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Barry v. Trustees of Emmanuel College

United States District Court, D. Massachusetts

February 8, 2019




         I. Introduction

         Plaintiff Jacqueline Alfonso Barry brought the instant action alleging that Defendant The Trustees of Emmanuel College discriminated against her because of her sex and her pregnancy, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000-e2(a), and the Pregnancy Act of 1978 (Count 1); and because of her race and national origin discrimination, in violation of Title VII, 42 U.S.C. § 2000e et seq, and Mass. Gen. Laws. ch. 151B (Count 2). Second Am. Compl. ¶¶ 58-94 [#33]. Plaintiff further alleges that Defendant breached the terms of the contract that Defendant had with its faculty during its review of Plaintiff's application for promotion and tenure (Count 3). Id. at ¶¶ 95-104. Before the court is Defendant's Motion for Summary Judgment [#41]. For the following reasons, Defendant's motion is ALLOWED in part and DENIED in part.

         II. Factual Background

         At summary judgment, the court views the record in the light most favorable to the non- moving party and draws all reasonable inferences in her favor. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). However, the court does not accept “conclusory allegations, improbable inferences, and unsupported speculation.” Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009).

         A. The Parties

         Emmanuel College is a Catholic, liberal arts college in Boston, Massachusetts. Def.'s Statement of Material Facts (“Def.'s SOF”) ¶ 1 [#43]. Defendant The Board of Trustees of Emmanuel College is the college's governing body. Id. ¶ 3. The Board of Trustees delegates day-to-day administration of college affairs to the President of the college and her administrators. Id. Sister Jane Eisner has served as Emmanuel College's President since 1979. Id. ¶ 5. In 2008, Emmanuel College hired Jacqueline Alfonso Barry as an Assistant Professor of Psychology. Pl.'s Statement of Material Facts (“Pl.'s SOF”) Ex. 1 (“Barry Dep.”) 10:4-21 [#48-2]. That position was a tenure-track position. Pl.'s SOF ¶ 2 [#48].

         B. Emmanuel College's Alcohol Programming and Prof. Barry's Alcohol Education Research

         Beginning in the 1980s, Emmanuel College mandated students to complete an alcohol prevention program to receive specific housing privileges. Def.'s SOF Ex. 12 (June 2009, IRB application) 3-5 [#43-12]; Pl.'s SOF Ex. 3 (“Barry's Aff.” Ex. 3: “Rissmeyer Oct. 2009 letter”) 11 [#48-4]. During at least the last three years prior to the events at issue here, Emmanuel College had also required students to complete a three-month follow-up and analyzed the results to improve student services at Emmanuel College. June 2009 IRB application 3-5 [#43-12].

         In 2009, after Prof. Barry gave a research lecture about evidence-based alcohol intervention programs, Emmanuel College's Dean of Students asked Prof. Barry to consult with the College's administrators on alcohol programming for incoming students. Barry Dep. at 12:2- 15 [#48-2]. After being asked to consult with College administrators on the alcohol programming, Prof. Barry submitted a proposal to the College's Institutional Review Board (“IRB”). Id. at 3. Pursuant to federal regulations, the IRB must review all proposed research with human subjects, unless the college determines that the specific research project is exempt from IRB approval. Def.'s SOF ¶ 25 [#43] (citing 45 C.F.R. §§ 46.107, 46.109). At the time of the events at issue here, Professor of Psychology Joyce Benenson was the chair of the IRB, and Professor of Philosophy Raymond Devettere was a member of the IRB. See DSOF ¶ 27 [#43]; PSOF ¶ 18 [#48].

         Prof. Barry's proposal explained that Emmanuel College had made the decision to implement (beginning a few months later with the incoming freshman class) personalized feedback as part of the alcohol awareness program, and that she had been asked to assist with the data analysis. See June 2009 IRB application 3 [#43-12]. The proposal explained further that the freshman would be given either of two versions of the alcohol awareness program, one with personalized feedback only and the other with personalized feedback and social norms. Id. The surveys of alcohol use were to be collected without identifying information. Id. In her proposal, Prof. Barry explained that she was not intending to distribute a consent form because the students were required by Emanuel College to complete the alcohol prevention program and 3-month follow-up regardless of the statistical evaluation, and because the College in the past had not required consent despite analyzing those results. Id.

         In a closed-door IRB meeting to review Prof. Barry's proposal, Prof. Benenson raised concerns that the proposal did not include sufficient provisions to obtain voluntary informed consent from the incoming students. Pl.'s SOF Ex. 6 (“Fiebig Letter”) [#48-7]; Barry Dep. 17:2- 18:14 [#48-2]. On June 19, 2009, the IRB rejected Prof. Barry's proposal because it did not specify that Prof. Barry would obtain the voluntary informed consent of students whose data would be used in the research. Def.'s SOF Ex. 13 (“Benenson June 2019 letter”) [#43-13]. Prof. Benenson encouraged Prof. Barry to resubmit her proposal with a consent form. Id.

         Prof. Barry resubmitted a revised proposal to the IRB with a consent form. See Def.'s SOF ¶ 30 [#43]. On behalf of the IRB, Prof. Benenson wrote to Prof. Barry on July 10, 2009, expressing the IRB's concerns about the penalty that Prof. Barry proposed for students who chose not to participate in the survey. Def.'s SOF Ex. 14 (“Benenson July 2009 letter”) [#43-14]. Prof. Barry did not initially respond to Prof. Benenson's letter, but later told Prof. Benenson that she was modifying the study. See Def.'s SOF Ex. 15 (“Benenson Oct. 2009 email) [#43-15].

         On October 1, 2009, Prof. Barry submitted a revised proposal. Def.'s SOF Ex. 16 (Oct. 2009 IRB Proposal) [#43-16]; Def.'s SOF ¶ 31 [#43]. The proposal explained that, as of August 2009, incoming freshman students had completed two versions of alcohol-use surveys through the Student Affairs Office, but that Prof. Barry had not yet analyzed the data. Oct. 2009 IRB Proposal [#43-16]. Prof. Barry proposed that she proceed to analyze and compare the data obtained from these surveys. Id. Vice President for Student Affairs Patricia Rissmeyer was a co-applicant of the revised proposal. Rissmeyer Oct. 2009 letter 11 [#48-4].

         After reading Prof. Barry's revised proposal, Prof. Benenson accused Prof. Barry of conducting the study that the IRB had rejected in July 2009, and informed other IRB members that Prof. Barry may have put Emmanuel College at legal risk by breaching ethical standards and contravening federal research regulations. Def.'s SOF Ex. 6 (“Benenson Dep.”) 23:3-19 [#43-6]; Benenson Oct. 2009 email [#43-15]; Def.'s SOF Ex. 17 (“Oct. 2009 IRB email chain”) [#43-17]. Vice President Rissmeyer wrote to Prof. Benenson to assure her that Student Affairs had not yet conducted any research, and that Prof. Barry's consultation with the Student Affairs office was separate from the research proposed in the October 2009 IRB submission. Rissmeyer Oct. 2009 letter 11 [#48-4]. Despite Vice President Rissmeyer's letter, Prof. Benenson reached out to the federal Office for Human Research Protections for guidance. Benenson Dep. 37:19-21 [#43-6].

         The IRB called Prof. Barry into a meeting on October 22, 2009. See Barry Dep. 29:7- 30:1 [#48-2]. At the meeting, Prof. Devettere accused Prof. Barry of violating federal regulations and disobeying the IRB's denials of her proposals, and told Prof. Barry that he was going to report her to the federal regulators. Id. 31:13-32:16; Def.'s SOF Ex. 5 (“Devettere Dep.”) 8:8-14 [#43-5].[1]

         In 2010, Prof. Barry submitted a revised proposal, again co-sponsored by Vice President Rissmeyer, elaborating that she would only use data that was collected after she received IRB approval and would ensure the participants' voluntary informed consent. Def.'s SOF Ex. 18 (“June 2010 IRB Proposal”) 3-4 [#43-18]. The IRB accepted this revised proposal. Def.'s SOF ¶ 35.

         C. The Timing of Prof. Barry's Maternity Leave and Tenure Application

         Emmanuel College gives faculty members eight weeks of paid parental leave following a birth or adoption, and thereafter the faculty member can take an unpaid leave of absence for the rest of the academic semester, or exercise other options. See Def.'s SOF Ex. 10 (Emmanuel College Faculty Handbook (“Faculty Handbook”)) 22-23 [#43-10]. In September 2012, Prof. Barry informed Emmanuel College that she was pregnant and planned to take maternity leave. Barry Dep. 34:8-23 [#48-2]. She subsequently took maternity leave from February 18, 2013, until the end of May 2013. Barry Aff. ¶ 2 [#48-4].

         At Emmanuel College, obtaining tenure assures academic appointment until retirement unless the tenured faculty member is terminated for cause. Faculty Handbook 13 [#43-10]. To be qualified for tenure, an associate professor must have completed a minimum of six academic years of full-time teaching. Id. at 15. Tenure track professors are generally required to apply for tenure during the first day of the fall semester of their sixth year of tenure-track teaching. Id. at 17-18. The six-year pre-tenure period is suspended during an approved maternity leave of absence, unless the faculty member requested in writing otherwise. Id. at 23. In accordance with the Handbook, Prof. Barry's pre-tenure probationary period clock was suspended during Prof. Barry's leave. Barry Dep. 36:4-8 [#48-2]. She therefore was not required to apply for promotion and tenure until September 2014, instead of September 2013. Id.

         D. Tenure Application Process

         The Faculty Handbook outlines the steps of the tenure process. Tenure applications are due by the first day of the fall semester. Faculty Handbook 18 [#43-10]. At the first step, the Faculty Promotion and Tenure Committee (“Faculty Tenure Committee”), consisting of seven faculty members, evaluates the candidate's: (1) teaching effectiveness; (2) scholarship and professional achievement; and (3) engagement with the College and its mission. Id. at 16. To do so, the Faculty Tenure Committee evaluates reference letters from the applicant's department chair and colleagues and solicits feedback from three outside evaluators. Id. at 18-19. The Faculty Tenure Committee makes an initial recommendation whether to grant the applicant tenure. Id. at 11-12. To recommend tenure, the Faculty Tenure Committee must find that the candidate is “strong in all three standards.” Id. at 17-18. The Faculty Tenure Committee's recommendation, and reasons, therefore, must be provided to the candidate and to the Vice President of Academic Affairs by the first of February. Id. at 18-19. If the Faculty Tenure Committee recommends not to grant tenure, the written reasons must help the candidate to prepare for an appeal, if an appeal is desired. Id. at 19.

         At the second step, by March 7 of the applicant's sixth year, after meeting with three members of the Faculty Tenure Committee to review all recommendations, the Vice President of Academic Affairs and “the appropriate dean(s)” (referred to herein as the “Administrative Review Committee”[2]) make a recommendation to the President of the College regarding the application. Id. at 19. When this recommendation differs from that of the Faculty Tenure Committee, the Administrative Review Committee shall meet with the Faculty Tenure Committee to discuss the reasons. Id. at 20.

         Both the Faculty Tenure Committee and the Administrative Review Committee must send the President of the College all materials from the candidate, and the references, evaluations, and the letter from the Faculty Tenure Committee explaining the basis for their decision. Id. If the Faculty Tenure Committee's decision is positive and the Administrative Review Committee's decision is negative, then the Administrative Review Committee shall provide the general reasons in a written letter to the candidate to help the candidate prepare for an appeal, should he or she wish to appeal. See id. at 20.

         At the next step, the President makes her decision before the spring Board of Trustees meeting. Id. at 20. If the President makes a decision that differs from the recommendation of the Faculty Tenure Committee or the Administrative Review Committee, the President will meet with the Faculty Tenure Committee and the Administrative Review Committee to discuss the reasons for the reversal of the recommendation. Id. at 20. If the President's decision is negative, then she shall give the general reasons in a written letter to the candidate to help the candidate prepare an appeal. See id. at 20.

         If there is a negative recommendation by the Faculty Tenure Committee or the Administrative Review Committee, or a negative decision by the President, then the faculty member may file an appeal. Id.

         The President's final negative decision is dispositive, whereas the President's positive recommendation is sent to the Board of Trustees to make the final decision. Id. at 18, 20.

         E. Prof. Barry's Tenure Application

         In September 2014, Prof. Barry submitted her application for promotion and tenure. Barry Dep. 36:9-19 [#48-2]. Prof. Benenson, the former IRB chair, was a member of the Faculty Tenure Committee in September 2014 but recused herself from reviewing Prof. Barry's application. Benenson Dep. 62:23-63:9 [#43-6]; Barry Dep. 185:10-24, 186:1-2 [#48-2]. In accordance with the Handbook, a substitute faculty member replaced Prof. Benenson on the Faculty Tenure Committee. Def.'s SOF ¶ 40 [#43].

         The Faculty Tenure Committee reviewed Prof. Barry's application, course evaluations, and references, and, on January 29, 2015, recommended to President Eisner that Prof. Barry be awarded tenure. Pl.'s SOF Ex. 11 (“Faculty Tenure Committee Recommendation”) [#48-12]. The Faculty Tenure Committee recommendation letter noted that Prof. Barry received positive teaching evaluations, had a consistent record of research and publication, and had a strong record of service to the college. See id. The letter pointed out that all three outside reviewers gave Prof. Barry favorable recommendations, but that one reviewer criticized Prof. Barry's research portfolio for the “relative lack of prestige of the journals in which she was published and the lack of externally funded research.” Id.

         By the time that the Faculty Tenure Committee had concluded its review, William Leonard was serving as the Dean of Arts and Sciences (and interim chief academic officer) and was a member of the Administrative Review Committee. See Def.'s SOF Ex. 4 (“Leonard Dep.”) 7:2-24 [#43-4]; Eisner Dep. 29:1-9 [#43-8]; Pl.'s SOF Ex. 15 (Leonard Administrative Review Committee Recommendation Letter) [#48-16]. Emmanuel College's Vice President for Academic Affairs had left the college, however, and that position was vacant. Leonard Dep. 7:12-17 [#43-4]; Eisner Dep. 21:20-22:14 [#43-8]. President Eisner appointed Prof. Devettere- who had threatened to report Prof. Barry to federal regulators in 2009-as the second (and only other) person involved in the second step of the tenure review process. Eisner Dep. 31:13-32:8 [#43-8]. Prof. Devettere was not a dean at the time, although he had served as a dean previously. Id. at 42:7-12. President Eisner did not consult Prof. Barry or seek Prof. Barry's approval before making these appointments. Id. at ...

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