Johnson v. University of Puerto Rico

United States Court of Appeals
For the First Circuit

No. 12-1621

CHRISTINE JOHNSON,

Plaintiff, Appellant,

v.

UNIVERSITY OF PUERTO RICO,

Defendant, Appellee.

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

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.

Aníbal Lugo-Miranda, with whom Lugo-Miranda Law Offices was on
brief, for appellant.
Diego Ramírez-Bigott, with whom Raquel M. Dulzaides and
Jiménez, Graffam & Lausell were on brief, for appellee.

April 18, 2013
 LYNCH, Chief Judge. In 2009, Christine Johnson, an

instructor in graphics, was denied a tenure-track position in the

Engineering Department at the University of Puerto Rico's Mayaguez

Campus ("UPR"). Three others did receive tenure-track positions:

one woman and two men, all of whom had Ph.D.'s, as the position

description required. Johnson did not have a Ph.D. and did not

accept offers by UPR to pay for her to get one.

Johnson filed administrative discrimination (gender and

national origin) charges, followed by a Title VII lawsuit, against

UPR. The district court granted summary judgment for the

defendant, rejecting Johnson's claims that she was qualified for

the tenure-track position, that UPR's reliance on her lack of a

Ph.D. was a pretext, and that the real reason for the failure to

give her a tenure-track position was discrimination. We affirm,

finding that the Ph.D. requirement for tenure-track positions was

a legitimate, nondiscriminatory reason for UPR's actions and that

Johnson did not meet her burden of showing that the articulated

reason was pretextual.

I.

A. Factual Background

Johnson, a native of New York, received her master's

degree in architecture from the University of Buffalo. Johnson

moved to Puerto Rico in 1996 and began working at UPR's Mayaguez

Campus in January of 1998.

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 UPR is "an organic system of higher education" composed

of institutional units which "function with academic and

administrative autonomy" within standards provided by Puerto Rico

law and the rules and regulations of the Board of Trustees. P.R.

Laws Ann. tit. 18, § 603(a). The Mayaguez Campus is one such

institutional unit. Id. § 603(a)(2). Puerto Rico law provides the

Chancellor of the Mayaguez Campus with, among other things, the

authority to appoint deans for the different schools, directors for

different departments, and administrative and academic personnel.

Id. § 606(c)(5)-(7).

At UPR's Mayaguez Campus, Johnson served as a graphics

instructor1 in the Department of Engineering for approximately

twelve years under temporary service contracts that were formalized

every semester.2 Johnson's federal complaint asserts claims dating

back to 2001. In 2001, the Department of Engineering wanted to

offer more graphics classes, most of which were taught by

1
UPR's brief refers to Johnson as a professor, and Johnson's
brief refers to her as an instructor. To avoid confusion between
Johnson's position and tenure-track professor positions, we refer
to her as an "instructor."
2
Temporary service contracts are for a determined period of
time and do not grant tenure. To obtain tenure, an individual has
to be hired for a probationary tenure-track appointment for a
minimum five-year period. After that period expires, the
individual can make a request to the Personnel Committee of the
Department to be considered for tenure, and the Personnel Committee
evaluates the candidate's performance. The Personnel Committee can
issue a recommendation to the Chancellor, who can accept the
recommendation and award tenure.

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instructors with temporary contracts, and was having a difficult

time hiring tenure-track graphics professors who possessed Ph.D.'s,

as required by departmental guidelines. The Department of

Engineering accordingly approved a resolution, on April 26, 2001,

requesting permission of the then-Interim Chancellor to hire

tenure-track graphics professors who did not have Ph.D.'s. The

request was apparently granted.

Three individuals who did not have Ph.D.'s applied for

tenure-track probationary appointments, and two -- José Crespo3 and

Joseph Robinson -- were given appointments beginning on July 1,

2001. Johnson did not apply for the position.

Robinson, like Johnson, was born in the United States.

He was hired because he was the only one qualified to teach the

class Creative Design INGE 3809, and he also possessed an

engineering degree. Crespo was hired to teach the class INGE 3011,

because out of all those who applied and had taught the class, he

had the most experience, since he had taught the class in a full-

time capacity for the five previous semesters.

After those two hires, the Department of Engineering did

not seek or hire any other individual for a tenure-track position

until the 2008-2009 time period.

3
Crespo was Johnson's partner at the time of her deposition
in this case and was her partner in 2001. Johnson, by her own
admission, was aware that individuals were applying for the
position.

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 In the meantime, on November 10, 2006, UPR's Board of

Trustees amended the General Rules and Regulations governing UPR to

clarify that to obtain a tenure-track faculty position a candidate

needed to have a Ph.D. The Regulations state, in section

42.1.2(a), that:

As of fiscal year 2006-2007, in order to hold
a position of professor or researcher, or to
hold a rank in said categories, the person
must have, at least, obtained a doctoral
degree or equivalent terminal degree in areas
that train him or her especially for the
subject matters that he or she teaches,
researches, or is in charge of.

On April 24, 2008, Dr. Walter Silva-Araya, the then-

Director of the Department of Engineering, issued a public

announcement for a tenure-track position as an assistant professor

teaching graphics in the Department of Engineering. The

announcement stated that to be considered for the position the

candidate had to have a Ph.D. or M.S. in architecture or mechanical

engineering. The M.S. alternative was contrary to UPR's amended

2006 General Regulations and was a mistake. Johnson, who had an

M.S. in architecture, sent a letter to Dr. Silva on April 17, 2008,

before the public announcement, expressing her interest in a

tenure-track position. Four other individuals, along with Johnson,

all of whom lacked Ph.D.'s, applied for the position. Of the five

candidates, three were women. No position was ever filled based on

this announcement.

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 The Personnel Committee of the Department of Engineering

recommended that Johnson be chosen in response to the April 2008

announcement, but the promotion hit a snag when the recommendation

was submitted to Chancellor Dr. Juan Vélez Arocho. The Chancellor

rejected the recommendation because the public announcement allowed

an individual without a Ph.D. to be appointed to a tenure-track

position, in violation of the General Regulations. Moreover,

Johnson herself did not have a Ph.D. and so was not qualified. Dr.

Silva testified that the mistake was an oversight on his part, and

the public announcement was cancelled on May 28, 2008.

At this time, Dr. Silva sought alternative options for

Johnson, and the Chancellor recommended to Dr. Silva that Johnson

be offered a leave of absence to pursue a Ph.D. UPR offered to pay

for tuition, books, living expenses, and travel. However, Johnson

never accepted UPR's offer.

On June 23, 2008, Dr. Silva issued a new public

announcement for the same position, which corrected his earlier

mistake. This announcement stated that "[a]pplicants must have a

Ph.D[.] in Civil or Mechanical Engineering and demonstrate

potential for high-quality research and teaching."

Ten candidates, including Johnson, applied for the

position. Of those ten, six had a Ph.D., two were in Ph.D.

programs, one (Johnson) had a master's degree, and one had a

bachelor's degree. The applications created considerable

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discussion on the Personnel Committee because some members wanted

to make Johnson an offer. However, in the end, she was ranked

fourth of the ten, and the top three, all of whom had a Ph.D., were

made offers and accepted. On July 1, 2009, Dr. Aidcer Vidot, Dr.

Luis Montejo, and Dr. Carlos Marín were hired. In addition to

their Ph.D.'s, all three had teaching experience as professors,

instructors, or teaching assistants. Dr. Vidot is a woman, Dr.

Montejo is from Colombia, and Dr. Marín is from Spain.

In December 2009, with the addition of three new tenure-

track faculty members, UPR no longer needed Johnson's services. As

a result, when Johnson's temporary contract expired that month, UPR

and Johnson did not formalize a new temporary service contract.

B. Procedural History

On June 4, 2009, Johnson filed a charge with the Equal

Employment Opportunity Commission ("EEOC") against UPR, alleging

gender and national origin discrimination. She received

notification of her right to sue on November 5, 2009. She never

sought to amend the charge. On December 23, 2009, she filed suit

in federal district court in Puerto Rico, alleging gender and

national origin discrimination in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., along with

other commonwealth law claims not before us on appeal.

UPR moved for summary judgment on April 15, 2011, which

the district court granted on March 26, 2012. Johnson v. Univ. of

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P.R., No. 3:09-cv-2276-ADC (D.P.R. Mar. 26, 2012). The district

court ruled that Johnson's claims arising from the failure to give

her a tenure-track position in 2001, for which she had not applied,

were untimely and no longer actionable because Johnson failed to

file an administrative charge with the EEOC within 300 days of the

alleged unlawful employment practice. See 42 U.S.C. § 2000e-

5(e)(1). As to the employment actions in 2008 and 2009, the

district court found that Johnson had not established a prima facie

case because she did not demonstrate that she was qualified for the

position and because the candidates chosen were more qualified

since they possessed Ph.D.'s. Finally, the district court

concluded that even assuming Johnson established a prima facie

case, the Ph.D. requirement was a legitimate, nondiscriminatory

reason for UPR's decision not to hire Johnson, and the court

explained that Johnson's services were no longer needed once the

other candidates were hired. Johnson did not establish that the

articulated reason was a sham to cover up a discriminatory purpose.

II.

A. Standard of Review

Our review of a district court's grant of summary

judgment is de novo. Galera v. Johanns, 612 F.3d 8, 12 (1st Cir.

2010). We view the record in the light most favorable to the

nonmoving party, id. at 10 n.2, and make all reasonable inferences

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in that party's favor, Thompson v. Coca-Cola Co., 522 F.3d 168, 175

(1st Cir. 2008).

Summary judgment is appropriate when there is no genuine

dispute as to any material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a); Cox v. Hainey,

391 F.3d 25, 29 (1st Cir. 2004). We look to the pleadings,

depositions, answers to interrogatories, admissions on file, and

any affidavits in making the determination. Thompson, 522 F.3d at

175. A dispute is genuine if "the evidence about the fact is such

that a reasonable jury could resolve the point in favor of the non-

moving party." Id. (quoting Sanchez v. Alvarado, 101 F.3d 223, 227

(1st Cir. 1996)) (internal quotation mark omitted). A fact is

material if it has potential to determine the outcome of the

litigation. Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir.

2008).

Once a properly supported motion has been presented,

where a nonmovant bears the burden of proof on an issue, the

nonmovant must point to competent evidence and specific facts to

defeat summary judgment. Tropigas de P.R., Inc. v. Certain

Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011).

The evidence proffered must be "significantly probative of specific

facts," Perez v. Volvo Car Corp., 247 F.3d 303, 317 (1st Cir.

2001), and the "mere existence of a scintilla of evidence" in

-9-
support of the nonmovant's position is insufficient, Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

B. Timeliness of Plaintiff's EEOC Charge as to 2001
and 2008 Events

The district court held that all claims about events

which occurred more than 300 days prior to Johnson filing the

administrative charge with the EEOC on June 4, 2009, including the

2001 decision not to offer her a tenure-track position, were

untimely and not actionable. Johnson argues that the adverse

employment actions constituted a continuing violation. Her

argument fails.

Under 42 U.S.C. § 2000e-5(e)(1), a plaintiff must file an

administrative charge with the EEOC within 180 or 300 days after

the "alleged unlawful employment practice occurred." Frederique-

Alexandre v. Dep't of Natural & Envtl. Res. of P.R., 478 F.3d 433,

437 (1st Cir. 2007). Puerto Rico is a "deferral" jurisdiction, so

the administrative charge must be filed within 300 days of the

alleged unlawful conduct. Id.

The district court correctly held that the allegations

involved discrete acts: failure to give Johnson a position for

which she did not apply, denials of promotion to a tenure-track

position, and nonrenewal of her temporary contract in 2009.4 These

4
She does not, on appeal, explicitly claim that the decision
not to renew her contract was independently discriminatory, so such
an argument is waived. In any event, there is no evidence it was
and the claim fails with the failure of the tenure-track position

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squarely fit within the Supreme Court's explanation of what

discrete acts are. In National Railroad Passenger Corp. v. Morgan,

536 U.S. 101 (2002), the Supreme Court said they are "acts such as

termination, failure to promote, denial of transfer, or refusal to

hire." Id. at 114. Such acts "are not actionable if time barred,

even when they are related to acts alleged in timely filed charges.

Each discrete discriminatory act starts a new clock." Id. at 113;

see Rivera v. P.R. Aqueduct & Sewers Auth., 331 F.3d 183, 188 (1st

Cir. 2003).

On appeal, Johnson recharacterizes her claims as hostile

work environment claims, see, e.g., Tobin v. Liberty Mut. Ins. Co.,

553 F.3d 121, 130 (1st Cir. 2009) (stating "[t]he classic example

of a continuing violation is a hostile work environment"), but such

revision is both too late and meritless in any event. Discrete

acts and hostile work environment claims are "different in kind,"

Morgan, 536 U.S. at 115, because hostile work environment claims by

their nature involve repeated conduct and a single act of

harassment may not be actionable on its own, id.; see also

Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 638 (2007),

superseded in part by statute, Lilly Ledbetter Fair Pay Act of

2009, Pub. L. No. 111-2, 123 Stat. 5, as recognized in Galera, 612

F.3d at 12 n.8.

claims.

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 Only those acts that occurred within the 300 days before

June 4, 2009, are actionable (i.e., from August 8, 2008).5

C. Plaintiff's Remaining Title VII Claims Fail on the Merits

Where, as here, there is no direct evidence of

discrimination in violation of Title VII, a plaintiff's claim is

governed by the burden-shifting scheme set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Lockridge v.

Univ. of Me. Sys., 597 F.3d 464, 470 (1st Cir. 2010). Under that

scheme, the plaintiff must establish a prima facie case of

discrimination, which creates an inference of discrimination. Id.;

Kosereis v. Rhode Island, 331 F.3d 207, 212 (1st Cir. 2003). If a

prima facie case is established,6 "the burden of production -- but

not the burden of persuasion -- shifts to the employer, who must

articulate a legitimate, non-discriminatory reason for the adverse

employment action." Lockridge, 597 F.3d at 470. If the employer

5
The 2001 "act" was merely the failure to give Johnson a
position for which she did not apply, and we doubt that such an
"act" could serve as the basis for a discrimination claim.
6
To establish a prima facie case, a Title VII plaintiff must
show that: (1) she is a member of a protected class; (2) her
employer took an adverse employment action against her; (3) she was
otherwise qualified; and (4) her position remained open or was
filled by a person with qualifications similar to hers. García v.
Bristol-Myers Squibb Co., 535 F.3d 23, 30 n.2 (1st Cir. 2008);
Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 19 (1st
Cir. 1999). We assume arguendo that Johnson meets the first two
requirements. We do not determine the question of whether a native
New Yorker, living in Puerto Rico, is considered a member of a
protected class for purposes of establishing a prima facie case of
national origin discrimination.

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provides such a reason, the plaintiff has to show by a

preponderance of the evidence that the employer's proffered reason

is pretextual and that the actual reason for the adverse employment

action is discriminatory. Id.; Smith v. Stratus Computer, Inc., 40

F.3d 11, 16 (1st Cir. 1994).

Johnson's claims fail because she did not meet UPR's

Ph.D. requirement, which was a facially reasonable and legitimate

requirement. Moreover, Johnson has not shown that the reason is

pretextual.

1. Johnson Was Not Qualified Under a Facially
Reasonable and Legitimate Requirement

Johnson was not qualified under UPR's requirements for a

tenure-track appointment because she did not have a Ph.D.7 See

Welch v. Mercer Univ., 304 F. App'x 834, 836 (11th Cir. 2008)

(plaintiff not qualified where school required an M.D. or Ph.D. for

a promotion and plaintiff had neither); see also Jiminez v. Mary

Washington Coll., 57 F.3d 369, 382-84 (4th Cir. 1995) (failure to

obtain Ph.D. in timely fashion was legitimate ground for

termination). Johnson argues that we must consider other facts

that show she was qualified, including her length of time teaching,

her reputation as "the best" graphics teacher at UPR, and the fact

7
She did not have qualifications similar to those who filled
the positions. All three individuals hired for the tenure-track
positions had doctorates and so were better qualified. Contrary to
Johnson's assertions, their resumes all show they also had teaching
experience.

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that she was recommended for a tenure-track position after the

first public announcement in 2008.

But UPR's Ph.D. requirement was reasonable on its face

and was plainly legitimate. See Jiminez, 57 F.3d at 384. Of the

three individuals hired under the requirement, one was a woman, and

two were of foreign nationalities (one Colombian and one Spaniard).

Moreover, as Dr. Silva testified, requiring professors to have a

Ph.D. benefits UPR in a number of ways. The requirement helps

promote the teaching of the most up-to-date scholarship to

students, provides prestige to UPR, helps it compete with other

universities around the globe, is required for UPR to be a Ph.D.-

granting institution, and helps UPR obtain funding since research

professors with doctorate degrees "are basically [UPR's] main

source of research funding."

Johnson responds that the doctoral degree requirement is

motivated purely by economic reasons. Dr. Silva's testimony

establishes otherwise, and the objection is meritless in any event.

"Courts may not sit as super personnel departments, assessing the

merits -- or even the rationality -- of employers'

nondiscriminatory business decisions." Mesnick v. Gen. Elec. Co.,

950 F.2d 816, 825 (1st Cir. 1991). Further, the defendant's agents

were acting under regulations imposed by the Board of Trustees,

which Puerto Rico law makes binding. See P.R. Laws Ann. tit. 18,

§ 603(a). The requirement was not discriminatory.

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 2. Johnson Cannot Establish Pretext

In any event, Johnson has not shown by a preponderance of

the evidence that the Ph.D. requirement is merely pretextual and

the true reason for UPR's actions is discriminatory. Johnson's

argument primarily rests on the ground that UPR could have applied

an exception to the requirement. However, she did not satisfy two

parts of the exception. First, she would not obtain a Ph.D. even

when offered a leave of absence and financial assistance. Second,

it was not difficult to recruit for the position.

Section 42.1.5(a) of the General Regulations states that:

Persons who do not fully meet the academic
degree requirements may be recruited as
teaching staff as long as they have stood out
by their exceptional merits in the field of
their speciality, or have a recognized
competency in an area of difficult recruitment
or skills.

To benefit from the exception, section 42.1.5(a)(2) states that the

individual must agree to obtain the required degree in a reasonable

period of time.

UPR, on the recommendation of the Chancellor, offered to

grant Johnson a leave of absence to pursue a Ph.D. subsidized by

UPR, and Johnson never accepted the offer. Johnson herself

admitted that she had been encouraged by UPR to get a doctorate,

that UPR offered financial assistance, and that nevertheless she

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never pursued a Ph.D.8 So, the exception would not have applied to

her.

Moreover, Johnson did not show that UPR had a difficult

time recruiting individuals for the tenure-track position. In

fact, six of the ten applicants for the second public announcement

had Ph.D.'s and two others were completing their Ph.D.'s.

Johnson's other pretext argument is that the deposition

testimony by Dr. Wilma Santiago Gabrielini demonstrates that the

adverse employment actions were based on the Chancellor's bias

against women.9 But Dr. Santiago's opinion testimony was based on

speculation because she lacked any personal knowledge about the

events at issue. No reasonable jury could find pretext from this

testimony.10 We add that the Chancellor is the one who recommended

that Dr. Silva offer Johnson a leave of absence to pursue a

subsidized Ph.D. Additionally, he had hired women in the past,

including Dr. Santiago, and awarded a tenure-track position to a

woman in response to the June 2008 announcement.

8
Johnson testified that she had not tried to get a doctorate
because "I feel that my experience, along with my professional
license and my work history, are adequate and beyond adequate for
a tenure track position."
9
The district court did not consider this deposition because
it was not submitted with Johnson's motion opposing summary
judgment. The transcript was filed a month after Johnson filed her
opposition, and even if we consider it, the result is the same.
10
Further, the testimony would also likely have been
inadmissible propensity evidence. See Fed. R. Evid. 404(a).

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 III.

The district court's grant of defendant's motion for

summary judgment is affirmed.

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