UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Inas Khayal

v. Civil No. 24-cv-00070-JL Opinion No.

Trustees of Dartmouth College

ORDER

Resolution of this motion to dismiss hinges on whether the plaintiff, Inas Khayal,

has alleged facts that “raise [] more than [the] sheer possibility” that Defendant Trustees

of Dartmouth College acted with discriminatory or retaliatory motive when it denied her

certain specified compensation and research funding, in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e-2, and N.H. Rev. Stat. § 354-A:7. See Frith v.

Whole Foods Mkt., Inc.,

(1st Cir. 2022) (internal citations omitted).

Khayal is Muslim and Arab-American. She alleges that because of her religion or

national origin, Dartmouth treated her unequally in compensation and resources relative

to her non-Arab, non-Muslim colleagues. The court has jurisdiction over this case under

(federal question) and § 1367 (supplemental jurisdiction). After the

customary briefing and oral argument, the court rules that because Khayal has alleged

sufficiently specific facts to allow the court to draw the reasonable inference that

Dartmouth is liable for the alleged discriminatory--but not retaliatory--conduct, the court

denies in part and grants in part Dartmouth’s motion to dismiss. I. Background

The court recites the relevant factual background from Khayal’s First Amended

Complaint.1 Khayal, whose family is originally from the Gaza Strip, is a tenure-track

Assistant Professor at Dartmouth’s Geisel School of Medicine. Khayal is “recognizable

as a female Arab from appearance, name, and prior employment in an Arab country.”2

She is a “biomedical engineer” whose work involves the “intersection of engineering,

medicine and computation.”3 Khayal alleges that Dartmouth treated her worse than non-

Arab, non-Muslim tenure-track professors in several ways, including denying her

compensation and research funding, that ultimately affected the school’s assessment of

her progress toward tenure and her ability to secure a tenured position.

According to Khayal’s complaint, Dartmouth originally hired her in October 2015

on the “research track,” but in October 2016, the school moved her to the tenure track

without informing her.4 She did not learn she had been moved to the tenure track until

August 2017.5 She also alleges that she never received a written notification from

Dartmouth with information about the school’s expectations for scholarship, teaching,

and compensation for tenure-track professors, which inform the school’s assessment of an

assistant professor’s progress toward tenure.6 Despite the fact that she had been moved to

the tenure track in October 2016, Dartmouth initially set October 2015 as the beginning

1 Am. Compl., doc. no. 10. 2 Id. at ¶ 3. 3 Id. at ¶ 5 and n. 3. 4 Id. at ¶¶ 6-7. 5 Id. at ¶ 8. 6 Id. at ¶¶ 9-10.

2 of her tenure review period.7 Per the complaint, Dartmouth assessed her progress toward

tenure against the October 2015 date.8

Khayal alleges that Dartmouth routinely provides new tenure-track professors with

between $400,000 to $500,000 in “start-up” funds to allow professors to hire research

assistants, enabling them to complete grant applications for future research.9 She also

pleads that other peer colleagues at the time received dedicated lab space for their

research.10 Khayal did not receive lab space, start-up funding, or full funding of her

salary during her first three years on the tenure track, and had to use her personal

resources to apply for grants to fund her research.11 In 2019, Khayal received a letter

from Dartmouth stating that in order to renew her contract for another term, she would be

expected to obtain external funding for 95% of her salary and research.12 In 2021, after

conducting a review without a formal portfolio from Khayal, presumably based on the

2015 start date, Dartmouth informed Khayal that it was removing her from the tenure

track and appointing her to a three-year, non-tenure-track term, for failing to meet

funding and publication expectations.13 Khayal alleges that Dartmouth typically makes a

formal portfolio request from assistant professors under review.14 When Khayal raised

7 Id. at ¶15. 8 Id. 9 Id. at ¶¶ 11-12. 10 Id. at ¶ 14. 11 Id. at ¶¶ 13-14, 16. The complaint states that at various times, Dartmouth expected her to fund between 83% and 95% of her own salary through research grants. Id. at ¶¶ 16, 20. 12 Id. at ¶ 20. 13 Id. at ¶¶ 26-27. 14 Id. at ¶ 27.

3 concerns to administrators about her lack of funding and unequal treatment over the

tenure review period to date, Dartmouth agreed to reset the review period to start from

2018 but did not increase her salary or research funding.15

According to her complaint, Khayal informed Dartmouth administrators in 2021

that she was in the process of applying for an American Cancer Society research grant

that required an institutional support letter detailing how much funding and lab space

Dartmouth provided to her.16 Dartmouth presented Khayal a written offer letter for the

new three-year appointment which included funding for her salary and research and

dedicated lab space, but was contingent on her releasing any claims she had or could have

against Dartmouth.17 Khayal then submitted her grant application with an institutional

support letter, presumably from Dartmouth, that did not include information about start-

up funding.18

After submitting the application, Khayal informed Dartmouth that she intended to

file a discrimination claim with the New Hampshire Human Rights Commission.19 Two

days later, Dartmouth sent Khayal a new proposal offering her funding for the remainder

of her term and lab space if she received the ACS grant.20 The letter did not offer to reset

the appointment clock, so Khayal had less than two years, rather than the “typical” five,

15 Id. at ¶¶ 30-31. 16 Id. at ¶ 35. 17 Id. at ¶¶ 37-38. 18 Id. at ¶ 40. 19 Id. at ¶ 43. 20 Id. at ¶¶ 44-47.

4 to access the funding that would allow her to apply for additional grants.21 The new

proposal was not contingent on a release of claims.22 ACS awarded Khayal the grant, but

Dartmouth did not provide the dedicated lab space.23

Khayal also alleges that she “fears” providing “concordant support” for students

protesting the war in Gaza because Dartmouth had previously informed her husband, also

a Muslim Arab-American and also a former tenure-track professor, that his involvement

in a Muslim student group as a faculty advisor was “extramural involvement” that should

have been avoided.24

II. Applicable legal standard

The Federal Rules of Civil Procedure, including Rule 12(b)(6), require a plaintiff

to make factual allegations sufficient to “raise a right to relief above the speculative level

on the assumption that all the allegations in the complaint are true (even if doubtful in

fact).” Ocasio-Hernández v. Fortuno-Burset,

(1st Cir. 2011) (internal

citations omitted). This standard demands more than “threadbare recitals of the elements

of a cause of action” or factual allegations that simply “parrot[] [the] standard for []

liability.”

(internal citations omitted). A claim is facially sufficient if it pleads

“factual content” that “allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”

21 Id. at ¶ 47. 22 Id. at ¶ 45. 23 Id. at ¶ 52. 24 Id. at ¶¶ 57-59.

5 Assessing sufficiency is “a context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.” Rodríguez-Reyes v. Molina-

Rodríguez,

(1st Cir. 2013) (internal citations omitted). “The relevant

inquiry focuses on the reasonableness of the inference of liability that the plaintiff is

asking the court to draw from the facts alleged in the complaint.” Ocasio-Hernández,

. “[I]f the factual allegations in the complaint are too meager, vague, or

conclusory to remove the possibility of relief from the realm of mere conjecture, the

complaint is open to dismissal.” Borras-Borrero v. Corporacion del Fondo del Seguro

del Estado,

(1st Cir. 2020) (internal citations omitted). In evaluating

whether the plaintiff has met her pleading burden, the court “accept[s] the complaint’s

well-pleaded facts as true and indulge[s] all reasonable inferences in the plaintiff’s favor.”

(internal citations omitted).

III. Discrimination claims under Title VII and NH RSA 354-A:7

a. Legal standard for discrimination claims

Title VII prohibits an employer from “‘discriminat[ing] against any individual

with respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s’ protected characteristics, or ‘to limit, segregate, or classify

[its] employees ... in any way which would ... adversely affect [an individual’s] status as

an employee, because of such individual’s’ protected characteristics.” Stratton v. Bentley

Univ., No. 22-1061,

, at *5 (1st Cir. Aug. 15, 2024) (quoting 42 U.S.C.

6 § 2000e-2(a)).25 As part of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, this

“prohibition encompasses ‘disparate treatment’ discrimination, where an employer has

‘treated [a] particular person less favorably than others because of’ a protected trait.’”26

Frith,

(quoting Ricci v. DeStefano,

(2009)). “A

disparate treatment claim is a claim of intentional discrimination.”

Under a disparate

treatment theory of employment discrimination, a plaintiff must demonstrate intentional

discrimination. Udo v. Tomes,

(1st Cir. 1995). Disparate treatment

claimants bear the burden of proving they were “subjected to different treatment than

persons similarly situated in ‘all relevant aspects.’” Byrd v. Ronayne,

(1st Cir. 1995) (quoting Smith v. Stratus Computer, Inc.,

(1st Cir.

1994)). Complaints must be more than “merely conclusory regarding the characterization

of the defendant’s motives,” and allege facts that give “rise to an inference of

discriminatory animus.” Johnson v. General Electric,

(1st Cir. 1988)

(abrogated on other grounds by Clockedile v. New Hampshire Dep’t of Corr.,

(1st Cir. 2001)). Put differently, at the pleading stage in civil rights cases, the plaintiff

must “outline specific facts, which if proven would entitle him to relief.” Christensen v.

Lawrence F. Quigley Memorial Hosp.,

(D. Mass. 1985) (Wolf, J.).

25 The court will interpret claims under RSA § 354-A using cases developed under Title VII. Carney v. Town of Weare, No. 15-CV-291-LM,

at *6 (D.N.H. Feb. 21, 2017) (McCafferty, J.) (“[T]he New Hampshire Supreme Court relies on cases developed under Title VII to interpret claims under RSA 354–A.”) 26 At oral argument, Khayal’s counsel confirmed that her claims under federal and state law were disparate treatment claims.

7 Although to ultimately succeed on the claim, “[a] disparate-treatment plaintiff

must establish ‘that the defendant had a discriminatory intent or motive’ for taking a job-

related action,” Frith,

(internal citations omitted), “[the First Circuit Court

of Appeals has] explicitly held that plaintiffs need not plead facts in the complaint that

establish a prima facie case under Title VII, nor must they ‘allege every fact necessary to

win at trial.’” Garayalde-Rijos v. Municipality of Carolina,

(1st Cir.

2014) (citing Rodríguez-Vives v. P.R. Firefighters Corps of P.R.,

(1st Cir.

2014). “[N]o single allegation need [establish] ... some necessary element [of the cause

of action], provided that, in sum, the allegations of the complaint make the claim as a

whole at least plausible.”

(citing Ocasio-Hernández,

).

In an employment discrimination suit, although a plaintiff need not plead facts

“sufficient to establish a prima facie case,” the “elements of the prima facie case are

[]relevant” to a sufficiency determination. Germanowski v. Harris,

(1st

Cir. 2017) (quoting Rodríguez-Reyes,

). Bearing in mind that sufficiency

requires pleading “enough facts to make entitlement to relief plausible in light of the

evidentiary standard that will pertain at trial—in a discrimination case, the prima facie

standard,” the elements of a prima facie case “may be used as a prism to shed light upon”

the sufficiency of the claim. Rodríguez-Reyes,

.

b. Analysis of discrimination claim

Khayal alleges that Dartmouth treated her worse than non-Arab, non-Muslim

tenure-track professors, affecting her ability to conduct necessary research and the

8 school’s assessment of her progress toward tenure. Although the complaint does not

specifically allege that she was denied tenure because of the school’s discriminatory

actions, Khayal does allege that she suffered lost wages, employment benefits, and

earning capacity.27

Dartmouth argues for dismissal because Khayal has not alleged “any specific

factual allegations connecting Dartmouth’s decisions regarding Dr. Khayal’s salary

support, lab space and start-up funding to her religion or national origin.”28 Instead,

Dartmouth argues, she “simply alleges that she is Arab-American and Muslim, and that

Dartmouth provided her with lesser compensation and fewer resources than what is

typically provided to other professors in her field, who she asserts are non-Arab and non-

Muslim.”29 The court disagrees. Although Khayal does not allege in the complaint any

direct evidence of discriminatory intent, or racial or ethnic animus, a plaintiff need only

plead facts which give “rise to an inference of discriminatory animus.” Johnson,

(emphasis added). And the First Circuit Court of Appeals has explicitly held

that plaintiffs need not “allege every fact necessary to win at trial.” Garayalde-Rijos,

. Instead, the sum of the allegations must “raise [] more than the sheer

possibility” that Dartmouth acted with discriminatory motive. Frith,

(internal citations omitted). In this case, the sum of the allegations allows the court to

draw such an inference.

27 Am. Compl., doc. no. 10, at ¶ 67. 28 Def. Mem. Supp. M. Dismiss, doc. no. 11-1 at 6. 29 Id. at 6-7.

9 Taken as a whole, Dartmouth’s alleged actions allow an inference that Khayal

suffered an adverse employment action on the basis of her race or religion. First, as

pleaded, Dartmouth moved Khayal to the tenure track without informing her, and without

updating her appointment date to reflect the change to her status.30 This meant that her

performance was initially assessed based on two years in which she either was not or did

not know she was subject to tenure-track performance standards.31 Second, even when

Dartmouth did inform her of her status, Khayal alleges that it did not provide start-up

funding that would have allowed her to hire research assistants to help with grant

applications, even though assistant professors in her department “typical[ly]” receive up

to $500,000 of initial support.32 Despite not providing Khayal with start-up funding to

help her apply for grants, Dartmouth allegedly told Khayal that she would need to

support up to 95% of her salary through outside grants, even though other Dartmouth

assistant professors typically receive 100% of their salaries from the school for the first

three years of their terms.33 Third, according to her complaint, Dartmouth assessed

Khayal’s progress toward tenure without requesting a formal portfolio, and weighing

against her progress several years in which Khayal (1) was not aware she was subject to

tenure-track expectations, and (2) did not receive funding to help her apply for the grants

she needed.34 Per the complaint, Dartmouth told Khayal that the decision to remove her

30 Am. Compl., doc. no. 10, at ¶¶ 6-8. 31 Id. at ¶ 15. 32 Id. at ¶¶ 11-12. 33 Id. at ¶ 16. 34 Id. at ¶¶ 11, 18, 26-27.

10 from the tenure track was based on a failure to meet funding and publication

expectations.35 She had previously been told that she was otherwise meeting

expectations.36 When Khayal complained of the treatment, Dartmouth allegedly agreed

to reinstate her to a tenure-track position, but initially without providing any additional

funding.37 Finally, the complaint alleges that when Khayal requested a statement of

institutional support for the ACS grant application, Dartmouth initially made its offer of

support contingent on Khayal’s releasing any claims against the school, a contingency not

typically included in offers of support for other professors.38 Altogether, these alleged

actions create a reasonable inference that Dartmouth did not provide Khayal with similar

levels of compensation and funding as it did for other similarly situated professors, which

it knew would hamper her ability to meet tenure-track expectations.

Dartmouth also argues that the complaint includes only conclusory statements

about comparators without alleging any specific facts showing that similarly situated

peers received different treatment or terms of employment, suggesting that because

Khayal was offered a position as part of recruitment efforts for her husband, she cannot

even show that she was similarly situated to other assistant professors.39 But much of the

35 Id. at ¶ 26. 36 Id. at ¶ 20. 37 Id. at ¶¶ 30-33. 38 Id. at ¶¶ 35, 37-39. 39 Def. Mem. Supp. M. Dismiss, doc. no. 11-1, at 7. Dartmouth states, “Dr. Khayal has not alleged that her non-Muslim and Arab colleagues are similarly situated; indeed Dr. Khayal alleges that she was offered her position at Dartmouth as part of the recruitment efforts for her husband, and was not, herself, recruited to her position.” Id. The court presumes Dartmouth means to suggest that because other assistant professors are generally offered start-up funds and compensation packages as part of the school’s initial recruitment efforts, and Khayal was not personally recruited, she cannot show that she is similarly situated to her colleagues. Dartmouth

11 information that Khayal would need to show disparate treatment relative to her peers

would not normally be available to her before discovery, namely the specific amounts of

compensation and research support other assistant professors received and at what point

in their terms they received it. Instead, like the motivations for any employment

decisions Dartmouth made with respect to Khayal and other professors, Dartmouth likely

possesses that information in forms and locations faculty members cannot access,

rendering it unavailable to a complaining plaintiff like Khayal.40

Viewing the allegations in the complaint as a whole, the pleaded facts raise more

than the sheer possibility that Khayal suffered from an adverse employment action and

allow a “reasonable expectation that discovery will reveal evidence” of “discriminatory

conduct.” See Santiago v. WHM Carib, LLC,

(D.P.R. 2015)

(Casellas, J.) (quoting Grajales v. Puerto Rico Ports Auth.,

(1st Cir.

2012)).

IV. Retaliation claim

a. Legal standard for retaliation

Title VII “prohibits employers from retaliating against employees who report

violations of that title.” Carlson v. Univ. of New Eng.,

(1st Cir. 2018)

did not provide any authority to suggest that a recruiting bonus or other inducement to join an organization would create lasting dissimilarities during employment between otherwise similar employees. Dartmouth’s suggestion also raises the question of why the school switched Khayal from the research track to the tenure track in the first place, considering that she was initially willing to accept a research-track position. 40 And this information is not available pre-complaint through a Freedom of Information Act request, as Dartmouth College is a private institution.

12 (citing 42 U.S.C. § 2000e-3(a)). While “Title VII’s substantive provision protects against

discrimination based on who one is . . . the retaliation provision protects what one does.”

Stratton,

at *5 (emphasis in original). To state a retaliation claim

Khayal must allege that “(1) she engaged in protected activity; (2) she suffered some

materially adverse action; and (3) the adverse action was causally linked to her protected

activity.”

(quoting Dixon v. Int’l Bhd. of Police Officers,

(1st Cir.

2007); see also Morin v. E. Bearings, Inc., No. 20-cv-615-PB,

, at *3

(D.N.H. Dec. 16, 2020) (Barbadoro, J.) (citing Dennis v. Osram Sylvania, Inc.,

(1st Cir. 2008)). “In this context, an adverse employment action is one that ‘a

reasonable employee would have found ... materially adverse,’ meaning that such action

well might have ‘dissuaded a reasonable worker from making or supporting a charge of

discrimination.’” Morin v. E. Bearings, Inc.,

, at *3 (quoting Morales-

Vallellanes v. Potter,

(1st Cir. 2010)); see also Stratton,

at *10. “Retaliation need not have ‘a dramatic impact’ on a plaintiff's job or

even ‘relate to the terms or conditions of employment,’ . . . ‘intensification of

[preexisting] harassment’ can be actionable as retaliation so long as it could dissuade a

reasonable employee from engaging in protected activity.” Stratton,

at *10. The protected activity must also be “a but-for cause of the alleged adverse action

by the employer,” meaning that “a plaintiff must show that their employer would not

have taken the adverse action but for a desire to retaliate.” Id. at 11 (internal citations

omitted).

13 b. Analysis of retaliation claim

Khayal does not allege facts that would allow the court to draw a “reasonable

inference” that Dartmouth retaliated against her for engaging in protected conduct. See

Ocasio-Hernández,

. Khayal sufficiently alleges that she engaged in

protected conduct by criticizing Dartmouth’s recommendation to remove her from the

tenure track as unlawfully biased, by informing Dartmouth that she would file a claim of

discrimination, and by filing a claim.41 But she does not allege that Dartmouth took any

adverse action against her as a result of her protected conduct. The complaint alleges that

Dartmouth retaliated by denying her “necessary resources for her job,” namely research

funding and dedicated lab space.42 But Dartmouth was already denying Khayal research

funding and dedicated lab space before she engaged in any protected activities, and the

complaint contains no allegations that Dartmouth continued or prolonged these practices

as a response to her protected action. See Stratton,

at *10

(“‘intensification of [preexisting] harassment’ can be actionable as retaliation so long as it

could dissuade a reasonable employee from engaging in protected activity”) (internal

citations omitted). In fact, the allegations in the complaint suggest that Dartmouth’s

conduct improved after Khayal informed the school of her complaints. First it agreed to

reinstate her tenure track status, and then it sent her a new proposal that allowed her to

secure the ACS grant.43 Neither of these alleged actions evinces an “intensification of . . .

41 Am. Compl., doc. no. 10, at ¶ 74. 42 Id. at ¶¶ 30-32, 43-47, 52, 75. 43 Id. at ¶¶ 31, 34, 44-46, 51.

14 harassment” by Dartmouth. Id. It is not impossible, however, that facts supporting a

retaliation claim may come to light during discovery. The court therefore dismisses the

claim without prejudice.

V. Conclusion

For the foregoing reasons, the court denies Dartmouth’s motion to dismiss with

respect to counts I and II of the complaint and grants it with respect to counts III and IV.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: August 20, 2024

cc: Joseph L. Sulman, Esq. Mark M. Whitney, Esq. Pierre A. Chabot, Esq. Stasie Levin, Esq.

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