Takeaway: While closeness in time between protected activity and adverse action can be a factor to show an employer’s bad motive, it is not by itself enough to establish causation, especially if the surrounding circumstances undermine such a claim.
An associate professor at Tufts University School of Dental Medicine could not prove discrimination or retaliation when her supervisor said that she would not promote her 27 days after the professor revealed that she had filed a sexual harassment claim, the 1st U.S. Circuit Court of Appeals ruled.
In 2011, the plaintiff began working as a nontenure/contract track associate professor at Tufts School of Dental Medicine. In June 2017, the plaintiff claimed that a fellow instructor had sexually harassed her. She alleged that the co-worker had asked her out on a date, asked her if she wanted to “have some monkey business,” asked her to lift up her lab coat on numerous occasions and leered at her.
Tufts’ Office of Equal Opportunity (OEO) separately interviewed the plaintiff, co-worker and the school’s division head. The OEO investigator could establish only that the co-worker had asked the plaintiff on a date and believed the co-worker’s denial as to the rest of the allegations.
In November 2017, the plaintiff decided that she wanted to apply for promotion to full professor. This required her department chair’s endorsement and for her to prepare a dossier detailing her experience, which typically took six to 12 months. The dossier had to show several areas of excellence, and the plaintiff selected educational leadership as one such area. She showed her dossier to two outside advisors who expressed concerns that it was insufficient.
In early 2018, the plaintiff presented her dossier to the Faculty, Appointments, Promotions, and Tenure Committee (FAPTC). One committee member expressed his concern that the dossier did not show sufficient educational leadership because she purported to be a course director for workshops that met only on two occasions. A second committee member agreed because the plaintiff did not serve in a leadership position, did not chair any committees and did not actively participate in any organizations related to education. The FAPTC voted against promotion.
After the decision had been made and communicated to the plaintiff, a new chairperson was appointed to her department. The plaintiff met with her on Dec. 13, 2018, and told her about the sexual harassment report against her co-worker. The plaintiff claimed that, at a January 2019 meeting, the chairperson said that she most likely was not going to promote her. No other meeting attendee recalled the chairperson making that statement.
In October 2019, the plaintiff again raised her dissatisfaction with her nonpromotion. The chairperson gave her specific suggestions for improvement and told her that once she felt that she had met the criteria for promotion, she would write a supportive letter of endorsement. A few weeks later, the chairperson informed her that she would not endorse her for the 2019 cycle.
The plaintiff told the chairperson that she felt singled out and felt that the chairperson would never support her promotion. The chairperson replied with a letter detailing seven specific ways in which the plaintiff could improve her dossier and reiterated her commitment to helping her work toward a successful submission for full professor.
In December 2019, the plaintiff took a medical leave of absence and never returned. Her contract with Tufts expired in June 2021.
The plaintiff sued Tufts, alleging sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972 and Massachusetts law. The district court denied her claims on summary judgment, and she timely appealed.
On appeal, the 1st Circuit considered whether the plaintiff established a prima facie case of discrimination. The court found that the plaintiff could not establish that her qualifications were sufficient to merit a promotion.
Regarding retaliation, the court found that any inference of retaliatory mindset was belied by the overwhelming evidence that the chairperson’s conduct was inconsistent with bad motive. There was no evidence that the chairperson had ever met the alleged harasser. By the time the plaintiff spoke to her in December 2018, 18 months had elapsed since the alleged harassment occurred. Thus, there was no basis to infer that the chairperson would retaliate because the plaintiff had reported sexual harassment allegations long ago against a stranger to the chairperson.
The 1st Circuit upheld the decision of the district court, dismissing the plaintiff’s claims.
Ing v. Tufts University, 1st Cir., No. 23-1030 (Aug. 29, 2023), petition for rehearing denied (Sept. 19, 2023).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.