*Of the Ninth Circuit, sitting by designation.

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
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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
1It is not at all clear from the complaint that HernandezLoring 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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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
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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
2There 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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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. MirandaVelez, 132 F.3d 848, 854 (1st Cir. 1998).
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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 DiazRivera 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; DiazRivera, 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 DiazRivera’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 DiazRivera 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 DiazRivera.

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 DiazRivera 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 DiazRivera 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.
3Colantuoni 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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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
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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 DiazRivera 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 DiazRivera.

This brings us to the district court's alternative

objection. If the two incidents just mentioned stood alone, it
4Evidence 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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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, HernandezLoring 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
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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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
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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.