United States Court of Appeals
For the First Circuit
No. 99-2116
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.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Selya, Circuit Judge,
Wallace,* Senior Circuit Judge,
and Boudin, Circuit Judge.
Wilfredo A. Geigel for appellant.
Jose E. De La Cruz-Skerrett with whom De La Cruz Skerrett
*Of the Ninth Circuit, sitting by designation.
Law Offices was on brief for appellees.
December 1, 2000
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
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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
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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
1
It is not at all clear from the complaint that Hernandez-
Loring intended to state a separate sexual harassment claim or
whether references in the complaint were solely in support of
the due process claim. However, during the summary judgment
proceedings before the district court, both parties treated the
case as if there were a separate claim for sexual harassment,
devoting a substantial portion of their summary judgment
memoranda to that issue, and the district court proceeded on the
same basis. Accordingly, we treat the complaint as effectively
amended or clarified by consent. See Fed. R. Civ. P. 15(b);
Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1172 (1st Cir.
1995).
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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
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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).
2
There is no indication that the administrative
preconditions for a Title VII suit were ever satisfied. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973).
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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
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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-
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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 still establish a
colorable claim that her denial of tenure by the review
committee was directly linked to" retaliation by Diaz-Rivera,
but that she had "failed to establish any link between her
denial of tenure and Diaz-Rivera’s discriminatory animus toward
her." Hernandez-Loring, 62 F. Supp. 2d at 462. Even if Diaz-
Rivera’s vote was tainted, the court said that it was "unable to
discern any causal link" between his animus and "the merit-based
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objective performance rendered by at least 4 of the 5 committee
members." Id.
On appeal, Hernandez-Loring says that the court erred
in refusing to consider the affidavit, but as to the quid pro
quo claim, the affidavit is largely beside the point.
Hernandez-Loring's deposition testimony already said that Diaz-
Rivera pestered her for dates, made explicit sexual references,
and then--after the committee he headed recommended against her
promotion--more or less said to her in August 1995 that this was
the consequence of her spurning him. Deposition statements of
students also corroborated Diaz-Rivera's use of suggestive
language. The affidavit added little to Hernandez-Loring’s
claim that her promotion denial was an act of spite by Diaz-
Rivera.
Turning to causation, at first blush it seems unlikely
that the private animus of one committee member, even though the
presiding member, would be the effective cause of a decision by
a committee of five members to rank Hernandez-Loring last among
four candidates, giving her a numerical score below the minimum
necessary to qualify for promotion to full professor (even if
there had been more than one vacancy available). Cf. Coogan v.
Smyers, 134 F.3d 479, 485 (2d Cir. 1998); Jeffries v. Harleston,
52 F.3d 9, 14 (2d Cir.), cert. denied, 516 U.S. 862 (1995). On
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the other hand, it is not impossible: conceivably a biased chair
could have influenced other members privately or, depending on
how the score was developed, a very low score from one member
could have had a disproportionate result. The briefs are
remarkably opaque as to how the committee operated and how it
reached its decision.
For the most part, this opacity argues against
Hernandez-Loring. Faced with a motion for summary judgment, it
was her burden to establish that there existed evidence creating
a trial-worthy claim that Diaz-Rivera had caused her to be
denied the promotion. Fed. R. Civ. P. 56(e); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). In deposing the
committee members, she was free to ask questions to establish
what was said at the deliberations, to identify so far as
possible how the scoring was done, and to identify what Diaz-
Rivera might have done to influence the outcome adversely to her
promotion. Of course, objections might have been raised to such
inquiries.
Yet she has one very potent fact in her favor.
According to her deposition testimony, Diaz-Rivera himself
boasted to her that he had caused her denial of promotion
because she had spurned him. True, he did not explain how this
trick had been done and his statement could have been
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misunderstood or, alternatively, it could have been a cruel
deceit to make a denial of promotion on the merits even more
painful. But an admission from a wrongdoer is powerful proof
even without detail, see Hallquist v. Local 276, Plumbers &
Pipefitters Union, 843 F.2d 18, 24-25 (1st Cir. 1988), and how
his statement should be construed and whether it should be
accepted as true are largely jury issues, at least where the
admission is not wholly incredible. Anderson, 477 U.S. at 255.
There is no evidence, apart from Hernandez-Loring's own
testimony, that Diaz-Rivera ever made the critical admission.
This is a troubling problem often prominent in harassment cases
and accentuated here by the surface unlikelihood of the
causation claim. On the other hand, Hernandez-Loring was
consistent in her claim that Diaz-Rivera made his boast; most
(although not all) of the other changes in her testimony are
less suspicious than they look (as we will shortly explain); and
the likelihood that the boast was made is somewhat enhanced,
even if indirectly, by the evidence from the students as to how
Diaz-Rivera generally behaved. In sum, we think summary
judgment on the quid pro quo claim should not have been granted
on the grounds given.
On remand, nothing prevents the defense, if the
district court permits it, from making a second motion on this
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issue. If the four committee members told a consistent story
that effectively disproved Diaz-Rivera's boast, it is not clear
that a reasonable jury could accept the boast; nor would
Hernandez-Loring automatically be entitled to a trial simply in
the hope that the jury might disbelieve consistent, plausible,
and otherwise unimpeached testimony from four other witnesses,
even if (dubitante) they were technically "interested" parties.
See Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.
1991), cert. denied, 504 U.S. 985 (1992).
Finally, we consider the claim that there was
sufficient evidence of a "hostile work environment" to entitle
Hernandez-Loring to a trial on that claim. Here, the district
court thought it fatal that much of the force of this claim
rested on allegations that appeared only in Hernandez-Loring’s
affidavit and not in her deposition. In the alternative, the
court said that even if the affidavit were accepted, the court
doubted whether the allegations--which it said "essentially
comprise three incidents by two separate individuals during a
five-year span, as well as a series of vague entreaties by Diaz-
Rivera to date Hernandez-Loring"--were of "sufficient frequency
and severity" to make out a colorable claim of hostile work
environment. Hernandez-Loring, 62 F. Supp. 2d at 462 n.5.
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Whether (or to what extent) the affidavit had to be
considered is a difficult question. We have said in the past
that where a party has given "clear answers to unambiguous
questions" in discovery, that party cannot "create a conflict
and resist summary judgment with an affidavit that is clearly
contradictory," unless there is a "satisfactory explanation of
why the testimony [has] changed."3 Partly, the concern is with
the credibility of a later disavowal, but the rule is also a
matter of policy: if prior statements under oath could be
disavowed at will after a motion is made, the other side would
be faced with a constantly moving target and summary
dispositions made almost impossible.
Of course, in applying this rule, it is critical that
there be no "satisfactory explanation" since lapse of memory,
new sources of information or other events can often explain a
revision of testimony. Whether there is a contradiction and
whether the explanation for it is satisfactory are both likely
to depend very much on an assessment of specific facts; and in
such cases the district court’s judgment is likely to be
superior to that of a more remote appellate tribunal. Usually
3
Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5
(1st Cir. 1994); accord Torres v. E.I. DuPont de Nemours & Co.,
219 F.3d 13, 20 (1st Cir. 2000); see also Russell v. Acme-Evans
Co., 51 F.3d 64, 67-68 (7th Cir. 1995).
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appellate courts give some deference to the district court’s
assessment of so-called "mixed questions." United States v.
Howard (In re Extradition of Howard), 996 F.2d 1320, 1327-28
(1st Cir. 1993). Deference, however, does not mean abdication,
and here our view of the situation differs somewhat from that of
the district court.
We think that in the present case the district court
was entitled to disregard any completely new incident that
Hernandez-Loring described for the first time in her affidavit,
assuming that prior questions had clearly asked for such
information. This may be the case with Hernandez-Loring’s claim
that in July 1995 she was pawed and subjected to suggestive
comments by the chancellor. She was asked in general terms
about incidents of harassment and this was a prime candidate:
it was close in time to the deposition and it could have been
adverted to without grave embarrassment by paraphrasing the
alleged remarks.
On the other hand, the other two specific incidents
identified by date in Hernandez-Loring's affidavit were both
cited in her deposition testimony: the first was an offensive
overture by Diaz-Rivera, probably at a Thanksgiving luncheon in
November 1991; the other was the August 1995 claim by Diaz-
Rivera that he had blocked her promotion in retaliation for her
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resistance. In the first case, Hernandez-Loring supplied
precise offensive language only in her affidavit, while in the
second, the language offered in the affidavit was stronger only
by degree than the softer paraphrase in the deposition. In
neither case is there a real contradiction between deposition
and affidavit; and, as for explanation for the changes, the
deposition colloquies make clear, and the preface to the
affidavit makes explicit, Hernandez-Loring’s extreme discomfort
and reluctance to repeat the offensive language allegedly used
in the various incidents.
Of course, plaintiffs who bring sexual harassment suits
have to be prepared to repeat in timely fashion the offensive
language at issue, painful though it may be. Certainly the
plaintiff's initial reluctance to remember, and her later offer
of detail, could be considered in assessing her testimony. But
in our view it would be an abuse of discretion in the present
case to disregard the affidavit as to the two incidents
previously identified in the deposition where the only
difference between deposition and affidavit was the affidavit’s
provision of more specific language allegedly used by Diaz-
Rivera.
This brings us to the district court's alternative
objection. If the two incidents just mentioned stood alone, it
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is not easy to see how Hernandez-Loring could make out much of
a hostile environment claim. The first incident allegedly
occurred in November 1991. While the remarks were highly
offensive, it appears that Hernandez-Loring did not work for
Diaz-Rivera, never reported the incident, and continued to work
at the university until her January 1997 departure, which
(whether occasioned by marriage or the denial of promotion)
seemingly had little connection with a very brief event five
years before. As for Diaz-Rivera’s alleged boast in August
1995, it is highly relevant to a claim of quid pro quo
harassment, but tamer (although not irrelevant) than the usual
basis for a hostile environment claim.
However, the two alleged incidents are only the most
specific of the events that underlie the claim of a hostile
environment. Without being specific as to dates, Hernandez-
Loring said that Diaz-Rivera had repeatedly asked her for dates
and used suggestive language toward her; that he had interrupted
her class to do so; that she had been offended and upset by this
pattern of conduct; that Diaz-Rivera was known to have used
suggestive and offensive language to students in class (a charge
backed up by several student affidavits and depositions);4 and
4
Evidence of the harassment of third parties can help to
prove a legally cognizable claim of a hostile environment.
Lipsett, 864 F.2d at 886, 888; accord Allen v. Tyson Foods,
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that on various occasions she (Hernandez-Loring) had complained
about Diaz-Rivera’s conduct to the chancellor and others.
No precise formula determines what constitutes a
hostile environment. Under Title VII precedents, which we
assume to be followed in construing Puerto Rico law, see
Rodriguez-Hernandez, 132 F.3d at 854, the conduct must go beyond
the "merely offensive" and approach tangible injury (including
psychological injury); and factors to be considered include
frequency, severity, whether the conduct is "physically
threatening or humiliating," and whether it "unreasonably
interferes with an employee’s work performance." Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21-23 (1993). While it is
easy to find more grievous episodes of harassment, there are
also cases in which conduct no worse than that described by
Hernandez-Loring has been held sufficient to justify a finding
of hostile environment.5
Accordingly, we cannot sustain the dismissal of the
hostile environment claim upon the only grounds provided by the
Inc., 121 F.3d 642, 647 (11th Cir. 1997); Robinson v.
Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1522-23 (M.D.
Fla. 1991); 1 Lindemann & Grossman, Employment Discrimination
Law 793 (3d ed. 1996).
5E.g., Hutchison v. Amateur Elec. Supply Inc., 42 F.3d 1037,
1041-43 (7th Cir. 1994); Steiner v. Showboat Operating Co., 25
F.3d 1459, 1461-63 (9th Cir. 1994), cert. denied, 513 U.S. 1082
(1995); see also Harris, 510 U.S. at 19-20.
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district court. It is a different matter whether this claim
might on some other basis be resolved in defendants’ favor short
of trial; in particular, it is far from clear what claim
Hernandez-Loring has under count II against the other four
committee members. Further, the timing of Hernandez-Loring's
resignation casts doubt on any suggestion of constructive
discharge. Still, the possibility that Hernandez-Loring left
for reasons other than harassment does not necessarily preclude
narrower damage claims--if damages can be shown--for events
within the applicable statute of limitations.
For the reasons stated, the grant of summary judgment
on count I is affirmed; the grant of summary judgment on count
II is vacated and that count is remanded for further proceedings
consistent with this opinion. Each side shall bear its own
costs.
It is so ordered.
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