Harrington v. Lesley Univ.

• Decision Date: 12 August 2021
• Docket Number: CIVIL ACTION NO. 20-11718-DPW
• Citation: 554 F.Supp.3d 211
• Parties: Micki HARRINGTON, Plaintiff, v. LESLEY UNIVERSITY & Hedi BenAicha, Defendants.
• Court: U.S. District Court — District of Massachusetts

554 F.Supp.3d 211

Micki HARRINGTON, Plaintiff,

v.LESLEY UNIVERSITY & Hedi BenAicha, Defendants.

CIVIL ACTION NO. 20-11718-DPW

United States District Court, D. Massachusetts.

Filed August 12, 2021

Benjamin S. Klein, Klein Law PLLC, Concord, MA, for Plaintiff.

Paul G. Lannon, Jr., Matthew W. Sloane, Holland & Knight, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE

This case, which is now before me on a motion to dismiss, presents questions concerning the interplay between two separate federal statutory schemes that address gender discrimination: Title VII of the Civil Rights Act of 1964 ("Title VII"), Pub. L. No. 88-352, 78 Stat. 241, 253–266 (codified as amended at 42 U.S.C. §§ 2000e to 2000e-17 ), which prohibits employment discrimination because of "sex," among several protected classifications, and Title IX of the Education Amendments of 1972 ("Title IX"), Pub. L. No. 92-318, 86 Stat. 373 (codified as amended at 20 U.S.C. §§ 1681 – 1688 ), which, with singular focus, proscribes discrimination "on the basis of sex" in any federally funded educational program or activity. An employee of a federally funded educational institution who alleges sex-based employment discrimination can come within the literal statutory language of both federal statutes.

The fundamental question posed is whether Plaintiff Micki Harrington may bring employment discrimination claims against her current employer, Lesley University, and her former supervisor, Dean Hedi BenAicha, under both Title VII and Title IX. I find that she may, subject to the constraints of the statutes of limitations proscriptions separately applicable to the two statutory schemes.¹

I. BACKGROUND

A. Factual Allegations

Except where noted, the following facts drawn from the allegations of the operative First Amended Complaint are not in dispute for the purposes of the motion to dismiss. To the extent that alleged facts are disputed, I view them in the light most favorable to Ms. Harrington, the non-moving party. See Ramírez-Lluveras v. Rivera-Merced , 759 F.3d 10, 13 (1st Cir. 2014).

1. Sexual Harassment Allegations

On or around August 22, 2016, Ms. Harrington began employment in the position of Temporary Art Librarian with Lesley University. See First Amended Complaint ("FAC") ¶ 9 [Dkt. No. 12]. Lesley University is a higher education institution providing federally funded undergraduate, masters, and doctoral programs. Id. ¶ 8. Ms. Harrington reported directly to the individual Defendant, Hedi BenAicha, the Dean of University Libraries. Id. ¶ 9. Throughout this period, he subjected Ms. Harrington to persistent verbal and physical sexual harassment. Id. ¶ 15.

Ms. Harrington alleges that, in every workplace meeting, Dean BenAicha engaged in nonconsensual, sexualized physical contact. Id. A few examples follow.

On or around July 18, 2017, he put his arm around her waist without permission as they left a meeting on the University campus. Id. ¶ 16. When she attempted to move away, he tightened his grip. Id.

In August 2017, he placed his hand on her back and traced his fingers up and down her spine during a conversation with another colleague on the University campus. Id. ¶ 17. He repeated this nonconsensual physical touching in a staff meeting two months later. Id. ¶ 19.

On or around September 7, 2017, Dean BenAicha approached Ms. Harrington at the circulation desk of the University library and massaged her shoulders without consent. Id. ¶ 18. To terminate the physical contact, Ms. Harrington had to stand up and move to a different chair. Id.

In the same month, on or around September 7, 2017, Dean BenAicha learned that a visitor had exposed himself to Ms. Harrington in the library. He intrusively asked her about the incident, inquiring: "How much did you see?" and "What did you think of it?" Id. ¶ 24. She had to walk away to end his sexually charged questioning. Id.

While they were in the workplace, Dean BenAicha repeatedly told Ms. Harrington that he preferred she wear skirts to work instead of pants. Id. ¶ 20. He frequently referred to her as his "daughter." Id.

On or around November 20, 2018, Ms. Harrington filed a complaint with the Title IX coordinator at Lesley University describing Dean BenAicha's sexual harassment and gender discrimination. Id. ¶ 26. Two weeks later, on or around December 4, 2018, Dean BenAicha took medical leave. Id. ¶ 27. As of the filing of this litigation, he had not returned. Id. The University has not issued any findings in response to the Title IX complaint. Id. ¶ 28.

2. Wage Discrimination Allegations

Prior to accepting employment with Lesley University as Temporary Art Librarian, Ms. Harrington had spoken to Dean BenAicha about the position. Id. ¶ 11. During this conversation, he promised her that she would receive relocation benefits and guaranteed professional development funds as part of her compensation. Id. He also promised that, after a probationary period, she would be promoted to the permanent position of Head Librarian and would receive a raise in salary. Id. Relying on these oral promises, Ms. Harrington terminated her employment of approximately eight years in the Library Department of Keene State College and, on August 22, 2016, she accepted employment with Lesley University. Id. ¶¶ 10, 11.

Around November 2016, the University transitioned her from a temporary employee to a salaried employee. Her pay, however, actually decreased from $4,835.20 per month to $4,583.00 per month. Id.

From 2016 through 2018, Dean BenAicha continued to promise Ms. Harrington that her promotion to Head Librarian – and a raise in salary – was imminent. Id. ¶ 14. For example, on or around September 5, 2017, at a faculty development day focused on diversity, he put his arm on the back of her chair and whispered in her ear that he knew she was dissatisfied with her pay and that he would fix her title and salary. Id. ¶ 23. He also told her, in response to the ongoing presentation on diversity, that inequity in the publishing field of academia is "normal" and not actually a problem. Id.

Dean BenAicha continuously reported to Ms. Harrington that he was working diligently with Human Resources to finalize her promotion to Head Librarian. Id. ¶ 29. He promised that her salary would increase to over $70,000.00 per year with the change of title. Id. ¶ 25. He warned her, however, that if she ever went to Human Resources with her complaints about her title and salary, it would jeopardize his efforts to "fix" her position classification. Id. Ms. Harrington repeatedly asked Dean BenAicha to put these promises in writing, but she failed to obtain a written promise. Id. She alleges that Dean BenAicha held the promised promotion out of reach for years as an incentive not to report his sexual harassment to the University. Id.

After Ms. Harrington filed a Title IX complaint, Dean BenAicha announced that he was taking medical leave. Id. ¶ 26. Before he left, Dean BenAicha submitted an elevation plan to Human Resources.² This plan did not include any documentation for Ms. Harrington's promised re-classification. Id. ¶ 29.

On or around January 3, 2019, Acting Dean of Libraries Constance Vrattos told Ms. Harrington that, based on her job description, her salary was around $20,000.00 per year less than what it should have been. Id. Accordingly, Dean Vrattos told Ms. Harrington that she would submit a request to the University for a salary change of two levels on the basis that the requested salary grade level and title recognized what Ms. Harrington's position had been the entire time she worked at the University. Id. Dean Vrattos apologized to Ms. Harrington that it had taken so long to fix her salary and title. Id.

On or around June 24, 2019, Lesley University rejected the request as presented and approved only a one-grade salary increase. Id. ¶ 30. Dean Vrattos told Ms. Harrington that, because her salary was on the lowest rung of the relevant salary range, the one-grade salary increase amounted to a 6.7% raise, or $4,000.00 per year. Id. Two male colleagues in the library received raises of 13.7% and of 11% at that time. Id. ¶ 31. Even after her June 2019 raise, Ms. Harrington's salary was substantially equivalent to her 2016 starting salary as Temporary Art Librarian.

Ms. Harrington is currently employed by the University in the position of Art Librarian and Head of Moriarty Library. Id. ¶ 7. She has never received the relocation benefits or professional development funds that Dean BenAicha promised would be part of her compensation or benefits. Id. ¶¶ 12, 32.

B. Procedural History

1. Title VII Administrative Exhaustion

Ms. Harrington filed a Complaint with the Massachusetts Commission Against Discrimination ("MCAD") on June 30, 2020 against the Defendants. Id. ¶ 4. She alleged violations of the Massachusetts Fair Employment Practices Act, Massachusetts General Laws ch. 151B ("Chapter 151B"), and of Title VII.

On October 13, 2020, Ms. Harrington filed a Notice of Withdrawal of her Complaint with the MCAD. Id. ¶ 5. See 804 Mass. Code Regs. § 1.04(12)(c). On the following day, she received a Notice of Right to Sue from the U.S. Equal Employment Opportunity Commission ("EEOC"). See FAC ¶ 6.

2. Commencing a Lawsuit and Removal to Federal Court

On June 30, 2020, the same day Ms. Harrington filed her MCAD Complaint, she sued Lesley University and Dean BenAicha in Massachusetts state superior court. See Complaint, Micki Harrington v. Lesley Univ. & Hedi BenAicha , No. 2081CV01502, 2020 WL 3915002 (Mass. Super. June 30, 2020). She alleged one count of civil battery (Count V) against Dean BenAicha and six counts against Lesley University. Under Title IX, she alleged sexual harassment (Count I), wage discrimination (Count II), and retaliation (Count III). She also alleged promissory estoppel (Count IV), negligent retention and supervision (Count VI), and negligent infliction of emotion distress (Count VII). Id.

The Defendants removed the...