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Theidon v. Harvard University

United States District Court, D. Massachusetts

February 28, 2018




         On 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 favor.[1]


         A. Tenure at Harvard

         At 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.

         Harvard renders tenure decisions pursuant to an elaborate eight step process, see id. at ¶¶ 1028; Doc. No. 29-2 at 5:

1. The chair of the candidate's department explains the review process and asks the candidate to provide materials for her promotion dossier.[3] 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. Id.
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.[4] The tenured members of the department then vote on the candidate's case. Id.
5. If the vote is favorable, [5] the candidate's dossier is forwarded to the Committee on Appointments and Promotions (CAP), [6] 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 4.
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 ¶ 28.

         Harvard's 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. at 4.

         B. Kimberly Theidon is Hired

         In 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 HVRD0002029.[7]

         C. “Be a ‘dutiful daughter'”

         When 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.[8]

         D. Theidon's Promotion

         In 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.

         Theidon 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 HVRD0013069.
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.

         The 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.

         E. Theidon's Successes

         Over 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.

         F. Theidon Expresses Concerns

         In 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.[9] 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.[10]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.

         G. Theidon Comes Up For Tenure

         An 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.

         H. Theidon's Tenure Review Committee

         Theidon 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.

         In August of 2012, after being notified that her review committee had been assembled, Theidon submitted her dossier, and teaching and research statements[11] 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.

         In the 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.[12]

         In 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.

         I. Theidon's Alleged Advocacy

         During 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.

         J. Theidon's Committee Prepares Her Case Statement

         On 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.

         The 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.[13] 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.

         Theidon's 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”[14]-not her second book Intimate Enemies. Def. Ex. No. 52 at HVRD0002032.

         Although 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.[15] 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.

         Reviewing the drafted case statement, [16] [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.

         K. The Department Votes

         On 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 ¶¶ 73-77.

         In her 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 ...

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