United States District Court, D. Massachusetts
MEMORANDUM & ORDER
TALWANI UNITED STATES DISTRICT JUDGE
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
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
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].
Emmanuel College's Alcohol Programming and Prof.
Barry's Alcohol Education Research
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
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].
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.
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.
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].
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].
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].
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
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.
The Timing of Prof. Barry's Maternity Leave and Tenure
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].
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.
Tenure Application Process
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.
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”) 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.
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.
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.
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.
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.
Prof. Barry's Tenure Application
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].
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.”
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 ...