author: CEREZO, District Judge.

text:
    Susan Opava STITZER, Plaintiff, v. UNIVERSITY OF PUERTO RICO, Norman Maldonado, individually and as Chancellor of the Medical Sciences Campus of the University of Puerto Rico; Pedro Juan Santiago Borrero, individually and in his capacity as Dean of the School of Medicine of the University of Puerto Rico, Defendants.
    Civ. No. 83-1236CC.
    United States District Court, D. Puerto Rico.
    Aug. 22, 1985.
    As Modified Sept. 9, 1985.

      Jorge M. Suro and Carlos V. GarciaGutiérrez, Santurce, Puerto Rico, for plaintiff.
    James D. Noel, III, Hato Rey, Puerto Rico, for defendants.
   OPINION AND ORDER

CEREZO, District Judge.

Dr. Susan Opava Stitzer, a professor at the University of Puerto Rico’s School of Medicine, filed this complaint against the University of Puerto Rico (UPR), the Chancellor of its Medical Sciences Campus, Dr. Norman Maldonado, and the Dean of its School of Medicine, Pedro Juan Santiago Borrero, alleging that she was transferred from the Physiology Department of the School of Medicine to its Pharmacology Department in violation of her constitutional and statutory rights to express herself and be free from discrimination because of sex. Specifically, she claims that her First Amendment rights to free speech were violated because the departmental transfer resulting in her exclusion from the faculty meetings of the Physiology Department was a punitive measure taken in retaliation to views which she voiced at these meetings and that defendants discriminated against her in violation of the Civil Rights Acts of 1871 and 1964, 42 U.S.C. Section 1983 and Section 2000(e), because instead of transferring her male counterpart in the. Physiology Department they transferred her, the only woman with her rank in that department. Plaintiff’s central claim of adversity resulting from the transfer is that she will not be able to attend the faculty meetings of the Physiology Department. Presently before us is defendants’ motion and plaintiff's cross-motion for summary judgment on the issue of whether an administrative proceeding against the Chancellor initiated as a result of the transfer and which ended in a decision adverse to plaintiff bars the present action on grounds of res judicata or collateral estoppel.

The record reveals that there were internal conflicts between plaintiff and some faculty members of the Physiology Department. There is correspondence referring to a situation of personal conflicts which had the Physiology Department paralyzed. The former department director rejected in a letter the recommendation made by departmental colleagues against her promotion, saying that it was the result of their personal conflicts with her. The Dean of the School of Medicine transferred plaintiff to the School’s Pharmacology Department which needed a professor in the area of physiology expertise, renal functions. The Pharmacology Department is located in the same building as the Physiology Department but on a different floor. Plaintiff was assigned classes in her particular field of research expertise and was permitted to continue research in laboratory facilities provided by the department.

Plaintiff was dissatisfied with this decision, apparently feeling that she had been singled out and penalized because of the other faculty members’s differences with her. She considers that the transfer may affect her future research opportunities in physiology because the graduate students to whom she will now be exposed are inclined toward pharmacology rather than physiology and, since her doctorate, training and research are in the field of physiology, she understands she will encounter difficulty teaching this subject matter. Even though research in renal physiology involves the effect of drugs on living organisms and plaintiff will be assigned to this area of pharmacology in her teaching assignments, she considers that the pharmacology department’s alleged need for a professor with a background in renal physiology was just a pretext to justify discriminating against her.

These concerns were expressed in several letters to the Dean after he informed her of the possibility of a transfer and asked for her comments. She also voiced her concern to the Chancellor who, after receiving her views, informed her on January 1981 that it was in the best interests of the School of Medicine to transfer her to the Pharmacology Department. She then filed an administrative appeal through counsel, the same as in this case, to the Office of the President of the University of Puerto Rico, as provided by P.R.Laws Ann., Title 18 Section 604(c)(9), alleging that the transfer violated her rights under the Puerto Rico and United States Constitutions to equal protection of the law, due process, to be free from sex discrimination and to be free to express her views. She argued that the transfer violated her rights under the University of Puerto Rico Law and Regulations. She also filed a motion to stay the transfer pending resolution of her appeal before the Office of the President, again arguing the possible violations to her constitutional rights that the transfer entailed. The Chancellor replied that the University of Puerto Rico’s Regulations were complied with, that for transfers that do not involve a change of residence these only require prior consultation with the affected teacher and departments and that the decision was neither arbitrary nor unconstitutional since he exercised his discretion after considering the best interests of the School of Medicine since the position that plaintiff would be assigned to in the pharmacology faculty filled a need in that department, required someone with training in physiology, would not affect her research, she would be assigned classes in her field, would remain in the same building and would give lectures to her same students. The Chancellor mentioned that another factor taken into account in the decision to transfer was the interpersonal conflicts between plaintiff and other physiology faculty members to the point that she had been given a negative evaluation by them which had to be re-examined and corrected by higher officiáis. In view of this problem which affected not only the functioning of the physiology department but plaintiffs employment itself since department colleagues perform the initial evaluation and recommendations, and considering her professional training, the Chancellor considered that the solution to the problem in terms of what would be in the best interests of the University was to reassign plaintiff to another department where her skills were needed. After examining these arguments, the Office of the President considered that an administrative hearing should be held. Several days of hearings were held and plaintiff, represented by counsel, presented witnesses and documentary evidence and later submitted additional documentary evidence to show the difference between pharmacology and physiology. Most, if not all, of the documentary evidence submitted at the administrative hearing and many of the witnesses are the same as those listed in the pretrial order in this case.

The examining officer issued a Report and Recommendation on February 5, 1982 recommending that plaintiffs appeal be dismissed. The examiner indicated that “/ w /ith the intention of receiving the most information possible, the parties were not limited in regard to time for the presentation of their evidence, reason why the hearings were extended for three days.” The following are important findings of fact made by the examiner: “/ s /ince the middle of 1979 there has existed an internal problem of interpersonal relationship in the Physiology Department where in one way or another practically all of the Department’s professors have been involved, with the productivity of the same having been affected” and that

/ t /he Pharmacology Department offers courses related to Physiology, having been in charge of (sic) Dr. Jesús Santos Martinez, who retired ... in the middle of 1979 ... [tjhis situation, together with the new academic approaches in the Renal Pharmacology field, have created the need for covering the Physiology area in the Pharmacology Department, specially in the renal aspects. Dr. Santos-Martinez belonged to the Physiology Department and later transferred to the Pharmacology one ... Physiology has many areas in common with Pharmacology. Pharmacology is complemented by Physiology in the same manner as it does with Biophysics, Biochemistry and Pathology. The pharmacology student must have knowledge of Physiology because the latter is the basis of all the basic sciences, in other words, it is the basis of medicine.

The officer also concluded that Dr. Opava did not need any special training to teach the new courses related to physiology that she would be assigned in the Pharmacology Department. The officer concluded that the Chancellor acted according to the University of Puerto Rico’s laws and regulations, that plaintiff “was not able to establish that the transfer decision constituted a punishment, responded to reprisals or was violating her constitutional rights ... I or/ that the transfer was effected as a sanction because she was considered responsible for the interpersonal relationship problems taking place in the Physiology Department.” The examining officer pointed out that the Chancellor, at the same time that he was considering the transfer request from the Dean, recommended plaintiff favorably for permanence and promotion and that her seniority rights, ranking, salary, laboratories and research work, office facilities, endeavors to obtain scholarships and financial aid and her teaching area in the physiology field were respected in the transfer. The officer considered that the Chancellor’s decision, given his responsibilities, “should not be revoked in the absence of a clear and unequivocal demonstration that the same was carried out in a discriminatory, arbitrary, capricious, hasty manner or contrary to the Law or Regulation.” Plaintiff requested a transcript of the proceedings and an extension of time, to submit her objections to the Report and Recommendation. On April 15, 1982 she was given eight recorded cassette tapes and fifteen additional days to present her objections but did not submit any. On May 17, 1982 the President of the University of Puerto Rico adopted the examining officer’s recommendations. Plaintiff appealed the President’s decision to the Higher Education Council pursuant to P.R.Laws Ann., Title 18 Section 602(e)(6), but the Council on June 29, 1982 dismissed her appeal and affirmed the Chancellor’s decision.

On August 2, 1982 plaintiff filed a Petition for Review before the Superior Court of Puerto Rico against Dr. Norman Maldonado to review the Council’s decision. In this petition plaintiff alleged that her transfer was discriminatory because of her sex and retaliatory because of her criticism to the department. She argued that the transfer violated her rights under the Puerto Rican Constitution to due process of law, freedom from sexual discrimination and freedom of speech. Citing Puerto Rico as well as federal cases, she contended that the transfer established a prima facie case of sex discrimination and a violation of her freedom of expression as a teacher. The Superior Court on August 19, 1982 issued an order to show cause why a writ should not be issued to reverse the administrative decision. Defendant responded seeking dismissal of the petition because plaintiff had failed to oppose the Examining Officer’s Report and Recommendation. On May 9, 1983 the Superior Court considered defendant’s motion as one to dismiss “without addressing the merits” of the petition and denied it. The Court said:

the fact that the petitioner did not object to the examining officer’s report before the President of the University issued his decision in this case is not adequate grounds to dismiss the petition for review. It should be noted that the University did not object to the petitioner’s appeal in this case before the Council on Higher Education on the grounds that she (sic) is now alleging and therefore said grounds should be understood to have been waived. Besides that, the fact that she did not object to the report before the president reached a decision cannot have the effect of confirming the president’s decision in the event that the same would be contrary to the record.

The court gave defendant fifteen days to “reply on the merits” to the order to show cause. After an extension of time the defendant replied and the court issued the following resolution on April 5, 1984: “Judgment: Having considered the appeal for review filed August 2, 1982, its annexations and the opposition filed August 12, 1983, the court after analyzing and considering each and everyone of the arguments propounded by the parties, denies the appeal for review.” Plaintiff did not request reconsideration from the Superior Court or review by certiorari from the Supreme Court of Puerto Rico. There is no question as to the finality of this Judgment.

Based on these proceedings and pursuant to the holding of Kremer v. Chemical Const. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982), Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) and Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984), defendants contend that litigation of the present action is precluded by the administrative proceedings and the Superior Court decision. Defendants argue that Kremer held that 28 U.S.C. § 1738 requires that we afford the Superior Court’s judgment the same preclusive effect that it would be given in Puerto Rican courts even on the Title VII sex discrimination in federal employment claims and that Allen and Migra require the same preclusiveness as to the civil rights claims. They allege that the requirements for the application of res judicata and collateral estoppel by Puerto Rico courts are all met: a final decision and that “there be the most perfect identity between the things, causes, and persons of the litigants, and their capacity as such.” See: P.R.Laws Ann., Title 31 Section 3343. Plaintiff counters that neither res judicata nor collateral estoppel may be applied to preclude any of the claims or issues before us because the Superior Court decision was not on the merits. She points to Rule 16 of the Rules for the Review of Administrative Decisions by the Superior Court, P.R.Laws Ann., Title 4 Ap. VIII-A, and to the fact that the Superior Court did not issue the writ to review in support of her position that the court’s decision was merely an unexplained decimation to exercise its purely discretionary power to review, without considering the merits of her case. She also argues that the Superior Court’s decision does not bar this litigation because there is no identity of parties and that application of claim or issue preclusion to the ease would be unjust since the administrative decision was made by the officers and entity she is now suing.

In Kremer v. Chemical Const. Corp., the Supreme Court did hold that Title VII of the Civil Rights Act of 1964 was not an exception to the full faith and credit provision of 28 U.S.C. § 1738 and in Allen and Migra similar rulings were made as to constitutional claims. The Kremer decision is particularily interesting to this case in view of plaintiff’s position that the Superior Court’s judgment was not on the merits. The Court in Kremer considered that a New York Supreme Court Appellate Division’s affirmance of a New York agency’s rejection of an employment discrimination claim as meritless had preclusive effect and barred an action in federal court under Title VII for national origin and religious discrimination in employment. Despite the fact that in Kremer the administrative agency involved, the New York State Division of Human Rights (NYHRD), summarily dismissed Kremer’s complaint for lack of merit without holding a hearing and the New York court affirmed the dismissal merely on the limited grounds that the agency’s decision was not arbitrary, capricious or an abuse of discretion, the Court found that the full faith and credit clause required that it give the New York court’s decision the same preclusive effect it would receive in New York. In résponse to the dissenting opinion’s argument that the New York court’s affirmance could not be considered a decision on the merits, the Court made reference to the state criteria of review of a decision dismissing summarily a complaint before the NYHRD whereby the reviewing court must find that the complaint lacked merit as a matter of law. The Court stated:

Justice Blackmun and Justice Stevens wrongly assert that the New York court’s holding does not constitute a finding ‘one way or the other’ on the merits of petitioner’s claim ... when the NYHRD summarily dismisses a complaint the appellate division must find that the petitioner’s ‘complaint lacks merit as a matter of law’____ It is well established that judicial affirmance of an administrative determination is entitled to preclusive effect. There is no requirement that judicial review must proceed de novo if it is to be preclusive. Furthermore, as we have explained, Congress did not draft the de novo requirement in order to deny preclusive effect to state decisions.

(Citations omitted.) Kremer, 102 S.Ct. at 1896, n. 21. The Court’s only caveat to the application of the preclusive effect of the full faith and credit provisions to this situation was that the state court’s judgment must “satisfy the applicable requirements of the Due Process Clause” id. at 1898. The Court found that New York’s administrative procedure gave Kremer the opportunity to present evidence even at the initial pre-hearing stage and satisfied minimum . due process requirements. The Court held that the administrative nature of the fact finding process was not dispositive of the applicability of res judicata as long as opposing parties had an adequate opportunity to litigate disputed issues of fact before an administrative agency acting in a judicial capacity. Id. at 1899 n. 26. The Court, however, rejected applying full faith and credit preclusive effect to administrative decisions that were not reviewed judicially even if “such a decision were to be afforded preclusive effect in a state’s own courts,” but acknowledged that the reviewing court did not have to hold a de novo hearing and could base its decision on the fact finding process at the administrative level. Id. at 1891 n. 7 and 1896-99. In Unger v. Consolidated Food Corp., 693 F.2d 703 (7th Cir.1982) cert. denied, — U.S. -, 104 S.Ct. 549, 78 L.Ed.2d 723, the appellate court, on remand from the Supreme Court to consider the case in light of Kremer, approached an argument similar to plaintiff’s position which also rested on Kremer’s vigorous dissent. Trudy Unger argued that the state court which ruled against her applied a less stringent standard of review than the New York court in Kremer and thus could not be considered as a decision on the merits on the issue of sex discrimination. The appellate court rejected her argument finding that the judicial review standards for both courts were similar: a deferential standard of administrative review whereby the agency’s decision would be upheld if based on the record or not arbitrary capricious or an abuse of discretion. Unger at 706-07. The Court said:

There are at least two reasons for rejecting any argument directed to the absence of a state court de novo trial or some ‘decision on the merits’ equivalent. First, the Supreme Court has already done so; the Kremer Court was fully aware that the New York state courts were conducting an administrative review of a state agency preoceeding. Second, Unger’s argument proves too much: by her logic, no state court administrative review decision would have to be accorded preclusive effect by the federal courts regardless of whether that state’s courts would do so. That, however, would be clearly inconsistent with Section 1738 which is the statutory version of the full faith and credit clause.

Id. The Unger court poignantly pointed out that it was unclear why the Kremer majority took up the dissenter’s view that the judicial review of the agency’s decision was not on the merits since the majority had found that there was no support for a partial repeal of the full faith and credit provision by Title VIL The Unger appellate court considered that given this finding, “a federal court should be foreclosed from inquiring into the nature of the state court decision if the state would grant it preclusive effect, ... assuming the due process concerns noted above were satisfied.” Unger at 706, n. 6. In Burney v. Polk Community College, 728 F.2d 1374 (11th Cir.1984) the court rejected an attempt to distinguish Kremer based on the type of agency which made the initial determinations. Burney, a black guidance counselor in a community college was dismissed after receiving a panoply of administrative procedures within the educational institution which were very similar to the ones received by plaintiff Opava and in which he challenged the institution’s decision as racially discriminatory. Burney challenged the applicability of Kremer since the agency involved was not one statutorily authorized to enforce the state’s anti-discrimination in employment laws. The court rejected this argument indicating that the only articulated criteria announced in Kremer regarding administrative proceedings was that they comply with due process standards. It emphasized that the Kremer decision viewed the state court judgment as being the decision which Section 1738 required giving preclusive effect to in the manner it would be afforded preclusive effect in a state court. Id. Following the teaching in Kremer with respect to the Title VII claim and that of Allen and Migra in relation to the other constitutional claims, the initial determination to be made is whether Puerto Rico courts would give preclusive effect to the Superior Court’s judgment of April 5, 1984 denying plaintiff’s petition to review.

In Puerto Rico, judgments are given preclusive effect if they are final and on the merits. See: Millan v. Caribe Motors Corp., 83 PRR 474 (1961); Manrique v. Aguayo, 37 PRR 314, 320 (1927). Judgments dismissing actions for lack of jurisdiction, on grounds of unripeness or voidness have been considered not on the merits and lacking preclusive effect, see: De Jesús v. Guerra Guerra, 5, Official Translations of the Opinions of the Supreme Court of Puerto Rico, 282, 105 DPR 207 (1976); Fresh-O-Baking Co. v. Molinos de Puerto Rico, 3, Official Translations of the Opinions of the Supreme Court of Puerto Rico, 708, 103 DPR 509 (1975); Tartak v. District Court and Cruz Int., 74 PRR 805 (1953). On the matter of collateral estoppel, judgments are “final only as to those matters which were actually raised and which were really or necessarily litigated and adjudicated____” Id. The Supreme Court of Puerto Rico has said, however, that the complexities of modern proceedings and the increase in litigation have extended res judicata effect even to decisions which do not really examine or adjudicate the merits of a particular action such as a dismissal for lack of prosecution. Pérez v. Bauzá, 83 PRR 213, 217-18 (1961) and cf.: Lausell Marxuach v. Díaz Yañez, 3 Official Translations of the Opinions of the Supreme Court of Puerto Rico, 742, 103 DPR 533 (1975) (judgment by stipulation was afforded res judicata effect). It has also held that agency rulings made in quasi-judicial administrative procedures have preclusive res judicata effect within the same agency, between different agencies and between agencies and courts. Pagán-Hernández v. University of Puerto Rico, 7, Official Translations of the Opinions of the Supreme Court of Puerto Rico, 795, 107 DPR 720 (1978). In Infanzón v. Administrator, 84 PRR 441 (1962) the court affirmed a lower court judgment dismissing an appeal to review an administrative decision on grounds of res judicata. The lower court considered that a prior court decision denying a petition to review an administrative decision involving the same parties and issues was res judicata on the subsequent petition to review. The Supreme Court of Puerto Rico found that res judicata was properly applied even though it recognized that the first decision by the lower court denying the petition to review the agency was erroneous. See also: Caguas Bus Line v. Sierra, Commissioner, 73 PRR 690 (1952) (party who filed unsuccessful petition for review before the supreme court of administrative board’s decision could not attack the board’s resolution collaterally in another proceeding by raising matters that should have been raised in the petition for review.) It is clear then that in Puerto Rico a denial of a petition to review an administrative decision will be given preclusive effect if it is considered to be one in which the issues and claims were litigated and necessarily adjudicated.

Plaintiff’s main contention narrows down to the proposition that the Superior Court’s failure to issue the writ of review is a clear indication that it merely exercised its discretion in favor of not reviewing and declined to consider the merits. She analogizes the Superior Court judgment to the common “No ha lugar” denials by the Supreme Court of Puerto Rico to discretionary petitions for certiorari which, according to In re Rabassa, 40 PRR 660 (1930), do not constitute a pronouncement on the merits of the action. This is a mistaken analogy. The Superior Court did not issue a mere “No ha lugar.” Furthermore, the proceedings for judicial review of administrative decisions are not entirely akin to the discretionary writ of certiorari generally requested to review partial adjudications of procedural issues in an ongoing litigation which has not yet reached final judgment. See gen.: Kane v. Republic of Cuba, 90 PRR 419, 429 (1964).

The right to obtain judicial review of agency action is generally found in the enabling statutes of the particular administrative agency involved. See e.g.: Hilton Hotels v. Minimum Wage Board, 74 PRR 628, 634 (1953). In the case of the University of Puerto Rico, the University Act, P.R.Laws Ann., Title 18 Section 601, et seq. does not contain a provision for judicial review of actions of its highest internal decision-making body, the Higher Education Council. However, in Rivera v. Benítez, Chancellor, 73 PRR 361 (1952) the Court examined this legislation and concluded that since there was no express provision in the law that the Council’s final decisions would be final and binding they could be reviewed by the Superior Court. However, it stated that judicial review would not require the holding of a de novo trial but would be made by examining the record of the proceedings had before the administrative agency to determine only if the administrative body committed error of law, one of these being whether the record contained substantial evidence to support the administrative body’s findings of fact. The 1952 Judiciary Act, P.R.Laws Ann., Title 4 Section 121 states that “/ t /he Superior Court shall have cognizance of the following matters: (a) Civil: (1) of all appeals and review proceedings against decisions, orders and rulings of administrative agencies under the terms and conditions established by law.” In contrast to the Judiciary Act’s provisions that expressly distinguish between the highest court’s mandatory duty to entertain appeals and its discretionary power to issue writs of review and certiorari, see: P.R.Laws Ann., Title 4 Section 37, the Act does not make that distinction with regard to the appellate functions of the Superior Court. In fact, this court’s power to review administrative decisions is one of the specific matters which it “shall have cognizance of.” The statute does not say that the Superior Court may entertain appeals of administrative decisions but rather that it shall have cognizance of these cases “under the terms and conditions established by law.” The “terms and conditions” pertinent to judicial review of Council decisions are established by the Benitez opinion and not by a detailed set of statutory provisions which would enable us to ascertain the degree of discretion afforded the Superior Court in exercising its original jurisdiction to review that agency. The Benitez decision does not support plaintiff’s contention that the Superior Court is endowed with an undefined measure of discretion and may, for no particular reason, decline to exercise its original jurisdiction, without even examining the merits of a petitioner’s allegations. On the contrary, the concern expressed in the Benitez opinion over the establishment by judicial interpretation of a right to obtain judicial review of the Council’s decisions previous similar cases had obtained access to the courts through the writ of mandamus, see: Núñez v. Benitez, Chancellor, 65 PRR 812 (1946), and its emphasis and description of the standard of review to be applied to this newly created “right,” suggest that Superior Court reviewing a final Council decision must, at least, determine whether the petition establishes prima facie that the administrative decision was not based on substantial evidence or that an error of law requiring modification or reversal was committed. It is also important to recognize the underlying premise of constitutional magnitude that lies behind providing access to the courts, a premise which undoubtedly moved the Benitez court to find such access in the “silence” of the University Act. See: Sacarello v. Retirement Board, 75 PRR 253, 276-280 (dissenting opinion by J. Belaval and authorities there cited) (1953). Just recently the Supreme Court of Puerto Rico held that, once the law provides the right to judicial review of an administrative agency decision, such right becomes part of the aggrieved person’s due process of law. Hernández-Sánchez v. Puerto Rico Parking System, Inc., 084-798, Op. of March 11, 1985, 85 JTS 17 at p. 3880. The court has also said that judicial review of administrative decisions must be especially rigorous to counterbalance the ample discretion afforded administrative agencies. Chase Manhattan Bank v. Emanuelli-Bauzá, Vol. 11, Official Translations of the Opinions of the Supreme Court of Puerto Rico, 893, 111 DPR 708 (1981). The importance of the Superior Court’s original review jurisdiction is best understood when one examines the appellate scheme of the Judiciary Act to review administrative decisions whereby the Supreme Court has complete discretion to decline review of Superi- or Court rulings on petitions to review administrative decisions, even when there are substantial constitutional issues. See n. 8. If the Superior Court could decline jurisdiction on purely discretionary grounds, as plaintiff suggests, then in cases such as this one, where constitutional issues were raised, the aggrieved party would never have real access to the courts to present those issues. Given the constitutional hues ingrained in this type of judicial intervention, the comparison with the discretionary writs of review and certiorari is inapposite.

Since there is no legal provision that circumscribes the reviewing power of the Superior Court over decisions of the Council to an unspecified discretion, there is no reason to assume that the Superior Court ignored or disregarded these constitutional principles and the standard of review announced in Benitez by deciding without even examining the merits of the constitutional violations raised by plaintiff. See: P.R.Laws Ann., Title 32 App IV, R. 16.18.

The record of the proceedings before' the Superior Court also defeats plaintiff’s theory. The mere fact that the Superior Court did not issue the writ or request that the administrative record be filed does not mean that it did not examine and rule upon the merits of her petition. The very same rule on which plaintiff bases her theory, Rule 16, suggests that the court may deny the petition without requesting that a record be prepared and filed. This initial procedure appears to be merely a screening type of intervention whereby meritless petitions for review will be summarily denied. The merits of an action are not concerned merely with the proven facts of a case but encompass the application of law to the claims, motives, causes and substantial grounds of action as distinguished from matters of practice, procedure, jurisdiction or form. See: Clegg v. United States, 112 F.2d 886, 887 (10th Cir.1940). It is well established that reviewing courts may dismiss petitions which are meritless. See: Central Bocachica v. Treasurer, 53 PRR 826, 831 (1938); Smallwood Brothers v. Benítez, 46 PRR 448 (1934). Said dismissals entail a review of the merits, at least as raised in the allegations. See e.g. Pagán v. Otero, 69 PRR 470 (1949). In fact, in Kremer it was the administrative body that dismissed the administrative claim as meritless and the court considered it sufficient for res judicata purposes. In this case the Superior Court had the opportunity to dismiss the petition summarily without examining the merits upon deciding defendant’s motion to dismiss yet it expressly declined to do so and indicated that the exhaustion-type argument would not validate the agency’s decision if it were not based, on the record. It also ordered defendant to answer the petition and address the merits. Its judgment thereafter specifically stated that after considering the pleadings and documents submitted by the parties and their arguments the petition to review was denied. This denial was an adjudication on the merits of the matters brought before the court’s consideration in plaintiff’s petition to review. The ruling necessarily implies a finding that none of plaintiff’s arguments were sufficient to defeat the agency’s decision that the decision and conclusions of fact were supported by substantial evidence and that no error of law was committed. In short, the Superior Court’s denial is in effect a ruling that the decision of the Council was valid and should not be disturbed. The fact that there were no express findings of fact or conclusions of law does not deprive the judgment of its intended scope ascertainable through an interpretation of the context in which it was given. See: People v. Rosas, 69 PRR 436 (1948). The lack of specific findings is explainable given the preclusive effect afforded to adjudicatory administrative decisions by Puerto Rico courts, see Pagan Hernandez, 107 DPR at 733-34. It is not surprising then that courts reviewing this type of decision refrain from repeating at length the agency’s findings and conclusions if these are found valid. Finally, if plaintiff’s position were followed the end result would be to give res judicata effect to reversals or modifications of Council decisions only since these would be the most frequent situations where the reviewing court would “issue the writ to modify or reverse” and request that the record be prepared and filed. If only successful petitions were given preclusive effect, the detailed administrative hearing and appeals procedures established by University law and regulations and the judicially crafted provision for review of final Council decision would lack meaning.

We, therefore, hold that the judgment of April 5, 1984 issued by the Superi- or Court of Puerto Rico was a decision “on the merits” for res judicata and collateral estoppel purposes.

We must now determine whether the additional requirements of Article 1204, “the most perfect identity between the things, causes, and persons of the litigants and their capacity as such,” are met. On the identity between parties, the Civil Code provides:

It is understood that there is identity of persons whenever the litigants of the second suit are legal representatives of those who litigated in the preceding suit, or when they are jointly bound with them or by the relations established by the indivisibility of prestations among those having a right to demand them, or the obligation to satisfy the same.

P.R.Laws Ann., Title 31 Section 3343. Manresa, commenting of the Spanish Civil Code’s equivalent article and on the Supreme Court of Spain’s interpretation of this requirement, states that in practice the identity requirement is met if the actions are equal on all other aspects and the claimants base their claims on the same title or endowment as the previous parties. In Heirs of Zayas-Berrios v. Berrios, 90 PRR 537 (1964) the Supreme Court went beyond the pleadings of a previous proceeding to find that the defendant in that proceeding was a nominal party and that the action was really being defended on account or on behalf of another unnamed defendant which it found was the one now before the court, thus barring relitigation of the claims against him. See also: Lugo v. Bartolomei, 46 PRR 647 (1934) (court found party had appeared in representative capacity as heir rather than in his own right in previous proceeding). The “privity” or judicial nexus required by Section 3343 for res judicata purposes is one which would make the previous decision binding on the other party. See: Lawton v. Rodríguez, 38 PRR 34 (1928) aff'd. 35 F.2d 823 (1st Cir.). In the case before us the complaint alleges that defendant Chancellor and defendant Dean are sued in their official capacity only and for their joint responsibility as officials of the University. They are not being sued in their personal capacity or for acts done beyond the scope of their duties as officers of the university and legal representatives of that institution. See: P.R.Laws Ann., Title 18 Sections 606(b), 608. The previous proceedings, although nominally brought against the Chancellor, were really directed against the institution and against the final action taken by the Council, the organism entrusted to exercise the university’s functions. See Title 18 Section 602(f)(1). The remedy requested, although technically implemented by the Chancellor, has to be followed by all defendants. Plaintiff's contention that the parties are not identical would perhaps be valid if these officials were being sued in their personal capacities for acts done beyond their official scope of duties. The fact that the claims before us are brought against them in their official capacities as representatives of the University of Puerto Rico and that they would have been jointly bound by an adverse ruling from the Superior Court, not only because of their representative capacity but in view of the nature of the prestation itself which had to be implemented uniformly by all the different divisions and departmental heads involved, clearly points the only party in both the administrative and the judicial proceedings. See: Kutzik v. Young, 730 F.2d 149, 152 (4th Cir.1984); Local 1006, A.F.S.C.M.E., AFL-CIO v. Wurf, 558 F.Supp. 230, 234 (N.D.Ill.1982) aff'd. 746 F.2d 1483 (7th Cir.1984); Howkins v. Caldwell, 587 F.Supp. 98, 103 (N.D. Ga.1983) aff'd. 749 F.2d 731 (11th Cir.1984) and see also: Futura Development Corp. v. Centex Corp., 761 F.2d 33, 43-44 (1st Cir.1985); Pan American Match, Inc. v. Sears Roebuck & Co., 454 F.2d 871, 874 (1st Cir.1972) cert. denied 409 U.S. 892, 93 S.Ct. 113, 34 L.Ed.2d 149 (1972); and Nesglo, Inc. v. Chase Manhattan Bank, N.A., 562 F.Supp. 1029, 1038-40 (DPR 1983), aff'd., mem., No. 81-1097 (1st Cir. Mar. 4, 1983).

As to the requirement of identity of “things or causes,” the Supreme Court of Puerto Rico has said that the “thing” is “the object or matter over which the action is exercised” Lausell Marxuach, Vol. 3, Official Translations at 745 (1975), while cause is the “ ‘the principal ground, the origin of the actions or exceptions raised and decided, and it must not be mistaken for the means of proof nor for the legal grounds of the claims adduced by the parties.’ ” Id. at 746. The court has also indicated “that if the things and causes are identical, the efficacy of the res judicata is not hindered by the fact that the action is given a different name, without the basic identity of the presumption disappearing because a different request was made in the second trial, which had not been decided in the first____” A & P Gen. Contractors v. Asoc. Caná, Inc., 10 Official Translations of the Opinions of the Supreme Court of Puerto Rico, 983, 998-99; 110 DPR 753 (1981). In this case the. thing or object of the litigation, plaintiffs position at the Physiology Department, was the same thing over which the previous proceedings were held. The “cause” of the previous proceedings, the transfer, is also present and being litigated now. Although in the previous proceedings the statutes and sections of the constitution allegedly violated were not treated as specifically as in the present case, the origin of the matters raised was the same. See: Lausell Marxuach, Vol. 3 at 746; A.A.A. v. Beléndez, 98 PRR 506, 510-13 (1970) and gen. Futura, 761 F.2d at 44-45. It should also be noted that res judicata has been interpreted in Puerto Rico to reach those matters which could have been raised in prior proceedings. Mercado-Riera v. Mercado-Riera, 100 PRR 939, 949 (1972); see also Migra, 104 S.Ct. at 896-98. Puerto Rico courts may examine alleged violations of federal constitutional rights. See: Ramirez Pluguez v. Cole, 571 F.2d 70 (1st Cir.1978); Acevedo v. Secretario Servicios Sociales, 112 DPR 256 (1982). The Constitution of Puerto Rico prohibits any type of discrimination on account of sex, P.R. Const. Art. II Section 1 and in the employment context this prohibition has been interpreted as sufficiently ample to cover federal law concerns. Zachry International of P.R. v. Superior Court, 4, Official Translations of the Opinions of the Supreme Court of Puerto Rico, 380, 394 (1975).

In any event, the “borrowed” Anglo-Saxon doctrine of collateral estoppel also applies and precludes litigating those findings of fact made by the agency which are crucial in resolving the claims in this case, see: Long Corporation v. District Court, 72 PRR 737, 739 (1951), namely: that the reason given for the transfer and the conditions of the new position showed that the Chancellor’s decision was not arbitrary, retaliatory or discriminatory.

Finally, plaintiff suggests that the application of res judicata to her situation will result in a terrible injustice. The doctrine of res judicata should not be strictly applied when it will defeat the ends of justice. Negrón-Marrero v. C.I.T. Financial Services Corp., 111 DPR 657, 661 n. 2 (1981). In the administrative context res judicata is said to be applied with great flexibility to prevent injustice id. and Pagán-Hernández, 107 DPR at 731. Although aware of the laudable principles behind this exception, we cannot apply it indiscriminately. The doctrine of res judicata also responds to other equally important principles, particularly in the federal-state power adjudication design. See: Kremer, 102 S.Ct. 1895-96 at 1898. In the situation before us there is no reason to apply this exception. There is no irregularity or inequity in the proceedings available to plaintiff at the administrative or judicial levels. In fact, she was afforded much more in the nature of due process than that given to Kremer. Prima facie, we also fail to find that the examining officer’s decision was erroneous or capricious. The conduct of the Dean and the Chancellor, sued only in their official capacity, appears to be reasonable and without trace of discriminatory motivation or arbitrariness. These persons, were not sued for the actions they allegedly took against plaintiff for personal motives. Given this record and plaintiff’s generalized allegations of constitutional violations, the substantiality of her constitutional action dilutes enormously. A close review of her constitutional claims which consist of being deprived of attending faculty meetings at the department of her choice to voice some undefined opinions, the context of which are still unknown; cf. Hughes v. Whitmer, 714 F.2d 1407 (8th Cir.1983) cert. denied, — U.S. -, 104 S.Ct. 1275, 79 L.Ed.2d 680 (1984); Roseman v. Indiana Univ. of Pennsylvania at Indiana, 520 F.2d 1364 (3rd Cir.1975) cert. denied 424 U.S. 921, 96 S.Ct. 1128, 47 L.Ed.2d 329; Clark v. Holmes, 474 F.2d 928 (7th Cir.1972) cert. denied 411 U.S. 972, 93 S.Ct. 2148, 36 L.Ed.2d 695 (transfers held not to violate first amendment rights because context of speech not in public interest or protected matters). See also Santos v. Miami Region, U.S. Customs Serv., 642 F.2d 21, 25 (1st Cir.1981) and in being transferred to a closely related academic field where she will conduct work related to her expertise, in the same building, with practically the same students and with no change in salary, location or other incidents of employment cf. Smith v. West Memphis School Dist., 635 F.2d 708 (8th Cir.1980) (no constitutional violation when principal was transferred to another elementary school since there was no claim of entitlement to that specific position) see also: Moore v. Otero, 557 F.2d 435 (5th Cir.1977); Sullivan v. Brown, 544 F.2d 279 (6th Cir.1976); Danno v. Peterson, 421 F.Supp. 950 (N.D.Ill.1976) see also: Alicea-Rosado v. Garcia-Santiago, 562 F.2d 114 (1st Cir.1977), reveal that they are of dubious legal merit.

There is no reason to give plaintiff a second chance to rehash the matters she was given ample opportunity to present and in fact did litigate before the Puerto Rican agency and the Superior Court of Puerto Rico. If she wanted to reserve her federal rights so that they would be adjudicated by this forum, she should have informed the Superior Court of the pendency of this litigation. Instead she decided to pursue her case before that court and gamble on the chance that one of the two forums would rule favorably. The fact that she lost in the first forum that is not an injustice but only the consequence of a risk that she took. Principles of res judicata, collateral estoppel and comity preclude us from ignoring the time and effort dedicated to these prior proceedings. They should not be shorn of their proper adjudicative validity just because a party’s litigation strategy went sour. For these reasons the complaint is DISMISSED.

SO ORDERED.

      . Plaintiff also alleges violations to her Fifth, Ninth and Fourteenth Amendment rights but has not detailed specifically which. She also included an action under Puerto Rico’s tort law in her pretrial which was not asserted in the complaint.

      . She claims that a male faculty member who had training in pharmacology should have been transferred instead of her. It appears that this faculty member, although not transferred, was reassigned to other tasks within the department.

      . Plaintiff has proposed the testimony of a former director of the Physiology Department, Dr. Manuel Martinez-Maldonado, as an expert to establish the difference between the two fields and why her transfer, in view of this difference, would be so unreasonable as to evince a prima facie case of sexual discrimination. Defendants have opposed the use of Dr. Martinez-Maldonado’s testimony as an expert for these purposes. For purposes of this analysis, however, we merely refer to Webster's definition of the two fields: physiology: "a branch of biology dealing with the processes, activities and phenomena incidental to and characteristic of life or of living organisms; the study of the function and activities of living matters ... and of the physical and chemical phenomena involved;” pharmacology: "the science of drugs ... the properties and reactions of drugs esp. with relation to their therapeutic value." Webster’s 3rd New Int. Dictionary, (G. & C. Merriam Co. 1976).

      . The instant case was filed on May 23, 1983.

      . The translation of "Petición de Revisión" in the record, as made by the court translator, is Appeal for Review.

      . We do not have in the record before us the defendant’s reply on the merits in the Superior Court proceeding.

      . This order has not been officially translated, the Spanish version reads:
      "SENTENCIA
      Atendido el recurso de revisión radicado el día 2 de agosto de 1982, sus anejos y la oposición al mismo radicado el día 12 de agosto de 1983, el tribunal previo análisis y consideración de todos y cada uno de los argumentos vertidos por las partes declara NO HA LUGAR el recurso de revisión instado.”

      . Section 37(a) states: "Save as provided in subsections (d) and (e) of this section, final judgments rendered by the Superior Court in civil cases involving or deciding a substantial constitutional question under the Constitution of the United States or of Puerto Rico shall be appealable to the Supreme Court,” whereas section 37(b) indicates "any other final judgment of the Superior Court may be reviewed at the request of the aggrieved party by the Supreme Court through a writ of review to be issued at its discretion.” Subsection (d) provides for discretionary through certiorari review of final decisions by the Superior Court reviewing an administrative agency’s decision.

      . This distinction between purely discretionary administrative appeals to review and those that are not is followed by the Rules for Review of Administrative Decisions. Rule Eight of these rules establishes a different procedure for non-discretionary review and Rule Four mentions "if the issuance of the writ of review were discretionary of the Superior Court, pursuant to the special laws authorizing the petition." P.R. Laws Ann., Title 4, App. VIII-A. (Emphasis supplied.)

      . If plaintiff is claiming that the Superior Court erroneously dismissed her petition based only on the pleadings and without properly examining the administrative record this would not defeat the application of res judicata. Instead, it should have been raised in the administrative proceedings. See: Bolker v. Superior Court, 82 PRR 785 (1961) and Medina v. Chase Manhattan Bank, N.A., 737 F.2d 140, 143 (1st Cir.1984).

      . Rule 16 states:
      Orders to Show Cause
      (a) At any time after the filing of a petition for the issuance of a writ of review, the Court may issue an Order for the parties to show cause why the same should not be issued in order to reverse or modify the decision appealed from.
      (b) ....
      (c) When the Order is answered or the term to answer expires, the Court shall decide what is proper at law: (1) ‘dismissing’ the petition; (2) issuing the final writ to reverse or modify the decision, order, resolution, or ruling entered; (3) ordering that the ordinary prosecution of the appeal be followed; or (4) rendering any other ruling or order.

      . The Chancellor is responsible for the appointment and removal of teaching personnel within his campus with the advice of the University Board and subject to the review of the Council. See: González-Saldaña v. Superior Court, 92 PRR 462, 470-71 (1965). Since the Chancellor is the person directly responsible for enforcing a judgment in a suit of this kind, he is generally sued. This does not mean that the Chancellor is an officer who is separate and distinct from the University of Puerto Rico. The University Act clearly disputes this and there is no doubt that his official acts are made on behalf and as representative of the institution.

      . Contrary to plaintiff’s assertions, she was not judged by the same persons who she complains violated her constitutional rights. She was given a full panoply of procedures during which her allegations were independently scrutinized at different levels beyond the Chancellor's decision and by different individuals. She was given the opportunity to present her case at a three-day evidentiary hearing, represented by counsel at all times. A record of the proceedings was made and given to her attorney. She was given time to present her position not only to higher independent administrative bodies but to the Superior Court itself which declined to dismiss her petition summarily. Although plaintiff does not challenge these proceedings on grounds of the Kremer lack of due process exception to the application of issue and claim preclusion, we note that the proceedings afforded plaintiff fully met due process concerns.

      . She may attend the faculty meetings of the department she was transferred to.


source: Caselaw Access Project

author: GASCH, District Judge.

license: Public Domain

text:
    Robert J. ENDRES, Plaintiff, v. J. Lynn HELMS, Administrator Federal Aviation Administration, Defendant.
    Civ. A. No. 83-2573.
    United States District Court, Dist. of Columbia.
    Aug. 22, 1985.

      Jeffrey B. O’Toole and Ann Marie Dobmeyer, Washington, D.C., for plaintiff.
    John W. Polk, Asst. U.S. Atty., Washington, D.C., for defendant.
   MEMORANDUM

GASCH, District Judge.

Plaintiff Robert J. Endres, a former official of the Federal Aviation Administration (“FAA”), has brought this age discrimination action against the FAA pursuant to Section 15 of the Age Discrimination in Employment Act as amended (“ADEA”). This Court has jurisdiction over the matter by virtue of 28 U.S.C. § 1331 and Section 15 of the ADEA. Bunch v. United States, 548 F.2d 336, 340 (9th Cir.1977).

This case was tried to the Court on February 25-28, 1985. Upon consideration of the record herein, the Court issues this memorandum setting forth its initial findings of fact and conclusions of law. In doing so, the Court again wishes to underscore that it does not sit as a personnel officer considering how best to organize the FAA. Rather the question before the Court is limited to a much narrower inquiry: whether the actions complained of constitute age discrimination.

I.

Mr. Endres joined the FAA’s predecessor agency, the Civil Aeronautics Administration (“CAA”), in 1947, and worked in CAA offices in Wisconsin and Illinois. Trial (“T.”) at 29 (Endres). In 1950, Mr. Endres transferred to the Office of Airports at FAA headquarters in Washington, D.C. He remained in that office until he left government service in August 1980. Id. at 128.

Plaintiff enjoyed a number of promotions in the Office of Airports and, in 1975, was appointed chief of the Operations Division of that office, a supervisory position at the GS-15 level. Id. Plaintiff’s professional record throughout this period including the four years he served as division chief consistently evidenced exceptional levels of achievement. Put simply, he was an exemplary employee and a first-rate manager.

Shortly after plaintiff’s promotion to division chief, Langhorne Bond, Esq., was named Administrator of the FAA. Mr. Bond announced that he was committed to reorganizing FAA’s Washington headquarters to ameliorate two related concerns: first, Mr. Bond believed that the number of organizational units in FAA was excessive, creating an overly complex bureaucratic structure; and second, Mr. Bond concluded that FAA headquarters had a surplus of positions at the GS-14 level and above. T. at 593-602 (Bond). Mr. Bond announced two initiatives to implement the reorganization: the Field Placement Program (“FPP”) and a program referred to as Strengthening Field Operations (“SFO”). Id. at 606, 608-09, 625, 627-28. The former program was intended to encourage voluntary reassignment of headquarters personnel to FAA’s regional and district (“field”) offices by prohibiting filling field positions until it was determined whether any persons in headquarters were interested in applying for field positions. It did not require involuntary reassignment. Government Exhibit 4. The latter program, which was never really implemented, did allow involuntary transfer of employees to the field if qualified volunteers could not be identified. Government Exhibit 6; T. at 654 (Driscoll).

In 1978, Robert J. Aaronson was named Assistant Administrator for Airports. In this position, he was responsible for supervision of the Operations Division plaintiff directed as well as three other divisions: the Airports Planning Division, the Airports Engineering Division, and the Development Programs Division. Government Exhibit 24. After an initial review of the Airports Office, Mr. Aaronson concluded that Mr. Bond’s concern about the need to reduce the numbers of organizational units was applicable to the Airports Office. T. at 379-80, 404-05 (Aaronson). Mr. Aaron-son then developed the plan for reorganizing the Airports Office that prompted plaintiff’s claim of age discrimination.

The reorganization plan envisioned two key changes in the Airports Office: first, instead of four divisions, Mr. Aaronson intended to have three: Design and Operations Criteria, Engineering Specifications, and Safety and Compliance; and second, instead of having each division have three branches, Mr. Aaronson announced that the twelve branches would be transformed into nine “groups.” Compare Government Exhibit 24 with Government Exhibit 23. Mr. Aaronson also announced a standard for determining which supervisors under the old structure would remain in supervisory positions in the new structure: Under Mr. Aaronson’s standard, employees would be ranked by seniority, with seniority defined as years in FAA headquarters. All supervisory positions would be allocated to those employees with the least senior-, ity. The “surplus supervisors” — i.e., the employees with the most seniority for whom no headquarters supervisory slots were available — were to be candidates for reassignment. T. at 382-83, 392, 419-20, 443 (Aaronson).

Mr. Endres, who was then fifty-eight years of age, had the longest tenure at FAA headquarters of all the supervisors in the Office of Airports. Government Exhibit 10. Mr. Aaronson informed Mr. Endres in early February, 1979, that Mr. Endres would no longer have a supervisory position in headquarters and that steps were underway to secure his transfer to Chicago or Alaska. T. at 40-41 (Endres); Id. at 470 (Endres); Plaintiff’s Exhibit 21. Plaintiff immediately informed Mr. Aaronson that in light of his health status, the proposed transfer would impose great hardships upon him and that he believed the procedure for selecting those employees who were to be reassigned to the field constituted age discrimination. T. at 41 (Endres); 477 (Aaronson).

On March 22, 1979, plaintiff was notified that he had been reassigned to Chicago. T. at 64 (Endres); Plaintiff’s Exhibit 64. Plaintiff filed a petition with the Special Counsel of the Merit Systems Protection Board (“MSPB”) challenging the transfer and an EEO complaint alleging that the proposed reassignment discriminated against him because of age. Plaintiff’s Exhibit 48, 49, 50.

On July 19, 1979, Mr. Aaronson issued a notice proposing plaintiff’s removal from government service for refusal to accept reassignment to Chicago. T. at 77 (Endres); Plaintiff’s Exhibit 75. On August 13, 1979, the MSPB issued an order temporarily enjoining plaintiff’s removal. This stay was extended for an additional thirty days on August 28, 1979. Plaintiff’s Exhibits 81 and 85;

During this period, the parties entered into negotiations aimed at resolving the controversy. In September, 1979, the FAA indicated it might be willing to allow Mr. Endres to remain in headquarters in a new non-supervisory position as a GS-15 “Senior Technical Officer.” T. at 78, 149-51 (Endres). Mr. James Bushee, manager of the Design and Operations Criteria Division, developed a job description for this position. T. at 677 (Bushee); Plaintiff’s Exhibit 5. Mr. Aaronson “acquiesced” in this proposal, feeling coerced to accept “by the situation.” T. at 511 (Aaronson).

Mr. Endres had a number of serious concerns about the job description: first, he was concerned that the scope of responsibilities was so diverse, including highly technical areas in every office in the Office of Airports, that it would be impossible for any one individual to meet the requirements of the job, T. at 79 (Endres); second, plaintiff was concerned that bureaucratic considerations would make it impossible for him to review materials developed by other divisions with which he had no formal affiliation, id. at 79-81; and third, plaintiff was concerned that the overly broad range of assignments being contemplated would make it impossible for his performance to be evaluated properly. Id. at 87-88. Nevertheless, after communicating these concerns, Mr. Endres accepted the position in good faith, believing that the FAA would utilize his expertise and experience. T. at 87, 92 (Endres); T. at 690 (Bushee). Mr. Endres also agreed to withdraw his age discrimination complaint provided that he was reimbursed for attorney’s fees and medical bills incurred in challenging the transfer as well as leave devoted to pursuing his grievance. T. at 105-07, 124-25 (Endres). In fact, plaintiff never received compensation for these items and never dismissed his discrimination complaint. T. at 105-07, 112-14.

Plaintiff commenced service as Senior Technical Officer in December, 1979. Government Exhibit 20. His initial assignment was completed within a week to ten days without event. T. at 93 (Endres). Mr. Endres was then given an assignment to develop a standard regarding the extent to which FAA should require “clear zones” around the nation’s airports. This was an impossible task for a single staff person, requiring sophistication in every discipline in aviation. T. at 93-97 (Endres); 203-07 (Guthrie); 245 (Chance). Because of the complexity of the clear zones issue, it had defied solution for more than twenty years and a number of recent developments posed new obstacles. T. at 693-96 (Bushee).

Subsequent developments confirmed plaintiff’s concerns about the job description. Although plaintiff was responsible for advising division chiefs, he was not permitted to attend staff meetings. T. at 102. Although plaintiff was required to consult with field officials, he was not permitted to travel to meet with them. T. at 97-102. Although plaintiff was required to review materials generated by other divisions, no procedure was ever established for insuring that plaintiff would receive such materials. T. at 519-20 (Aaronson). Finally, although plaintiffs performance ratings were linked to successful completion of performance standards, no performance standards were ever developed for his position. T. at 89.

These difficulties had a pronounced effect on Mr. Endres. Plaintiff, who was consistently characterized as having been an energetic and productive professional prior to this period, was extremely frustrated, discouraged, and depressed. T. at 110— 11. One witness characterized him as a “beaten man” who had been “stripped” of his self-assurance. T. at 336 (Lawlor); see also T. at 355-56 (Ruggles); 774-75 (Vi-pond). Although Mr. Endres attempted to secure changes in his job description, these efforts were fruitless. In August, 1980, plaintiff concluded that the intolerable working conditions he faced left him no alternative but to resign. T. at 111 (Endres). The evidence established that were it not for those conditions, Mr. Endres would have continued to work at FAA for as long as his health allowed. Id.

II.

To make out a prima facie case of age discrimination under a disparate treatment theory, the plaintiff must “demonstrate facts sufficient to create a reasonable inference that age discrimination was ‘a determining factor’ in the employment decision.” Cuddy v. Carmen, 694 F.2d 853, 856-57 (D.C.Cir.1982) (footnote omitted). One means of creating such an inference is for the plaintiff to show that he:

(1) belongs to the statutorily protected age group [], (2) was qualified for the position, (3) was not hired, and (4) was disadvantaged in favor of a younger person.

Id. at 857 (footnote omitted).

In applying these factors, the Court concludes that plaintiff did establish a pri ma facie case. First, at the time of the reorganization, plaintiff was fifty-eight years of age, Government Exhibit 24, and thus, within the protected age group. See supra note 1. Second, plaintiff was eminently qualified to serve as Chief of the Safety and Compliance Division. See supra note 3 and accompanying text. Third, plaintiff was not selected for that position or any other comparable position in FAA headquarters. Fourth, the job was given to a younger employee, Mr. Harry D. Hink. Government Exhibit 23.

Once the plaintiff has presented a prima facie case, “the burden shifts to the defendant to ‘articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ ” Cuddy v. Carmen, 762 F.2d 119 (D.C.Cir.1985), {“Cuddy II”) at 122 (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). The defendant bears only the burden of producing evidence rather than the burden of persuasion. Krodel v. Young, 748 F.2d 701, 705 (D.C.Cir.1984).

Given the “minimal” nature of this burden, id, the Court assumes that the government did meet this requirement. The government presented testimony that would show, if believed, that the decision not to name plaintiff as a division chief was made pursuant to a reorganization of the Office of Airports through application of a seniority standard.

Assuming the government met this burden, the plaintiff must carry his “overall burden of persuasion in order to prevail.” Cuddy II, at 123. This may be done by showing that “the reason proffered by the defendant was in fact a pretext or [ ] by showing that it was more likely than not that the defendant was actually motivated by discrimination.” Id.

The issue turns largely on the credibility of the testimony presented by Mr. Aaron-son. On cross-examination Mr. Aaronson testified that it would have been preferable in terms of personnel management, to decide which employees to retain as supervisors and which to transfer to the field “on an individual, case-by-case basis.” T. at 440 (Aaronson). Instead the reorganization was purportedly based on-an arbitrary standard. Mr. Aaronson insisted that he did so only because the FAA personnel expert assisting him had instructed him that as a “federal government manager, [he] was precluded from making individual judgments that distinguished between individuals.” Id. at 440-41. When asked about this issue, Mr. Driscoll, the personnel specialist who worked with Mr. Aaronson on the reorganization, stated that no such prohibition exists. T. at 670 (Driscoll). Moreover, Mr. Driscoll specifically denied ever telling Mr. Aaronson of any such limitation. Id.

There is a wealth of other evidence that regardless of the impetus for Mr. Aaron-son’s decision to streamline the Office of Airports, age was a determining factor in the development and implementation of the seniority standard by which that reorganization was carried out. This evidence takes two principal forms: first, testimony from those in the Office of Airports who observed the reorganization; and second, statistical evidence.

In addition to Mr. Endres, a number of other witnesses testified that the reorganization was carried out in a manner intended to force older workers to retire. Mr. Guthrie, who was Chief of the Development Programs Division prior to the reorganization, offered the following characterization of a letter he received informing him that if he did not wish to accept reassignment he was free to retire:

It was a sham. It was merely an invitation, “you retire.” They knew my age. They knew my service. They knew where I qualified, and this was telling me to retire.

T. at 194-95. (Guthrie). Similarly, Mr. Chance who was Assistant Chief of the Operations Division prior to the reorganization perceived that “something else was under foot” than an effort to achieve the best reorganization. Rather Mr. Chance observed that the reorganization was designed “to get rid of” supervisors on account of age. T. at 234-39.

The statistical evidence presented in this case also supports this finding. For example, Dr. Richard Seltzer’s application of the T-test to the employees at issue revealed that the mean age of those persons who were supervisors prior to the reorganization who did not receive headquarters supervisory jobs was 53.7 years. In contrast, the mean age of those retained in supervisory jobs was 47.4 years. T. at 275-78. The Pearson Product Moment Correlation revealed a statistically significant relationship between tenure at FAA headquarters and age. T. at 295-97. Moreover, the statistical testimony underscored that notwithstanding Mr. Aaron-son’s contention that the seniority standard was adopted to preclude individual determinations, there were a number of deviations from this standard. T. at 284-86; see also T. at 707-08 (Wyant notes same exceptions). In each such deviation, a younger employee was favored over an older employee. T. at 284-90 (Seltzer).

Plaintiff also met the burden of persuasion with regard to his claim that his resignation from the FAA resulted from age discrimination. In the Court’s view, the evidence established that plaintiff faced working conditions that were so intolerable that a reasonable person would have felt compelled to resign. Welch v. University of Texas, 659 F.2d 531 (5th Cir.1981); Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.1977). The Court finds that plaintiff was constructively discharged in violation of the ADEA and that the effort to force him to retire he complained of in 1979 continued until his retirement in 1980.

III.

The Court next considers the nature of the remedy plaintiff is entitled to. Section 15 of ADEA authorizes the Court to award “such legal or equitable relief as will effectuate the purposes” of the Act. 29 U.S.C. § 633a(c). This statutory provision is a waiver of the government’s sovereign immunity and must, therefore, be strictly construed. 2 Eglit, Age Discrimination § 18.37 at 18-147 (1984).

The complaint in this action requests the following relief:

1. Full reinstatement to a supervisory position similar to the position plaintiff held prior to the summer of 1979;
2. Back pay calculated from August 31, 1980 to the present, less accrued pay;
3. Costs, medical expenses, annual and sick leave, and reasonable attorney’s fees incurred since February 1979; and
4. Such other relief as may be necessary and proper.

Plaintiff’s post-trial brief provides little guidance in determining exactly what relief plaintiff is now seeking. The brief notes plaintiff’s testimony that he wishes reinstatement if a job “comparable” to the job he had previously is available, T. at 776, but states that “[bjefore this can occur, [ ] the current situation will have to be assessed, which plaintiff has not had the opportunity to do at this point.” Plaintiff’s Post-Trial Brief at 43-44. The memorandum also suggests plaintiff may seek an award of “front pay” as an alternative to reinstatement. Id. Regardless of whether reinstatement or front pay is available, plaintiff seeks back pay and liquidated damages.

The Court seeks clarification from plaintiffs counsel as well as counsel for the government concerning a number of issues bearing on the relief available to plaintiff. The Court expresses its hope that many, if not all of these issues might be resolved by stipulation of the parties.

With regard to the issue of back pay, for example, the government properly notes that backpay should not be awarded for periods during which plaintiff was hospitalized or otherwise unable to work because of ill health if plaintiff would not have been paid for these periods. In addition, as plaintiff notes, a back pay award may reflect incidental employee benefits plaintiff would have received but for the violation. 3 Larson, supra note 10, § 104.31 at 21-329. Accordingly, the Court directs counsel to endeavor to reach a stipulation as to the appropriate back pay award in this action.

With regard to the question of reinstatement or front pay, the Court believes that the parties should explore whether the FAA currently has or expects to have a vacant position comparable to the position plaintiff served in prior to the reorganization. Alternatively, the parties may wish to explore whether they could reach agreement on front pay in lieu of reinstatement. If no such agreement is reached, the Court would appreciate counsel’s views on whether reinstatement or front pay is the more appropriate remedy and the period for which any front pay should be awarded. See generally Fretz, Home Remedies: Finding the Right Relief Under the Age Discrimination in Employment Act, 19 Clearinghouse Rev. 265, 267 (1985).

Because the Court seeks further submissions on these issues, the Court will defer issuing a final judgment at this time. The Court will afford the parties forty-five days from the filing of this order to conduct discussions concerning these matters. If at the end of this forty-five day period, the parties have not reached agreement on these issues, they are directed within fifteen days thereafter to file memoranda addressing any of these matters that have not been resolved.

      . That statute mandates in pertinent part that:
      All personnel actions affecting employees or applicants for employment who are at least 40 years of age ... in executive agencies as defined in Section 105 of Title 5 ... shall be made free from any discrimination based on age.
      29 U.S.C. § 633a(a).
      When Congress enacted ADEA in 1967, it specifically excluded the federal government from the definition of employers subject to the statute. See 29 U.S.C. § 630(b) (1972). In 1974, Congress added Section 15 to ADEA to extend coverage to federal workers. Pub.L. 93-259, 88 Stat. 55 (April 8, 1974). Congress subsequently amended Section 15 to eliminate any upper age limit on the protected age bracket. Pub.L. 95-256, 92 Stat. 189 (April 6, 1978).

      . As discussed more fully infra, the Court seeks clarification from the parties concerning a number of issues and will defer entering a final judgment in this matter pending completion of the proceedings discussed in Section III.

      . See, e.g., T. at 345, 355 (Ruggles) (Endres "rank[s] right at the top of supervisors”); 763-64 (Vipond) (“best supervisor” witness ever had); 768, 769 (Swartz) (referring to an Endres project as a "little miracle” and to plaintiff as an "absolute professional”). Indeed, even many of the witnesses testifying for the government in this action joined in praising Mr. Endres’ ability. See, e.g., T. at 587 (Hink); 695 (Bushee) (plaintiff "was well respected by the aeronautical industry and community"). Little testimony was introduced challenging these evaluations, and the most significant testimony in this regard, Mr. Aaronson’s criticism of plaintiff as inflexible and a bad listener, T. at 458-60 (Aaronson), was not credible given the overwhelming evidence presented by other witnesses disputing these criticisms, see, e.g., T. at 773 (Crandall), and in light of the fact that Mr. Aaronson himself never thought enough of those concerns to make any entry in any record reflecting such criticism, or to discuss these concerns with Mr. Endres. Id. at 460, 525 (Aaronson).

      . In implementing the reorganization, Mr. Aaronson detailed all affected employees to temporary assignments pending the announcement of their new positions. T. at 42. Mr. Endres learned of his temporary assignment as a programs officer shortly after he met with Mr. Aaronson in early February. Id.

      . Mr Aaronson did not have authority to compel a field office to take a headquarters employee he wished to place in the field. Instead he was required to contact the appropriate field supervisor to transmit the names of headquarters employees available for field assignments. T. at 550-51 (Barlow). If a field supervisor requested a particular employee and that employee refused to accept the field assignment, Mr. Aaronson would initiate proceedings to separate the employee from service in the FAA. T. at 68 (Endres).

      . The FAA’s Great Lakes Region in Chicago had an opening for a Branch Chief in its Airport Division. The FAA’s Alaska Region had a vacant Airport Division Chief slot.
      Mr. Aaronson transmitted a list of six candidates for the Alaska job to the Director of the Alaska Region in April, 1979 but Mr. Endres was not included in this list. Plaintiff's Exhibit 146A. Mr. Aaronson had several discussions with Great Lakes Region officials suggesting Mr. Endres for the position in that region and the officials of that region agreed to request Mr. Endres. T. at 486-59 (Aaronson); 548-49 (Barlow); 562 (Isaac). Although the Chicago job was a GS-15 supervisory position, T. at 443 (Aaronson), it represented a demotion for plaintiff since he would have been going from division chief to branch chief. T. at 566 (Issac). Regardless of whether the transfer and demotion qualified as an adverse action for purposes of the Civil Service Reform Act, T. at 637 (Weithoner), it clearly qualifies as a personnel action and thus is within the scope of Section 15 of ADEA. See supra note 1.

      . Mr. Endres has suffered from a kidney ailment since 1945 when he retired from the Air Force. T. at 30 (Endres).

      . Counsel for the government elicited no testimony disputing plaintiffs understanding regarding the existence of this condition. See also Government Exhibit 20 (plaintiffs memorandum to Office of Civil Rights describing acceptance of Senior Technical Officer position as "satisfactory as to employment" but stating that; "There remains [ ] a reimbursement to me of attorneys fees, medical expenses, and sick and annual leave required of me by the prohibitive personnel practices conducted in the recent Airports reorganization.”).

      . The government has asked the Court to receive into evidence certain materials submitted after the completion of trial. The bulk of these materials address the extent of Mr. Endres’ responsibilities as Senior Technical Officer. The Court, in its discretion will allow these materials into evidence. In addition, the Court will receive plaintiffs declaration offered in response to these materials. Review of this additional evidence, however, does not persuade the Court that Mr. Endres’ position was any more meaningful than Mr. Endres indicated in his testimony. See Endres Declaration ¶¶ 3-4.

      . In a disparate treatment case, the plaintiff must establish discrimination by reason of an improper motive on the part of the employer. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Plaintiffs counsel has suggested that the reorganization of the Office of Airports might also be analyzed as an adverse impact case. As developed in Title VII actions, in adverse impact cases, the plaintiff asserts that the application of an otherwise "neutral" policy has the effect of discriminating against a statutorily protected class of persons. Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971).
      The government contends that adverse impact analysis is not applicable to cases arising under ADEA. Although one treatise noted by the government supports this view, Schlei & Gross-man, Employment Discrimination Law at 503 (2d ed. 1983), the bulk of scholarly opinion supports application of adverse impact analysis in age cases. 3 Larson, Employment Discrimination § 102.42 at 21-309 (1984) ("no reason not to apply” adverse impact analysis to age cases); Champion, The Age/Experience Dilemma and the ADEA, 9 Thurgood Marshall L.Rev. 51 (1983-84); Note, Disparate Impact Analysis and the Age Discrimination in Employment Act, 68 Minn.L.Rev. 1038 (1984).
      The Second Circuit recently addressed the issue at length and concluded that adverse impact analysis is applicable to ADEA cases. Geller v. Markham, 635 F.2d 1027 (2d Cir.1980), cert. denied, 451 U.S. 945, 101 S.Ct. 2028, 68 L.Ed.2d 332 (1981). The Geller case, like the case at bar, concerned a challenge to an employment standard that gave preference to individuals with less seniority over those with more experience. Geller, 635 F.2d at 1030.
      Because the Court finds that plaintiff has met his burden of persuasion under the disparate treatment theory, it need not consider the sufficiency of plaintiff’s claim under the adverse impact theory.

      . Mr. Hink was fifty-six at the time. As Professor Larson notes, ADEA applies to allegations of age discrimination between younger and older persons who are both in the protected age group. 3 Larson, supra note 10, § 98.53 at 21-46 (1984).

      . Many of the other witnesses, particularly those testifying for the government, shed little light on this question. For example, Mr. Bond had no direct role in plaintiffs case. Mr. Issac and Mr. Barlow had little knowledge of the reorganization (or of plaintiffs service as Senior Technical Officer) except with regard to those actions by Mr. Aaronson that were directed at them. Mr. Weithoner, the Associate Administrator for Administration in the relevant period, had only “one preliminary discussion" with Mr. Aaronson concerning reorganization and referred Mr. Aaronson to Mr. Driscoll. T. at 640 (Weithoner). Mr. Driscoll, the personnel officer for the Airports Office, who dealt with Mr. Aaronson, reported that at the time he “first met with Mr. Aaronson, he had already determined the method he wished to use to place people in the field.” T. at 657.

      . Indeed the government itself concedes in a post-trial brief that there is no prohibition against individual determinations. Defendant’s Closing Argument 7-8 at n. 3.
      The Court notes in this regard that any suggestion that federal government managers are prohibited from making individual determinations is entirely inconsistent with the thrust of ADEA: to ensure that personnel decisions are made on the basis of individual merit. For example, Congress gave extensive consideration to this question before deciding in 1978 to amend Section 15 to extend protection to virtually all federal employees age forty or over. A House Education and Labor Committee Report noted that federal personnel managers are "subject to perhaps the strongest employee protection policies" of the nation’s employers. Nevertheless, the Committee concluded, based on the testimony of the chairman of the Civil Service Commission, that federal managers had authority to make personnel decisions on a case-by-case basis. H.Rep. No. 95-527 Pt. 1, 95th Cong., 1st Sess. 3-4 (1977).

      . Moreover there is no credible evidence suggesting that Mr. Aaronson merely made an error on the question of whether he could reorganize on an individual basis. Any suggestion that the limitation was based on the SFO program is defeated by two points: first, the SFO program was never formally implemented, and second, Mr. Aaronson did not act pursuant to the SFO program as he did not attempt to solicit volunteers for transfer as it envisioned. T. at 654 (Driscoll); Government Exhibit 6. The government's suggestion that Mr. Aaronson formed this impression based on Plaintiff’s Exhibit 154 is also defeated by the latter point as well as the fact that Mr. Aaronson had no knowledge concerning this document. T. at 528-29 (Aaronson).

      . The Court is mindful that plaintiff has standing only to raise the claim that he was himself a victim of age discrimination. Nevertheless, because the personnel decisions plaintiff challenges are inextricably linked to the overall reorganization of the Office of Airports, the Court believes that evidence regarding the treatment of other older persons affected by the reorganization is instructive.

      . There is additional support for Mr. Guthrie’s understanding in the circumstances surrounding his retirement on disability soon after the reorganization. Mr. Guthrie filed the application for disability expecting it to be rejected. T. at 195. The personnel officer handling it told him that it would not be approved but that the personnel office was required to allow it to be filed. T. at 195-96. Much to Mr. Guthrie’s surprise, the request was approved. T. at 196.

      . Indeed, Mr. Chance filed an age discrimination complaint challenging his status in the reorganization and prevailed in a trial conducted by a hearing examiner. T. at 239-41 (Chance); Plaintiff’s Exhibit 129.

      . The Court appreciates that because of the small size of the sample at issue in this case, statistical evidence may have somewhat less reliability than would otherwise be the case. T. at 706-07 (Wyant).

      . See Johnson v. Lehman, 679 F.2d 918, 922 (D.C.Cir.1982) ("departure from internal hiring procedures is a factor that the trier of fact may deem probative and choose to consider in determining the true motivation behind the [ ] decision”).

      . In addition to the evidence cited supra, the Court would note that it had been years since anyone at FAA had been assigned to work on the clear zones project when Mr. Endres was given this assignment and apparently no one was assigned to it after his departure. T. at 241-44 (Chance); 698 (Bushee). Plaintiff was placed in a position where, the structure of the office and the limitations imposed on him made it impossible for him to accomplish anything. See T. at 538-39 (Ruggles noting impossibility of "advising uphill” and functioning across division lines at division levels). The evidence supports the characterization offered by plaintiff's counsel that plaintiff was treated as a pariah in the Airports Office while serving as Senior Technical Officer.

      . The term front pay refers to an award of damages in lieu of reinstatement for the period after trial. See Davis v. Combustion Engineering, Inc., 742 F.2d 916, 922 (6th Cir.1984). Although there is a division of authority over whether front pay is available as a remedy for violations of ADEA, compare Kolb v. Goldring, Inc., 694 F.2d 869, 874 n. 4 (1st Cir.1982) with Cancellier v. Federated Department Stores, 672 F.2d 1312, 1319-20 (9th Cir.1982), cert. denied, 459 U.S. 859, 103 S.Ct. 131, 74 L.Ed.2d 113 (1982), the majority of courts addressing the issue have recognized such relief. See O'Donnell v. Georgia Osteopathic Hospital, Inc., 748 F.2d 1543, 1551 (11th Cir.1984) (citing cases); see also Thompson v. Sawyer, 678 F.2d 257, 292-93 (D.C.Cir.1982) (approving of front pay for prevailing plaintiffs bringing Title VII discrimination actions).

      . Back pay can be awarded as a remedy in an age discrimination action against the government. Moysey v. Andrus, 481 F.Supp. 850 (D.D. C.1980); 2 Eglit, supra at 18-149-53.

      . Plaintiff’s prayer for liquidated damages apparently relies on Section 7(b) of ADEA, 29 U.S.C. § 626(b), which authorizes an award of double damages pursuant to Section 16(b) of the Fair Labor Standards Act "in cases of willful violations." This action, however, is not brought against a private sector employer pursuant to Section 7(b) but against the government pursuant to Section 15. The rule in this Circuit appears to be that liquidated damages are not available in an age discrimination suit against the government. See Smith v. Lubbers, 28 F.E.P. 324 (D.D.C.1982), aff’d without op., 713 F.2d 865 (D.C.Cir.), cert. denied, — U.S. -, 104 S.Ct. 492, 78 L.Ed.2d 687 (1983); Muth v. Marsh, 525 F.Supp. 604, 607 (D.D.C.1981); see also Wilkes v. United States Postal Service, 548 F.Supp. 642, 642-43 (N.D.Ill.1982); 3 Larson, supra note 10, § 103.52 at 21-355 (1984).