Date: 08-12-2018

Case Style:

Case Number: 17-1792

Judge: Lynch

Court: United States Court of Appeals for the First Circuit on appeal from the District of Maine (Cumberland County)

Plaintiff's Attorney: Alexis Chardon and Chris Harmon

Defendant's Attorney: Peter F. Herzog and Patricia A. Beard, Amber R. Attalla

Description: The district court entered
summary judgment against Dr. Lara Carlson, a faculty member, on
her claim of retaliation under Title VII and the Maine Human Rights
Act (MHRA) against her employer, the University of New England
(UNE). Carlson alleges that, after she complained to UNE about
sexual harassment by her department chair and supervisor, Dr. Paul
Visich, the school retaliated against her in various ways. These
alleged retaliatory acts include transferring her to a new
department after obtaining her consent to transfer based on
material misrepresentations. She alleges that this transfer
reduced her teaching and career opportunities.
Carlson has demonstrated that there are genuine disputes
of material fact as to whether UNE misled Carlson into transferring
departments. There is also a genuine dispute of fact as to whether
Carlson's transfer was the true reason for her change in course
assignments. We reverse the district court's entry of judgment
and remand for further proceedings.
I. Background
A. Facts
"We recite the relevant facts in the light most favorable
to [Carlson]." Collazo v. Nicholson, 535 F.3d 41, 43 (1st Cir.
2008). Carlson joined UNE as a tenure-track assistant professor
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in the Exercise and Sport Performance (ESP) Department in 2009.1
She was hired to teach "courses that support the Applied Exercise
Science and Athletic Training curricula, such as exercise
physiology, applied exercise nutrition, and other courses as
determined by the Chair." Starting in 2009, Carlson began teaching
Exercise Physiology. In 2012, Carlson developed and began teaching
a course called Environmental Physiology. She taught Exercise
Physiology and Environmental Physiology until 2015.
In the fall of 2011, Dr. Paul Visich joined UNE as the
Chair of the ESP department, making him Carlson's direct supervisor
and the chair of her tenure committee. Throughout that same fall,
Visich touched Carlson on her knee, thigh, and hand during
one-on-one office conversations. Visich would stare at Carlson's
chest during these conversations. During this same period, Visich
also made inappropriate, sexually charged comments to Carlson via
email and in person. We need not go into further detail about the
1 During her time at UNE, Carlson states that she has
received a great deal of recognition for excellence in her field.
She has been nominated for UNE's Westbrook College of Health
Professions' Distinguished Teaching award. She has received UNE's
Excellence in Academic Advising Award. She has won many grants to
fund her research. She has served on several national associations
and committees in the field of exercise physiology. One of these
committees is the New England Chapter of the American College of
Sports and Medicine (NEACSM). Carlson was nominated and elected
to serve two terms as the President of NEACSM. Under Carlson's
mentorship, her students have received the NEACSM Undergraduate
Research Experience Grant on multiple occasions. Students under
her mentorship have twice received UNE's Outstanding
Research/Scholar Award.
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comments. UNE admitted to Carlson that the messages were sexual
harassment. We take that as a given.
Carlson was afraid to report Visich's behavior because
he was her supervisor. As Carlson's supervisor, Visich was
responsible for evaluating her performance for tenure and merit
raise purposes. Carlson eventually complained to Timothy Ford,
Dean of UNE's Westbrook College of Health Professions (WCHP), about
Visich's behavior in the fall of 2012. Dean Ford told her to meet
with Sharen Beaulieu, UNE's Director of Human Resources. Carlson
met with Beaulieu on September 28, 2012 and brought hard copies of
the inappropriate emails to the meeting. Beaulieu said, during
that meeting, that the emails were sexual harassment.
After this meeting, Visich had a conversation with
Carlson in which he brought up a comment that Carlson had made to
Beaulieu. This led Carlson to believe that Visich had been told
about her discussion with Beaulieu. Carlson met with Beaulieu and
Dean Ford again in October 2012. Beaulieu and Dean Ford agreed
that "Dr. Visich's behavior constituted 'sexual harassment.'"
Beaulieu and Dean Ford nonetheless recommended that Carlson meet
with Visich. Carlson declined. Beaulieu reiterated this
recommendation in a November 7, 2012 meeting. Carlson did not
want to meet with Visich but she "was not given an alternative."
Carlson, as she had been instructed, met with Visich,
with Beaulieu present, on November 20, 2012. At that meeting,
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Beaulieu said the meeting was Visich's idea. Beaulieu then said
that "Paul and I can address [Visich's emails] but we need to
figure out that even when I address that, he is your chair so we've
got to figure out a way to make this work." This led Carlson to
believe that Visich would remain her supervisor "no matter what."
Beaulieu recommended that Carlson meet with Visich more and
instructed her to "be open" and "give [Visich] a chance."
After the meeting, Visich both remained Carlson's direct
supervisor and the chair of her tenure committee. Visich wrote a
negative performance evaluation of Carlson in early June. Carlson
first received a copy of the evaluation by interoffice mail on
June 18, 2013. Carlson wrote a rebuttal and submitted it the next
day. When Carlson confirmed the receipt of her rebuttal with the
Dean's assistant, she learned that Visich had submitted his
evaluation of her on June 19, 2013 (the day after she first
received it) "along with a cover letter that [Carlson] had never
seen, claiming [inaccurately] that [she] had failed to sign and
return [her] evaluation" to Visich.
The Physical Therapy Reappointment Promotion and Tenure
Committee, after reviewing Visich's evaluation and Carlson's
rebuttal, determined that Carlson's performance "far exceed[ed]"
the evaluation that Visich provided. Carlson requested that UNE
remove Visich as the chair overseeing Carlson's application for
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tenure. UNE agreed. Visich, however, remained her direct
supervisor.
On September 5, 2013, before any decision on Carlson's
tenure was made, Visich walked up behind Carlson while she was
speaking with a student in a university parking lot and "rubbed
[her] shoulder and upper back in an unwelcomed manner." Carlson
reported the incident to Beaulieu, who investigated the incident.
Beaulieu reviewed the statement of the student who witnessed the
interaction, in which the student described Visich's behavior as
"[c]reepy" and said that he "found it weird that [Visich] was so
touchy with [Carlson]." The student stated that "Prof. Visich has
a reputation among students of being creepy around women."
Beaulieu also reviewed the statement of one of Visich's
subordinates, who was present for the incident and who asserted:
"I was not listening at the time nor was I paying close attention
to [Visich and Carlson]. I do not recall Paul touching Lara at
any point during this interaction." Beaulieu concluded that no
sexual harassment had occurred.
Dean Ford left UNE in 2013. In July of 2013, Elizabeth
Francis-Connolly replaced Dean Ford as Dean of WCHP, making her
Visich's supervisor. She said later that she was not told about
Carlson's prior complaints about Visich's behavior. Nor was she
told that some of Visich's prior complained-of behavior had been
deemed sexual harassment by UNE.
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In October 2013, Visich caused Carlson to be removed as
the head of UNE's College Bowl team.2 Carlson had founded the team
in 2009 and successfully led it up to that point. Visich stated
that Carlson was removed because the department wanted to change
the student selection process, but he did not change the selection
process after removing Carlson.
Later in the fall of 2013, Visich made the procedure for
allowing non-ESP-major students to apply to Carlson's
Environmental Physiology course more strict. This led to four out
of the five non-ESP-major applicants (who needed a waiver of the
prerequisite requirement) being denied enrollment in the course.
In January 2014, Carlson met with Beaulieu and Dean
Francis-Connolly to request that she no longer have to report to
Visich. She requested a surrogate supervisor. Dean
Francis-Connolly refused, saying, "I've seen that before and it
doesn't work." Dean Francis-Connolly stated that Carlson "would
have to be removed from the department" if she wanted a new
supervisor. Carlson did not want to leave the department, but she
considered it because of Dean Francis-Connolly's statement that it
was the only way to avoid working under Visich, who continued to
harass her.
2 Carlson describes College Bowl as "a jeopardy-like
competition in the field of exercise science and sports medicine
in which teams from schools in [UNE's conference] compete against
one-another."
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During this meeting, Carlson told Dean Francis-Connolly
that she would agree to a transfer, but she did so only on the
condition, expressed to the Dean, that she "get to keep [her]
classes and continue to do [her] job." Carlson emailed Dean
Francis-Connolly on February 18 saying that she appreciated Dean
Francis-Connolly's "consideration of moving [her] to another
Department" and that a transfer "could resolve the situation" for
her if it "can be accomplished along the lines [they] discussed."
On March 11, 2014, Dean Francis-Connolly emailed Carlson to tell
her that she was looking into transferring Carlson to the College
of Arts and Sciences. She also said that, in the meantime, Carlson
would be reporting to her. This was an about face from her earlier
statement to Carlson that Carlson could not be moved from under
Visich's supervision.
Later that spring, Visich removed the dedicated
laboratory time allocated for Carlson's Exercise Physiology class.
Visich explained that move by saying that, after he spoke with the
department directors, they had determined that "almost all of the
current lab topics" covered in Carlson's lab "are being taught in
other classes or could easily be added to an existing course." He
also said that this practice would "result in fairly good savings
to the college." Carlson was not notified of this proposed change
until after Visich had discussed it with Dean Francis-Connolly,
who expressed support for Visich's decision. In fall 2014,
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Visich's subordinate asked Carlson to perform different labs than
the ones she was conducting. Left with only classroom instruction
and "without the equipment necessary," Carlson was unable to
conduct the requested labs.
Carlson had been awarded tenure by her tenure committee
in March 2014. For the academic year 2014-2015, Carlson continued
to teach Exercise Physiology, although her lab time had been
removed. Visich had recommended that Dean Francis-Connolly assign
someone else to teach that course. Dean Francis-Connolly stated
she rejected this recommendation because "it was still a transition
period."
In spring of 2015, Dean Francis-Connolly removed Carlson
from teaching upper level Exercise Physiology and Environmental
Physiology courses in the ESP Department for the 2015-2016 academic
year. In doing so, she adopted Visich's recommendation. Carlson
was not told about this change. Rather, she found out about this
change when she read the published course catalog, which listed
the instructor for Exercise Physiology and Environmental
Physiology as "TBD."
Dean Francis-Connolly instructed Carlson instead to
teach two courses that Carlson felt were "remedial" general
education courses.3 Dean Francis-Connolly told Carlson that there
3 Dean Francis-Connolly asked Carlson to teach Research
Methods (ATC 420) and Methods of Scholarly Inquiry (IHS 210) during
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were two reasons for her decision: (1) "faculty are expected to
teach [a broad set of courses]" and (2) Francis-Connolly felt she
needed "to create distance" between Visich and Carlson. When
Carlson replied that she did not understand why this meant she
could not continue to teach Exercise Physiology and Environmental
Physiology in the ESP Department, Francis-Connolly stated that
Carlson was "not full-time in the department."
Later that year, Carlson requested that Dean Francis-
Connolly cross-list Environmental Physiology in the Biology
Department so that Carlson could teach it. Dean Francis-Connolly
initially accepted the proposal, but Visich convinced her to change
her mind and reject it.4 Visich taught Environmental Physiology
in Carlson's stead. In 2015, UNE hired a new visiting professor,
who was tasked with teaching Exercise Physiology.
In July 2014, Carlson was removed from her position as
an advisor to students in the ESP department. Visich also had
Carlson's profile removed from the ESP department's website.
this meeting. Research Methods was in the ESP Department. Methods
of Scholarly Inquiry appears to have been in a different
department, but the record does not say which. Carlson taught two
sections of Methods of Scholarly Inquiry in 2015-2016. The
materials for that course, including the syllabus, examinations,
homework, and PowerPoint slides, were pre-written.
4 Visich stated he was not notified ahead of time and that
his "only" concern was that Carlson "wanted to change the
prerequisites" so that freshmen and sophomores could take the
course, which Visich felt was inappropriate because "environmental
physiology is an upper level course."
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External funders had found Carlson through the course website
before her removal. She was not contacted by external funders
after her profile was removed from the ESP Department website.
UNE provides merit raises to faculty based on their
yearly evaluations, and Carlson received a 2% raise for academic
year 2016, which is the smallest raise she has received as a
percentage of her salary while at UNE.
Carlson became a member of UNE's Department of Physical
Therapy in July 2016. Carlson's lack of expertise in Physical
Therapy prevents her from "teaching any courses in physical
therapy." The Physical Therapy Department handbook requires that
a faculty member must be a licensed physical therapist in order to
participate in certain department decisions. As a result, Carlson
cannot "participate in many department changes . . . including
curriculum changes."
Carlson filed a complaint of retaliation with the Maine
Human Rights Commission (MHRC) and the Equal Opportunity
Commission (EEOC) on or about November 4, 2014. Carlson filed
this lawsuit in state court on January 4, 2016 alleging retaliation
in violation of the MHRA and Title VII, and UNE removed the case
to federal court on February 16, 2016.
B. District Court Proceedings
On summary judgment, the district court found that three
of the alleged adverse actions were time-barred because they had
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occurred more than 300 days before her EEOC and MHRC complaints:
(1) Visich's negative performance evaluation of Carlson for the
2012-2013 year, (2) Carlson's removal as head of the College Bowl
team, and (3) the curriculum committee's refusal to grant
prerequisite exemptions to certain students who wished to take
Carlson's Environmental Physiology course.
The district court then held that, since Carlson stated
that her transfer out of the ESP Department was voluntary, the
transfer could not qualify as an adverse action to support a
retaliation claim. The district court also found that, although
Carlson's change in course assignments, removal from the website,
and removal as an advisor to ESP Department students could be
adverse actions, each was caused by her voluntary transfer out of
the ESP Department and could not have been caused by her protected
behavior. The district court also found that, even if Carlson had
shown a causal connection, UNE had met its burden of providing a
non-retaliatory reason for these actions by arguing that they were
attributable to Carlson's voluntary transfer to a new department.
II. Discussion
A. Standard of Review
This court reviews grants of summary judgment de novo.
Town of Westport v. Monsanto Co., 877 F.3d 58, 64 (1st Cir. 2017).
Summary judgment is appropriate when "the movant shows that there
is no genuine dispute as to any material fact and the movant is
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entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
The court must view the facts in the light most favorable to the
non-moving party and draw all reasonable inferences in her favor.
See Billings v. Town of Grafton, 515 F.3d 39, 41 (1st Cir. 2008).
The credibility of Carlson's testimony is not to be evaluated at
the summary judgment stage. See Town of Westport, 877 F.3d at 66
(quoting Pina v. Children's Place, 740 F.3d 785, 802 (1st Cir.
2014)).
B. Legal Framework
Title VII prohibits employers from retaliating against
employees who report violations of that title. 42 U.S.C.
§ 2000e-3(a). The parties agree that the same standard should
apply to Carlson's Title VII and MHRA retaliation claims. See
Osher v. Univ. of Me. Sys., 703 F. Supp.2d 51, 64 n.12 (D. Me.
2010); see also Carnicella v. Mercy Hosp., 168 A.3d 768, 774 (Me.),
cert. denied, 138 S. Ct. 1170 (2018) ("Because the MHRA generally
tracks federal anti-discrimination statutes, it is appropriate to
look to federal precedent for guidance in interpreting the MHRA.").
An employer's retaliatory act must amount to an adverse
action in order to give rise to a retaliation claim. See
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).
An adverse action is one that "well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination." Id. at 68. (internal quotation marks omitted)
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(quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).
This objective standard requires that the retaliation suffered is
more serious than "petty slights or minor annoyances." Id.
Where, as here, a plaintiff attempts to prove a
retaliation claim based on circumstantial evidence, courts apply
the burden-shifting scheme established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). See Che v. Mass. Bay Transp. Auth.,
342 F.3d 31, 38 (1st Cir. 2003). First, the plaintiff must make
a prima facie showing. This means an employee "must show: (1) she
engaged in protected conduct; (2) she suffered an adverse
employment action; and (3) that a 'causal nexus exists between the
protected [conduct] and the adverse action.'" Garayalde-Rijos v.
Municipality of Carolina, 747 F.3d 15, 24 (1st Cir. 2014)
(alteration in original) (quoting Ponte v. Steelcase Inc., 741
F.3d 310, 321 (1st Cir. 2014)). The parties agree that Carlson
engaged in protected activity by reporting Visich's alleged
harassment to UNE.
If the plaintiff makes a prima facie showing of
retaliation, the burden shifts to the defendant to "articulate a
legitimate, non-discriminatory reason for the challenged actions."
Billings, 515 F.3d at 55. "If the employer's evidence creates a
genuine issue of fact, the presumption of discrimination drops
from the case, and the plaintiff retains the ultimate burden of
showing that the employer's stated reason for [the challenged
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actions] was in fact a pretext for retaliating . . . ." Id.
(alteration in original) (quoting Colburn v. Parker
Hannifin/Nichols Portland Div., 429 F.3d 325, 336 (1st Cir. 2005)).
C. Transfer
"[A] transfer is adverse if it materially changes the
plaintiff's conditions of employment in a manner that is 'more
disruptive than a mere inconvenience or an alteration of job
responsibilities.'" Caraballo-Caraballo v. Corr. Admin., 892 F.3d
53, 61 (1st Cir. 2018) (quoting Burns v. Johnson, 829 F.3d 1, 10
(1st Cir. 2016)).
As the district court acknowledged, Carlson's transfer
to a new department led to a change in her teaching assignments,
her removal from the ESP Department website, and her removal as an
advisor to ESP Department students. A jury could find that the
"disparity in duties" between her role while a member of the ESP
Department and her role after her transfer "makes the transfer an
adverse employment action." Id.
The district court held that the transfer was voluntary
and so, in its view, the transfer could not be an adverse action.
That reasoning overlooked one of the theories Carlson put forward
at the summary judgment stage. Carlson argues that Dean Francis-
Connolly led her to transfer out of the ESP Department by making
misrepresentations about how the transfer would affect her
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professional responsibilities.5 Specifically, Carlson alleges
that Dean Francis-Connolly promised that, if Carlson were to
transfer to a new department, she could continue teaching Exercise
Physiology and Environmental Physiology. Carlson further alleges
that, once she was transferred, Dean Francis-Connolly assigned her
to teach different courses, and that those courses were not
equivalent but, in fact, were remedial-level courses that carried
less responsibility than her previous courses.
Carlson stated in her deposition that she told Dean
Francis-Connolly that she would transfer departments on the
condition that she could "keep [her] classes and continue to do
[her] job." Carlson then followed up with Dean Francis-Connolly
in an email, a copy of which is in the record, saying that she
would be willing to transfer "if [the transfer] can be accomplished
along the lines we discussed." (emphasis added).
After Carlson left the ESP Department, Dean
Francis-Connolly in fact assigned Carlson to teach different
courses, and lower level ones at that. A jury could find that
Dean Francis-Connolly induced the plaintiff's consent to the
transfer through false premises and that these courses required a
5 UNE argues that Carlson waived this argument by failing
to raise it below. See Saunders v. Town of Hull, 874 F.3d 324,
331 (1st Cir. 2017) (citing McCoy v. Mass. Inst. of Tech., 950
F.2d 13, 22 (1st 2017)). We find that it was properly preserved
in both her statement of facts in dispute and her brief.
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lower skill level than those Carlson previously taught. A jury
could find that Carlson would not have accepted the transfer but
for Dean Francis-Connolly's misrepresentations. A jury could also
reasonably infer that Dean Francis-Connolly did so in retaliation
against Carlson. A reasonable jury could also find that these
events would not have occurred "but for" Carlson's activity in
reporting Visich's sexual harassment of her. Univ. of Texas Sw.
Med. Ctr. v. Nassar, 570 U.S. 338, 346 (2013). Because the record
supports these inferences, Carlson has made a prima facie case
sufficient to survive summary judgment.
Dean Francis-Connolly's shifting justifications for the
change in Carlson's teaching responsibilities support our
decision. Dean Francis-Connolly alternately told Carlson that the
change was a natural result of Carlson transferring to a new
department and that she wanted Carlson to teach a wider array of
courses. UNE has also argued that the change was a result of
Visich's view that Carlson was not communicating well with Visich.
These explanations are undermined by Carlson's allegation that
Dean Francis-Connolly justified her decision by saying that she
wanted to create distance between Visich and Carlson.6 A jury
6 The district court, in justifying its pretext decision,
pointed out that UNE's statement of material facts attributed the
teaching-assignment change to the fact that Carlson "refuses to
communicate with" the directors of the ESP Department. The
district court then found that Carlson did not deny this allegation
and so could not show that the reason was pretextual. This is a
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could infer from UNE's and Dean Francis-Connolly's changing
explanations and from the other evidence in the record that the
statements made to Carlson to induce her consent to transfer were
not accurate.
UNE has not put forward a non-retaliatory justification
for why Dean Francis-Connolly would have misrepresented Carlson's
ability to keep teaching Exercise Physiology and Environmental
Physiology. As a result, UNE has failed to "articulate a
legitimate, non-discriminatory reason for th[is] challenged
action[]." Billings, 515 F.3d at 55.
D. Salary Increases
Carlson argues that UNE retaliated against her by giving
her salary raises in 2016 and 2017 that were the lowest of her
career, as measured as a percentage of her salary. The district
court held that Carlson could not show a dispute of fact on this
issue because "the record does not . . . contain any basis for
comparing those accomplishments with her accomplishments in the
misreading of the record. UNE's statement of material fact said
that "Dr. Visich told Dean Francis-Connolly that [Carlson]
'refuses to communicate with'" the directors of the ESP department
and that, as a result, he no longer had "control over this course
anymore in regard to the content." This statement only goes to
what Visich told Dean Francis-Connolly. It does not describe Dean
Francis-Connolly's reason for following Visich's recommendation or
even whether Visich's statement was true. As a result, Carlson's
statement of material facts did not amount to a concession that
Visich "had no control over" Environmental Physiology and Exercise
Physiology.
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preceding years," which made it impossible "to compare the 2016
and 2017 raises with her earlier pay raises and assess whether
they constituted adverse employment actions."7 Carlson argues on
appeal that the record contains evidence of her many
accomplishments from 2015-2017 and that that is enough to show
that there is a dispute of fact on this issue.
We find no error in the district court's ruling on this
point. Carlson is missing critical factual support for her
argument that the size of her raises in 2016 and 2017 were adverse
actions.
Carlson agrees that the size of a faculty member's annual
raise is linked to the amount of funding available for faculty
raises in a given year. Carlson did not provide any information
about the amount of funding available for 2016 or 2017, making the
district court's analysis impossible.
Carlson also agrees that a faculty member's annual raise
is typically based on her annual performance review. In order to
determine whether Carlson's raise should have been larger, the
district court would need to decide whether her raise was
commensurate with her accomplishments in the prior year. This
7 The district court also asserted that "[t]he correct
unit for comparing pay raises from one year to the next is . . .
the dollar amount of the raise, and not the raise as a percentage
of the employee's total compensation." Carlson argues this was
error. We do not reach the issue.
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comparison is impossible without a benchmark. Carlson provided
the size of her raises for the prior years she was at UNE, but did
not provide sufficient information about her achievements in prior
years. Without evidence about her earlier accomplishments, the
court cannot draw a comparison to prior years. This makes it
impossible to determine whether UNE was retaliating by giving her
a smaller raise than she deserved in 2016 and 2017.

Outcome: The district court's entry of summary judgment is
reversed in part. The case is remanded for further proceedings
consistent with this opinion. Costs are taxed against the
University of New England.

Plaintiff's Experts:

Defendant's Experts:

Comments: