United States District Court, D. Massachusetts
REDACTED ORDER ON DEFENDANTS' MOTION FOR SUMMARY
SOROKIN, UNITED STATES DISTRICT JUDGE
March 12, 2015, plaintiff Kimberly Theidon filed suit against
Harvard University and the President and Fellows of Harvard
College (collectively, “Harvard”), alleging that
Harvard denied her application for tenure either because of
sex discrimination or as retaliation for her advocacy of
victims of sexual harassment all in violation of federal and
state law. Doc. No. 1. With discovery concluded, Harvard
moves for summary judgement, Doc. No. 151, and Theidon
opposes, Doc. No. 156. The undisputed facts and, where
disputed, the facts established by Theidon are set forth
below with all reasonable inferences drawn in Theidon's
Tenure at Harvard
Harvard University, a tenure appointment is a life-long
appointment. Doc. Nos. 157-1 at ¶ 17; 152 at 3. Such
appointments are reserved for scholars “who have the
capacity to make significant and lasting contributions to the
department(s) that proposes the appointment.” Doc. No.
157-1 at ¶ 8.
renders tenure decisions pursuant to an elaborate eight step
process, see id. at ¶¶ 1028; Doc. No. 29-2
1. The chair of the candidate's department explains the
review process and asks the candidate to provide materials
for her promotion dossier. Doc. No. 29-2 at 14.
2. The department chair and divisional dean appoint a
committee composed of senior faculty to review the
candidate's dossier and formulate a recommendation to the
department whether to proceed with the review process.
3. The department requests approximately fifteen letters from
external scholars comparing the candidate with other leading
scholars in her field and making a recommendation as to the
candidate's tenure. Id. The letters are added to
the candidate's dossier. Id.
4. The reviewing committee writes a case statement regarding
the strengths and weaknesses of the materials in the dossier
which is shared with the department.
Id. The tenured members of the department then
vote on the candidate's case. Id.
5. If the vote is favorable,  the candidate's dossier is
forwarded to the Committee on Appointments and Promotions
(CAP),  and each tenured member of the
candidate's department submits his or her own
confidential letter to CAP. Id. Confidential letters
are not shared with the candidate or anyone else other than
the members of the CAP and the other participants in the
later steps of the tenure decision process. Doc. No. 29-3 at
6. The members of the CAP and the Dean of the Faculty of Arts
and Sciences review the dossier, including the confidential
letters, and decide on next steps, including whether to
forward the candidate's materials to the President for
her consideration. Id. CAP sometimes recommends that
the President assemble an ad hoc committee of five
scholars to assist the President in making her decision. Doc.
No. 157-1 at ¶¶ 18-20. The ad hoc
committee's role is solely advisory. Doc. No. 29-3 at 30.
7. If an ad hoc committee is formed, the committee
is typically composed of “three active full professors
from outside Harvard and two active full professors at
Harvard from outside the department [of the
candidate].” Doc. No. 157-1 at ¶ 22. The committee
ordinarily hears “from four witnesses from the
candidate's department, ” and then the committee
members and “President or Provost (either may preside
over the ad hoc meeting)” discuss “the entire
case for tenure.” Id. at ¶¶ 25-26.
At the end of the discussion, the President or Provost
(whichever is presiding) asks “each member of the
committee to summarize his or her views.” Doc. No. 29-3
at 30. This discussion is “strictly
confidential.” Doc. No. 157-1 at ¶ 27. Its
function is to provide information to the President as to
whether “the candidate's work meets the standards
for tenure [at Harvard.]” Doc. No. 29-3 at 30.
8. The President makes a final decision regarding the
candidate's tenure. Doc. Nos. 29-2 at 14; 157-1 at ¶
tenure track handbook explains all the steps of the process
so that Harvard professors understand the process in advance.
See Doc. No. 29-3. Harvard
“encourage[s]” all tenure track professors to
“review the materials [in the handbook] . . . as [they]
progress through the steps of reviews[.]” Id.
Kimberly Theidon is Hired
2004, Kimberly Theidon was hired as an Assistant Professor, a
tenure track position, in Harvard's Anthropology
Department. Doc. No. 157-1 at ¶ 2. That same year,
Theidon's first book, a Spanish language work Entre
Prójimos, was published by a Peruvian academic
press, Institute of Peruvian Studies, which is regarded as
one of the best academic presses in South America.
Id. at ¶¶ 3, 176; Def. Ex. No. 52 at
“Be a ‘dutiful daughter'”
Theidon arrived at Harvard in 2004, [Professor 2] was the
only tenured woman in the Anthropology Department. Doc. No.
157-1 at ¶ 200. [Professor 2] warned Theidon that
“she would be held to a different, higher standard than
men in the Department” and that Theidon would
“have to be a ‘dutiful daughter' to make it
here [at Harvard], ” which meant that Theidon
“would have to do more committee and advising work than
men” but “should not complain about the extra
workload.” Id. at ¶ 203. Theidon found
[Professor 2]'s advice “hard to hear . . . It
wasn't the guidance [she] wanted from [her] only senior,
female colleague.” Id. at ¶ 210; Pl. Ex.
No. 5 at 122.
2008, Harvard promoted Theidon to an Associate Professor
position, an appointment “held by individuals who have
demonstrated sufficient promise and achievement in teaching
and research to qualify for tenure at a major research
institution within three to five years.” Doc. No. 157-1
at ¶¶ 10, 29; Doc. No. 29-2 at 4.
received a letter from Harvard with her promotion.
See Def. Ex. No. 4 at HVRD0013068. In the letter,
Harvard explained “We . . . are pleased that you are
placing articles in human rights publications . . . It is
nevertheless important to balance these [publications] with
publications aimed at a disciplinary audience [i.e.
anthropologists.]” Id. The letter also
included a list of recommendations to aid Theidon in the
tenure review process, including:
1. Publish her second book, Intimate Enemies, and
secure reviews in “major journals in the fields of
socio-cultural anthropology.” Id. at
2. “[P]ublish articles in a set of journals that are
recognized as top outlets for social anthropology research.
This list includes American Ethnologist, American
Anthropologist, Comparative Studies in Society and History,
Ethnology, and Current Anthropology. This will allow your
work to reach a wider audience within the discipline prior to
your consideration for tenure, in which a range of scholars
both within your subfield(s) and in social anthropology more
broadly will be consulted.” Id.
3. “[H]av[e] a second project substantially underway,
not only in terms of a book manuscript but also significant
articles published or in press.” Id.
Def. Ex. No. 4 at HVRD0013069.
letter additionally commended Theidon for her work on
violence and reparations but cautioned her “not to
stretch [herself] too thin, ” and that “this
[work] should not be permitted to distract from or to slow
the production of [her] written work.” Id.
the next few years, Theidon received numerous accolades,
including, in 2010, the Loeb Endowed Chair, which recognized
her achievements in research, teaching and citizenship. Doc.
No. 157-1 at ¶ 187. Additionally, her book Entre
Prójimos won the Ibero American Prize for
outstanding Spanish or Portuguese language book in the social
sciences and was the inspiration for the Academy Awards
celebrated film “Milk of Sorrow.” Id. at
¶ 177. Theidon's “reception by students [was
also] consistently above average and often
enthusiastic.” Def. Ex. No. 52 at HVRD0002016.
Theidon Expresses Concerns
2010, Theidon exchanged emails with the then Chair of her
Department, Ted Bestor, regarding her concerns about her
salary, promotion prospects, and the possibility of looking
for jobs outside of Harvard, and Bestor suggested that she
speak with Divisional Dean Stephen Kosslyn. Doc. No. 157-1 at
¶ 212; Pl. Ex. No. 88. Following Bestor's advice,
Theidon met with Kosslyn and afterwards sent a follow up
email thanking him and expressing her hope that there would
be a “smoother road ahead for the next batch of
untenured females in the [Anthropology] department.”
Doc. No. 157-1 at ¶ 213; Pl. Ex. No. 92. Theidon also met
with Senior Vice Provost Judith Singer to discuss obstacles
for females in her department. Doc. No. 157-1 at ¶ 216;
Pl. Ex. No. 47. During the meeting, which took place in
August of 2010, Theidon raised several issues, including: (1)
[T]here was only one “sr [senior] woman in the dept.
[department of anthropology];” (2) “[Professor
2], the one [senior] woman . . . counseled [Theidon] in ways
that were totally inappropriate;” and (3) “Women
are given the lion's share of the undergrad teaching
load” [in the department of the anthropology]. Pl. Ex.
No. 47 at HVRD0008125. Singer took notes during the meeting,
which suggest Theidon also perceived [Professor 2], who had
identified the “dutiful daughter” role for women
at Harvard several times, negatively.
Id.Singer sent her notes to a committee from
the Harvard Board of Governors (“The Visiting
Committee, ”) who were visiting Harvard to evaluate the
Anthropology Department. See id.; Pl. Ex. No. 46;
Doc. No. 157-1 at ¶ 221.
Theidon Comes Up For Tenure
associate professor's tenure review process typically
begins the summer after her seventh year at Harvard-summer of
2011 in Theidon's case. Doc. No. 157-1 at ¶¶
10, 37. However, in 2011, Theidon requested that her
“tenure clock be paused” for a year. Def. Ex. No.
9 at HVRD0014662; Doc. No. 157-1 at ¶ 37. In her
request, she explained, “With my tenure clock stopped
for the year . . . I would come up for tenure review with:
two published books . . . and a complete draft of my third
book, Pasts Imperfect: Working with Former Combatants in
Colombia.” Def. Ex. No. 9 at HVRD0014662. Her
request was granted by the Divisional Dean Peter Marsden.
Doc. No. 157-1 at ¶ 40. Theidon then spent the 2011-2012
academic year on leave at Princeton University, which she
described as a “year in which [she would] get to write
. . . and finish a polished draft of [her] third book.”
Id. at ¶ 38.
Theidon's Tenure Review Committee
returned to Harvard in June 2012 and was notified that her
tenure review committee had been assembled. Id. at
¶ 45; Def. Ex. No. 23 at HVRD0006422. On June 4, 2012,
Dean Marsden emailed Dean Smith a comprehensive overview of
personnel actions, diversity goals, and hiring priorities for
all of the Faculty of Arts and Sciences at Harvard. Def. Ex.
No. 22. It contained a one page status report of the
Anthropology Department describing briefly each of the
following topics: outlook, current full-time equivalents
(FTEs) and instructional workload, recent additions, pending
actions, departures, scheduled retirements, scheduled
promotion reviews, tenure-track faculty pipeline, and
priorities and recommended searches for 2012-13. Id.
at HVRD0012184. As for tenure prospects, Dean Marsden, in
less than three lines, remarked some professors were
“promising”, one was “weak, ” others
were “beginning, ” and, as to Theidon, her
“prospects [were] mixed.” Id. No further
detail or supporting material accompanies this document which
was not part of the tenure package sent to President Faust or
the ad hoc committee.
August of 2012, after being notified that her review
committee had been assembled, Theidon submitted her dossier,
and teaching and research statements to her review committee,
which consisted of [Professor 2], [Professor 4], [Professor
3], and [Professor 1]. Doc. No. 157-1 at ¶¶ 45-46;
Def. Ex. No. 26 at HVRD0031381. At this time, Theidon's
second book Intimate Enemies was still unpublished
(though it was close to publication and was published prior
to Theidon's consideration for tenure by President
Faust), her third book Pasts Imperfect remained
incomplete and was not, nor has ever been, published, and she
had not published a single article in the top anthropology
journals listed in her promotion letter. Doc. No. 157-1 at
¶¶ 49, 124, 134-135.
course of submitting her dossier, on August 8, 2012, Theidon
emailed [Professor 1], the Anthropology Department
administrator (Tamny), and [Professor 2] suggesting that her
tenure committee send out to external reviewers her book
Intimate Enemies and a folder containing her various
articles on Colombia “as this is the focus of my third
book manuscript.” Pl. Ex. No. 79. Theidon's
research statement, which she submitted with her dossier,
contains a “projects” section, where she
describes her first and second books, as well as several book
projects currently underway. Def. Ex. No. 52 at HVRD0002079.
Notably she characterizes her two books as related, but
separate projects. Id. at HVRD0002079-2083. She goes
on to state: “During my leave at the Institute for
Advanced Study at Princeton (2011-12), I completed drafts of
three book chapters, and Pasts Imperfect [the third
book] is under contract with the University of Pennsylvania
Press.” Id. at HVRD0002085.
September of 2012, Singer emailed the notes from her August
2010 meeting with Theidon to Harvard Deans Peter Marsden and
Christopher Kruegler. See Pl. Ex. No. 47 at
HVRD0008125; Doc. No. 157-1 at ¶¶ 226-27. She noted
Theidon's complaints about women's workload in
Anthropology and added “having just come from an ad
hoc [tenure review committee that sometimes occurs at
step seven of Harvard's tenure process] where the woman
was shouldering immense teaching and service
responsibilities, I can (sadly) say that this isn't just
an Anthro problem.” Doc. No. 157-1 at ¶ 226; Pl.
Ex. No. 47 at HVRD0008125. Singer concluded her email,
“The upshot, I think, is that the [Anthropology]
department has been . . . dysfunctional and [Theidon has] not
been well mentored, ” and volunteered to meet with
Theidon to discuss the current climate of the Anthropology
Department. Pl. Ex. No. 47 at HVRD0008126.
Theidon's Alleged Advocacy
her time at Harvard, Theidon spoke about sexual assault
and/or harassment and supported her student's advocacy
concerning sexual violence. See Doc. No. 157-1 at
¶¶ 142-51. For instance, in the fall of 2012,
Theidon gave a talk concerning gender violence at Harvard.
Doc. No. 157-1 at ¶ 142. Theidon testified that she
received no criticism from anyone in the Anthropology
Department regarding her talk. Id. Theidon also
permitted a student to distribute leaflets about sexual
assault after her class. Id. at ¶ 148. She
blogged and tweeted about sexual assault, and wrote letters
in support of student victims and letters criticizing
Harvard's inadequate protections of them. Id at
¶¶ 150, 335. There is no evidence in the record
that any official at Harvard nor, more importantly, any
member of the ad hoc Committee or the President,
expressed, at any time, in any way, any concern or
dissatisfaction with these actions by Theidon.
Theidon's Committee Prepares Her Case Statement
October 8, 2012, [Professor 2] emailed [Professor 1] to see
if he had read and compared Theidon's first and second
books. Doc. No. 157-1 at ¶ 56. He admitted that he had
not yet read both books closely but noted that both works
“deal with a similar set of concerns and research
agendas” and that he believed that the second work
“take[s] on new problems and issues not addressed in
the former.” Def. Ex. No. 29 at HVRD0096028.
Department then, on October 17, 2012, solicited confidential
letters from external scholars reviewing Theidon's work.
Doc. No. 157-1 at ¶ 58. Several invited scholars
declined to participate for various personal or other
irrelevant reasons. The record does not establish precisely
the source(s) of the names of the external reviewers though
apparently Theidon had some role in the selection of the
list. Def. Ex. No. 20. Sixteen scholars submitted letters,
which were largely positive, although one reviewer expressed
reservations as to Theidon's “foothold in
anthropology.” Doc. No. 157-1 at ¶ 62;
see Def. Ex. No. 52 at HVRD0002227. Another
reviewer, External Letter Writer 1, who initially submitted a
positive letter, submitted a second letter dated January 8,
2013 recommending against tenure after reading Entre
Prójimos and Intimate Enemies. Doc. No.
157-1 at ¶ 66. She found that the two works “were
substantially the same book.” Id. She
commented that the second book “does not represent a
new project that takes previous research in new directions or
addresses new theoretical questions and concerns” and
that for that reason she did “not believe [Theidon]
ha[d] met the criteria for promotion to full professor with
tenure.” Id. External Letter Writer 1's
letter makes clear that External Letter Writer 1 had great
respect for Theidon, but, in her view, a second book
“that charts new ground” was an important
requirement for tenure, and Theidon had not produced that.
Id.; Def. Ex. No. 37. Although aware of
Theidon's Colombia articles, External Letter Writer 1 did
not describe them as either a second book or as charting new
ground from Theidon's first work. See id. at
HVRD0000485. This second, negative, letter was received by
[Professor 1] but inadvertently omitted from Theidon's
dossier as it went forward. Doc. Nos. 157-1 at
¶¶64-66; 161-1 at 10 n.7; compare Def. Ex.
No. 37 with Def. Ex. No. 52 at HVRD0002186.
reviewing committee then began preparing their case statement
regarding Theidon. See Doc. No. 157-1 at ¶ 69.
On February 17, 2013, while preparing the statement,
[Professor 1] emailed [Professor 2] after having
“reviewed Kimberly Theidon's two books.” Def.
Ex. No. 38. In the email, he expressed a concern that
Entre Prójimos and Intimate Enemies
“pertain to the same research project” and that
“the overwhelming majority of anecdotes, testimony,
etc. included in [Intimate Enemies] is present in
the earlier [Entre Prójimos.]”
Id.; Doc. No. 157-1 at ¶ 67. He concluded that
the “two books, the first in Spanish, the second in
English, substantially represent work on the same
project.” Id. Impliedly referencing back to
the promotion letter Theidon received in 2008 informing her
that tenure required a second major research project, the
committee drafted Theidon's case statement describing her
articles about Colombia as her “second major research
project”-not her second book Intimate
Enemies. Def. Ex. No. 52 at HVRD0002032.
Theidon's case statement prepared by the committee
describes her Colombia articles as her “second major
research project, ” and Theidon had requested that the
Committee send those articles to her external reviewers, Pl.
Ex. No. 29, these articles had not been sent to the external
scholars who evaluated Theidon. Doc. No. 157-1 ¶ 278.
Instead, the scholars received only Theidon's second book
Intimate Enemies. Id. at ¶ 287. The
external scholars did receive a link to Theidon's web
page, which included links to pdfs of her Colombia articles,
and seven of the sixteen external scholars commented
specifically on the articles in the letters they submitted on
Theidon's behalf. Id. at ¶¶ 53,
61. As such, [Professor 2] concluded that
the external evaluators “did receive articles . . .
based on [Theidon's] ‘true' second project, in
Colombia.” Def. Ex. No. 38 at HVRD0008543. [Professor
2] sent a draft of the case statement to her fellow members
of Theidon's tenure review committee on February 19,
2013. Def. Ex. No. 39 at HVRD0008621.
the drafted case statement,  [Professor 3] stated:
“There is only one statement I would query . . . the
case report states that [Theidon]'s other publications
‘more than make up for the shortcoming' of non
publication in leading anthropology journals. I cannot agree
with that.” Def. Ex. No. 39; Doc. No. 157-1 at ¶
69. Professor of Anthropology [Professor 4] stated in an
email to [Professor 2] “If it [Theidon's tenure
case] fails, it does so owing to what we were given, not the
case you wrote.” Def. Ex. No. 42; Doc. No. 157-1 at
¶ 42. [Professor 4] also praised [Professor 2]'s
work on the statement as “comprehensive, wise,
beautifully crafted.” Def. Ex. No. 39 at HVRD0008620.
The Department Votes
February 26, 2013, the tenured faculty of the anthropology
department voted in favor of Theidon's tenure. Doc. No.
157-1 at ¶ 70. Thereafter, each tenured member of the
anthropology department faculty submitted a confidential
letter to the Dean of the Faculty of Arts and Sciences, Dean
Smith, discussing Theidon's case. Id. at ¶
73. The faculty members submitted these letters as part of
the standard Harvard tenure process, i.e. step five
above. Supra at 3. Most of the letters supported
tenure for Theidon; three of the letters expressed
reservations about Theidon's work. Doc. No. 157-1 at
letter, [Professor 3] wrote “My biggest concern is the
absence of publication in top, peer-reviewed journals in her
field[.]” Id. at ¶ 74. [Professor 3]
elaborated on this point, noting that Theidon was
“urged in an earlier review to publish at least one or
two articles in [certain specific leading general
Anthropology] journals”, that Theidon
“decided” publication in “journals in her
sub-fields” was “more productive” and that
this “somewhat diminishes her file” because
publication in the field's “top journals” is
“more difficult” and “requires framing
one's ideas in ways that reach across sub-field
boundaries and because one is reviewed by colleagues outside
one's sub-field.” Id.; Def. Ex. No. 52 at
HVRD0002268-69. Concluding this point, [Professor 3] opined,
“I consider publishing in top disciplinary journals
evidence of an ability to reach the wider disciplinary
community and a mark of a leading figure in the field.”
Def. Ex. No. 52 at HVRD0002268-69. [Professor 3] also wrote
that a “second concern resolves around the similarity
between the two books, the first, a shorter study in Spanish,
the second a lengthy work in ...