Petition for Writ of Certiorari — Luis S. Arana, aka Luis S. Arana Santiago, Petitioner v. Luis Tapia Maldonado, et al.
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Supreme Court, US'
FILED
JUN 2 6 2E4
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Supreme Court of tfje fHmteb States
LUIS S. ARANA,
Petitioner,
v.
LUIS TAPIA MALDONADO ET AL.,
Rector, University of Puerto Rico-Utuado,
Respondents.
On Petition for a Writ of Certiorari to the
Court of Appeals of Puerto Rico
PETITION FOR A WRIT OF CERTIORARI
Luis S. Arana
Petitioner Pro Se
HC-01 Box 2209
Morovis, P.R. 00687
(785) 424-4180
arana212 l@yahoo. com
June 26,2024
SUPREME COURT PRESS
(888) 958-5705
Boston, Massachusetts
RECEIVED
' 2 202i
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1
QUESTIONS PRESENTED
In the present case Petitioner—a tenured professor
at the University of Puerto Rico (UPR), teaching at
the Utuado campus of UPR (“UPRU”)—was charged
with sexual harassment of a student by UPRU. At the
hearings, Petitioner’s counsel was not permitted to
cross-examine two witnesses on a subject material to
Petitioner’s theory of the case.
After the hearings had finished, the rector added
a series of facts that were not alleged in the statement
of charges, and used them to terminate the Petitioner,
not for having committed sexual harassment of the
student as alleged, but rather for a charge not contained
in the statement of charges.
On the other hand, the Court of Appeals of Puerto
Rico has consistently applied the clear and convincing
standard of proof to public employees’ dismissal cases
following the case law developments of the Supreme
Court of Puerto Rico. However, it refused to apply that
standard of proof in UPRU’s case against Petitioner.
The questions presented are:
1. In the circumstances described in the first
paragraph, was the due process violated?
2. In the circumstances described in the second
paragraph, was the notice requirement of due process
violated?
3. In the circumstances described in the third
paragraph, did the Court of Appeals of Puerto Rico
violate the Due Process Clause and/or the Equal Pro
tection Clause of the Fourteenth Amendment of the
Constitution of the United States.
11
PARTIES TO THE PROCEEDINGS
Petitioner and Appellant below
•
LUIS S. Arana, who was a tenured professor at
the University of Puerto Rico, teaching at that
institution for almost fifteen (15) years.
Respondents and Appellees below
•
Luis Tapia Maldonado is the rector of the Uni
versity of Puerto Rico in Utuado
•
Jorge Haddock Acevedoi was the president of
the University of Puerto Rico at the time of
Petitioner’s dismissal.
•
University of Puerto Rico Governing Board
1 Acevedo was representing the University of Puerto Rico at the
time, but he is no longer the president of the University of Puerto
Rico. The president now is Luis A. Ferrao Delgado.
Ill
LIST OF PROCEEDINGS
Supreme Court of Puerto Rico
No. AC-2023-0057
Dr. Luis S. Arana Santiago, Petitioner, v.
Dr. Luis Tapia Maldonado, Rector of the University
of Puerto Rico in Utuado; Dr. Jorge Haddock Acevedo,
President of UPR; Governing Board of the UPR,
Respondents.
Date of Final Order: October 6, 2023
Date of Rehearing Denial: February 2, 2024
Court of Appeals Commonwealth of Puerto Rico
No. KLRA202100375
Dr. Luis S. Arana Santiago, Appellant(s), v.
Dr. Luis Tapia Maldonado, Chancellor of the University
of Puerto Rico In Utuado; Dr. Jorge Haddock Acevedo,
President of UPR; Governing Board of UPR, Appellees.
Date of Final Judgment: June 8, 2023
Date of Rehearing Denial: June 22, 2023
Administrative (Agency) Resolution, University of
Puerto Rico in Utuado
University of Puerto Rico in Utuado, Complainant,
v. Dr. Luis S. Arana Santiago, Respondent.
Date of Final Resolution: December 20, 2019
IV
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED..................................
1
PARTIES TO THE PROCEEDINGS....................
11
LIST OF PROCEEDINGS.....................................
m
TABLE OF AUTHORITIES..................................
IX
PETITION FOR A WRIT OF CERTIORARI.......
1
OPINIONS AND ORDERS BELOW........ ............
1
JURISDICTION......................................................
2
CONSTITUTIONAL PROVISIONS AND
RELEVANT ADMINISTRATIVE POLICIES ..... 3
A. Constitutional Provisions
3
B. Official Policies................
3
STATEMENT OF THE CASE
4
A. Introductory Remarks...................................
4
B. Legal Background.........................................
6
1. Quasi-Criminal Proceedings..................
7
C. Factual Background and Administrative
Proceedings at UPRU...................................
8
D. Argument Pertinent to the First Question:
Whether the Curtailment of CrossExamination Constituted a Violation of Due
Process of Law in This Case......................... 12
E. Argument Pertinent to the Second Question:
Whether the Notice Requirement of Due
Process Was Violated.................................... 13
V
TABLE OF CONTENTS - Continued
Page
1.
UPRU Dismissed the Plaintiff Over a
Charge That Was Not Included in the
Formulation of Charges............................. 13
2.
Tapia Added Facts That Were Not Part
of the Formulation of Charges or Part of
the Record...................................................... 17
F. Argument Pertinent to the First Part of the
Third Question: Whether the Court of
Appeals Violated Due Process as a Matter
of Federal Law When It Did Not Apply the
Clear and Convincing Standard of Proof in
UPRU’s Case............................... ....................... 22
G. Argument Pertinent to the Second Part of
the Third Question: Whether the Refusal of
the Court of Appeals of Puerto Rico to Apply
the Clear and Convincing Standard of Proof,
as a Matter of State Law, Constituted a
Violation of the Equal Protection Clause.... 24
1.
The Clear and Convincing Standard in
Puerto Rico.................................................... 24
H. The Court of Appeals’ Judgment Does Not
Rest in Valid State Grounds........................... 28
I.
Proceedings at the Supreme Court of Puerto
Rico....................................................................... 30
REASONS FOR GRANTING THE PETITION.......35
CONCLUSION
38
VI
TABLE OF CONTENTS - Continued
Page
APPENDIX TABLE OF CONTENTS
Opinions and Orders
APPENDIX A
Judgment, Court of Appeals Commonwealth
of Puerto Rico (June 8, 2023)............................ la
Certificate of Accuracy (April 4, 2024)........... 35a
APPENDIX B
Administrative Resolution, University of
Puerto Rico (December 20, 2019)..................... 36a
APPENDIX C
Denial of Petitioner’s Writ of Appeal,
Supreme Court of Puerto Rico
(October 6, 2023).............................................. 88a
Reconsideration Orders
APPENDIX D
Denial of Petitioner’s Motion for
Reconsideration, Court of Appeals of Puerto
Rico (June 22, 2023)....................................... 91a
APPENDIX E
Denial of Petitioner’s First Motion for
Reconsideration, Supreme Court of Puerto
Rico (November 17, 2023).............................. 94a
APPENDIX F
Denial of Petitioner’s Second Motion for
Reconsideration, Supreme Court of Puerto
Rico (February 2, 2024).................................. 97a
Vll
TABLE OF CONTENTS - Continued
Page
Other Documents
APPENDIX G
Writ of Judicial Review submitted to the
Court of Appeals of Puerto Rico (7/14/2021),
Errors No. 3 and 11....................................... 100a
APPENDIX H
Motion for Reconsideration, Court of
Appeals of Puerto Rico (June 22, 2023)....... 117a
APPENDIX I
Petitioner’s Writ of Appeal submitted to the
Supreme Court of Puerto Rico (7/20/2023),
137a
Errors No. 2, 6 and 8.................................
APPENDIX J
Formulation of Charges............................
160a
APPENDIX K
Certification 130 (2014-2015)...................
167a
APPENDIX L
Certification 40 (2015-2016).....................
191a
APPENDIX M
Case KLRA201501253: Ex Pm Angel
Vazquez Pagan v. Municipio de Carolina,
Court of Appeals of Puerto Rico
(December 15, 2016)..................................
204a
Vlll
TABLE OF CONTENTS - Continued
Page
APPENDIX N
Minutes of the Meeting of Vivian Velez Vera
and Maria Rodriguez Sierra with Genesis
Velez Feliciano (May 24, 2018)
233a
APPENDIX O
Testimony of David Urena Negron Declaring
About the Change of Grades in the Course—
237a
Relevant Excerpts (October 30, 2019)...
APPENDIX P
URL of Commonwealth of Puerto Rico
Judicial Cases Cited...............................
242a
APPENDIX Q
Certificate of Translation by Petitioner
245a
IX
TABLE OF AUTHORITIES
Page
CASES
Addington v. Texas,
441 U.S. 418 (1979)...............................
22, 23
A
Angel Pagan v. Mun. Aut. De Carolina,
KLRA201501253....................................
25, 31
BMW of North America, Inc. u. Gore,
517 U.S. 559 (1996)...............................
27
Board of Regents of State Colleges v. Roth,
408 U.S. 574 (1972)...............................
4, 37
Buildex, Inc. v. Kason Indus., Inc.,
849 F.2d 1461 (Fed. Cir. 1988)...........
24
California v. Green,
399 U.S. 149 (1970)...............................
17
Cleveland Bd. of Ed. v. Loudermill,
470 U.S. 532 (1985)...............................
12, 16, 35
Colorado v. New Mexico,
467 U.S. 310 (1983)......................... ......
24
Comisionado de Seguros de Puerto Rico v. Real
Legacy Ass. Co., 179 D.P.R. 602 (2010)...... 19, 22
Dogson v. University of Puerto Rico,
26 F. Supp. 2d 341 (D.P.R. 1998).................
6
El Pueblo de P.R. v. David Mendez Rivera,
2013 TSPR 26..................................................
32
ExAgente Jose L. Torres v. Policia de P.R.,
2016 TSPR 224................................................ 18, 20
Ex parte Virginia,
100 U.S. 339 (1879)..................... ..........
7
X
TABLE OF AUTHORITIES - Continued
Page
*
Ex Sgto. Angel D. Hernandez v. Pol. de P.R.,
KLRA201601162...........................................
31
Ex. Agente Joel Algea Resto v. Policia de P.R.,
KLRA201401312...........................................
26
Examining Bd. v. Flores de Otero,
426 U.S. 572 (1976)................
6
Goldberg v. Kelly,
397 U.S. 254 (1970)................
16
Harris v. Forklift System, Inc.,
510 U.S. 17 (1993)..................
30
Hicks v. Feiock,
485 U.S. 624 (1988)................
7
Howlett v. Rose,
496 U.S. 356 (1990)................
35, 36, 37
In re Gault,
387 U.S. 1 (1967)....................
15
In re Rebecca Rodriguez Mercado,
2005 TSPR 144................... .....
24, 32
In re Ruffalo,
390 U.S. 544 (1968)................ 6, 8, 15, 16, 35, 37
In the Matter of John Ruffalo, Jr,
370 F.2d 447 (6th Cir. 1996).
17
Joint Anti-Fascist Refugee Comm. v. McGrath,
341 U.S. 123 (1951)
17, 21, 37
M.L.B. v. S.L.J.,
519 U.S. 102 (1999)
33
Mathews v. Eldridge,
424 U.S. 319 (1976)
21
XI
TABLE OF AUTHORITIES - Continued
Page
Mattox v. United States,
156 U.S. 237 (1985).....................................
17
Mendez Jimenez, et al. v. Carso Construction
of Puerto Rico, LLC, et al., 2019 TSPR 99..
34
Meritor Bank v. Vinson,
All U.S. 57 (1986).......................................
30
OEG v. Manuel B. Martinez Giraud,
2022 TSPR 93.............................................. 25, 27
Ofic. del Comisionado de Seguros v. Asociacion
de Empleados del E.L.A., 2007 TSPR 112..
22
P.P.D. v. Admor. Gen. de Elecciones,
111 D.P.R. 199 (1981)..................................
32
Penfield Co. v. SEC,
330 U.S. 585 (1947).....................................
7
Santosky v. Kramer,
455 U.S. 745 (1982)..................................... 22, 23
Southern R. Co. v. Virginia,
290 U.S. 190 (1933).....................................
17
Sprint Comm., Inc. v. Jacobs,
571 U.S. 69 (2013).......................................
7
Truax v. Raich,
239 U.S. 33 (1915).......................................
38
United States v. Halper,
490 U.S. 435 (1989).....................................
8
United States v. Private Sanitation Industry
Ass’n of Nassau Suffolk, Inc., 44 F. 3d
1082 (2nd Cir. 1994)....................................
8
Xll
TABLE OF AUTHORITIES - Continued
Page
United States v. Ward,
448 U.S. 242 (1980)....................................
7
Universidad de Puerto Rico en Aguadilla u.
Jose Lorenzo Hernandez, 2012 TSPR 57...
29
Victor Roldan Torres v. M. Cuebas, Inc., et al.,
2018 TSPR 18.........................................
33
William Perez Vargas v. Office Depot/Office
Max. Inc., 2019 TSPR 227......................
33
Wolff v. McDonell,
418 U.S. 539 (1974)
13, 16, 34
CONSTITUTIONAL PROVISIONS
P.R. Const. Article II, Section 7.........
18, 26, 27
U.S Const, art. VI, Clause 2...............
37
U.S. Const, amend. XIV, § 1...............
i, 3, 6, 26, 35
STATUTES
28 U.S.C. § 1257(a)...
36
28 U.S.C. § 1258.......
2
3 LPRA § 2101 et seq
12, 21, 22, 28
JUDICIAL RULES
4 L.P.R.A. § 24........
30, 31, 33
REGULATIONS
29 C.F.R. § 1604.11(a)
30
Xlll
TABLE OF AUTHORITIES - Continued
Page
FEDERAL GUIDELINES
U. of Puerto Rico Certification No. 40
(2015-2016).......................................
3, 10
U. of Puerto Rico Certification No. 130
(2015-2016)
12, 13, 14, 15, 28
OTHER AUTHORITIES
ABA,
Human Rights and Access to Justice,
https://www.americanbar.org/advocacy/
rule_of_law/what-we-do/human-rightsaccess-to-justice/..............................................
34
George Dix et al.,
McCormick on Evidence, 5th ed., Vol. 2,
(1999).................................................................
24
Hannah Fry,
Tutor pleads guilty in Corona del Mar
High cheating scandal, gets 1 year in jail,
Los Angeles Times (Aug. 4, 2015), https:/
/www.latimes.com/socal/daily-pilot/news/
tn-dpt-me-0805-lai-20150804-story.html...
36
University of Puerto Rico,
General Regulations of the University of
Puerto Rico........................................................
10
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Luis S. Arana respectfully petitions for
a writ of certiorari to review the judgment of the Court
of Appeals of Puerto Rico in which that court affirmed
the dismissal of Petitioner as a tenured professor of
the University of Puerto Rico by Respondent Luis
Tapia Maldonado.
OPINIONS AND ORDERS BELOW
The Appendix to the Petition contains all opinions
and orders referenced below.
The June 8,2023 Judgment of the Court of Appeals
of Puerto Rico (“Court of Appeals”) appears in Appendix
A of the Petition and is published in the internet page
of the judiciary of Puerto Ricoh App.2a. The December
20, 2019 Administrative Resolution reviewed by the
Court of Appeals appears in Appendix B of the Petition
and is unpublished. App.37a. The October 6,2023 deni
al of writ of appeal by the Supreme Court of Puerto Rico
appears in Appendix C of the Petition and is unpub
lished. App.89a. The June 22, 2023 denial of recon
sideration by the Court of Appeals appears in Appendix
D of the Petition and is unpublished. App.92a. The
November 17, 2023 Puerto Rico Supreme Court’s denial
of Petitioner’s first motion for reconsideration appears
1 https://dts.poderjudicial.pr/ta/2023/KLRA202100375-08062023.
Note: The URL of all Puerto Rico cases cited is at App.243a-244a.
2
in Appendix E of the Petition and is unpublished.
App.95a. The February 2, 2024 Puerto Rico Supreme
Court’s denial of Petitioner’s second motion for recon
sideration appears in Appendix F of the Petition and
is unpublished. App.98a.
JURISDICTION
The Judgment of the Court of Appeals was entered
on June 8, 2023. App.3a. The Supreme Court of Puerto
Rico issued an order denying Petitioner’s writ of
appeal on October 6, 2023. App.89a; and two timely
motions for reconsideration were denied by that court
on November 17, 2023, App.95a, and February 2,
2024. App.98a.
On April 15, 2024, Justice Jackson extended the
time to file a certiorari petition to July 1, 2024. No.
23A917. This Court has statutory jurisdiction under
28 U.S.C. § 1258.
3
CONSTITUTIONAL PROVISIONS AND
RELEVANT ADMINISTRATIVE POLICIES
A.
Constitutional Provisions
U.S. Const, amend. XTV, § 1
Equal Protection Clause and Due Process Clause
of the Fourteenth Amendment.
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction
thereof, are citizens of the United States and of
the State wherein they reside. No State shall
make or enforce any law which shall abridge the
privileges or immunities of citizens of the United
States; nor shall any State deprive any person of
life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction
the equal protection of the laws.
B.
Official Policies
The following official policies of the University of
Puerto Rico are reproduced in the appendix.
Certification No. 40 (2015-2016).
“Procedure for Grades Review of the University
of Puerto Rico in Utuado”—(App.l92a)
Certification No. 130 (2015-2016)
“Institutional Policy against Sexual Harassment
at the University of Puerto Rico”—(App.l68a)
Article VIII
“Sexual Harassment and its Modalities” (App.l77a)
4
STATEMENT OF THE CASE
A.
Introductory Remarks
As a threshold matter, we point out that being a
tenured professor at the University of Puerto Rico
(‘UPR”), Petitioner has a property interest in continued
employment, safeguarded by due process protections.
Board of Regents of State Colleges v. Roth, 408 U.S.
564, 577 (1972).
This case concerns the dismissal of Petitioner from
his tenured position as a professor at the University
of Puerto Rico based on allegations of sexual harassment
by Petitioner of the student Genesis Velez Feliciano
(“Complaint” or “UPRU’s case”), who was enrolled in
the Mate 3012 course, section M25 (“Course”), which
Petitioner taught at the University of Puerto Rico in
Utuado (“UPRU” or “University”) during the second
semester of the academic year 2017-2018.
Notwithstanding that accusation, there is enough
evidence in the record to show that the Complaint was
a pretext of UPRU administrators to inflict harm to
Petitioner for not having given in to their pressure to
illicitly pass the students of said Course. The record
shows that Genesis Velez Feliciano (“Genesis”) legit
imately failed in the Course, and that she did not
complain on her own about sexual harassment by
Petitioner. The following quotes were taken from the
minutes of the meeting held on May 24, 2018, of
Genesis, Vivian Velez Vera (‘Vivian Velez”), acting Dean
of Academic Affairs at the time, and Maria Rodriguez
Sierra, acting Dean of Students at the time:
5
At the time that the students unanimously
expressed these concerns, we asked Ms.
Genesis Velez Feliciano to speak with both
Deans, after the meeting had finished.
App.235a.
The Student was informed that the Rector
would be informed immediately to activate
the corresponding protocol. Ms. Genesis Velez
would be visiting the Dean of Academic Affairs
to read the minutes and would sign it as the
document of origin of her complaint on or
before Tuesday, May 29, 2018.
App.235a-236a.
From the preceding quotes it is clear that UPRU
administrators invited Genesis to a private meeting
and used the minutes of that meeting to start a com
plaint against Petitioner. Eventually, they used the
comments made by Genesis at that meeting to formalize
a sexual harassment complaint against Petitioner,
albeit the conducts alleged by Genesis were not of a
sexual nature as required by the University regula
tions that Petitioner was accused of having violated.
Professor Jorge Torres Bauza was one of the wit
nesses that UPRU brought to testify against Petitioner
at the administrative hearings. However, his testimony
supports that the Complaint was motivated by the
students’ failure in the Course. The following quote is
taken from the examining officer report:
It should be noted that in the testimony of
Prof. Torres Bauza he opined that the
students’ actions were motivated by their
desire to have the grade they had in the
6
course changed, since at that time all of them
were failing in said course.
The record shows that on June 4, 2018, UPRU’s
administrators offered to the students to change their
final grade from F to C, and on June 5, 2018, Vivian
Velez provided Genesis with a Title IX complaint form.
Eventually, UPRU’s administrators changed the final
grade of all the students in the Course from F to C,
App.240a-241a, without the participation or knowledge
of Petitioner, as required by Certification No. 40
(2014-2015). App.l92a, 194a.
The foregoing provides unequivocal proof that the
Complaint was a pretext of the administrators to dismiss
Petitioner for not acquiescing to their pressure to pass
the students of the Course, albeit the students legiti
mately failed in it.
As we will explain below, UPRU’s rector, Luis
Tapia Maldonado (Tapia), did not dismiss Petitioner
for the charge of sexual harassment contained in the
Formulation of Charges, instead he dismissed Petitioner
for charges and facts not alleged therein, similar to
what happened in In re Buffalo, 390 U.S. 544 (1968).
B.
Legal Background
It is well established that the University of Puerto
Rico is an arm of the Commonwealth of Puerto Rico.
Dogson v. University of Puerto Rico, 26 F. Supp. 2d 341,
343 (D.P.R. 1998). This Court has held or otherwise
indicated that the protections accorded by the Due
Process and Equal Protection Clauses of the Fourteenth
Amendment apply to residents of Puerto Rico. Exam
ining Bd. v. Flores de Otero, 426 U.S. 572, 600 (1976).
Now, since “[a] State acts by its legislative, its executive,
or its judicial authorities”, Ex parte Virginia, 100 U.S.
7
339, 347 (1879), an act of UPRU or any of its officials
is an act of the Commonwealth of Puerto Rico for
purpose of the application of the protections of the
Constitution of the United States.
1. Quasi-Criminal Proceedings
In Sprint Comm., Inc. v. Jacobs, 571 U.S. 69
(2013), this Court listed some factors that would make
a state civil enforcement action “akin to a criminal
prosecution”.
In UPRU’s case the record shows that Vivian Velez
and other administrators carried out an informal exparte investigation for the purpose of penalizing Peti
tioner for allegedly having engaged in conduct of sexual
harassment; later on, Jose Heredia Rodriguez (Heredia),
UPRU’s former interim rector, issued a formal state
ment of charges against Petitioner, App.l61a, and finally
UPRU, which is an “arm” of the Commonwealth of
Puerto Rico, was a party to the state proceedings.
Therefore, the Sprint’s factors are satisfied in UPRU’s
case, henceforth, UPRU proceedings were “akin to a
prosecution”.
Furthermore, the dismissal of Petitioner by UPRU
was a penalty criminal in nature, according to this
Court description of this concept in Hicks v. Feiock,
485 U.S. 624, 633 (1988) (Ref. Penfield Co. v. SEC, 330
U.S. 585, 593 (1947)). See also United States v. Ward,
448 U.S. 242, 248-249 (1980).
The characterization of a proceeding and the relief
given as civil or criminal in nature, for purposes of
determining the proper applicability of federal consti
tutional protections, raises a question of federal law.
Hicks v. Feiock, 485 U.S., at 630. In this regard, this
8
Court has expressed that the notion of punishment cuts
across the division between civil and criminal law.
United States v. Halper, 490 U.S. 435, 447-448 (1989).
In Ruffalo this Court noted that Lawyer’s disbarment
is a punishment, and then it characterized lawyer’s
disbarment proceedings as being quasi-criminal. The
foregoing suggests that “the touchstone of quasi
criminality is punishment”. United States v. Private
Sanitation Industry Ass’n of Nassau Suffolk, Inc., 44
F. 3d 1082 (2nd Cir. 1994) (Heaney, J., dissenting). In
such proceedings, the charge must be known before
the proceedings commenced. In re Ruffalo, 390 U.S.,
at 551.
C.
Factual Background and Administrative
Proceedings at UPRU
May 24, 2018 was the last day at UPRU for the
students to withdraw from a course, App.42a, proven
fact # 11; and by May 23, 2018 the students that
attended the Course were failing, App.42a, proven fact
# 8. Because of their imminent failure in the Course,
on May 24, 2018 the students approached Vivian Velez
asking her to intervene with the situation so they
wouldn’t fail in the Course.
Accordingly, Vivian Velez summoned them to a
meeting at 3:00pm on that day. App.43a, proven fact
#16. Thereafter, she invited Genesis to a private meeting
at 3:40pm, and then she had a meeting with Petitioner
at 5:20pm2.
At the meeting with Petitioner Vivian Velez
made all kinds of suggestions to Petitioner so that the
2 The acting Dean of Students was also in those meeting too, but
her role in the Complaint was incidental.
9
students wouldn’t fail the Course, none of which
assessed the students’ knowledge of the topics in the
Course. At that meeting it became clear that all
Vivian Velez wanted was for Petitioner to pass the
students regardless of whether they have learned the
topics of the Course, which is a conduct that is contrary
to the University of Puerto Rico academic standards.
Immediately after the students had officially
failed the Course, Heredia did not allow Petitioner to
teach two courses in the summer of 2018 that had
been assigned to Petitioner by the Chairman of the
Natural Sciences Department earlier in the semester.
This adds more proof that the Complaint was an act
of retaliation by UPRU’s administrators.
Thereafter, Petitioner took a leave of absence out
side of Puerto Rico in the fall semester of 2018, and
when he returned for the spring semester he learned
that he had been accused of sexual harassment by
Heredia, and that Tapia had become the acting rector
ofUPRU.
On January 15, 2019, Tapia suspended with pay
Petitioner for security reasons, he said.
Sometime later Petitioner needed to enter the
premises but was stopped by the University guards, who
informed him that Tapia had restricted his entrance to
campus. That happened without notice and a hearing
as required by due process. Moreover, Tapia denied
Petitioner a copy of that order, in spite of the fact that
Petitioner formally asked Tapia for it, thereby acting
in violation of pertinent University regulations.
Later, Tapia didn’t allow Petitioner to teach
summer school in 2019, as Heredia did in the summer
of 2018. The formal hearings about the Complaint were
10
held on October 30 and 31 of 2019, and November 1,
2019.
Something unexpected happened. The first student
that testified against Petitioner, David Urena Negron
—a student who had attended the Course—testified
that the final grade of the students in the Course was
changed from F to C by Vivian Velez and other
functionaries, including the Student Attorney, Marisol
Diaz Ocasio. App.240a-241a.The other students that
testified against Petitioner at the hearings, namely
Esteban Tellado Zequeira and Jann Romero Santiago,
confirmed that their grades had been changed from F
to C by Vivian Velez and others. The students
declared with ease about the change of grades because
the administrators misrepresented to them that the
General Regulations of the University of Puerto Rico
permitted them to do so3. As we mentioned before,
student’s grade revision at UPRU is regulated by Cer
tification No. 40, and requires in first instance the
participation of the professor that taught the course
in question, but in that action Petitioner did not par
ticipate at all.
The administrative hearings ended and the
examining officer recommended Tapia dismiss the
charges against Petitioner, for according to him UPRU
couldn’t prove that Petitioner had violated the Insti
tutional Policy Regarding Sexual Harassment. App.lOa.
Tapia did not accept the examining officer’s recommend
ation; instead, he dismissed Petitioner on December
20, 2019, App.85a-86a, for a charge not included in the
Formulation of Charges. Petitioner appealed that deci3 This matter is in the transcript of the hearing of October 30,
2019.
11
sion first to the President of the University of Puerto
Rico, and then to the Governing Board of the Univer
sity of Puerto Rico, knowing beforehand that these
efforts would only serve as a procedural requirement
to later go to the State’s courts for revision.
On July 14, 2021, Petitioner filed a writ of judicial
review in the Court of Appeals, asking for the equit
able relief of reinstatement and back pay. On their
part, Respondents filed their brief in opposition on April
18, 2022, more than eight months after the deadline
they had to file it had passed. Petitioner asked the
Court of Appeals to strike it, but to no avail.
In June 8, 2023, almost two years after the Peti
tioner had filed his writ of judicial review, the Court of
Appeals confirmed Tapia’s decision, not on the grounds
that the charge of sexual harassment had been proven
in the administrative proceedings, instead, because
Tapia’s decision was reasonable, they said, and was
“grounded on UPR’s duty to maintain an educational
environment free of any violent conduct toward its
students”. App.33a-34a. Petitioner asked the Court of
Appeals to correct that error, clarifying that UPRU’s
case was about a charge of sexual harassment of
Genesis, not for the commission of violent conducts.
App.l34a, Motion for Reconsideration, Tenth Issue.
Notwithstanding Petitioner’s request for the correction
of that error, it persisted in the Judgment, for his Motion
for Reconsideration was denied. App.93a.
12
D. Argument Pertinent to the First Question:
Whether the Curtailment of Cross-Examin
ation Constituted a Violation of Due Process
of Law in This Case
Cross-examination is guaranteed by Section 3.13(b)
of L.P.A.U.4, by State’s due process, App.21a-22a,
101a, and by Article XIII-B of Certification 130.
App.l86a. In the “Formulation of Charges”, Heredia
specifically said:
You have the right to appear at said hearing
represented by an attorney, to cross-examine
adverse witnesses, [...].
App.l65a.
However, at the hearings Petitioner’s counsel was
not permitted to cross-examine Vivian Velez and Marisol
Diaz regarding their participation in the illicit change
of grades of the students, even though this issue was
elicited in the direct examination and despite the fact
that it was relevant to our theory of the case. App. 105a106a. In other words, our side of the story was not
allowed to be considered in UPRU’s proceedings despite
of the fact that it was “of obvious value in searching
an accurate decision”. Cleveland Board of Ed. v.
Loudermill, 470 U.S. 532, 543 (1985).
Petitioner’s counsel at the hearing made an
extensive offer of proof in that regard, but his proposal
was rejected. The Court of Appeals did not pass on the
issue of limited cross-examination even though it was
part of the third point of error in our writ of judicial
review under the subtitle Cross-Examine Two Impor4 L.P.A.U. is the acronym to Puerto Rico Administrative Proce
dure Act, 3 LPRA § 2101 et seq.
13
tant Witnesses Was Curtailed, App.l05a, and despite
the fact that a copy of the full transcripts of the hearings
was provided to that court for verification.
Nor did the Court of Appeals passed on the issue
of the illicit change of grades of the students in the
Course, which was the tenth point of error in our writ
of judicial review before that court. App.l5a. The illicit
change of grades to the students and the curtailment
of cross-examination were material issues to the
controversy favorable to Petitioner.
At the federal level, this Court has said that the
rights of confrontation and cross-examination are
essential when a person may lose his job in society.
Wolff v. McDonell, 418 U.S., at 567.
E.
Argument Pertinent to the Second Question:
Whether the Notice Requirement of Due
Process Was Violated
1. UPRU Dismissed the Plaintiff Over a
Charge That Was Not Included in the
Formulation of Charges
Sexual harassment at the University of Puerto
Rico is regulated by Certification 130 (2015-2016),
known as Institutional Policy against Sexual Harass
ment at the University of Puerto Rico (“Certification
130”), App.l68a, and requires, in particular, that the
alleged conduct be of a sexual nature and unwelcome.
App.l73a, Article IV-E of Certification 130. Petitioner
was charged for having violated Articles VIII-A(l),
A(2), A(3), B(l) and B(2) of said certification (“Formu
lation of Charges”), for allegedly having incurred in
sexual harassment of Genesis. App.l61a.
14
As we mentioned before, the examining officer
recommended Tapia dismiss the charges against Peti
tioner, for UPRU could not prove that Petitioner had
violated any of the Articles of Certification 130
mentioned before. In particular, the examining officer
concluded that the conducts Petitioner had allegedly
incurred were not of a sexual nature as required by
Certification 130. Confronted with that situation, Tapia
decided to dismiss Petitioner—not for the charge of
sexual harassment of Genesis—, but for supposedly
having created an “intimidating, hostile and offensive
environment in the study environment of the Univer
sity”. We quote Tapia on this:
Having evaluated the totality of the particular
circumstances of this case ... we conclude
that the defendant Dr. Luis S. Arana
Santiago incurred in violations of Article
VIII(A)(3) and (B)(2) of the Institutional Policy
Against Sexual Harassment at the Univer
sity of Puerto Rico, Certification No. 130
(2014-2015) of the Governing Board, [. . . ]
by creating an intimidating, hostile and
offensive environment in the study environ
ment of the University.
App.84a.
Now, that determination of Tapia is clearly
erroneous. First, a reading of Articles VIII(A)(3) and
VIII(B)(2) of Certification 130 reveals that those Articles
could only be violated if a charge of sexual harassment
is proven, not if a general conduct that could arguably
create an “intimidating, hostile and offensive environ
ment in the study environment of the University” has
occurred, as Tapia concluded. App.l77a, Article VIII,
Certification 130.
15
Definitely, Tapia misconstrued the meaning and
application of Articles VIII(A)(3) and VIII(B)(2) of Cer
tification 130. Second, having created an “intimid
atinghostile and offensive environment in the study
environment of the University” was not a charge
contained in the Formulation of Charges. App.l61a.
To be sure, the Complaint was about an accusation of
sexual harassment of Genesis by Petitioner, not for
having created an “intimidating, hostile and offensive
environment in the study environment of the Univer
sity”.
It follows that the dismissal of Petitioner for a
charge not contained in the Formulation of Charges,
which is not regulated by the Articles of Certification
130 Petitioner was accused of having infringed, that
was only informed to Petitioner after the hearings had
finished and the examining officer had submitted his
report, constituted a flagrant and gross violation of
due process of Petitioner by Tapia. In this regard, this
Court has stated that:
Notice, to comply with due process require
ments, must be given sufficiently in advance
of scheduled court proceedings so that rea
sonable opportunity to prepare will be
afforded, and it must “set forth the alleged
misconduct with particularity”.
In re Gault, 387 U.S. 1, 33 (1967) (citation to internal
quote omitted).
And In Ruffalo—a lawyer’s disbarment case—,
this Court expressed:
This absence of fair notice as to the reach of
the grievance procedure and the precise
16
nature of the charges deprived petitioner of
procedural due process.
In re Buffalo, 390 U.S, at 552.
In the specific case of a public employee, this
Court has noted that “[t]he tenure public employee is
entitled to oral or written notice of the charges against
him [. . . ] and an opportunity to present his side of
the story”. Cleveland Bd. of Ed. v. Loudermill, 470
U.S., at 546. The purpose of notice is to give the
accused the opportunity to prepare a defense. Wolff v.
McDonell, 418 U.S. 539, 562 (1974) (Marshall, J.,
concurring in part and dissenting in part).
Consequently, Tapia’s actions conflict with federal
law. In general, this Court has noted that the funda
mental requisite of due process of law is the opportu
nity to be heard at a meaningful time and in a
meaningful manner. Goldberg v. Kelly, 397 U.S. 254,
267 (1970) (citations omitted). These rights are impor
tant in cases where the proposed agency actions are
challenged as resting on incorrect factual premises or
misapplication of rules or policies to the facts of
particular cases, as it happens in the case at bar.
Goldberg v. Kelly, 397 U.S., at 268.
Now, Tapia’s actions were worse than those that
happened in Ruffalo. In Buffalo a charge was added
during the hearings by oral motion, and there was a
continuation; but in UPRU’s case, the decision to
dismiss Petitioner was based on a charge that Petitioner
only knew about after the hearings were over, when
Tapia informed him about his dismissal.
Related to this, in Buffalo this Court added: “‘[S]uch
procedural violation would never pass muster in any
normal or civil litigation.’” In re Buffalo, 390 U.S, at 551
17
(quoting In the Matter of John Ruffalo, Jr, 370 F.2d
447 (6th Cir. 1996), Edwards, J., dissenting, at 462).
2. Tapia Added Facts That Were Not Part of
the Formulation of Charges or Part of the
Record
At the outset we inform the Court that Tapia was
not present at the hearings. Consequently, he was not
able to observe the students’ demeanor while testifying,
which is an important aspect to take into considera
tion when assessing witnesses’ credibility. Mattox v.
United States, 156 U.S. 237, 242-243 (1985); California
v. Green, 399 U.S. 149, 192 (1970). To try to justify
that Petitioner had created an “intimidating, hostile
and offensive environment in the study environment of
the University", Tapia included in his Resolution a
section entitled “Additional Determinations of Proven
Facts, According to the Evidence that Arises from the
Administrative Record and that Presented and Admit
ted During the Administrative Hearings” (“additional
facts”), App.47a, in which he added facts that emerged
from the students’ testimony in the administrative
hearings that does not appear as proven facts in the
examining officer’s report nor were they part of the
allegations in the Formulation of Charges; thus viola
ting again the due process right of Petitioner. In this
regard this Court has noted that “[bjefore its property
can be taken under edict of an administrative officer
the appellant is entitled to a fair hearing upon the fun
damental facts”. Joint Anti-Fascist Refugee Comm. v.
McGrath, 341 U.S. 123, 162 (1951) (Frankfurter, J.,
concurring, quoting Southern R. Co. v. Virginia, 290
U.S. 190, 199 (1933)). It also has noted that “fairness
can rarely be obtained by secret, one-sided determina
tion of facts decisive of rights”. Id., at 170.
18
It is important to mention that the “additional
facts” that UPRU was trying to bring into the case
through the testimony of its witnesses were consistently
objected to by Petitioner’s counsel in the administrative
hearings. For the most part, his objections were sus
tained by the examining officer, who in turn did not
include any of the “additional facts” in his report to
Tapia, as the very characterization of “additional facts”
by Tapia suggests.
We want to call to this Court’s attention that
Tapia’s addition of new charges and new facts is a vio
lation of State’s due processS. Quote:
[T]he employee has the right to know the
clear picture of his particular situation
before making a decision regarding the legal
strategy to follow. . . . [I]t constitutes a clear
macula on this due process of law that the
citizen be induced by the State to the possi
bility of something different from what it
finally turns out to be. Therefore, once the
employee accepts the conditions of what will
constitute the process against him, the State
cannot vary such conditions [...]. It is not
about what the State has the right to do. but
about what the State announced to the
employee that it would do”.
ExAgente Jose L. Torres v. Policia de P.R., 2016 TSPR
224, p. 28. (Emphasis in the original.)
The incompliance with due process based on the
issue of “additional facts” was brought before the
5 https://faolex.fao.org/docs/pdi7puel26720E.pdf [P.R. Const. Article
II, Section 7]
19
Court of Appeals as part of the third point of error
titled “Dr. Luis Tapia Maldonado erred by having
indicated that the due process of law had been
complied with”, under the subtitle The Rector’s decision
was not based on the Record. App.llOa. The Court of
Appeals mentioned this issue in its Judgment, App.32a,
but it only concluded that “[t]he institution is the one
who must finally adjudicate the dispute according to
the administrative record”. However, that was not the
issue Petitioner brought to the Court of Appeals’
attention in regard to the “additional facts”. To be
sure, the issue Petitioner brought before the Court of
Appeals related to the administrative record was that
the “additional facts” were not part of the Formulation
of Charges or part of the record, for it was the exam
ining officer, not Tapia, the one in charge to make
determination of fact, assessment of witnesses’
credibility, and the formation of the record in UPRU’s
proceedings. App.ll0a-115a. This follows from the
Supreme Court of Puerto Rico’s case-law. We quote:
The examining officer is in charge of the crucial
task of adjudicating the facts in controversy
during the course of the evidentiary hearing.
His position requires him to comprehensively
compile the evidence presented in the pro
ceedings, that is, he is responsible for the
formation of the administrative record.
Comisionado de Seguros de Puerto Rico v. Real Legacy
Ass. Co., 179 D.P.R. 602 (2010), 2010 TSPR1426, atp.18.
6 This case was brought to the Court of Appeals’ attention to
show that the examining officer was the one in charge of forming
the administrative record upon which Tapia had to adjudicate
the case. App.llla.
20
For these purposes, he is empowered to order
the discovery of evidence, preside over the
conference in advance of the hearing, deter
mine the evidence that will form part of the
record and issue to the adjudicator a recom
mendation on the decision that should be
made based on his determinations of facts
and the applicable law.
Id., at p.19.
Keep in mind that the examining officer is
the one who has delimited the issues that are
in controversy; he has had all the evidence
before him; he has awarded credibility; in
short, he is the one who has formed the
record on which the adjudicator will base to
make the final decision.
Id., at p. 20.
From the preceding quotes, it follows that Tapia’s
actions were arbitrary and capricious when he added
the “additional facts”, for he was not in charge to
assess witnesses’ credibility or make determination of
fact in UPRU’s proceedings. The next quote reveals
that Tapia used the “additional facts” to support the
charge of “intimidating, hostile and offensive environ
ment in the study environment of the University”.
Quote:
As emerged from the testimonies, this conduct
was perceived by the students as uncomfor
table and hostile and the students filed com
plaints about it with the university author
ities. (It arises from the Additional Proven
Facts number 40 to 49 and the stipulated fact
21
number 6 of the Report of the Examining
. Officer.)
App.79a-80a.
Now, since stipulated fact number 6 only mentions
that the students complained to the administrators
about Petitioner, App.40a, it follows that Tapia used
the “additional facts” exclusively to support the charge
of “intimidating, hostile and offensive environment in
the study environment of the University’. That certainly
was a violation of due process of Petitioner of first
order, for this Court has noted that ‘the essence of due
process is the requirement that “a person in jeopardy
of serious loss [be given] notice of the case against him
and opportunity to meet it”’. Mathews v. Eldridge, 424
U.S. 319, 348 (1976) (quoting Joint Anti-Fascist Comm,
v. McGrath, 341 U.S., at 171-172 (Frankfurter, J.
concurring)).
Based on due process principles the Puerto Rico’s
Administrative Procedure Act.7, requires that in formal
adversary proceedings before administrative agencies,
the decision has to be based on the record, which in
the present case was the one formed by the examining
officer. The Supreme Court of Puerto Rico has estab
lished that such a violation would be sufficient grounds
for automatic reversal. Quote:
We have already resolved that any adminis
trative determination that has been made
without regard to the minimum guidelines
established in section 3.1 of the L.P.A.U. —
among which is the right to have the decision
based on the record- cannot prevail.
7 Previously identified as L.P.A.U.
22
Ofic. del Comisionado de Seguros v. Asociacion de
Empleados del E.L.A., 2007 TSPR 112, p. 16.
The foregoing shows that if the Court of Appeals had
applied the legal principles contained in Comisionado
de Seguros de Puerto Rico v. Real Legacy Ass. Co.,
supra, and Ofic. del Comisionado de Seguros v. Asoci
acion de Empleados del E.L.A, supra, UPRU’s case
should have been ruled in Petitioner’s favor.
The issues of “additional facts” and charges were
brought before the Supreme Court of Puerto Rico as
part of our second point of error, under the subtitle
“Dr. Tapia Distorted the Administrative Complaint”,
App.l44a, to show that the administrative resolution
was not based on the record, and therefore constituted
a violation of due process and a violation of Section 3.1
of L.P.A.U., which in turn is sufficient grounds for
reversal of Tapia’s Resolution as a matter of state law
as stated above. See previous quote.
F.
Argument Pertinent to the First Part of the
Third Question: Whether the Court of Appeals
Violated Due Process as a Matter of Federal
Law When It Did Not Apply the Clear and
Convincing Standard of Proof in UPRU’s Case
The function of the standard of proof is to minimize
the risk of erroneous decisions, and is part of the due
process. Addington v. Texas, 441 U.S. 418 (1979).
This Court has mandated a clear and convincing
standard of proof when the individual interests at
stake in a state proceeding are both “particularly
important” and “more substantial than mere loss of
money’. Santosky v. Kramer, 455 U.S. 745, 756 (1982)
(quoting Addington v. Texas, supra, 441 U. S, at 424)).
And it has deemed this level of certainty is necessary
23
to preserve fundamental fairness in a variety of gov
ernment-initiated proceedings that threaten the indi
vidual with “a significant deprivation of liberty” or
“stigma”. Id., at 756 (quoting Addington v. Texas, 441
U. S at 425, 426)).
Now, what was at stake for Petitioner at UPRU’s
proceedings was more significant than a mere loss of
money. At UPRU’s proceedings Petitioner’s tenure as
a professor at the University of Puerto Rico was at
stake over an accusation of sexual harassment, albeit
unfair and unfounded, which in turn imposes a stigma
on Petitioner that affects his good name, reputation,
honor and integrity that significantly reduces, if not
precludes, his freedom to take advantage of other em
ployment opportunities. Accordingly, we submit to the
Court that the clear and convincing standard of proof
should be the appropriate criterion in this case as a
matter of federal law. The following quote provide
extra support for this conclusion:
The individual should not be asked to share
equally with society the risk of error when
the possible injury to the individual is signif
icantly greater than any possible harm to the
state.
Addington v. Texas, 441 U. S., at 427.
24
G. Argument Pertinent to the Second Part of
the Third Question: Whether the Refusal of
the Court of Appeals of Puerto Rico to Apply
the Clear and Convincing Standard of Proof,
as a Matter of State Law, Constituted a
Violation of the Equal Protection Clause
1. The Clear and Convincing Standard in
Puerto Rico
The Supreme Court of Puerto Rico has guided itself
by the federal jurisprudence regarding the charact
erization of clear and convincing evidence. In the case
In re Rebecca Rodriguez Mercado, 2005 TSPR 144,
p.ll, the Supreme Court of Puerto Rico stated:
We can conclude that clear, robust, and
convincing evidence is much stronger than a
preponderance of the evidence. It has been
described as that evidence that produces in a
trier of fact an enduring conviction that factual
contentions are highly probable. Colorado v.
New Mexico, 467 U.S. 310, 316 (1983); Buildex,
Inc. v. Kason Indus., Inc., 849 F.2d 1461,
1463 (Fed. Cir. 1988); Price v. Symseck, 988
F.2d 1187, 1191 (Fed. Cir. 1993). See also:
McCormick on Evidence, 5th ed., Vol. 2,
§ 340 p. 425 (1999).
On the other hand, in Puerto Rico it is well estab
lished that the clear and convincing standard of proof
is the criterion to be applied in cases of public employ
ees’ dismissal. Quote:
[W]e have reiterated on multiple occasions
that the intermediate standard of clear, robust
and convincing evidence is that required by
25
our disciplinary ethical system to impose
sanctions under this body of regulations. The
above was established under the assumption
that the fundamental right to earn a living is
at stake.
OEG v. Manuel B. Martinez Giraud, 2022 TSPR 93,
p.18. (Emphasis in the original.)
[Nip less could be demanded, especially when
the nature of the procedure is adversarial, in
which the public employee who is accused of
violating an ethical norm could be punished
with a substantial fine or dismissal.
Id., ps. 18-19. (Emphasis in the original.)
On its part, the Court of Appeals has routinely
applied the clear and convincing standard of proof in
cases of public employees’ dismissal. Quote:
This panel has been consistent in its deter
minations in promulgating that the quantum
of evidence in cases of dismissal of a public
employee is that of clear, robust and con
vincing evidence.
/
Ex PM Angel Vazquez Pagan v. Mun. De Carolina,
KLRA201501253. App.228a.
It is firmly established in our jurisprudence
that for the denial of a fundamental right,
due process of law requires that the value
and sufficiency of the evidence be measured
with the criterion of clear, robust and
convincing evidence. We have no doubt that
the right to work or to partially or perman
ently maintain the main source of livelihood
is located in that category.
26
Ex. Agente Joel Algea Resto v. Policia de P.R., KLRA201401312, p. 16.
From the last quote above it follows that State’s
due process requires that the clear and convincing
standard of proof be applied in public employees’
dismissal cases. However, the Court of Appeals did
not apply that criterion in UPRU’s case, despite the
fact that this was the eleventh point of error in our
writ of judicial review in that court, App.ll5a, and
despite the fact that it was brought back before that
court as the ‘Sixth Issue’ in our Motion for Reconsider
ation, App.l22a, for that motion was denied. The lack of
clear and convincing evidence by UPRU was brought
before the Supreme Court of Puerto Rico as our sixth
point of error in our writ of appeal. App.l58a (In the
Appendix we omitted the discussion of the sixth point
of error since we only want to show this Court that
that error was properly presented before the Supreme
Court of Puerto Rico but rejected).
The fact that the Court of Appeal did not apply
the clear and convincing standard of proof could be
corroborated by reading its Judgment. App.2a-34a.
Consequently, by deliberately not having applied
the clear and convincing standard of proof in UPRU’s
case the Court of Appeals not only denied the due process
right to Petitioner, but also treated him differently
than other public employees similarly situated, thus
acting in violation of the Equal Protection Clause of
the Fourteenth Amendment of the Constitution of the
United States, and the equal protection of the law
guaranteed by Article II, Section 7, of the Constitution
27
of the Commonwealth of Puerto RicoS. This Court has
noted that:
Requiring the application of law, rather than
a decisionmaker’s caprice, does more than
simply provide citizens notice of what actions
may subject them to punishment; it also helps
to assure the uniform general treatment of
similarly situated persons that is the essence
of law itself.
BMW of North America, Inc. v. Gore, 517 U.S. 559, 587
(1996) (Bryer, J., concurring, ref. omitted)).
We want to add that the Supreme Court of Puerto
Rico has determined that third-party accounts would
never amount to have “clear and convincing” evidence.
Quote:
Therefore, it is forced to conclude that when
the ethical behavior of a public official is
questioned, even if it is the simple appearance
of impartiality or dishonesty, the charge must
be established by clear, robust and convincing
evidence that, in turn, overcomes and discards
all considerations based on conjectures and
third-nartv accounts.
OEG v. Manuel B. Martinez Giraud, supra, page 19.
(Emphasis in the original) 9.
8 https://faolex.fao.org/docs/pdf/puel26720E.pdf [P.R. Const. Article
II, Section 7]
9 This quote was brought to the Court of Appeals’ attention to
show that UPRU did not have clear and convincing evidence.
App.l23a-124a.
28
It follows that if the Court of Appeals had applied
the clear and convincing standard of proof in UPRU’s
case as was required by state law, along with the juris
prudence cited in the previous quote, UPRU’s case
should have been decided in Petitioner’s favor since
UPRU’s evidence consisted precisely of third-party
accounts as Genesis did not come to the hearings to
testify.
H. The Court of Appeals’ Judgment Does Not
Rest in Valid State Grounds
The Court of Appeals’ Judgment was a pro forma
affirmation of Tapia’s decision, which in turn rested
in violations of State’s due process of law, violations
of L.P.A.U., and violations of State’s case-law as we
explained before. Together, the curtailment of crossexamination and the fact that Tapia’s Resolution was
not based on the record of the case provides enough
state’s grounds for Tapia’s Resolution reversal since
these are violations of Section 13(b) and Section 3.1 of
the L.P.A.U., respectively, which also are violations of
State’s due process.
A reading of the Court of Appeals’ Judgment
reveals that that forum devoted its time to give full
credibility to UPRU’s witnesses—which is a practice
that is not favored in general for courts of appeals to
engage in—, in order to support Tapia’s decision.
However, it only concludes that Tapia’s decision was
reasonable since it was “grounded on UPR’s duty to
maintain an educational environment free of any violent
conduct toward its students”. App.33a-34a. To be
sure, the intent of the reviewing process in that court
was to determine whether Articles VIII(A)(3) and VIII
(B)(2) of Certification 130 were violated by Petitioner
or, more specifically, whether sexual harassment of
29
Genesis by Petitioner had occurred according to the
evidence in the record and the applicable law; a con
clusion that the Court of Appeals does not reach in its
Judgment.
As the foregoing shows, in its quest for defending
Tapia’s actions, the Court of Appeals totally disregarded
the applicable law and the rights that assisted
Petitioner both in UPRU’s proceedings and in the
reviewing process before that court, including his
right that UPRU’s case be reviewed under the criterion
of clear and convincing evidence. It also shows that
Tapia’s determination to dismiss Petitioner could not
be rightfully supported in state law grounds. Conse
quently, the Court of Appeals’ Judgment was in error.
It is worth mentioning that regarding a “hostile
environment” sexual harassment complaint, the
Supreme Court of Puerto Rico has established that it
must be analyzed subjectively and objectively, as a
general rule. Universidad de Puerto Rico en Aguadilla
v. Jose Lorenzo Hernandez, 2012 TSPR 57, p. 28. See
App.70a. Specifically, it has stated that:
However, what constitutes sexual conduct
under this modality cannot be evaluated
exclusively based on the perception of one of
the parties involved.
Id., p. 27. App.71a.
Consequently, what is stated in the previous quote
should have been enough to warrant Tapia’s Resolution
reversal by the Court of Appeals had the charge of
sexual harassment been properly considered by that
court since Genesis did not appear to testify at the
hearings and for that reason the documents containing
30
expressions made by her were deemed hearsay by the
examining officer.
The subjective part of the analysis in a “hostile
environment” sexual harassment accusation is so fun
damental that this Court has expressed, in the context
of Title VII, that “[t]he gravamen of any sexual har
assment claim is that the alleged sexual advances are
‘unwelcome’”. Meritor Bank v. Vinson, All U.S. 57, 68
(1986) (citing 29 CFR § 1604.11(a) (1985)). See also
Harris v. Forklift System, Inc., 510 U.S. 17 (1993). It fur
ther has noted that the question whether a particular
conduct is unwelcome presents difficult problems of
proof, and turns largely on credibility determinations
committed to the trier of facts, Meritor Bank v. Vinson,
All U.S., at 68, who in UPRU’s case was not Tapia.
I.
Proceedings at the Supreme Court of Puerto
Rico
The Supreme Court of Puerto Rico favored UPRU
sub silentio. In order to do so, the Supreme Court of
Puerto Rico arbitrarily and capriciously changed Peti
tioner’s appeal to a writ of certiorari and then denied
review.
Section 3.002(c) of the “Judiciary Act of the
Commonwealth of Puerto Rico of 2003”, Law 2012003, 4 L.P.R.A. § 24s, as amended “(Judiciary Act”)i0,
states that the Supreme Court of Puerto Rico shall
hear through a remedy of appeal; when the existence
of a conflict between the judgments of the Court of
Appeals is stated in cases appealed before said Court.
(Emphasis added)
10 https://presupuesto.pr.gov/Budget_2012_2013/Aprobado
2013Ingles/suppdocs/baselegal_ingles/010/010b.pdf
31
It follows that a writ of appeal taken to the
Supreme Court of Puerto Rico is a matter of right insofar
as the requisite described in Section 3.002(c) of the
Judiciary Act is satisfied, as it was in UPRU’s case.
We now elaborate.
In his writ of appeal to the Supreme Court of
Puerto Rico Petitioner brought to its attention the
case Ex Sgto. Angel D. Hernandez v. Pol. de P.R.,
KLRA201601162, to show that the Court of Appeals
had applied the clear and convincing standard of proof
in that particular case—as it was supposed to because
that’s the applicable standard of proof in public
employees’ dismissal cases in Puerto Rico—, and
called to its attention that the Court of Appeals did
not apply that standard of proof in UPRU’s case,
despite the fact that UPRU’s case concerns the dismissal
of a public employee as that cited case did. See App. 138a,
under the subtitle “Conflicts of Previous Decisions of
the Court of Appeals". The case Ex Pm Angel Vazquez
Pagan v. Mun. de Carolina, KLRA201501253,
App.205a-232a, is another example where the Court
of Appeals had applied the clear and convincing stan
dard of proof to public employees’ dismissal cases.
App.228a, third paragraph. That case was brought to
the attention of the Supreme Court of Puerto Rico in
our first motion for reconsideration before that court
to show that the Court of Appeals consistently had
applied the clear and convincing standard of proof to
public employees’ dismissals cases.
Therefore, the Supreme Court of Puerto Rico should
have taken UPRU’s case as an appeal, for the requisites
established in Section 3.002(c) of the “Judiciary Act”
are complied with in this case. But it didn’t, in spite
of the fact that it was required by law, or stated
32
differently, despite the fact that it was a legal right of
Petitioner. Nor did it take it as a certiorari, even
though the Court of Appeals did not apply the appro
priate standard of proof to UPRU’s case, and despite
the fact that the Supreme Court of Puerto Rico has
expressed that:
The courts have the duty to check whether
the correct standard of proof was applied and,
if it was not applied, they must reevaluate
the case.
In re: Rebeca Rodz. Mercado, 2005 TSPR 144; P.P.D. v.
Admor. Gen. de Elecciones, 111 D.P.R. 199 (1981).
It is to be noticed that the Supreme Court of
Puerto Rico has expressed that the denial of a writ of
certiorari is an error in itself when the reviewed court
had committed an error. Quote:
Likewise, the Court of Appeals erred in deny
ing the issuance of the writ of certiorari, since
in this way it validated the erroneous action
of the trial court.
El Pueblo de P.R. v. David Mendez Rivera, 2013 TSPR 26
(Kolthoff, J., concurring), p. 19.
Despite having made such expressions, and the
fact that the Court of Appeals clearly erred regarding
the standard of proof to be applied in UPRU’s case, the
Supreme Court of Puerto Rico denied review in UPRU’s
case three (3) times, which seems to us to be a para
doxical behavior of the Supreme Court of Puerto Rico
when compared to its own jurisprudence.
By arbitrarily denying review, the Supreme Court
of Puerto Rico, not only allowed a judgment in which
the wrong standard of proof had been applied to stand,
33
but also denied review in a case that complies with the
requirement set out in Section 3.002(c) of the “Judiciary
Act”.
In other words, the Supreme Court of Puerto Rico
denied Petitioner the equal protection of the law. This
Court has noted that:
Although the Federal Constitution guarantees
no right to appellate review, once a State
afford that right, . . . the State may not “bolt
the door to equal justice”.
M.L.B. v. S.L.J., 519 U.S. 102, 110 (1999) (citations
omitted).
We want to call to this Court’s attention that the
Supreme Court of Puerto Rico routinely takes as an
appeal those cases in which the Court of Appeals
issues inconsistent judgments. The following quotes
are taken from the Supreme Court of Puerto Rico’s
Jurisprudence:
In response to inconsistent opinions of the
Court of Appeals inconsistent with the judg
ment under review, on May 25, 2018, this
■ Court accepted the appeal presented.
William Perez Vargas v. Office Depot/Office Max. Inc.,
2019 TSPR 227, p.8.
By virtue of the conflict between the judg
ments of the forum a quo, we accept the writs
as appeals and with the benefit of the
appearance of all the parties, we resolve.
Victor Roldan Torres v. M. Cuebas, Inc., et al., 2018
TSPR 18, ps. 12-13.
34
On December 16, 2016, we accepted the appeal
since, in effect, the Court of Appeals ruling
in this case is inconsistent with several pre
vious rulings of that forum.
Mendez Jimenez, et al. v. Carso Construction of Puerto
Rico, LLC, et al., 2019 TSPR 99, p. 5.
However, despite the inconsistency of the Court
of Appeals’ ruling in UPRU’s case with respect to the
cases we mentioned before, the Supreme Court of Puerto
Rico denied review in UPRU’s case, thus acting in a
discriminatory manner against Petitioner.
The foregoing shows that state law and the juris
prudence of the Supreme Court of Puerto Rico that
applies to UPRU’s case favors Petitioner vastly, but
the courts of Puerto Rico managed a different outcome
through violations of Petitioner’s rights, constitutional
and otherwise, including rights acquired by the Supreme
Court of Puerto Rico’s jurisprudence. In the specific,
case of the Supreme Court of Puerto Rico, it could fairly
be said that that court arbitrarily denied Petitioner
access to justice, a right which is being recognized by
international standards “as both a basic human right
and a means to protect other universally recognized
human rights”!!. This right “is founded in the Due
Process Clause and assures that no person will be
denied the opportunity to present to the judiciary alle
gations concerning violations of fundamental consti
tutional rights”. Wolff v. McDonell, 418 U.S., at 579.
In sum, the actions of the courts of Puerto Rico to
favor the UPRU are clear and evident; they were
11 https://www.americanbar.org/advocacy/rule_of_law/what-wedo/human-rights-access-to-justice/
35
tasked with guarding the process against partial
adjudicators; however, they comported as partial
adjudicators themselves.
REASONS FOR GRANTING THE PETITION
This case furnishes a clear example of the misuse
of power by the government; a conduct that the Con
stitution is there to protect against. The Fourteenth
Amendment to the Constitution guarantees that no
state shall deprive any person of property “without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws”. Our due
process and equal protection rights were properly
asserted in the courts of the Commonwealth of Puerto
Rico but were rejected in this case.
Tapia’s Resolution, apart from having been issued
without the guarantees of due process of law, is in
conflict, in particular, with this Court’s precedents in
In re Buffalo, supra, and Cleveland Board of Education
v. Loudermill, supra.
There is no question that both Tapia’s Resolution
and the Court of Appeals’ Judgment are wrong as a
matter of state law, and it appears to be so as a matter
of federal law. It is for this reason that we have come
to this Court to vindicate our federal rights, for this
Court has asserted that the adequacy of the state law
ground to support a judgment precluding litigation of
the federal claim is itself a federal question that it will
review de novo. Howlett v. Rose, 496 U.S. 356, 366
(1990) (citations omitted).
36
Accordingly, it has made manifest its “indepen
dent obligation to ascertain whether a judgment
defeating the enforcement of federal rights rests upon
a valid nonfederal ground and whether that ground
find ‘fair or substantial support’ in state law’”, Howlett
v. Rose, 496 U.S., n.14 (citations omitted). It has further
expressed that “[t]he reasons for that rule rests on
nothing less than this Court authority to review statecourts decisions in which ‘any title, right, privilege,
or immunity is specially setup or claimed under the
Constitution’”. Howlett v. Rose, 496 U.S., n. 14 (quoting
28 U.S.C. § 1257(a)).
We have presented this Court enough evidence to
support the conclusion that UPRU administrators,
through abuse of power, illegal conducts, and misrep
resentations, induced the students of the Course to help
them to articulate a sexual harassment complaint
against Petitioner in retaliation for him not having
acquiesced to their pressure to pass the students of
the Course, albeit the students legally failed in it.
By altering the grades of the students illicitly,
UPRU’s administrators not only participated in
conducts in conflict with the equitable doctrine of
“clean hands”, but also have participated in conducts
that have been strenuously criticized by the judiciary
in other jurisdictions within the United Statesl2.
There is no doubt that the constitutional violations
in the present case by Tapia, the Court of Appeals, and
the Supreme Court of Puerto Rico have been substan
tial and manifest.
12 https://www.latimes.com/socal/daily-pilot/news/tn-dpt-me0805-lai-20150804-story.html
37
So far Petitioner hasn’t had an opportunity for an
impartial review of his ill-motivated dismissal by
UPRU that besides causing him the loss of his job at
the University of Puerto Rico, has severely harmed his
liberty interest in his good name and reputation, and
has imposed upon him an undue stigma that would
severely limit his freedom to take advantage of other
employment opportunities, specifically professorship
opportunities, which is Petitioner’s chosen career.
As we have shown before, Petitioner’s dismissal
was not done according to the charges or facts contained
in the Formulation of Charges, similar to what hap
pened in Buffalo.
It.is worth mentioning that this case also encom
passes the non-compliance with the Constitution of the
United States not only by UPRU, but by the judiciary
of the Commonwealth of Puerto Rico, for them violated
Petitioner’s due process and equal protection rights,
which is a matter related to the Supremacy Clause of
the Constitution of the United States (U.S Const, art. VI,
Clause 2), that charges state courts with a coordinate
responsibility to enforce the federal law according to
their regular mode of procedure. Howlett v. Rose, 496
U.S., at 367.
This Court has recognized, and Petitioner knows
firsthand, that “[t]o be deprived not only of present
government employment but for future opportunity
for it certainly is no small injury”. Board of Regents of
State Colleges v. Roth, 408 U.S., at 574 (quoting Joint
Anti-Fascist Refugee Com. v. McGrath, 341 U.S., at 185
(Jackson, J., concurring)). It has further expressed
that the “the right to work for a living in the common
occupations of the community is of the essence of that
personal freedom and opportunity which it was the
38
purpose of the Fourteenth Amendment to secure”.
Truax v. Raich, 239 U.S. 33, 34 (1915).
At this moment, Petitioner has no effective means
other than this Court to vindicate his federal constitu
tional rights that have been violated in the Common
wealth of Puerto Rico’s proceedings.
We respectfully submit to the Court that the afore
mentioned reasons call for this Court’s intervention
based upon considerations that make for the advance
ment of right and justice.
CONCLUSION
The Court should grant the petition for a writ of
certiorari.
Respectfully submitted,
Luis S. Arana
Petitioner Pro Se
HC-01 Box 2209
Morovis, P.R. 00687
(785) 424-4180
arana2121@yahoo.com
June 26, 2024
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.