Carlson v. Univ. of New Eng.

• Decision Date: 10 August 2018
• Docket Number: No. 17-1792,17-1792
• Citation: 899 F.3d 36
• Parties: Lara CARLSON, Plaintiff, Appellant, v. UNIVERSITY OF NEW ENGLAND, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

899 F.3d 36

Lara CARLSON, Plaintiff, Appellant,

v.UNIVERSITY OF NEW ENGLAND, Defendant, Appellee.

No. 17-1792

United States Court of Appeals, First Circuit.

August 10, 2018

Alexis Garmey Chardon, with whom Christopher A. Harmon, David Kreisler, and Terry Garmey & Associates, Portland, ME, were on brief, for appellant.

Peter F. Herzog, with whom Patricia A. Peard, Amber R. Attalla, and Bernstein Shur, Portland, ME, were on brief, for appellee.

Before Torruella, Lynch, and Barron, Circuit Judges.

LYNCH, Circuit Judge.

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 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 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, 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 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.

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.

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, 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...