FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. Jon D. Levy, U.S. District Judge]
Garmey Chardon, with whom Christopher A. Harmon, David
Kreisler, and Terry Garmey & Associates were on brief,
F. Herzog, with whom Patricia A. Peard, Amber R. Attalla, and
Bernstein Shur were on brief, for appellee.
Torruella, Lynch, and Barron, Circuit Judges.
district court entered summary judgment against Dr. Lara
Carlson, a faculty member, on her claim of retaliation under
Title VII and the Maine Human Rights Act (MHRA) against her
employer, the University of New England (UNE). Carlson
alleges that, after she complained to UNE about sexual
harassment by her department chair and supervisor, Dr. Paul
Visich, the school retaliated against her in various ways.
These alleged retaliatory acts include transferring her to a
new department after obtaining her consent to transfer based
on material misrepresentations. She alleges that this
transfer reduced her teaching and career opportunities.
has demonstrated that there are genuine disputes of material
fact as to whether UNE misled Carlson into transferring
departments. There is also a genuine dispute of fact as to
whether Carlson's transfer was the true reason for her
change in course assignments. We reverse the district
court's entry of judgment and remand for further
recite the relevant facts in the light most favorable to
[Carlson]." Collazo v.
Nicholson, 535 F.3d 41, 43 (1st Cir. 2008). Carlson
joined UNE as a tenure-track assistant professor in the
Exercise and Sport Performance (ESP) Department in
2009.She was hired to teach "courses that
support the Applied Exercise Science and Athletic Training
curricula, such as exercise physiology, applied exercise
nutrition, and other courses as determined by the
Chair." Starting in 2009, Carlson began teaching
Exercise Physiology. In 2012, Carlson developed and began
teaching a course called Environmental Physiology. She taught
Exercise Physiology and Environmental Physiology until 2015.
fall of 2011, Dr. Paul Visich joined UNE as the Chair of the
ESP department, making him Carlson's direct supervisor
and the chair of her tenure committee. Throughout that same
fall, Visich touched Carlson on her knee, thigh, and hand
during one-on-one office conversations. Visich would stare at
Carlson's chest during these conversations. During this
same period, Visich also made inappropriate, sexually charged
comments to Carlson via email and in person. We need not go
into further detail about the comments. UNE admitted to
Carlson that the messages were sexual harassment. We take
that as a given.
was afraid to report Visich's behavior because he was her
supervisor. As Carlson's supervisor, Visich was
responsible for evaluating her performance for tenure and
merit raise purposes. Carlson eventually complained to
Timothy Ford, Dean of UNE's Westbrook College of Health
Professions (WCHP), about Visich's behavior in the fall
of 2012. Dean Ford told her to meet with Sharen Beaulieu,
UNE's Director of Human Resources. Carlson met with
Beaulieu on September 28, 2012 and brought hard copies of the
inappropriate emails to the meeting. Beaulieu said, during
that meeting, that the emails were sexual harassment.
this meeting, Visich had a conversation with Carlson in which
he brought up a comment that Carlson had made to Beaulieu.
This led Carlson to believe that Visich had been told about
her discussion with Beaulieu. Carlson met with Beaulieu and
Dean Ford again in October 2012. Beaulieu and Dean Ford
agreed that "Dr. Visich's behavior constituted
'sexual harassment.'" Beaulieu and Dean Ford
nonetheless recommended that Carlson meet with Visich.
Carlson declined. Beaulieu reiterated this recommendation in
a November 7, 2012 meeting. Carlson did not want to meet with
Visich but she "was not given an alternative."
as she had been instructed, met with Visich, with Beaulieu
present, on November 20, 2012. At that meeting, Beaulieu said
the meeting was Visich's idea. Beaulieu then said that
"Paul and I can address [Visich's emails] but we
need to figure out that even when I address that, he is your
chair so we've got to figure out a way to make this
work." This led Carlson to believe that Visich would
remain her supervisor "no matter what." Beaulieu
recommended that Carlson meet with Visich more and instructed
her to "be open" and "give [Visich] a
the meeting, Visich both remained Carlson's direct
supervisor and the chair of her tenure committee. Visich
wrote a negative performance evaluation of Carlson in early
June. Carlson first received a copy of the evaluation by
interoffice mail on June 18, 2013. Carlson wrote a rebuttal
and submitted it the next day. When Carlson confirmed the
receipt of her rebuttal with the Dean's assistant, she
learned that Visich had submitted his evaluation of her on
June 19, 2013 (the day after she first received it)
"along with a cover letter that [Carlson] had never
seen, claiming [inaccurately] that [she] had failed to sign
and return [her] evaluation" to Visich.
Physical Therapy Reappointment Promotion and Tenure
Committee, after reviewing Visich's evaluation and
Carlson's rebuttal, determined that Carlson's
performance "far exceed[ed]" the evaluation that
Visich provided. Carlson requested that UNE remove Visich as
the chair overseeing Carlson's application for tenure.
UNE agreed. Visich, however, remained her direct supervisor.
September 5, 2013, before any decision on Carlson's
tenure was made, Visich walked up behind Carlson while she
was speaking with a student in a university parking lot and
"rubbed [her] shoulder and upper back in an unwelcomed
manner." Carlson reported the incident to Beaulieu, who
investigated the incident. Beaulieu reviewed the statement of
the student who witnessed the interaction, in which the
student described Visich's behavior as
"[c]reepy" and said that he "found it weird
that [Visich] was so touchy with [Carlson]." The student
stated that "Prof. Visich has a reputation among
students of being creepy around women." Beaulieu also
reviewed the statement of one of Visich's subordinates,
who was present for the incident and who asserted: "I
was not listening at the time nor was I paying close
attention to [Visich and Carlson]. I do not recall Paul
touching Lara at any point during this interaction."
Beaulieu concluded that no sexual harassment had occurred.
Ford left UNE in 2013. In July of 2013, Elizabeth
Francis-Connolly replaced Dean Ford as Dean of WCHP, making
her Visich's supervisor. She said later that she was not
told about Carlson's prior complaints about Visich's
behavior. Nor was she told that some of Visich's prior
complained-of behavior had been deemed sexual harassment by
October 2013, Visich caused Carlson to be removed as the head
of UNE's College Bowl team. Carlson had founded the team in
2009 and successfully led it up to that point. Visich stated
that Carlson was removed because the department wanted to
change the student ...