Carlson v. University of New England

United States Court of Appeals
For the First Circuit

No. 17-1792

LARA CARLSON,

Plaintiff, Appellant,

v.

UNIVERSITY OF NEW ENGLAND,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, U.S. District Judge]

Before

Torruella, Lynch, and Barron,
Circuit Judges.

Alexis Garmey Chardon, with whom Christopher A. Harmon, David
Kreisler, and Terry Garmey & Associates were on brief, for
appellant.
Peter F. Herzog, with whom Patricia A. Peard, Amber R.
Attalla, and Bernstein Shur were on brief, for appellee.

August 10, 2018
 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

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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.

III. Conclusion

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.

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