Alberti v. Carlo-Izquierdo , 548 F. App'x 625 ( 2013 )

Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 12-1982
DR. REBECCA ALBERTI,
Plaintiff, Appellant,
v.
DR. JOSÉ R. CARLO-IZQUIERDO; DR. SUANE E. SÁNCHEZ-COLÓN;
DR. GLORIA E. ORTIZ-BLANCO; DR. ANGÉLICA MATOS-RÍOS; CARMEN T.
LÓPEZ-RODRÍGUEZ; LEYRA FIGUEROA-HERNÁNDEZ; DR. MARÍA C.
DECLET-BRAÑA; IRIS RAMOS-VIERA; IRIS RIVERA-COLÓN;
JUDITH MIRANDA; VIRGINIA SANTIAGO; THE UNIVERSITY OF PUERTO RICO,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Baldock,* and Thompson,
Circuit Judges.
Manuel R. Suárez-Jiménez, for appellant.
Diego Ramírez-Bigott, with whom Raquel M. Dulzaides and
Jiménez, Graffam & Lausell, were on brief for appellees.
December 18, 2013
*
Of the Tenth Circuit, sitting by designation.
Baldock, Circuit Judge. Dr. Rebecca Alberti held three
positions at the University of Puerto Rico. When the University
discharged her from these positions, she sued the University and a
number of university officials and students claiming violations of
her rights under the United States Constitution and federal and
local law. Defendants moved for summary judgment. The district
court treated Defendants’ motion as effectively unopposed because
Alberti failed to comply with numerous court orders, as well as the
local district court rules. The court then granted Defendants’
motion for summary judgment and later denied Alberti’s motion for
reconsideration in two separate published opinions. Alberti v.
Univ. of Puerto Rico, 818 F. Supp. 2d 452, 456–57 & n.1–2 (D.P.R.
2011) (Alberti I) reconsideration denied, 869 F. Supp. 2d 231
(D.P.R. 2012) (Alberti II). Alberti now appeals, claiming the
district court (1) abused its discretion in handling her numerous
extension motions and deeming Defendants’ summary judgment motion
effectively unopposed and (2) erred in granting summary judgment to
the Defendants on the merits on all claims. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
Alberti first argues the district court abused its
discretion by not granting her more time to file her opposition to
Defendants’ motion for summary judgment and by deeming Defendants’
motion effectively unopposed. She also attempts to add an extra
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1400 pages to the record on appeal, claiming these are documents
the district court should have considered below. Defendants oppose
this attempt. Thus, before addressing Alberti’s appeal on the
merits, we must first determine (1) whether the district court
properly handled Alberti’s numerous motions for filing extensions,
(2) whether the court properly found Defendants’ motion for summary
judgment effectively unopposed, and, (3) on a related note, which
parts of the “joint appendix” we may properly consider in this
appeal. As such, we first recount the relevant procedural history
of this case.
Alberti filed her original complaint on April 25, 2008.
At a settlement conference three years later, on May 3, 2011, the
district court issued an order stating any dispositive motions in
Alberti’s case were due by June 1 and any oppositions were due by
June 30, 2011. This order also scheduled trial for August
15–September 9, 2011. The court emphasized that “NO extensions of
time” would be allowed to either side. (bold in original).
Defendants complied with this order and filed, on June 1, their
Motion for Summary Judgment, Statement of Uncontested Material
Facts, and Memorandum in Support of their Motion. Alberti, on the
other hand, did not comply with the district court’s order, nor
with the numerous extensions the court eventually gave her.
Rather than comply with the district court’s initial
order, Alberti filed a motion on June 29 seeking an extension until
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July 5 to file her opposition. The court granted this extension.
Alberti then filed a second motion on July 5 for extension until
July 6 at 8:00 a.m. The court apparently did not rule on this
request, but it made no difference as, on July 6, Alberti filed a
third motion for extension until 6:00 p.m. on July 6. Alberti
claimed in this motion that she was having “technical difficulties”
uploading her “exhibits, memorandum of law and statement.” Thus,
she moved in the alternative for leave to file all of these
documents in hard copy that same day, July 6, as a “plan B.” The
Court granted this motion in part, giving Alberti until 2:00 p.m.
on July 6 to file her opposition with the court and until 5:00 p.m.
to provide a copy of her opposition to defense counsel. Rather
than comply with this second granted extension, Alberti moved for
the district court to modify its order to give her until 5:00 p.m.
to file her opposition with the court. The District court granted
this motion in part, stating:
Plaintiff is granted a final extension of time, that is,
July 6, 2011 at 2:30 p.m. to file the opposition to
defendants' motion for summary judgment. Plaintiff's
counsel shall try to file the exhibits by 2:30 p.m.
today, or may file the exhibits through a separate motion
today. If counsel still has difficulty with the filing
of the exhibits, he should contact the Help Desk . . . .
No further requests for extensions of time will be
entertained by the Court. IT IS SO ORDERED.
Alberti did not comply with this third extension.
Instead, she filed only her Opposing Statement of Material Facts,
and even that she did not file until 4:54 p.m.—two and a half hours
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after her entire opposition was due. Furthermore, at a status
conference the next day, July 7, Alberti admitted her Opposing
Statement of Material Facts was not properly filed because she
failed to file with it more than 100 supporting exhibits. In
response, the court “made pellucidly clear to [Alberti’s] counsel
that a set of exhibits only is to be filed in hard copy, and shall
be hand delivered to the defendants on July 8, 2011 by noon.”
(emphasis in original). This status conference concluded at 7:40
p.m. Alberti did not file these exhibits by noon the next day, and
so the court issued an order taking notice of Alberti’s failure and
stating that “no further documents shall be filed by the parties .
. . unless otherwise ordered by the court.” Despite the court’s
order, Alberti submitted hard copies of her exhibits, the vast
majority of which were still in Spanish, two hours later, at around
4:45 p.m. on the evening of July 8. Alberti eventually filed a
Memorandum of Law in Opposition on July 20—fourteen days after it
was due and in violation of the court’s July 6 and July 8 orders.
Alberti I, 818 F. Supp. 2d at 456–57 & n.1–2 (D.P.R. 2011).
When Defendants filed their motion for summary judgment,
they also requested leave to file Spanish documents as exhibits and
an extension until July 18 to file the certified translations of
said documents, which the court granted. On July 19, Defendants
moved for a second extension until August 1 to file the certified
English translations of its exhibits, which the court also granted.
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Alberti, on the other hand, filed most of the exhibits accompanying
her Opposing Statement in Spanish but never requested leave to do
so. Furthermore, she did not request leave to file certified
translations of these documents until July 27, four weeks after
such a motion should have been filed, and three weeks after the
court’s final extension to her had expired. In this motion, she
requested until August 29—two weeks after trial was scheduled to
begin—to submit these translations. The District court denied this
motion.
Before granting Defendants’ motion for summary judgment
on the merits, the district court explained that Alberti “force[d]”
it to “consider as uncontested most of Defendants’ Statement of
Uncontested Material Facts” because (1) she disregarded numerous
court orders and failed to file the exhibits supporting her
Opposing Statement of Material Facts on time, (2) the majority of
her exhibits were filed in Spanish without certified English
translations, and (3) she repeatedly violated District Court Local
Rule 56 by, for example, failing to include in her Opposing
Statement particularized citations to the record and supporting
evidence. Alberti I, 818 F. Supp. 2d at 456 n.1. The district
court also pointed out that it would not consider Alberti’s
Memorandum of Law in Opposition because it was filed two weeks late
and in violation of a court order. Id. at 457 n.2.
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On appeal, Alberti argues (1) the district court either
gave her another extension to file her exhibits at the July 7
status conference until the end of the day on July 8 but failed to
put it in the minutes or, in the alternative, abused its discretion
by giving her only until noon on July 8 to do so; (2) the district
court abused its discretion when it did not grant Alberti leave to
file English translations of her exhibits; and (3) the district
court abused its discretion in deeming Defendants’ motion for
summary judgment effectively unopposed.
Because all of these claims are based on the district
court’s enforcement of its own scheduling orders, we review them
for abuse of discretion. O’Connell v. Hyatt Hotels, 357 F.3d 152,
155 (1st Cir. 2004); see also Mendez v. Banco Popular de Puerto
Rico, 900 F.2d 4, 7 (1st Cir. 1990) (“In the absence of a manifest
abuse of discretion . . . we will not interfere with a district
court’s reasoned refusal to grant incremental enlargements of
time.”); Guzmán-Ruíz v. Hernández-Colón, 406 F.3d 31, 33 (1st Cir.
2005) (reviewing the district court’s rejection of a party’s
belated request for abuse of discretion). With this in mind, we
turn now to Alberti’s procedural arguments.
A.
Alberti first alleges that at the July 7 conference the
district court in fact gave her until the end of the day on July 8
to submit the exhibits supporting her Opposing Statement. Alberti
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provides no evidence to support this claim. She did file a motion
asking the court to amend its July 7 conference minutes, which the
court never ruled on. But the minutes from the July 7 conference
state the court “made pellucidly clear to [Alberti’s] counsel” that
her exhibits were due on July 8 by noon. Furthermore, the court
restated it had only granted Alberti until midday on July 8 to
submit these exhibits in its published opinion granting Defendants’
motion for summary judgment. Alberti I, 818 F. Supp. 2d at 456
n.1. Alberti constantly disregards court deadlines. Indeed, she
filed both her briefs in this appeal late—her reply brief five
months tardy with no excuse. As such, we have little doubt Alberti
simply failed to meet the noon deadline on July 8 and attempted to
cover her tracks after the fact. Thus, we must determine whether
the district court abused its discretion when it gave Alberti a
fourth and final extension from about 8:00 p.m. until noon the next
day to turn in hard copies of her exhibits.
In Mendez, we affirmed the district court’s denial of a
plaintiff’s second and third requests for filing extensions. In
affirming the district court we said:
Rules are rules-and the parties must play by them. In the
final analysis, the judicial process depends heavily on
the judge’s credibility. To ensure such credibility, a
district judge must often be firm in managing crowded
dockets and demanding adherence to announced deadlines.
If he or she sets a reasonable due date, parties should
not be allowed casually to flout it or painlessly to
escape the foreseeable consequences of noncompliance.
Mendez, 900 F.2d at 7 (emphasis added).
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Alberti claims the final deadline the district court set
was unreasonable because it gave her effectively only four hours to
produce hard copies of exhibits that totaled over a thousand pages.
This claim, however, is belied by Alberti’s third motion for
extension. In this third request, Alberti asked for leave to file
her opposition, including the exhibits, in hard copy on July 6
according to her proposed “plan B,” in light of her claim that the
court’s electronic case filling program kept crashing. Based on
this motion, the district court could reasonably have concluded
Alberti was prepared to file hard copies of her exhibits on July 6.
Thus the district court did not abuse its discretion when it
granted Alberti until midday on July 8 to file the hard copies of
exhibits which she had implied she was prepared to submit two days
prior. In any event, the court’s original due date for Alberti’s
opposition, giving her a month to respond to Defendants’ motion for
summary judgment, was reasonable. As in Mendez, Alberti should not
be allowed to painlessly escape the foreseeable consequences of her
noncompliance with this deadline and the four extensions the court
ultimately granted her.
B.
Alberti next argues the court abused its discretion when
it granted Defendants’ July 19 motion requesting until August 1 to
submit certified English translations of their exhibits but denied
her July 27 motion requesting until August 29 to file English
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translations of her exhibits (which we have already established she
filed too late to begin with).1
Again, we direct Alberti to our language in Mendez:
“rules are rules—and the parties must play by them . . . .
[P]arties should not be allowed casually to flout . . . or
painlessly to escape the foreseeable consequences of
noncompliance.” Mendez, 900 F.2d at 7. Here, Defendants timely
filed their motion for summary judgment along with a timely motion
seeking an extension to file translations of their exhibits. We
acknowledge the court granted Defendants a second extension until
August 1 to file their translations, even though this second motion
for extension was filed one day late. This, however, does not
entitle Alberti to the extension she requested where (1) she filed
her exhibits late and in Spanish without any motion seeking leave
to file translations,(2) she sought leave to file translations four
weeks after her entire opposition was due and three weeks after the
expiration of her fourth and final filing extension, and (3) she
sought until two weeks after trial was scheduled to begin to submit
these translations. As such, the district court by no means abused
its discretion in denying Alberti’s extremely tardy and practically
1
The district court never officially struck Alberti’s tardy
submission of exhibits on July 8. As such, out of an abundance of
caution, we explain why, even if the court accepted Alberti’s tardy
July 8 filing, it need not have granted her untimely motion to file
translations of her Spanish exhibits.
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absurd request for leave to file translations of exhibits which
themselves were untimely filed.
C.
Alberti next contends the district court abused its
discretion when it deemed Defendants’ motion for summary judgment
effectively unopposed. “We review a district court’s finding that
a party failed to timely oppose summary judgment for abuse of
discretion. We will only find an abuse of discretion if there is
an unreasoning and arbitrary insistence upon expeditiousness in the
face of a justified request for delay.” Cortes-Rivera v. Dep’t of
Corr. & Rehab. of Com. of Puerto Rico, 626 F.3d 21, 25 (1st Cir.
2010) (internal citations omitted).
The court considered Defendants’ motion for summary
judgment unopposed due to a number of fatal flaws in Alberti’s
opposition. We have already recounted many of these flaws,
including Alberti’s repeated failures to comply with court orders
and filing deadlines. Another reason the district court gave was
the vast majority of the exhibits Alberti filed with her Opposing
Statement of Material Facts were in Spanish. “[T]he law is clear
that any submitted exhibit not directly translated into English or
provided with a corresponding English translation may properly be
disregarded by the district court.” Colón-Fontánez v. Municipality
of San Juan, 660 F.3d 17, 27 (1st Cir. 2011). Thus, the district
court did not abuse its discretion by not considering the exhibits
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which Alberti filed in Spanish. And because Alberti filed the vast
majority of her exhibits in Spanish, the district court did not
abuse its discretion by considering as uncontested most of
Defendants’ Statement of Uncontested Material Facts.
The district court also cited Alberti’s failure to comply
with Puerto Rico Local District Court Rule 56, also known as an
“anti-ferret” law. Local Rule 56 provides that, in the summary
judgment context: “Unless a fact is admitted, the opposing
statement shall support each denial or qualification by a record
citation as required by this rule.” D.P.R. L.Cv.R. 56(c).
Subsection (e) then provides in relevant part:
An assertion of fact set forth in a statement of material
facts shall be followed by a citation to the specific
page or paragraph of identified record material
supporting the assertion. The court may disregard any
statement of fact not supported by a specific citation to
record material properly considered on summary judgment.
The court shall have no independent duty to search or
consider any part of the record not specifically
referenced in the parties’ separate statement of facts.
D.P.R. L.Cv.R. 56(e) (emphasis added).
Alberti argues she in fact complied with Local Rule 56
because she “did make specific references to the record for almost
every statement she made to create a genuine issue of material
fact.” This is demonstrably and blatantly false. A large portion
of Alberti’s opposing statements leave obvious blanks where
specific record citations should be, to the point of absurdity.
For example, the citation clause for an assertion on page 11 of her
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Opposing Statement reads: “See exhibit ___ compared to exhibit ___.
See also contracts dated ___, identified herein as exhibits___, and
Certification # 74 approved on ___, identified herein as exhibit
___.” Further, even where Alberti provides record citations,
rather than cite a “specific page or paragraph” as Rule 56(e)
requires, she often cites generally to multiple exhibits which are
themselves voluminous. For example, at one point she attempts to
deny one of Defendants’ specific statements of material fact by
citing generally to two exhibits with a combined page count of 136
pages.
We need not belabor the point.
Given the vital purpose that [Local Rules 56(c) and (e)]
serve, litigants ignore them at their peril. In the
event that a party opposing summary judgment fails to act
in accordance with the rigors that such a rule imposes,
a district court is free, in the exercise of its sound
discretion, to accept the moving party’s facts as stated.
Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir.
2007). Given Alberti’s egregious violations of Local Rule
56—indeed, the majority of her opposing statement clearly violated
this rule—the district court did not abuse its discretion by
deeming as uncontested most of Defendants’ Statement of Uncontested
Material Facts.
Alberti also argues she need not comply with Local Rule
56 because she filed her exhibits in hard copy. Therefore, she
argues, she need only comply with Local Rule 7, which requires that
one properly organize and tab exhibits filed in hard copy. She
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cites no authority for this argument, and for good reason, as it is
ridiculous. Of course, when one files exhibits in hard copy, the
hard copies must be properly organized. But filing exhibits in
hard copy also makes citing them precisely under Local Rule 56 that
much more essential. Indeed, Alberti’s actions—filing an Opposing
Statement of Material Fact with imprecise citations or no citations
at all along with a voluminous hard-copy compilation of
exhibits—strike us as the epitome of playing “a game of cat-and-
mouse,” and “leav[ing] the district court to grope unaided for
factual needles in a documentary haystack.” Caban Hernandez, 486
F.3d at 7–8.
Alberti also repeatedly argues the district court
improperly considered as uncontested most of Defendants’ Statement
of Uncontested Material Facts. She argues first that this implied
some of the facts were contested and, and as such, summary judgment
was improper. Although the district court’s phrasing may not have
been ideal, Alberti misunderstands her burden in opposing summary
judgment. Once Defendants advanced a statement of uncontested
facts, Alberti had to point to specific facts that created a
genuine issue of material fact.
Not every factual dispute is sufficient to thwart summary
judgment; the contested fact must be “material” . . . .
In this regard, “material” means that a contested fact
has the potential to change the outcome of the suit under
the governing law if the dispute over it is resolved
favorably to the nonmovant.
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McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995).
To the extent the court considered Alberti’s Opposing Statement,
it also noted that she did not provide “specific facts sufficient
to defeat the ‘swing of the summary judgment scythe.’” Alberti I,
818 F. Supp. 2d at 457 n.2 (quoting Noviello v. City of Boston, 398
F.3d 76, 84 (1st Cir. 2005)). The district court noted that, to
the extent Alberti properly contested Defendants’ Statement of
Facts, the facts contested were not material. Summary judgment is
proper in these circumstances. See Suárez v. Pueblo Int’l, Inc.,
229 F.3d 49, 53 (1st Cir. 2000).
Alberti then argues—quite ironically, given the utter
lack of precision in her court filings—that the court’s failure to
explain which specific parts of Defendants’ Statement of
Uncontested Material Facts it deemed uncontested prejudiced her
case on appeal. Although we frown upon a district court’s failure
to state specifically which parts of a plaintiff’s Opposing
Statement it considered and which parts it did not,
Sánchez-Figueroa v. Banco Popular de Puerto Rico, 527 F.3d 209, 214
n.8 (1st Cir. 2008), this error does not warrant reversal or
remand. Indeed, in Sánchez-Figueroa, the district court deemed
uncontested the defendant’s statement of material facts based on
flaws in the plaintiff’s opposing statement that were nearly
identical to the flaws in Alberti’s Opposing Statement. Yet the
court nevertheless considered part of the plaintiff’s opposing
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statement of material facts. On appeal, we affirmed the decision
to treat the defendant’s statement as uncontested and simply
excluded all of the plaintiff’s opposing statement from our
consideration, treating the district court’s inconsistent
consideration as troublesome, but harmless in that case. Id. at
214 & n.8. Because, as in Sánchez-Figueroa, we affirm the district
court’s decision to deem Defendants’ Statement of Facts
uncontested, we likewise remedy the district court’s inconsistency
by excluding Alberti’s Opposing Statement in its entirety from our
analysis.
We see nothing in the record that suggests an
“unreasoning and arbitrary insistence upon expeditiousness” by the
district court. Cf. Cortes-Rivera, 626 F.3d at 25. Rather, it
appears the district court understandably lost patience with
Alberti’s constant disregard for its orders as well as her late and
unorganized filings. In light of all of the flaws in Alberti’s
Opposing Statement, combined with the fact that she filed her
Memorandum of Law in Opposition at least three weeks late and in
violation of the court’s orders, we cannot say that the district
court abused its discretion when it deemed Defendants’ motion for
summary judgment effectively unopposed and we review it as such.
D.
Alberti now attempts to show factual issues in her brief
on appeal by citing to the first 1400 pages (1-1399) of the nearly
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4000-page “joint appendix.” Alberti’s initial presentation of
these pages was incredibly disingenuous. In her opening brief, she
asserted these pages were the hard copies of the exhibits she filed
with the district court on July 8 which it should have considered
in ruling on Defendants’ motion for summary judgment. Defendants,
however, notified us they had not consented to the inclusion of
these pages in the “joint appendix” and these pages were not in
fact part of the district court record. Rather, Defendants pointed
out, these documents were the translations of Alberti’s Spanish
exhibits and, while she filed her Spanish exhibits two hours after
the court’s final extension to her had expired, she did not file
these translations with the district court until November 23,
2011.2 In other words, she submitted these translations nearly (1)
five months after her Opposition was due in full, (2) three months
after the deadline she had requested to submit translations, and
(3) two months after the district court had already entered
judgment against her. When confronted with this information,
Alberti changed her tune. She now argues instead that (1) the
parties agreed these pages would be part of the joint appendix, and
(2) these translations are properly part of the record because she
did not file them as part of her opposition but rather as part of
her motion for reconsideration.
2
Although Alberti did file the first part of her
translations on November 2, 2011, she did not finish submitting
translations until November 23.
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We have already concluded the district court properly
rejected Alberti’s tardy filings, thus we need say no more in
response to the argument in Alberti’s opening brief that she timely
and properly filed these documents. As to Alberti’s argument that
Defendants consented to include these pages, we need not consider
the e-mails with defense counsel that Alberti attaches as an
appendix to her reply brief because she filed this brief five
months after it was due and with no excuse. Fed. R.App. P. 31(a);
see also Fresenius Med. Care Cardiovascular Res., Inc. v. Puerto
Rico & Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 60 n.2
(1st Cir. 2003). Even were we to consider these e-mails, however,
they are ambiguous at best, proving only that Alberti dumped on
defense counsel a massive amount of files and docket entries which
she wished to include in the appendix. These e-mails do not show
defense counsel consented to adding 1400 pages to the record that
should not be there. Furthermore, Alberti acknowledged at oral
argument that she simply dropped all of these documents off in two
boxes at defense counsel’s office without explaining the contents,
and then e-mailed defense counsel stating those would be the pages
included in the “joint appendix.” This strikes us as yet another
attempt by Alberti to subvert the rules of the court and to
perpetuate the game of cat-and-mouse she began in the district
court, and we will have none of it.
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Finally, we reject Alberti’s argument that these
documents are properly part of the record as part of her motion for
reconsideration. “A motion for reconsideration ‘does not provide
a vehicle for a party to undo its own procedural failures and it
certainly does not allow a party to introduce new evidence or
advance arguments that could and should have been presented to the
district court prior to the judgment.’” Marks 3 Zet-Ernst Marks
GmBh & Co. KG v. Presstek, Inc., 455 F.3d 7, 15–16 (1st Cir. 2006)
(quoting Emmanuel v. Int’l Bhd. of Teamsters, Local Union No. 25,
426 F.3d 416, 422 (1st Cir.2005)). Yet this is precisely what
Alberti attempted to do before the district court and now attempts
before us. As such, we will not consider pages 1–1399 of the joint
appendix except where it is abundantly clear the page referenced
was filed with the district court on time and in English and was
therefore properly a part of the district court record.
II.
Above we addressed Alberti’s procedural challenges and
established which parts of the joint appendix are properly part of
the record before us—that is, pages 1400 on. We now address
Alberti’s merit-based claims. We begin by reciting the facts
relevant to the merits of Alberti’s appeal.
Alberti is a family nurse practitioner with a nursing
doctorate. She was born in the United States but considers herself
Puerto Rican-American and is fluent in Spanish. Alberti worked for
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the University of Puerto Rico on two separate occasions. Both
times her job included developing a family nurse practitioner
(“FNP”) program at the University’s School of Nursing and acquiring
funding for that program. Her first stint at the University began
in 2001 and continued until she resigned in December 2002. She
resigned because, although she had procured a $1 million federal
grant for the FNP program, the University failed to approve the FNP
program and these funds had to be returned. Alberti began working
for the University’s School of Nursing for the second time in
August 2005. Initially she worked for the University under a
temporary contract. By the middle of 2006, however, the FNP
program had been approved, Alberti had again procured a federal
grant to fund the FNP program, and the University had appointed her
to three positions: 1) director of the School of Nursing’s FNP
program, 2) grant director, and 3) a tenure-track associate
professor.
While working at the University, Alberti’s relationships
with some of her students and colleagues were apparently quite
contentious. Alberti claims many of her students did not like her
because her teaching style was too “Americana.” Much of the
tension stemmed from an ongoing conflict between Alberti and one of
her nursing students, Defendant Iris Ramos-Viera. For example,
when Ramos failed one of Alberti’s courses because she did not
accumulate sufficient clinical hours, she attempted to make up
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these hours independently and without Alberti’s knowledge and,
according to Alberti, violated the Health Insurance Portability and
Accountability Act (HIPAA) in doing so. On December 4, 2007,
Alberti “bypassed the chain of command,” to use her words, and
wrote to Defendant Dr. José Carlo-Izquierdo, the Chancellor and
nominating authority of the University’s Medical Science Campus.
Alberti complained in this letter about Ramos’s alleged HIPAA
violations and that Defendants Dr. Angélica Matos-Ríos and Leyra
Figueroa-Hernández, fellow faculty members, and Dr. Suane Sánchez-
Colón, the Dean of the School of Nursing, were interfering with
Alberti’s work as director of the FNP program. Later, Alberti
refused to approve Ramos’s proposed research project, which was
part of her required course work.
On February 4, 2008, Defendant Sánchez wrote to Defendant
Carlo and, citing a lack of trust and Alberti’s letter bypassing
the chain of command, recommended Carlo terminate Alberti’s
director positions. Carlo concluded that, under the University
Rules and Regulations, Alberti’s director positions were positions
of trust. Further, based on the combination of Alberti’s direct
complaint to him and Sánchez’s request for Alberti’s termination,
Carlo concluded the relationship between the two had deteriorated
to the point of being “non-functional.” On February 13, 2008,
Carlo removed Alberti from her two director positions. He informed
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her of her removal in writing, but did not provide her with a pre-
termination hearing.
Alberti’s relationships with some of her students and the
University faculty became even more strained after she was removed
from her director positions. She initiated the present suit
against the University Defendants on April 25, 2008. On June 3,
2008, Defendant Sánchez wrote to Carlo requesting he terminate
Alberti’s tenure-track associate professor position. Sánchez’s
letter included a number of evaluations drafted between February 14
and June 3, 2008, by other School of Nursing faculty
members—namely, Defendants Figueroa and Matos and Defendants
Virginia Santiago, Carmen T. López-Rodríguez, and Dr. Gloria E.
Ortiz-Blanco—that supported terminating Alberti. On June 12, 2008,
citing Sánchez’s June 3 letter, Carlo notified Alberti that her
tenure-track associate professor position would terminate as of
August 15, 2008. Alberti was not given a pre-termination hearing
before receiving this letter.
On appeal, Alberti argues the district court erred when
it (1) concluded her director positions were positions of trust
that Carlo could terminate at will; (2) found she did not have a
protected property right in her tenure-track associate professor
position under the Due Process Clause and therefore had no right to
a pre-termination hearing; (3) concluded her letter to Carlo was
-22-
not protected under the First Amendment; and (4) dismissed her
Title VII National Origin Discrimination Claim.3
We review a district court’s grant of summary judgment de
novo, “taking the facts in the light most favorable to the
nonmovant.” Lloyd’s of London v. Pagán-Sánchez, 539 F.3d 19, 21
(1st Cir. 2008). Summary judgment is only appropriate if the
record shows that “there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). Furthermore, even where a
motion for summary judgment is unopposed, we are still bound to
review the case on the merits based on the uncontroverted facts
before us. Cordi-Allen v. Halloran, 470 F.3d 25, 28 (1st Cir.
2006). We are not bound to do a party’s work, however, nor to
develop legal arguments merely mentioned in passing. Int’l
Longshoremen’s Ass’n, AFL-CIO v. Davis, 476 U.S. 380, 398 n.14
(1986) (“it is not our task sua sponte to search the record for
evidence to support” a party’s claims); Colón-Fontánez, 660 F.3d
at 45-46 (“It is not enough merely to mention a possible argument
in the most skeletal way, leaving the court to do counsel’s work,
3
Alberti also sued Dr. Maria C. Declet-Brana, a fellow
teacher, and University students Iris Rivera-Colon and Judith
Miranda. She fails to explain to us her claims against these
defendants, however. Rather, in her fact section, citing to the
first 1400 pages of the joint appendix, which we have already
excluded, Alberti accuses Declet of “bullying” her, and calls
Rivera and Miranda “Agents Provocateurs,” apparently because they
had complained about her teaching style, calling it “too American”
and calling her “gringa.”
-23-
create the ossature for the argument, and put flesh on its bones.”)
(internal citations omitted).
A.
Alberti first argues she had a protected property
interest in her director positions at the School of Nursing. Under
the Fourteenth Amendment, a state cannot discharge a public
employee without due process of law if the employee possesses a
property right to continued employment in the position at issue.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985).
But “[p]roperty interests are not created by the Constitution,
[rather,] ‘they are created and their dimensions are defined by
existing rules or understandings that stem from an independent
source such as state law . . . .’” Id. (quoting Bd. of Regents of
State Colleges v. Roth, 408 U.S. 564, 577 (1972)). A property
interest in continued employment may derive from a statute, a
contract provision, or an officially sanctioned workplace rule.
Perry v. Sindermann, 408 U.S. 593, 601–02 (1972).
Alberti devotes her briefing on the issue solely to
arguing her director positions do not fall within the definition of
a “position of trust,” which, under Section 30.1.8 of the
University’s Rules and Regulations, may be “removed at will.” She
argues a fact issue exists because the position of “Program
Director” was not added to the list of positions of trust in
Article 71 of the University Rules and Regulations until after she
-24-
was appointed to these positions. But even before Alberti’s
appointment, Section 71.3.2 of the Rules listed “[p]ositions
directing organizational units” as positions of trust, and Alberti
conceded at oral argument that, as a program director, she directed
organizational units at the University. Thus, Alberti’s argument
on this point fails and she is unable to demonstrate she had a
property interest in her director positions.
B.
Alberti next contends the district court erroneously
found she did not have a property interest in her tenure-track
associate professor position, which had no expiration date.
Defendant Carlo terminated Alberti’s associate professor position
in writing and without a pre-termination hearing. The termination
letter cites Section 46.6 of the University Rules and Regulations,
the evaluations collected by Defendant Sánchez, as well as
evaluations written by Defendants Santiago, Lopez, Matos, and
Ortiz. These evaluations were overwhelmingly negative.
Section 30.1.2 of the University Rules and Regulations
defines “Probationary Appointment” as:
the appointment granted initially to cover a regular post
or position approved in the budget, and shall have a
fixed duration according to the provisions of the
Regulations. During the appointment period the incumbent
shall be on probation, subject to an evaluation to
determine whether or not at the end of said period he or
she merits retention with a permanent appointment.
-25-
Section 46.2 provides, with very limited exceptions, that a
professor may not attain tenure in her position until she renders
five years of satisfactory service while on probation. Section
46.6, on the other hand, provides: “The Chancellor . . . may
terminate a probationary appointment without granting tenure when
so justified, according to the evaluation or evaluations performed,
notifying the affected person in writing.” (emphasis added).
Alberti brings two coherent arguments for why the
University Rules and Regulations gave her a property interest in
continued employment as an associate professor. First, she argues
“when so justified” in Section 46.6 is tantamount to a “for cause”
requirement. Second, she argues her termination must be justified
by mandatory evaluations and that, under Section 29.8, she had a
pre-termination right to discuss these evaluations with her
evaluators. However, because she raises this second argument for
the first time on appeal, we will not consider it. McCoy v. Mass.
Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991) (“It is hornbook
law that theories not raised squarely in the district court cannot
be surfaced for the first time on appeal.”).
Although the issue is far from clear, we acknowledge
Alberti’s argument equating “when so justified” with “for cause,”
may have some merit. A public employee who is dismissible only
“for cause” is entitled to a very limited pre-termination hearing.
Gilbert v. Homar, 520 U.S. 924, 929 (1997). Furthermore, Alberti’s
-26-
case is indeed distinguishable from Lovelace v. Se. Mass. Univ.,
793 F.2d 419 (1st Cir. 1986), on which both the district court and
the University rely. In Lovelace, the teaching contract for a non-
tenured professor was not renewed and we held the professor did not
have a cognizable property interest in reappointment. In so
holding, we rejected the professor’s argument that he had a
property interest in reappointment simply because the university’s
rules required “justification” in order to not renew his contract.
Id. at 421.
Unlike in Lovelace, however, the University here did not
deny Alberti reappointment after her contract expired. Rather, the
University terminated her from a position she still occupied.
Section 30.1.2 of the University Rules states a probationary
appointment “shall have a fixed duration;” however, Alberti’s
probationary appointment was for an “indefinite” period. As such,
it appears the only “fixed duration” the University could reference
is the five years of probationary employment required before either
attaining tenure or being dismissed without attaining tenure in
Section 46.6. Thus, one could plausibly read the University Rules
and Regulations in Alberti’s case as giving her a property interest
in at least a five-year term of probationary employment. The
district court found this interpretation untenable because it
“would allow a professor to violate the norms of the institution
for five (5) years while under probation, and the institution would
-27-
be powerless to act within the probationary period.” Alberti I,
818 F. Supp. 2d at 467. But this goes too far. Even assuming
Alberti had a property interest in a five-year term of employment
at the University, the University would not be powerless to act
within that probationary period. Rather, it would simply have to
give her “a very limited hearing prior to [her] termination, to be
followed by a more comprehensive post-termination hearing” to
comply with due process. See Gilbert, 520 U.S. at 929.
That being said, notwithstanding the plausibility of this
argument, we need not decide whether Alberti in fact had a property
interest in her probationary professorship because the Individual
University Defendants are entitled to qualified immunity on this
issue. “Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts showing (1) that
the official violated a statutory or constitutional right, and (2)
that the right was clearly established at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080
(2011).4 We have discretion as to which of the two prongs to
tackle first in this analysis. Id.
4
We treat the University of Puerto Rico as an arm of the
state for Eleventh Amendment purposes, see Irizarry-Mora v. Univ.
of Puerto Rico, 647 F.3d 9, 11–17 (1st Cir. 2011), and University
of Puerto Rico officials as state actors for qualified immunity
purposes, see Meléndez-García v. Sànchez, 629 F.3d 25, 35-36 (1st
Cir. 2010).
-28-
We choose to address the “clearly established” prong
first, as this is where Alberti’s claim clearly fails. We have
repeatedly stated:
“identifying some abstract constitutional right extant at
the time of the alleged violation does not itself show
that the conduct alleged is a violation of ‘clearly
established’ law. Instead, the focus must be upon the
particular conduct engaged in by (or attributed to) the
defendants; immunity is forfeited only if a reasonable
official would clearly understand that conduct to be a
violation of the Constitution.
Rivera-Ramos v. Roman, 156 F.3d 276, 279–80 (1st Cir. 1998)
(emphasis in original).
The only legitimate source Alberti cites to argue the
University Defendants’ particular conduct violated clearly
established law is the University Rules and Regulations. But these
rules, as discussed above, are unclear when applied to Alberti’s
case. Although one could reasonably read the rules as creating an
expectation of continued employment for at least five years, one
could also reasonably interpret Rule 46.6 as allowing the
termination of Alberti’s indefinite probationary contract without
a pre-termination hearing whenever the evaluations on file
justified such action. Alberti does not cite any law to the
contrary and our independent research has revealed none. As such,
Alberti did not have a “clearly established” right to a pre-
termination hearing prior to being dismissed from her probationary
professor position. Thus, the district court properly found the
-29-
University Defendants were entitled to qualified immunity on this
claim.5
C.
Alberti’s First Amendment argument concerns her letter to
Defendant Carlo complaining about Defendant Ramos’s alleged HIPAA
violation and the actions of Defendant Sánchez and other faculty
members in the FNP program. She argues the district court erred
when it relied on Garcetti v. Ceballos, 547 U.S. 410 (2006),
instead of using the legal framework from Decotiis v. Whittemore,
635 F.3d 22 (1st Cir. 2011), to dismiss her First Amendment claim.
Furthermore, Alberti argues, to the extent her letter is not
protected under a traditional First Amendment analysis, it is
protected under the concept of “academic freedom.” These arguments
fail to create a genuine issue of material fact.6
5
Qualified immunity would not bar granting Alberti
injunctive relief. Alberti, however, seeks injunctive relief only
against the University itself; and she specifically excluded the
University from her due process claim in her third amended
complaint. Dist. Doc. # 123 at ¶ 121. We are not inclined to
remedy her counsel’s tactical errors. Because Alberti does not
seek injunctive relief against anyone based on this claim, we need
not decide whether she is entitled to such relief.
6
Alberti also argues she filed the instant suit before a
number of the evaluations that led to her termination were filed,
and that filing the instant suit should therefore be protected
under the First Amendment. She makes this argument in one brief
paragraph with no citations or further explanation. Accordingly,
we do not address it. Colón-Fontánez, 660 F.3d at 45–46.
-30-
As to Alberti’s first argument, Supreme Court precedent
controls over our precedent and, under both Garcetti and
Decotiis,“public employees do not speak as citizens when they ‘make
statements pursuant to their official duties,’ and . . .
accordingly, such speech is not protected by the First Amendment.”
Decotiis, 635 F.3d at 30 (quoting Garcetti, 547 U.S. at 422).
Alberti attempts to argue that, by bypassing the chain of command
with her grievances, she was not speaking as an employee on a
matter related to her employment, but as a private citizen on a
matter of public concern. It is clear, however, that the
complaints Alberti relayed to the Chancellor were made in her
supervisory capacity over Defendant Ramos, as her teacher, and in
her capacity as FNP program director, concerning the administration
of the FNP program. Accordingly, because Alberti made these
complaints pursuant to her official duties as a teacher and as the
FNP director, not as a private citizen, they are not protected
under the First Amendment. Id.
In her reply brief, Alberti points us to a recent case,
Dahlia v. Rodriguez, 10-55978, ___ F.3d ___, 2013 WL 4437594 (9th
Cir. Aug. 21, 2013) (en banc), where the Ninth Circuit reversed
prior precedent and held the court must make a “practical inquiry”
when determining whether the speech is within the scope of the
employee’s duties and thus not protected by the First Amendment.
But a practical inquiry shows Alberti signed the letter as FNP
-31-
director, and it pertained to issues regarding the administration
of the FNP program. Furthermore, “while the First Amendment
invests public employees with certain rights, it does not empower
them to constitutionalize employee grievances.” Garcetti, 547 U.S.
at 420. Yet this appears to be exactly what Alberti is trying to
do. Thus, this argument fails.
Alberti’s “academic freedom” argument also fails.
Alberti cites Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 679
(6th Cir. 2001), for this argument, but even Hardy makes clear that
academic freedom protects only speech in the context of classroom
teaching that communicates “an idea transcending personal interest
or opinion which impacts our social and/or political lives.” Id.
(internal citations omitted). This protection is far removed from
a teacher’s administrative complaints that concern a program she is
directing and that “bypass the chain of command.” Furthermore, to
the extent Alberti argues Defendants retaliated against her for her
grading decisions and thereby violated her right to academic
freedom, we already rejected this specific argument in Lovelace.
793 F.2d at 426 (“To accept plaintiff’s contention that an
untenured teacher’s grading policy is constitutionally protected
and insulates him from discharge when his standards conflict with
those of the university would be to constrict the university in
defining and performing its educational mission. The first
-32-
amendment does not require that each non-tenured professor be made
a sovereign unto himself.”).
D.
Finally, we address Alberti’s Title VII claim. The
district court found Alberti met the initial burden of showing a
prima facie case of unlawful discrimination based on national
origin. Alberti I, 818 F. Supp. 2d at 477. The court also found,
however, that Defendants articulated legitimate non-discriminatory
reasons for the adverse employment actions at issue and that
Alberti could not then establish that these reasons were merely
pretextual and that the true reason behind the adverse action was
her national origin. Id.
Under the McDonnell Douglas framework for handling Title
VII claims, if the plaintiff establishes a prima facie case of
discrimination, “the burden of production shifts to the defendant
to produce evidence that the adverse employment actions were taken
for a legitimate, nondiscriminatory reason.” Pearson v. Mass. Bay
Transp. Auth., 723 F.3d 36, 40 (1st Cir. 2013) (Souter, J.)
(internal quotations omitted). “If the defendant produces such
evidence, the McDonnell Douglas framework disappears and the sole
remaining issue is discrimination vel non.” Id. (internal
quotations and alterations omitted). Although the burden of
production may shift, “[t]he burden of persuasion remains at all
times with the plaintiff.” Mariani-Colón v. Homeland Sec. ex rel.
-33-
Chertoff, 511 F.3d 216, 221 (1st Cir. 2007). That is, “the
plaintiff must prove not only that the reason articulated by the
employer was a sham, but also that its true reason was plaintiff’s
race or national origin.” Rodriguez-Cuervos v. Wal-Mart Stores,
Inc., 181 F.3d 15, 19 (1st Cir. 1999) (emphasis added).
Even assuming Alberti made out a prima facie case of
unlawful discrimination, we agree Defendants established legitimate
non-discriminatory reasons for Alberti’s termination, including,
among other things, her failure to attend faculty meetings, her
failure to comply with her administrative duties, and her failure
follow the proper channels of communication within the School of
Nursing. And even if we agreed with Alberti that these reasons
were in fact a sham, she does not argue on appeal, or advance any
evidence to show, the true reason for her termination was her race
or national origin. We will not make the argument nor scour the
record for evidence to support it for her. Davis, 476 U.S. at 398
n.14; Colón-Fontánez, 660 F.3d at 45-46. Thus, on the record and
argument before us, the district court properly granted summary
judgment to Defendants on this claim.7
7
Alberti brings two other coherent-but-meritless claims.
First, she argues the district court erred when it found the
University Defendants were entitled to qualified immunity. As we
stated above, the University Defendants are indeed entitled to
qualified immunity from Alberti’s due process claim. Furthermore,
because we affirm the rest of the issues presented on the merits,
we need not address whether Defendants are entitled to qualified
immunity on those issues. Alberti also argues she has a right to
a name-clearing hearing. She did not raise this issue or seek this
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Accordingly, the judgment for the district court is
AFFIRMED.
relief before the district court, so we will not address it now.
McCoy, 950 F.2d at 22.
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