Johnson v. University of Puerto Rico , 714 F.3d 48 ( 2013 )

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
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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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