United States Court of Appeals For the First Circuit
No. 23-1030
MELISSA ING,
Plaintiff, Appellant,
v.
TUFTS UNIVERSITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Kayatta, Gelpí, and Montecalvo, Circuit Judges.
Mitchell J. Notis, with whom Law Office of Mitchell J. Notis was on brief, for appellant. Jeremy M. Sternberg, with whom Miriam J. McKendall, Douglas R. Sweeney, and Holland & Knight LLP were on brief, for appellee.
August 29, 2023 MONTECALVO, Circuit Judge. Melissa Ing sued her former
employer, Tufts University ("Tufts"), alleging that Tufts denied
her a full professor position on the basis of sex discrimination
and/or retaliation for engaging in protected conduct in violation
of federal and state antidiscrimination laws, including Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; Title IX
of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.; and
Mass. Gen. Laws ch. 151B, § 4. The district court denied Ing's
claims on summary judgment and declined her invitation to alter or
amend that ruling under Fed. R. Civ. P. 59(e). Ing timely appealed
the district court's rulings. Seeing no error, we affirm.
I. Background
"We recount the facts in the light most favorable to
[Ing], who was the non-moving party at summary judgment."1
Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 172
(1st Cir. 2015).
1 Before the district court, Ing objected to only 8 out of 192 material facts proffered by Tufts and stated that she "d[id] not dispute the other facts set forth by" Tufts. Accordingly, under the applicable local rule, the balance of Tufts's material facts are deemed admitted. L.R. D. Mass. 56.1 ("Material facts of record set forth in the statement required to be served by the moving party will be deemed for purposes of the motion to be admitted by opposing parties unless controverted by the statement required to be served by opposing parties."); see also López-Hernández v. Terumo P.R. LLC, 64 F.4th 22, 26 (1st Cir. 2023) ("We have repeatedly emphasized the importance of complying with [such a] local rule and have implored litigants to comply or ignore it 'at their peril.'" (quoting Mariani-Colón v. Dep't of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 219 (1st Cir. 2007))).
- 2 - A. Harassment Investigation
In 2011, Ing began work as a non-tenure/contract track
associate professor at Tufts's School of Dental Medicine ("SDM").
In June 2017, Tufts's Office of Equal Opportunity ("OEO") initiated
an investigation into allegations that Ing had been sexually
harassed by fellow SDM instructor Roland Vanaria. Ing made the
following allegations: (1) that Vanaria had asked her out on a
date; (2) that Vanaria had asked her if she wanted to "have some
monkey business"; (3) that Vanaria had asked her to lift up her
lab coat on numerous occasions; and (4) that Vanaria leered at her
breasts and legs.
The OEO investigator separately interviewed Ing,
Vanaria, and Peter Arsenault, Ing's SDM division head. The OEO
investigator could only establish that Vanaria had asked Ing on a
date and believed Vanaria's denial as to the balance of Ing's
allegations.
Over the next several months, Ing informed Arsenault on
two occasions that she was scheduled to work on the same floor as
Vanaria. Notwithstanding Ing's failure to persuade the OEO
investigator that Vanaria had done anything improper, in both
instances Arsenault -- in concert with OEO and other SDM
administrators -- adjusted the schedule to ensure that Vanaria was
not working on the same floor as Ing. Ing also informed the OEO
investigator that Vanaria was spending time in the conference room
- 3 - near her office. Tufts removed Vanaria's swipe access to the
entire office suite where Ing's office was located.
B. 2018 Promotion Cycle
In November 2017, Ing decided that she wanted to apply
to be promoted to a full professor. The guidelines and criteria
for faculty promotion require an applicant to receive the
endorsement of their department chair before submitting a dossier
detailing their experience. When Ing met with her department chair
and the SDM Associate Dean for Faculty, she was advised that
candidates typically spend six to twelve months compiling their
dossiers, which must demonstrate an applicant's achievement in
"Service, Citizenship, and Professionalism," and two other areas
of excellence. Ing received the endorsement of her department
chair and submitted her dossier in February 2018. She selected
the Teaching area and Educational Leadership area for her two
additional areas of excellence. While compiling her dossier, Ing
solicited the opinion of two outside advisors about whether it
would pass muster, and both opined that it might not.
The Faculty, Appointments, Promotions, and Tenure
Committee ("FAPTC") reviewed Ing's dossier, and her application
was presented to the committee twice. First, on March 27, 2018,
a committee member relayed his concern that Ing did not satisfy
the criteria for the Educational Leadership area of excellence
because she purported to be a course director for workshops that
- 4 - met on only two occasions. A second committee member was assigned
to present Ing's dossier at the FAPTC's next meeting to confirm
the first committee member's conclusion that Ing did not satisfy
the criteria for promotion to full professor. The second
presentation occurred on April 3, 2018, and this committee member
agreed with the initial presentation that Ing did not meet the
Educational Leadership criteria. The second committee member went
further and noted that Ing did not serve in a leadership position,
did not chair any committees, and did not actively participate in
any organizations related to education. It is undisputed that not
a single member of the FAPTC knew about Ing's complaints against
Vanaria.
At the conclusion of the April 3, 2018 meeting, five
committee members voted against Ing's promotion, one abstained,
and one voted to table the application. On September 19, 2018,
the SDM Associate Dean of Faculty told Ing that she had not been
promoted and explained the reasons why, including that "the major
problem" was with Ing's self-selected Educational Leadership area
of excellence. Specifically, the SDM Associate Dean of Faculty
confirmed that the supporting documents submitted by Ing with her
dossier did not qualify her as a "course director" under the
promotion guidelines. The following day, Ing's department chair
reviewed the FAPTC's denial letter with her and the SDM Dean sent
Ing a letter reiterating the reasons she was denied a promotion.
- 5 - The FAPTC concluded that Ing was not a "course director" because
she had only directed a brief workshop. Ing disputed this
conclusion.
In January 2019, Ing requested a more detailed
explanation as to why she was denied a promotion. The SDM Dean
acquiesced to Ing's request and sent a letter explaining that she
was denied a promotion because Ing's dossier lacked leadership
roles, lacked course directorship, and did not "represent the level
of expectations that FAPTC['s] Promotion Guidelines dictate for
promotion to the rank of Professor." Ing did not appeal the
promotion denial, despite being advised that she could do so.
C. 2019 Promotion Cycle
As of November 1, 2018 -- after the decision regarding
Ing's promotion had already been made and communicated to
Ing -- Andrea Zandona became the new chairperson of Ing's
department. Ing met with Zandona on December 13, 2018, and told
her about the sexual harassment report against Vanaria. Ing
alleges that during the January 2019 meeting at which Ing requested
a more detailed explanation as to why she was not promoted, Zandona
told Ing that she "most likely [was] not going to promote" her.
- 6 - No other attendee of that meeting recalled Zandona making that
statement.2
In the ensuing months, Zandona and Ing met several times
and communicated repeatedly about how Ing could improve her dossier
and chances of promotion. Ing alleges that at one such meeting
Zandona asked Ing how often she was attending sexual harassment
therapy and told Ing that she needed to go more often. Zandona
denies ever saying this.3
Ing implemented some, but not all, of Zandona's
suggestions to improve her dossier. In October 2019, Ing again
raised to Zandona her dissatisfaction with the FAPTC's decision
not to promote her during the 2018 cycle and Tufts's subsequent
handling of the denial. Once again, Zandona gave Ing specific
suggestions for improvement and told her that once Zandona felt
Ing had met the criteria for promotion, Zandona would write a
supportive letter of endorsement. A few weeks later, Zandona
informed Ing that she would not endorse her for the 2019 cycle
because, in Zandona's opinion, Ing's dossier still did not merit
promotion.
2 Because Ing's Rule 56.1 statement contradicted this and alleged that Zandona stated that she "most likely [was] not going to promote [Ing]," we assume that the statement was made. 3 Again, because Ing's Rule 56.1 statement contradicted this denial, we believe Ing's version of events and assume that Zandona made this statement.
- 7 - Thereafter, Ing told Zandona that she felt "singled out"
and felt that Zandona would never support her promotion. Zandona
replied with a letter detailing seven specific ways in which Ing
could improve her dossier and reiterated her commitment to helping
Ing to work towards a successful submission for full professor.
Ing took a medical leave of absence in December 2019.
She never returned to work, and her contract with Tufts expired in
June 2021.
II. Standard of Review
We review the grant of summary judgment de novo,
"scrutiniz[ing] the evidence in the light most agreeable to the
nonmoving party, giving that party the benefit of any and all
reasonable inferences." Noviello v. City of Boston, 398 F.3d 76,
84 (1st Cir. 2005). However, we will not "'draw unreasonable
inferences or credit bald assertions, empty conclusions,' or 'rank
conjecture.'" Brandt v. Fitzpatrick, 957 F.3d 67, 75 (1st Cir.
2020) (quoting Pina v. Children's Place, 740 F.3d 785, 795 (1st
Cir. 2014)). Indeed, we have recognized that "[e]ven in employment
discrimination cases" like the one at hand "where elusive concepts
such as motive or intent are at issue, summary judgment is
appropriate if the non-moving party rests merely upon conclusory
allegations, improbable inferences, and unsupported speculation."
Id. (quoting Ray v. Ropes & Gray LLP, 799 F.3d 99, 116-17 (1st
Cir. 2015)).
- 8 - "By contrast to the summary judgment standard, 'we
review a district court's ruling on a Rule 59(e) motion for abuse
of discretion.'" Theidon v. Harvard Univ., 948 F.3d 477, 495 (1st
Cir. 2020) (quoting Franchina v. City of Providence, 881 F.3d 32,
56 (1st Cir. 2018)). A motion to alter or amend judgment "must
either establish a clear error of law or point to newly discovered
evidence of sufficient consequence to make a difference." Id.
(quoting Franchina, 881 F.3d at 56).
III. Discussion
On appeal, Ing insists that she set forth a prima facie
case that Tufts denied her application for full professor because
of sex discrimination and/or as retaliation for her filing a claim
of sexual harassment, all in violation of federal and state
antidiscrimination laws. There is substantial overlap between our
analysis of these claims, but for sake of clarity we begin with
the claims of discrimination, then turn to the claims of
retaliation, and finally end with a few words on the district
court's denial of Ing's Rule 59(e) motion.
A. Sex Discrimination
"Title VII makes it unlawful for employers to
discriminate based on sex," Gerald v. Univ. of P.R., 707 F.3d 7,
16 (1st Cir. 2013), and Title IX similarly "prohibits gender-based
discrimination in a wide array of programs and activities
undertaken by educational institutions," Frazier v. Fairhaven Sch.
- 9 - Comm., 276 F.3d 52, 65 (1st Cir. 2002). Under either statute,
absent direct evidence of discrimination, "we invoke the
three-step burden-shifting scheme outlined in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), to assess whether we can infer
discrimination from the undisputed material facts." Theidon, 948
F.3d at 495; see Lipsett v. Univ. of P.R., 864 F.2d 881, 896-97
(1st Cir. 1988) (concluding that the standards governing claims
arising under Title VII and Title IX are the same).
At the first step of this scheme, Ing bears the initial
burden of establishing a prima facie case of discrimination
"[u]nder the McDonnell Douglas framework employed by this court in
assessing adverse tenure decisions." Theidon, 948 F.3d at 495.
To make this showing, Ing must demonstrate that: "(1) she is a
member of a protected class; (2) 'she was a candidate for tenure
and was qualified under [Tufts's] standards, practices or
customs'; (3) 'despite her qualifications she was rejected'; and
(4) 'tenure positions . . . were open at the time [she] was denied
tenure, in the sense that others were granted tenure in the
department during a period relatively near to the time [Ing] was
denied tenure.'" Id. (second alteration in original) (quoting
Fields v. Clark Univ., 966 F.2d 49, 53 (1st Cir. 1992)).
The dispute at hand centers around whether Ing showed
that she was qualified for the position of professor. The SDM
Faculty Handbook specifically details what evidence will suffice
- 10 - to show accomplishment in the Educational Leadership area. This
evidence may include serving as a dean, department chair, or
division head; chairing a standing or management committee;
serving as a course director; and/or actively participating in
organizations related to education.
Here, the record evidence shows that none of these
requirements were met. The evaluators of Ing's dossier noted their
concern with her "weak" Educational Leadership and that she had
"minimal or no leadership in [e]ducation." The evaluators
concluded that Ing was not a "course director" as contemplated in
the SDM Faculty Handbook because the purported course was a
workshop that met on only two occasions.
The reason for denying Ing a promotion was expounded
upon by Tufts in subsequent communications, but each time
highlighted the same general deficiencies: lack of academic and
administrative leadership roles and "deficiency in . . . course
directorship [because] a one-time 3-hour workshop does not compare
to a 3, 6 or 9-month course." Ing wholly fails to engage with
this reasoning and instead relies on her own conclusory allegations
that she was qualified for promotion to full professor. However,
to defeat summary judgment, in light of the raft of credible
evidence that Tufts produced showing that Ing was not qualified
for promotion, "she cannot rely on 'conclusory allegations.'"
Theidon, 948 F.3d at 494 (quoting Ahern v. Shinseki, 629 F.3d 49,
- 11 - 54 (1st Cir. 2010)). Moreover, even the individuals Ing herself
chose to consult about her dossier expressed doubt as to whether
Ing's experiences and qualifications merited a promotion to
professor. These undisputed facts evidence a lack in qualification
and make plain that Ing has not made a showing of a prima facie
case of discrimination.
Even if we assume that Ing could make out a prima facie
case of discrimination, Ing's claim still fails further down the
road of the McDonnell Douglas burden-shifting scheme because she
has not shown the existence of a material fact to suggest that
Tufts's proffered reason for not promoting her was merely
pretextual and that the actual reason was discriminatory. See
Taite v. Bridgewater State Univ., Bd. of Trs., 999 F.3d 86, 94
(1st Cir. 2021). Ing contends that "numerous procedural
irregularities in the process by which" her "promotion was denied"
demonstrate pretext. As Ing tells it, the FAPTC deviated from
standard procedure by failing to keep minutes for the meetings at
which her application was discussed.
"Evidence that the employer deviated from its standard
procedure or policies in taking an adverse employment action
against a plaintiff may be relevant to the pretext inquiry,"
Rodríguez-Cardi v. MMM Holdings, Inc., 936 F.3d 40, 50 (1st Cir.
2019), if the deviations are otherwise "inexplicable and
troubling." Theidon, 948 F.3d at 499. However, Ing points to no
- 12 - evidence indicating that, at the time her application was before
the FAPTC, the committee's standard practice was to keep meeting
minutes. Rather, the evidence in the record before us reveals
that, at that time, the FAPTC did not keep meeting minutes for any
meetings. And the absence of meeting minutes does not support an
inference that Tufts's proffered reason for not promoting Ing was
pretextual because other record evidence shows exactly what the
FAPTC considered when making its decision. Specifically, the notes
taken by the two committee members who reviewed and presented Ing's
application were solely focused on her lack of accomplishment in
Educational Leadership, and every FAPTC member deposed in this
case testified that the committee's discussion focused only on
Ing's dossier and qualifications.
Ing also points to a smattering of other alleged
irregularities, such as an FAPTC member being asked to review her
application after the vote had already been taken, the letter
denying her application undergoing five drafts, and the five-month
time gap between when Ing's application was voted on and when she
was notified of the disapproval, to demonstrate pretext. This
evidence, however, "is devoid of the inexplicable and troubling
inconsistencies that give rise to a reasonable inference of
pretext." Theidon, 948 F.3d at 499 (finding no evidence of pretext
where university's failure to circulate materials to external
reviewers amounted to an "administrative error"); see Ronda-Perez
- 13 - v. Banco Bilbao Vizcaya Argentaria--Puerto Rico, 404 F.3d 42, 47
(1st Cir. 2005) (finding no evidence of pretext based on employer's
failure to keep notes during investigative interview with
plaintiff even though it kept notes during interviews with other
employees).
Accordingly, we conclude that there is not even the
slightest suggestion that Tufts's reason for not promoting Ing was
pretextual. The district court correctly concluded that Ing's
evidence was insufficient to create a material issue of fact and
entered summary judgment in favor of Tufts on the discrimination
claims.4
B. Retaliation
To establish a prima facie case of retaliation under
Title VII, Title IX, or Massachusetts state law, Ing must prove:
"(1) she engaged in protected conduct; (2) she was subjected to an
adverse employment action; and (3) the adverse employment action
is causally linked to the protected conduct." Theidon, 948 F.3d
at 505 (quoting Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d
77, 94 (1st Cir. 2018)); see id. at 508 (evaluating a prima facie
case of retaliation under Mass. Gen. Laws ch. 151B, § 4 under the
4 Because "Massachusetts law also makes use of the McDonnell Douglas burden-shifting framework" and requires a plaintiff to present evidence of pretext, Theidon, 948 F.3d at 505 (quoting Ray, 799 F.3d at 113 n.8), the foregoing analysis applies to both the federal and state discrimination claims.
- 14 - same test). The only element in dispute is whether Ing has shown
a causal connection between her allegations of sexual harassment
and Tufts's subsequent decision not to promote her.5 The district
court found that Ing's protected activity "could not have been a
but-for cause of the FAPTC's decision to reject her application"
because "no member of the FAPTC knew of [] Ing's 2017 sexual
harassment complaint." This conclusion is supported by the record
and uncontested by Ing on appeal.
Instead, to support the requisite causal connection, Ing
focuses on a statement made by Zandona in January 2019 when Zandona
purportedly told Ing that she "most likely [was] not going to
promote [Ing]." Ing argues that a jury could infer retaliatory
intent from that comment because it was made "only 27 days after"
Zandona and Ing first met and Ing told Zandona that she had filed
a sexual harassment report. Ing assumes that the relatively short
time span between her telling Zandona about the report and Zandona
saying she most likely would not promote Ing renders the causal
connection between the two actions obvious.
5 As the district court correctly pointed out, the standard of causation under Title VII and Massachusetts state law is that the "protected activity was a but-for cause of the alleged adverse action by the employer." Theidon, 948 F.3d at 506 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013)). The standard of causation under Title IX is an unresolved question in this circuit, but we need not address it today because under either possible standard -- "but for" or "substantial or motivating factor," see id. -- Ing has not established a causal connection.
- 15 - "[T]emporal proximity is one factor from which an
employer's bad motive can be inferred," but "by itself, it is not
enough -- especially if the surrounding circumstances undermine
any claim of causation." Carrero-Ojeda v. Autoridad de Energía
Eléctrica, 755 F.3d 711, 720 (1st Cir. 2014). Here, any inference
of a retaliatory mindset is belied by the overwhelming evidence in
the record that Zandona's conduct was inconsistent with bad motive.
First, there is no evidence in the record that Zandona had ever
met Vanaria. And, by the time Ing spoke to Zandona in December
2018, eighteen months had elapsed since the alleged harassment
occurred. Thus, the record offers no basis from which to infer
that Zandona would retaliate against Ing merely because Ing had
reported sexual harassment allegations Ing had made over a year
earlier against someone who was a stranger to Zandona.
Moreover, after Zandona made the alleged comment, she
met or communicated with Ing on approximately eight occasions to
work on Ing's dossier. Zandona repeatedly voiced her "goal . . .
to . . . support [Ing]," and desire to "work to make[] sure that
[Ing's] submission [to the FAPTC] w[ould] be successful." Zandona
did not definitively indicate that she would not provide Ing with
a letter of support until October 2019, and that decision was based
on Zandona's opinion that Ing had failed to "demonstrate[] a
significant development compared to [her] last submission in the
area of Educational Leadership." See Theidon, 948 F.3d at 507
- 16 - (concluding that inference of retaliation was "incapacitated" by
the fact that the views expressed by department chair reviewing
plaintiff's application for tenure "merely echoed concerns"
previously voiced by other reviewers).
In short, Ing's interpretation of Zandona's comment
"amounts to, at most, a 'conclusory allegation[] . . . or rank
speculation' that cannot prevent summary judgment." Id. at 506
n.41 (alteration in original) (quoting Ahern, 629 F.3d at 54).
Thus, on this record, it cannot be plausibly inferred that the
decision to deny Ing a promotion to full professor was tainted by
retaliatory animus because Ing cannot establish a causal link
between her protected activity and the adverse employment
decision. The district court correctly entered summary judgment
in favor of Tufts on the retaliation claims.
C. Rule 59(e)
Lastly, we turn to the district court's denial of Ing's
motion for an altered or amended judgment pursuant to Rule 59(e)
of the Federal Rules of Civil Procedure. A motion to alter or
amend judgment "must either establish a clear error of law or point
to newly discovered evidence of sufficient consequence to make a
difference." Id. at 508 (quoting Guadalupe-Báez v. Pesquera, 819
F.3d 509, 518 (1st Cir. 2016)). The district court did not abuse
its discretion in finding that Ing established neither.
- 17 - Ing's motion argued that the district court ignored the
fact that when Zandona stated she would not promote Ing, Zandona
allegedly had no knowledge of Ing's qualifications. However, Ing
had already made this argument in opposition to Tufts's motion for
summary judgment. And, as the district court aptly noted, a motion
to alter or amend is not "a mechanism to regurgitate 'old arguments
previously considered and rejected.'" Biltcliffe v. CitiMortgage,
Inc., 772 F.3d 925, 930 (1st Cir. 2014) (quoting Nat'l Metal
Finishing Co. v. BarclaysAmerican/Comm., Inc., 899 F.2d 119, 123
(1st Cir. 1990)). Ing failed to point to a manifest error of law
or newly discovered evidence, and the mere "repetition of previous
arguments is not sufficient to prevail on a Rule 59(e) motion."
Prescott v. Higgins, 538 F.3d 32, 45 (1st Cir. 2008) (quoting
United States v. $23,000 in U.S. Currency, 356 F.3d 157, 165 n.9
(1st Cir. 2004)). Accordingly, there is no reason to disturb the
district court's order denying Ing's Rule 59(e) motion.
IV. Conclusion
For the foregoing reasons, we affirm the district
court's grant of summary judgment and denial of the Rule 59(e)
motion to alter or amend the same.
- 18 -