United States Court of Appeals For the First Circuit

No. 23-1030

MELISSA ING,

Plaintiff, Appellant,

v.

TUFTS UNIVERSITY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Kayatta, Gelpí, and Montecalvo, Circuit Judges.

Mitchell J. Notis, with whom Law Office of Mitchell J. Notis was on brief, for appellant. Jeremy M. Sternberg, with whom Miriam J. McKendall, Douglas R. Sweeney, and Holland & Knight LLP were on brief, for appellee.

August 29, 2023 MONTECALVO, Circuit Judge. Melissa Ing sued her former

employer, Tufts University ("Tufts"), alleging that Tufts denied

her a full professor position on the basis of sex discrimination

and/or retaliation for engaging in protected conduct in violation

of federal and state antidiscrimination laws, including Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; Title IX

of the Education Amendments of 1972,

et seq.; and

Mass. Gen. Laws ch. 151B, § 4. The district court denied Ing's

claims on summary judgment and declined her invitation to alter or

amend that ruling under Fed. R. Civ. P. 59(e). Ing timely appealed

the district court's rulings. Seeing no error, we affirm.

I. Background

"We recount the facts in the light most favorable to

[Ing], who was the non-moving party at summary judgment."1

Planadeball v. Wyndham Vacation Resorts, Inc.,

(1st Cir. 2015).

1 Before the district court, Ing objected to only 8 out of 192 material facts proffered by Tufts and stated that she "d[id] not dispute the other facts set forth by" Tufts. Accordingly, under the applicable local rule, the balance of Tufts's material facts are deemed admitted. L.R. D. Mass. 56.1 ("Material facts of record set forth in the statement required to be served by the moving party will be deemed for purposes of the motion to be admitted by opposing parties unless controverted by the statement required to be served by opposing parties."); see also López-Hernández v. Terumo P.R. LLC,

(1st Cir. 2023) ("We have repeatedly emphasized the importance of complying with [such a] local rule and have implored litigants to comply or ignore it 'at their peril.'" (quoting Mariani-Colón v. Dep't of Homeland Sec. ex rel. Chertoff,

(1st Cir. 2007))).

- 2 - A. Harassment Investigation

In 2011, Ing began work as a non-tenure/contract track

associate professor at Tufts's School of Dental Medicine ("SDM").

In June 2017, Tufts's Office of Equal Opportunity ("OEO") initiated

an investigation into allegations that Ing had been sexually

harassed by fellow SDM instructor Roland Vanaria. Ing made the

following allegations: (1) that Vanaria had asked her out on a

date; (2) that Vanaria had asked her if she wanted to "have some

monkey business"; (3) that Vanaria had asked her to lift up her

lab coat on numerous occasions; and (4) that Vanaria leered at her

breasts and legs.

The OEO investigator separately interviewed Ing,

Vanaria, and Peter Arsenault, Ing's SDM division head. The OEO

investigator could only establish that Vanaria had asked Ing on a

date and believed Vanaria's denial as to the balance of Ing's

allegations.

Over the next several months, Ing informed Arsenault on

two occasions that she was scheduled to work on the same floor as

Vanaria. Notwithstanding Ing's failure to persuade the OEO

investigator that Vanaria had done anything improper, in both

instances Arsenault -- in concert with OEO and other SDM

administrators -- adjusted the schedule to ensure that Vanaria was

not working on the same floor as Ing. Ing also informed the OEO

investigator that Vanaria was spending time in the conference room

- 3 - near her office. Tufts removed Vanaria's swipe access to the

entire office suite where Ing's office was located.

B. 2018 Promotion Cycle

In November 2017, Ing decided that she wanted to apply

to be promoted to a full professor. The guidelines and criteria

for faculty promotion require an applicant to receive the

endorsement of their department chair before submitting a dossier

detailing their experience. When Ing met with her department chair

and the SDM Associate Dean for Faculty, she was advised that

candidates typically spend six to twelve months compiling their

dossiers, which must demonstrate an applicant's achievement in

"Service, Citizenship, and Professionalism," and two other areas

of excellence. Ing received the endorsement of her department

chair and submitted her dossier in February 2018. She selected

the Teaching area and Educational Leadership area for her two

additional areas of excellence. While compiling her dossier, Ing

solicited the opinion of two outside advisors about whether it

would pass muster, and both opined that it might not.

The Faculty, Appointments, Promotions, and Tenure

Committee ("FAPTC") reviewed Ing's dossier, and her application

was presented to the committee twice. First, on March 27, 2018,

a committee member relayed his concern that Ing did not satisfy

the criteria for the Educational Leadership area of excellence

because she purported to be a course director for workshops that

- 4 - met on only two occasions. A second committee member was assigned

to present Ing's dossier at the FAPTC's next meeting to confirm

the first committee member's conclusion that Ing did not satisfy

the criteria for promotion to full professor. The second

presentation occurred on April 3, 2018, and this committee member

agreed with the initial presentation that Ing did not meet the

Educational Leadership criteria. The second committee member went

further and noted that Ing did not serve in a leadership position,

did not chair any committees, and did not actively participate in

any organizations related to education. It is undisputed that not

a single member of the FAPTC knew about Ing's complaints against

Vanaria.

At the conclusion of the April 3, 2018 meeting, five

committee members voted against Ing's promotion, one abstained,

and one voted to table the application. On September 19, 2018,

the SDM Associate Dean of Faculty told Ing that she had not been

promoted and explained the reasons why, including that "the major

problem" was with Ing's self-selected Educational Leadership area

of excellence. Specifically, the SDM Associate Dean of Faculty

confirmed that the supporting documents submitted by Ing with her

dossier did not qualify her as a "course director" under the

promotion guidelines. The following day, Ing's department chair

reviewed the FAPTC's denial letter with her and the SDM Dean sent

Ing a letter reiterating the reasons she was denied a promotion.

- 5 - The FAPTC concluded that Ing was not a "course director" because

she had only directed a brief workshop. Ing disputed this

conclusion.

In January 2019, Ing requested a more detailed

explanation as to why she was denied a promotion. The SDM Dean

acquiesced to Ing's request and sent a letter explaining that she

was denied a promotion because Ing's dossier lacked leadership

roles, lacked course directorship, and did not "represent the level

of expectations that FAPTC['s] Promotion Guidelines dictate for

promotion to the rank of Professor." Ing did not appeal the

promotion denial, despite being advised that she could do so.

C. 2019 Promotion Cycle

As of November 1, 2018 -- after the decision regarding

Ing's promotion had already been made and communicated to

Ing -- Andrea Zandona became the new chairperson of Ing's

department. Ing met with Zandona on December 13, 2018, and told

her about the sexual harassment report against Vanaria. Ing

alleges that during the January 2019 meeting at which Ing requested

a more detailed explanation as to why she was not promoted, Zandona

told Ing that she "most likely [was] not going to promote" her.

- 6 - No other attendee of that meeting recalled Zandona making that

statement.2

In the ensuing months, Zandona and Ing met several times

and communicated repeatedly about how Ing could improve her dossier

and chances of promotion. Ing alleges that at one such meeting

Zandona asked Ing how often she was attending sexual harassment

therapy and told Ing that she needed to go more often. Zandona

denies ever saying this.3

Ing implemented some, but not all, of Zandona's

suggestions to improve her dossier. In October 2019, Ing again

raised to Zandona her dissatisfaction with the FAPTC's decision

not to promote her during the 2018 cycle and Tufts's subsequent

handling of the denial. Once again, Zandona gave Ing specific

suggestions for improvement and told her that once Zandona felt

Ing had met the criteria for promotion, Zandona would write a

supportive letter of endorsement. A few weeks later, Zandona

informed Ing that she would not endorse her for the 2019 cycle

because, in Zandona's opinion, Ing's dossier still did not merit

promotion.

2 Because Ing's Rule 56.1 statement contradicted this and alleged that Zandona stated that she "most likely [was] not going to promote [Ing]," we assume that the statement was made. 3 Again, because Ing's Rule 56.1 statement contradicted this denial, we believe Ing's version of events and assume that Zandona made this statement.

- 7 - Thereafter, Ing told Zandona that she felt "singled out"

and felt that Zandona would never support her promotion. Zandona

replied with a letter detailing seven specific ways in which Ing

could improve her dossier and reiterated her commitment to helping

Ing to work towards a successful submission for full professor.

Ing took a medical leave of absence in December 2019.

She never returned to work, and her contract with Tufts expired in

June 2021.

II. Standard of Review

We review the grant of summary judgment de novo,

"scrutiniz[ing] the evidence in the light most agreeable to the

nonmoving party, giving that party the benefit of any and all

reasonable inferences." Noviello v. City of Boston,

(1st Cir. 2005). However, we will not "'draw unreasonable

inferences or credit bald assertions, empty conclusions,' or 'rank

conjecture.'" Brandt v. Fitzpatrick,

(1st Cir.

2020) (quoting Pina v. Children's Place,

(1st

Cir. 2014)). Indeed, we have recognized that "[e]ven in employment

discrimination cases" like the one at hand "where elusive concepts

such as motive or intent are at issue, summary judgment is

appropriate if the non-moving party rests merely upon conclusory

allegations, improbable inferences, and unsupported speculation."

(quoting Ray v. Ropes & Gray LLP,

(1st

Cir. 2015)).

- 8 - "By contrast to the summary judgment standard, 'we

review a district court's ruling on a Rule 59(e) motion for abuse

of discretion.'" Theidon v. Harvard Univ.,

(1st

Cir. 2020) (quoting Franchina v. City of Providence,

(1st Cir. 2018)). A motion to alter or amend judgment "must

either establish a clear error of law or point to newly discovered

evidence of sufficient consequence to make a difference."

(quoting Franchina,

).

III. Discussion

On appeal, Ing insists that she set forth a prima facie

case that Tufts denied her application for full professor because

of sex discrimination and/or as retaliation for her filing a claim

of sexual harassment, all in violation of federal and state

antidiscrimination laws. There is substantial overlap between our

analysis of these claims, but for sake of clarity we begin with

the claims of discrimination, then turn to the claims of

retaliation, and finally end with a few words on the district

court's denial of Ing's Rule 59(e) motion.

A. Sex Discrimination

"Title VII makes it unlawful for employers to

discriminate based on sex," Gerald v. Univ. of P.R.,

(1st Cir. 2013), and Title IX similarly "prohibits gender-based

discrimination in a wide array of programs and activities

undertaken by educational institutions," Frazier v. Fairhaven Sch.

- 9 - Comm.,

(1st Cir. 2002). Under either statute,

absent direct evidence of discrimination, "we invoke the

three-step burden-shifting scheme outlined in McDonnell Douglas

Corp. v. Green,

(1973), to assess whether we can infer

discrimination from the undisputed material facts." Theidon,

; see Lipsett v. Univ. of P.R.,

(1st Cir. 1988) (concluding that the standards governing claims

arising under Title VII and Title IX are the same).

At the first step of this scheme, Ing bears the initial

burden of establishing a prima facie case of discrimination

"[u]nder the McDonnell Douglas framework employed by this court in

assessing adverse tenure decisions." Theidon,

.

To make this showing, Ing must demonstrate that: "(1) she is a

member of a protected class; (2) 'she was a candidate for tenure

and was qualified under [Tufts's] standards, practices or

customs'; (3) 'despite her qualifications she was rejected'; and

(4) 'tenure positions . . . were open at the time [she] was denied

tenure, in the sense that others were granted tenure in the

department during a period relatively near to the time [Ing] was

denied tenure.'"

(second alteration in original) (quoting

Fields v. Clark Univ.,

(1st Cir. 1992)).

The dispute at hand centers around whether Ing showed

that she was qualified for the position of professor. The SDM

Faculty Handbook specifically details what evidence will suffice

- 10 - to show accomplishment in the Educational Leadership area. This

evidence may include serving as a dean, department chair, or

division head; chairing a standing or management committee;

serving as a course director; and/or actively participating in

organizations related to education.

Here, the record evidence shows that none of these

requirements were met. The evaluators of Ing's dossier noted their

concern with her "weak" Educational Leadership and that she had

"minimal or no leadership in [e]ducation." The evaluators

concluded that Ing was not a "course director" as contemplated in

the SDM Faculty Handbook because the purported course was a

workshop that met on only two occasions.

The reason for denying Ing a promotion was expounded

upon by Tufts in subsequent communications, but each time

highlighted the same general deficiencies: lack of academic and

administrative leadership roles and "deficiency in . . . course

directorship [because] a one-time 3-hour workshop does not compare

to a 3, 6 or 9-month course." Ing wholly fails to engage with

this reasoning and instead relies on her own conclusory allegations

that she was qualified for promotion to full professor. However,

to defeat summary judgment, in light of the raft of credible

evidence that Tufts produced showing that Ing was not qualified

for promotion, "she cannot rely on 'conclusory allegations.'"

Theidon,

(quoting Ahern v. Shinseki,

,

- 11 - 54 (1st Cir. 2010)). Moreover, even the individuals Ing herself

chose to consult about her dossier expressed doubt as to whether

Ing's experiences and qualifications merited a promotion to

professor. These undisputed facts evidence a lack in qualification

and make plain that Ing has not made a showing of a prima facie

case of discrimination.

Even if we assume that Ing could make out a prima facie

case of discrimination, Ing's claim still fails further down the

road of the McDonnell Douglas burden-shifting scheme because she

has not shown the existence of a material fact to suggest that

Tufts's proffered reason for not promoting her was merely

pretextual and that the actual reason was discriminatory. See

Taite v. Bridgewater State Univ., Bd. of Trs.,

(1st Cir. 2021). Ing contends that "numerous procedural

irregularities in the process by which" her "promotion was denied"

demonstrate pretext. As Ing tells it, the FAPTC deviated from

standard procedure by failing to keep minutes for the meetings at

which her application was discussed.

"Evidence that the employer deviated from its standard

procedure or policies in taking an adverse employment action

against a plaintiff may be relevant to the pretext inquiry,"

Rodríguez-Cardi v. MMM Holdings, Inc.,

(1st Cir.

2019), if the deviations are otherwise "inexplicable and

troubling." Theidon,

. However, Ing points to no

- 12 - evidence indicating that, at the time her application was before

the FAPTC, the committee's standard practice was to keep meeting

minutes. Rather, the evidence in the record before us reveals

that, at that time, the FAPTC did not keep meeting minutes for any

meetings. And the absence of meeting minutes does not support an

inference that Tufts's proffered reason for not promoting Ing was

pretextual because other record evidence shows exactly what the

FAPTC considered when making its decision. Specifically, the notes

taken by the two committee members who reviewed and presented Ing's

application were solely focused on her lack of accomplishment in

Educational Leadership, and every FAPTC member deposed in this

case testified that the committee's discussion focused only on

Ing's dossier and qualifications.

Ing also points to a smattering of other alleged

irregularities, such as an FAPTC member being asked to review her

application after the vote had already been taken, the letter

denying her application undergoing five drafts, and the five-month

time gap between when Ing's application was voted on and when she

was notified of the disapproval, to demonstrate pretext. This

evidence, however, "is devoid of the inexplicable and troubling

inconsistencies that give rise to a reasonable inference of

pretext." Theidon,

(finding no evidence of pretext

where university's failure to circulate materials to external

reviewers amounted to an "administrative error"); see Ronda-Perez

- 13 - v. Banco Bilbao Vizcaya Argentaria--Puerto Rico,

(1st Cir. 2005) (finding no evidence of pretext based on employer's

failure to keep notes during investigative interview with

plaintiff even though it kept notes during interviews with other

employees).

Accordingly, we conclude that there is not even the

slightest suggestion that Tufts's reason for not promoting Ing was

pretextual. The district court correctly concluded that Ing's

evidence was insufficient to create a material issue of fact and

entered summary judgment in favor of Tufts on the discrimination

claims.4

B. Retaliation

To establish a prima facie case of retaliation under

Title VII, Title IX, or Massachusetts state law, Ing must prove:

"(1) she engaged in protected conduct; (2) she was subjected to an

adverse employment action; and (3) the adverse employment action

is causally linked to the protected conduct." Theidon,

(quoting Rivera-Rivera v. Medina & Medina, Inc.,

(1st Cir. 2018)); see id. at 508 (evaluating a prima facie

case of retaliation under Mass. Gen. Laws ch. 151B, § 4 under the

4 Because "Massachusetts law also makes use of the McDonnell Douglas burden-shifting framework" and requires a plaintiff to present evidence of pretext, Theidon,

(quoting Ray,

n.8), the foregoing analysis applies to both the federal and state discrimination claims.

- 14 - same test). The only element in dispute is whether Ing has shown

a causal connection between her allegations of sexual harassment

and Tufts's subsequent decision not to promote her.5 The district

court found that Ing's protected activity "could not have been a

but-for cause of the FAPTC's decision to reject her application"

because "no member of the FAPTC knew of [] Ing's 2017 sexual

harassment complaint." This conclusion is supported by the record

and uncontested by Ing on appeal.

Instead, to support the requisite causal connection, Ing

focuses on a statement made by Zandona in January 2019 when Zandona

purportedly told Ing that she "most likely [was] not going to

promote [Ing]." Ing argues that a jury could infer retaliatory

intent from that comment because it was made "only 27 days after"

Zandona and Ing first met and Ing told Zandona that she had filed

a sexual harassment report. Ing assumes that the relatively short

time span between her telling Zandona about the report and Zandona

saying she most likely would not promote Ing renders the causal

connection between the two actions obvious.

5 As the district court correctly pointed out, the standard of causation under Title VII and Massachusetts state law is that the "protected activity was a but-for cause of the alleged adverse action by the employer." Theidon,

(quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar,

(2013)). The standard of causation under Title IX is an unresolved question in this circuit, but we need not address it today because under either possible standard -- "but for" or "substantial or motivating factor," see

-- Ing has not established a causal connection.

- 15 - "[T]emporal proximity is one factor from which an

employer's bad motive can be inferred," but "by itself, it is not

enough -- especially if the surrounding circumstances undermine

any claim of causation." Carrero-Ojeda v. Autoridad de Energía

Eléctrica,

(1st Cir. 2014). Here, any inference

of a retaliatory mindset is belied by the overwhelming evidence in

the record that Zandona's conduct was inconsistent with bad motive.

First, there is no evidence in the record that Zandona had ever

met Vanaria. And, by the time Ing spoke to Zandona in December

2018, eighteen months had elapsed since the alleged harassment

occurred. Thus, the record offers no basis from which to infer

that Zandona would retaliate against Ing merely because Ing had

reported sexual harassment allegations Ing had made over a year

earlier against someone who was a stranger to Zandona.

Moreover, after Zandona made the alleged comment, she

met or communicated with Ing on approximately eight occasions to

work on Ing's dossier. Zandona repeatedly voiced her "goal . . .

to . . . support [Ing]," and desire to "work to make[] sure that

[Ing's] submission [to the FAPTC] w[ould] be successful." Zandona

did not definitively indicate that she would not provide Ing with

a letter of support until October 2019, and that decision was based

on Zandona's opinion that Ing had failed to "demonstrate[] a

significant development compared to [her] last submission in the

area of Educational Leadership." See Theidon,

- 16 - (concluding that inference of retaliation was "incapacitated" by

the fact that the views expressed by department chair reviewing

plaintiff's application for tenure "merely echoed concerns"

previously voiced by other reviewers).

In short, Ing's interpretation of Zandona's comment

"amounts to, at most, a 'conclusory allegation[] . . . or rank

speculation' that cannot prevent summary judgment."

at 506

n.41 (alteration in original) (quoting Ahern,

).

Thus, on this record, it cannot be plausibly inferred that the

decision to deny Ing a promotion to full professor was tainted by

retaliatory animus because Ing cannot establish a causal link

between her protected activity and the adverse employment

decision. The district court correctly entered summary judgment

in favor of Tufts on the retaliation claims.

C. Rule 59(e)

Lastly, we turn to the district court's denial of Ing's

motion for an altered or amended judgment pursuant to Rule 59(e)

of the Federal Rules of Civil Procedure. A motion to alter or

amend judgment "must either establish a clear error of law or point

to newly discovered evidence of sufficient consequence to make a

difference."

at 508 (quoting Guadalupe-Báez v. Pesquera,

(1st Cir. 2016)). The district court did not abuse

its discretion in finding that Ing established neither.

- 17 - Ing's motion argued that the district court ignored the

fact that when Zandona stated she would not promote Ing, Zandona

allegedly had no knowledge of Ing's qualifications. However, Ing

had already made this argument in opposition to Tufts's motion for

summary judgment. And, as the district court aptly noted, a motion

to alter or amend is not "a mechanism to regurgitate 'old arguments

previously considered and rejected.'" Biltcliffe v. CitiMortgage,

Inc.,

(1st Cir. 2014) (quoting Nat'l Metal

Finishing Co. v. BarclaysAmerican/Comm., Inc.,

(1st Cir. 1990)). Ing failed to point to a manifest error of law

or newly discovered evidence, and the mere "repetition of previous

arguments is not sufficient to prevail on a Rule 59(e) motion."

Prescott v. Higgins,

(1st Cir. 2008) (quoting

United States v. $23,000 in U.S. Currency,

, 165 n.9

(1st Cir. 2004)). Accordingly, there is no reason to disturb the

district court's order denying Ing's Rule 59(e) motion.

IV. Conclusion

For the foregoing reasons, we affirm the district

court's grant of summary judgment and denial of the Rule 59(e)

motion to alter or amend the same.

- 18 -