr. 56). At some point, plaintiff removed Dr. Martinez from his post as coordinator of a chapter of renal physiology. 646 F.Supp. at 1364.

5. The "pro-Stitzer (Martinez)" group sometimes seemed openly hostile toward the plaintiff. There is testimony that, on one occasion, Dr. Martinez arranged the visit of a Maryland physiologist, together with seminars and a detailed program of activities, as if he (rather than plaintiff) were still department head. More importantly, at a January 1984 faculty meeting, Dr. Martinez blamed poor student performance on the large number of non-native Puerto Rican professors in the department. The next day someone placed on plaintiff's door a poster that said "Evidence mounting quickly [that] Non-P.R. professors [are] Guilty[.] Ad Hoc Committee: Expel them All!" Similar posters appeared elsewhere in the department. Dr. Bernstein (who, like plaintiff, is from Chile) complained about Dr. Martinez's remarks, and another (apparently "pro-Stitzer (Martinez)") faculty member then insulted and punched Dr. Bernstein. Some time later, Dr. Stitzer's husband complained that plaintiff, as department head, had given preference in hiring to Chileans and South Americans. Both Stitzers opposed plaintiff's tenure bid, and his tenure request has yet to be settled. 646 F.Supp. at 1364-65.

6. About one year after the election of a new governor of Puerto Rico in November 1984, defendant Saldana became chancellor of the medical sciences campus. (Tr. 77.) Another half year later, in March 1986, defendant de Jesus became dean of the medical school. The dean appointed an ad hoc committee to study the department of physiology. (Tr. 240, 247.) The committee reported that the department was "polariz[ed]," and it criticized plaintiff for his inability to "harmonize" the factions. (A. 104.)

7. As the committee recommended, the dean transferred Dr. Stitzer back into the physiology department. The plaintiff, Dr. Bernstein, and others protested the retransfer. 646 F.Supp. at 1367 (A. 112, 145). The dean also recommended to the chancellor that he replace plaintiff as department head. In August 1986 the chancellor did so, making Dr. Martinez acting department head. 646 F.Supp. at 1363-64, 1366. The plaintiff has kept his position as associate professor of physiology; his university salary has dropped from $40,000 to $33,000. Plaintiff brought this suit to recover his position as department head. The district court granted a preliminary injunction reinstating him, and defendants now appeal.

II

This court has said that a plaintiff seeking a preliminary injunction must meet four criteria:

"The Court must find: (1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction."

Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981) (quoting Women's Community Health Center v. Cohen, 477 F.Supp. 542, 544 (D.Me.1979)). The heart of this test is the second and third steps, which present the question whether the harm caused plaintiff without the injunction, in light of the plaintiff's likelihood of eventual success on the merits, outweighs the harm the injunction will cause defendants. See Massachusetts v. Watt, 716 F.2d 946, 953 (1st Cir.1983); cf. SEC v. World Radio Mission, 544 F.2d 535, 541 (1st Cir.1976) ("To the extent that a defendant can show harm, this must be discounted by the degree that a plaintiff can show likelihood of success."). While recognizing the district court's authority initially both to find and to weigh the facts, see Brown v. Chote, 411 U.S. 452, 457, 93 S.Ct. 1732, 1735, 36 L.Ed.2d 420 (1973), we nonetheless find that the record does not support the injunction.

We note first that it is difficult to identify an "irreparable injury" to Dr. Vargas if the injunction is denied but he goes on to win the case. Dr. Vargas's position as department head accounted for only $7000 of his $40,000 annual income, the remainder of which he will continue to draw as an associate professor. If he eventually wins this suit, he can collect his $7000 annual bonus as back pay from the university.

At the same time, requiring the university to keep Dr. Vargas in office while the lawsuit continues imposes a serious burden upon the university, namely the burden of running a department without the department head of its choice. The injunction surrenders the university's academic autonomy to a federal district court. Courts have wisely recognized the importance of allowing universities to run their own affairs (and to make their own mistakes). To...