Opinion
SUCV2012-01131D
09-17-2014
Jocelyn Emerson v. Trustees of Boston University et al No. 128927
Gordon, Robert B., Justice of the Superior Court.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Gordon, Robert B., Justice of the Superior Court.
The plaintiff, Jocelyn Emerson (" Ms. Emerson" or the " plaintiff"), brings suit against the defendants, Trustees of Boston University (" BU" or the " University") and Virginia Sapiro (" Dean Sapiro") (collectively, " the defendants"), alleging that they unlawfully discriminated and retaliated against her when, after her position of employment at the University was discontinued, they failed to hire her into another posted position within BU. Plaintiff alleges age discrimination (Count I), disability discrimination (Count II), and retaliation (Count III), each in violation of G.L.c. 151B, § 4. The defendants now move for summary judgment on all counts, principally on the ground that Ms. Emerson has failed to present sufficient evidence to establish viable claims.
BACKGROUND
The evidence, viewed in the light most favorable to the non-moving parties, see Mass.R.Civ.P. 56(c), establishes the following.
The facts set forth herein are drawn from the parties' jointly filed Rule 9A(b)(5) Statement, and exhibit references are to the accompanying Joint Appendix.
The plaintiff began working at BU in 2001, when she was hired into the position of Assistant Director of the College of Arts and Sciences' Honors Program. In 2003, Ms. Emerson was promoted to the position of Associate Director, reporting directly to various members of the faculty who served as Directors. The Honors Program, which was discontinued by the University in May of 2011, was designed to attract and retain talented students by providing them with challenging academic opportunities. Ms. Emerson was responsible for tasks associated with student recruitment, advising, and retention, and with curricular development within the program.
Health Issues and Accommodations
From 2001 until December of 2006, Ms. Emerson was located on the fourth floor of 745 Commonwealth Avenue in Boston, a BU academic building housing the School of Theology and various offices and departments of the College of Arts and Sciences (" CAS"). In December of 2006, the Honors Program offices, including the plaintiff's, were relocated to the ground floor of 685 Commonwealth Avenue.
One month later, in January 2007, Ms. Emerson formally notified BU that people had been smoking outside her building in the vicinity of her office, which was negatively affecting her due to her asthma and sensitivity to certain chemicals. Ms. Emerson requested that BU post " No Smoking" signs outside the building, and provided physicians' notes to support her requests. On March 22, 2007, Ms. Emerson emailed Lisa Doherty (" Doherty"), Director of Facilities for the CAS, complaining about fumes from work that was going on in the Dean's conference room adjacent to her office. Doherty replied shortly thereafter, stating that she would see to it that a fan was installed and explaining that Ms. Emerson had not been informed about the work earlier because the project was taking place in a vacant room that was believed to have adequate ventilation. By mid-April 2007, BU had posted additional " No Smoking" signs as Ms. Emerson had requested.
In June of 2007, Doherty emailed Joel Azpuru (" Azpuru") of BU's Office of Environmental Health and Safety (" EHS") and Kim Randall (" Randall"), the University's Director of Equal Opportunity, to suggest that a meeting be arranged to discuss an upcoming asbestos abatement project and its potential impact on Ms. Emerson. The project was scheduled to take place in the sub-basement of Ms. Emerson's building. The meeting took place on June 21, 2007. Ms. Emerson attended, and subsequently provided a list of cleaning products to which she was not chemical sensitivity reactive.
In September of 2007, Ms. Emerson submitted further documentation to BU's Office of Equal Opportunity, indicating that she was being treated for asthma and " multiple chemical sensitivity" and requesting additional accommodations. On November 1, 2007, Randall transmitted a letter to Ms. Emerson in which she described the accommodations which the Office of Equal Opportunity had determined were appropriate and feasible.
These accommodations included: ensuring that cleaning within Ms. Emerson's office space was " limited to HEPA-filtered vacuuming and dry dusting . . . using the products that you approved in the list you provided to us"; " [w]ithin the portions of your suite (Suite 130) that do not include your personal office space, any cleaning performed will be done only with appropriate green products, and those products will be unscented whenever possible"; " [i]n the remainder of the building, non-routine cleaning in common areas (e.g., polishing of hand rails) are normally performed only between the hours of 11 p.m. and 7 a.m., during which time we assume that you will not be present in the building"; and " [i]f any non-routine projects are to be performed that Lisa Doherty and/or Charles O'Connor have any reason to believe might impact you, you will receive advance notification of the projects." (Ex. 10.)
During the spring of 2008, Ms. Emerson emailed Randall on several occasions to complain that students were ignoring the " No Smoking" signs in outside areas near her office. In response, Randall, Doherty, and Marilyn Walsh (" Walsh") of BU's Human Resources Department met to discuss the matter extensively. On June 26, 2008, Randall emailed Ms. Emerson, describing the problem as " extremely challenging" but promising her that a memorandum would be issued to the CAS community at the start of the fall semester to remind them of the University's " No Smoking" policy.
On June 27, 2008, after receiving notice that Ms. Emerson was seeking to move office locations, Dean Sapiro emailed Ms. Emerson to advise her that space had been made available for her on the sixth floor of 745 Commonwealth Avenue. (See Ex. 12.) In this email, Dean Sapiro also took the opportunity to state to the plaintiff that " your work is widely and profoundly admired. I have discussed this with the Provost, and asked for assurances that you will be among the first in line to be considered for key positions in New College as it develops." Id. In July of 2008, Ms. Emerson's office was relocated to this space at 745 Commonwealth Avenue.
On September 15, 2008, the plaintiff emailed Charles O'Connor (" O'Connor") of the BU Facilities Department to complain about mold and " fumes." In her email, Ms. Emerson protested that there was work being performed in the building of which she had not been informed, and that it was causing her an adverse health reaction. Ms. Emerson stated more generally that she was not happy with the University's delay in resolving these issues.
Dean Sapiro saw this email, and concluded that it reflected " unnecessary curtness and lecturing at staff members who are relatively low-level . . ." (See Ex. 27, at 15.) As a result, on September 19, 2008, Dean Sapiro sent Ms. Emerson the following email:
I appreciate the challenges of breathing difficulties--I have had asthma all my life--but I'd like to request that you think about the tone and style of communication you use with other BU staff, who are trying their best to do a good job. Perhaps it would have been good to be more inquiring rather than accusatory, or even to use a medium other than email. I'm sure you meant very well, and I can see this situation has been frustrating, but there are probably more effective ways of communicating.
As you know, I think your work in the Honors Program is terrific, and I am hoping we can count on your great work for a long time to come, so I am interested in making sure your working conditions are the best possible.(Ex. 13.)
BU tested the area for mold and water leaks that day, but was unable to detect any signs of mold or mildew. On September 17, 2008, however, fans were delivered to ventilate the area. On September 19, 2008, Ms. Emerson contacted Nadiyah Shaheed of the BU Equal Opportunity Office, complaining about three " violations" of her accommodations, the latest of which was the fumes associated with the heating system in the building over the weekend preceding September 15, 2008. On October 16, 2008, Ms. Emerson called Walsh to inquire about her options regarding what she described as this third " violation." In December of 2008, Ms. Emerson emailed Walsh and Shaheed again, complaining of " illegal discrimination" and " violations" of her accommodations plan. In particular, Ms. Emerson objected to an " incredibly strong chemical 'air freshener [sic]'" that had been used in the bathroom on her work floor. Ms. Emerson left a voice mail for Shaheed, stating that she " will not report to work" until these " barriers" are removed. On December 3, 2008, all of the air fresheners in the sixth-floor restrooms were removed, and the windows were opened to improve ventilation. Ms. Emerson asserts that the air fresheners were not removed from the men's room, and that she had to remove them herself while wearing a respirator.
Ms. Emerson contends that the floor was not, in fact, properly ventilated despite the use of the fans.
In December of 2008, Ms. Emerson initiated an email exchange with Walsh, Shaheed, and Randall regarding her concern that the University was not honoring its obligations to accommodate her condition. Thus, in a February 2, 2009 email, Ms. Emerson accused Randall of having failed to address the September 2008 " violations, " and asked how this situation would be addressed. On February 23, 2009, Randall informed Ms. Emerson that she had reviewed the September 2008 incident with O'Connor, and been advised that new pipes had been laid in the walkway outside the building. The Facilities staff then had to check the heat in the building, which they did over a weekend. That same day, February 23, Doherty wrote an email to her supervisor, Juliana Walsh-Kaiser, stating that " we are still dealing with accommodation issues for Jocelyn Emerson . . . As you can see from the below email this is a sensitive topic [and involves] lots of work." (Ex. 59.)
Meanwhile, in January of 2009, Dean Sapiro approved an off-cycle salary increase of 12.7% for Ms. Emerson. On May 28, 2009, in an email sent to a colleague, Dean Sapiro stated that when the program that replaced the Honors Program opened, the decision-makers " would be crazy not to offer [Ms. Emerson] a good position." (Ex. 29.)
About two years later, on the morning of January 11, 2011, Ms. Emerson emailed Doherty, and complained about something with a " very high fragrance content, " which she stated may be from carpet shampooing conducted on the sixth floor. Doherty promptly investigated, and informed Ms. Emerson that the carpet had been cleaned seven days earlier using only water. At Ms. Emerson's urging, however, Doherty investigated the matter further. On January 13, 2011, Doherty emailed Ms. Emerson, informing her that she had smelled paint on Ms. Emerson's floor (the sixth floor of 745 Commonwealth Avenue) and that the Department of Theology was painting the third- and fourth-floor corridors. The following day, January 14, Doherty offered to move Ms. Emerson's office to another location--the CAS Office of Undergraduate Advising--while the project was ongoing. That same day, Associate Dean Steven Jarvi, who was responsible for that CAS Office, authorized this temporary use of space. Doherty thereupon advised Ms. Emerson that she could use the space at the Undergraduate Advising Office. (Doherty also thanked Dean Jarvi, stating, in part, " You can't believe how relieved I am to hear this . . . this is out of control!") On January 18, BU's EHS sampled floors 1, 3, 4, 5 and 6 of 745 Commonwealth Avenue for Volatile Organic Compounds, and all readings were 0 ppm (parts per million).
Throughout Ms. Emerson's ten-year employment at BU, she received consistently positive feedback in her performance reviews (" exceptional" or " exceeds expectations") by all four faculty Directors. For example, Professor James Schmidt, Ms. Emerson's supervisor, stated in her 2010 performance evaluation that, " [o]ver the last decade, [Ms. Emerson] has demonstrated exemplary qualities of leadership in piloting the Honors Program. She has done a great deal to improve the academic life of undergraduates in CAS and, in my view, it is clearly in the university's interest to do whatever it (sic) possible to ensure that our students will continue to benefit from her leadership, skills, and experience." (Ex. 3, at BU000028.)
In 2010, when it became clear that Ms. Emerson's position would be eliminated, James Schmidt and Dean Sapiro engaged in an email exchange with the subject line " Future Prospects for Jocelyn Emerson." On September 9, 2010, Schmidt wrote:
Before too much time goes by, I thought it would make sense to touch base on what might be done to keep [Ms. Emerson] at the university when the CAS Honor Program shuts down at the end of this academic year. She has, as you know, dedicated considerable time, talents, and efforts to the program and to the broader university community.
For a variety of reasons (among them, timing and the lack of positions at a level commensurate to her present position) it was not possible to arrange for her to transition into the new University Honors College. This places her in a situation where it may become increasingly difficult for me to come up with good arguments as to why she should not begin to look for positions outside the university.
Given her qualifications, dedication, and experience (both administrative and scholarly), she has a great deal to contribute to the university. For this reason, it strikes me that it would be prudent to begin to see what might be done to keep her here. I would welcome any suggestions as to what we might be able to do on her behalf.(Ex. 29, at BU001773.) Dean Sapiro responded that day, stating:
Unfortunately, I can't make up jobs in order to keep people--we just don't have extra budget lying around. I had thought that UHC might have positions, and I'm sorry it doesn't.
I heard from Juliana that she is planning to begin a degree program, so I didn't know she was still interested in finding something here. But in any case, she'll have to watch to see what jobs come up at BU that might be of the right level and type. Perhaps Juliana knows of something that is coming up.
She certainly does have a lot to contribute, and if there is an appropriate job at BU open (or will be later this year), I know you and everyone else associated with the program will give her a great recommendation. Wish I could offer better.(Id., at BU001774.)
Plaintiff Attempts to Find Another Job at the University
On June 30, 2011, the CAS Honors program was discontinued, and the plaintiff's position was eliminated. At this point, Ms. Emerson began to apply for other positions within BU.
1) Director of Student Programs and Leadership
On March 4, 2011, the position of Director of Student Programs and Leadership within CAS was posted, and Ms. Emerson applied for it. The incumbent would report to Associate Dean Steven Jarvi, who organized a Search Committee that included seven staff and two CAS students. Dean Jarvi was, at this time, 53 years old, six years older than Ms. Emerson. The advertised position suggested a Master's Degree; proficiency in Microsoft Word, PowerPoint, and Excel; excellent leadership, communication, public speaking and writing skills; and " five to seven years of student life experience, preferably in a college or university setting."
Ninety individuals applied for the posted position. Nine applicants, including Ms. Emerson, were selected for interviews. Four candidates were interviewed by phone. Five candidates, including Ms. Emerson, were invited for in-person interviews. Of these five, three (including Ms. Emerson) were " internal" (currently employed by BU) and two were external. The four candidates who had phone interviews (two external and two internal) did not advance to the next round of the selection process.
The three internal candidates, including Ms. Emerson, were interviewed by Dean Jarvi, Kerry Buglio (CAS Director of Academic Services), and the Search Committee. Dean Jarvi and the Committee had decided that internal candidates would first meet with Dean Jarvi, Buglio and the Committee, and a smaller number of finalists would later be chosen to meet with Dean Sapiro. (See Ex. 35, Interrogatory Answer #6.) Not all members of the Search Committee were present during every interview, including Ms. Emerson's. (Ex. 24, at 35.)
The two external candidates were interviewed by Dean Jarvi, Kerry Buglio, and the Search Committee. These candidates were also scheduled, while they were on campus, to meet with student leaders and with Dean Sapiro. The defendants assert that the scheduled meetings with the student leaders and Dean Sapiro were designed to give the out-of-state applicants a full day at the University, and to obviate the need for them to make a time-consuming and costly return to Boston in the event they became finalists for the position. It is disputed whether the students gave feedback to the Committee about the candidates.
Dean Jarvi did not select Ms. Emerson as a finalist to meet with Dean Sapiro. He made this decision in reliance on feedback received from Ms. Buglio on behalf of the Search Committee, and on his own independent interview impressions. The Committee felt that Ms. Emerson's academic work within the CAS Honors Program did not represent the same kind of position, programming, and advising that would be needed for the Student Programs and Leadership position. (See Ex. 24, at 39-40.) Dean Jarvi was likewise concerned about Ms. Emerson's ability to relate successfully with students. He did not feel a strong personal connection with Ms. Emerson during their interview, and was not sure they shared the same philosophy with regard to students. (Ex. 23, at 31-32, 71-73.) Dean Jarvi at no time consulted with Dean Sapiro concerning Ms. Emerson's candidacy for this position.
The Committee members who interviewed Ms. Emerson include: Kerry Buglio (who stated that her only function was to keep time), two undergraduate students, Theodore Hickman-Maynard, a graduate student in the School of Theology and an employee in Residential Life; Kim Voce from Pre-Health Programs/Pre-professional Advising; and Kara Durocher, Program Manager from the Office of Student Programs and Leadership. The Committee members who were not present included: Shiney James, Director of Orientation; Roberto Trevino from Admissions; and Allison Patenaude from International Relations.
Ms. Emerson states that her interview with Dean Jarvi was merely a " courtesy, " that no substantive questions were asked, and that it did not conform to typical interview methodology. No evidence was presented, however, concerning how this interview compared in format or substance to any of the others that were conducted.
The Committee interviewed Alison Bane (" Ms. Bane"), one of the external candidates, on April 7, 2011. Members found her to be " engaging and dynamic, " and " liked her past experience and her ideas on leadership." (See Ex. 24, at 30-31.) Some, however, expressed a concern about whether she had enough experience. (See Ex. 23, at 75.)
On April 26, 2011, the Committee interviewed an internal candidate, identified in the defendants' discovery responses as Internal Candidate #3. This candidate thereupon became the " top choice" for the position. He was, at the time, 31 years old. This candidate, however, subsequently withdrew his application in order to accept a position outside of the University. (Ex. 23, at 82-84; Ex. 24, at 32-33; Ex. 36, at 9.)
After Internal Candidate #3 withdrew from the search process, Dean Jarvi checked Ms. Bane's references. Dean Jarvi was comfortable with Ms. Bane's level of experience, and she favorably impressed Dean Sapiro during their interview (who regarded her ability to tie in theory with student retention and success " outstanding"). (See Ex. 27, at 47-48.) On or about May 5, 2011, Ms. Bane was offered, and accepted, the position. Ms. Bane was, at the time, 26 years old, and held a Master's Degree in Higher Education Administration from the Harvard Graduate School of Education. (Ex. 44.) The plaintiff asserts that she had ten years of student life experience at BU, whereas Ms. Bane had only about two years of such experience. Dean Jarvi, however, testified during his deposition that he viewed Ms. Bane's relevant experience as beginning in 2003, when she worked in the Office of First Experience at Boston College. ( See Ex. 23, at 75-76; Ex. 44.) Dean Jarvi further testified that he did not recall specifically counting Ms. Bane's number of years in related positions, but that he was in all events comfortable with her level of experience. (Ex. 23, at 77-78.) Not only did Dean Jarvi feel that Ms. Bane's relevant experience was sufficient, but he believed that Ms. Bane would be a strong communicator (based upon both her interview and her academic background in theater)--a listed qualification for the position. (Id., at 33.)
Ms. Bane's resume reflects that, during the period from 2003 to 2007, she worked as an Orientation Leader for two summers, a Staff Assistant for the spring and summer of 2007, and a " Courage to Know" Teaching Assistant for an unspecified amount of time in Boston College's Office of First Year Experience. She also worked as a Tour Guide, Greeter, and Day Visit Host for the Office of Undergraduate Admission for an unspecified amount of time. Ms. Bane continued her involvement in student services in 2009 while at Harvard University, serving as a Student Admissions Ambassador at the Office of Graduate Admission and a Student Activities Graduate Assistant at the Office of Student Life. Upon completion of her Master's Degree, Ms. Bane went on to serve as the Interim Director of New Student Programs at Berklee College of Music's Student Activities Center.
Dean Sapiro was, by all accounts, not personally involved in the hiring decision. This prompts Ms. Emerson to insist that Dean Sapiro could have sought a waiver of the customary hiring protocol and simply awarded the positions to her, or volunteered to provide her with a recommendation during the hiring process. The parties dispute whether Dean Jarvi or Kerry Buglio knew that Ms. Emerson had a disability at the time of the hiring decision, and the evidence is somewhat ambiguous. Dean Sapiro was 60 years old at the time, 13 years older than Ms. Emerson. When asked why she did not provide Ms. Emerson with a job recommendation, Dean Sapiro replied that " Jocelyn did not ask me for a recommendation." (Ex. 27, at 62.)
Dean Jarvi did receive email communications that referenced the plaintiff's chemical sensitivities and the University's efforts to accommodate her, but these did not expressly state that Ms. Emerson had a disability.
2) Other Positions
Ms. Emerson subsequently applied for three other positions at BU: Director of Enrollment Services, Assistant Dean of the School of Management, and Pre-Med Academic Advisor.
Director of Enrollment Services :
Ms. Emerson was not among the six finalists for the position. The Committee selected Sylvia Cypher, who was 52 years old and thus four years older than Ms. Emerson.
Assistant Dean of the School of Management :
Ms. Emerson was one of 12 applicants selected for a phone interview. Five finalists were selected for an on-campus interview, but Ms. Emerson was not among them. Each of the five candidates had significant experience in either the provision of senior-level leadership in support of academic degree programs and in the area of what, in academic settings, is called " student life, " or had worked with business school students. Ms. Emerson had limited experience in each of these areas, and had likewise not supervised as large a professional staff as that of the University's Undergraduate Program Office. The successful candidate, Rachel Reiser, possessed all of these desired skills and experiences. Reiser was 44 years old at the time.
Pre-Med Academic Adviser :
This position is considered entry-level, and Ms. Emerson was not invited for an interview. Six out of the seven candidates interviewed had Master's degrees in education. The seventh had a Master's degree in counseling, but completed her practicum for this degree in a college setting. While the hiring staff recognized Ms. Emerson's work experience in higher education, her Master's degrees are in English and Creative Writing. The hiring staff preferred formal training in the field of education, which the interviewed finalists all possessed. (Ex. 40, at Interrogatory Answer #10.) The Committee selected Taryn O'Hearn, who was 25 years old. The defendants' decision-makers deny that consideration of the plaintiff's age or claimed disability played any part in their hiring selections for any of these three positions.
DISCUSSION
I. Standard of Review
Summary judgment is appropriate when, viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass. 356, 358, 676 N.E.2d 815 (1997). The moving party has the burden of affirmatively demonstrating that no genuine issue of material fact exists. Kitras v. Zoning Adm'r of Aquinnah, 453 Mass. 245, 251, 901 N.E.2d 121 (2009). If the moving party meets this burden, the burden shifts to the non-moving party to demonstrate, through admissible evidence, an issue of material fact. Godbout v. Cousens, 396 Mass. 254, 261, 485 N.E.2d 940 (1985). Summary judgment may enter where the nonmoving party " fail[s] to make a sufficient showing on an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In employment discrimination cases, courts recognize that summary judgment for the employer will be appropriate if " the plaintiff is unable to offer admissible evidence of the defendant's discriminatory intent, motive, or state of mind sufficient to carry the plaintiff's burdens and support a judgment in the plaintiff's favor." Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 39, 825 N.E.2d 522 (2005).
II. Discrimination (Counts I and II)
The plaintiff alleges that the defendants discriminated against her on the basis of her age and disability when they selected Alison Bane as the University's Director of Student Programs and Leadership. The defendants move for summary judgment on the ground that there is no probative evidence of such discrimination. The Court agrees with the defendants.
General Laws c. 151B, § 4(1B) provides that it is an unlawful practice for an employer:
because of the age of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual, or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.
Addressing disability discrimination, G.L.c. 151B, § 4(16) similarly provides that it is an unlawful practice for an employer:
to refuse to hire, rehire or advance in employment or otherwise discriminate against, because of his handicap, any person alleging to be a qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose an undue hardship to the employer's business.
Where, as here, there is no direct evidence of discrimination, the Court applies a three-step, burden shifting analysis. Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 116, 731 N.E.2d 1075 (2000). First, the plaintiff has the burden to establish a prima facie case of discrimination. Second, if a prima facie case is made out, the defendant employer must articulate " a lawful reason or reasons for its employment decision [and] produc[e] credible evidence to show that the reason or reasons advanced were the real reasons." Third, the employee, bearing the ultimate burden of persuasion, must present evidence sufficient to show that it is more likely than not that the employer's stated reason is not the true reason but rather a pretext for unlawful discrimination. Id. at 116-17. For purposes of the present motion only, the defendants concede that the plaintiff has made out a prima facie case of discrimination. This decision, therefore, addresses only the second and third stages of the analysis.
Ms. Emerson's prima facie case consists of the fact(s) that: (1) she is a member of a class protected under G.L.c. 151B by reason of her age and handicap; (2) she performed her job at an acceptable level; (3) she was not hired into a position of employment (Director of Student Programs and Leadership) for which she made application; and (4) BU filled its position vacancy by hiring another individual with qualifications similar to Ms. Emerson's. See Abramian, 432 Mass. at 116. Plaintiff asserts that the fact that she was not hired for any of the other three positions (Director of Enrollment Service Center, School of Management Assistant Dean, and Pre-Med Academic Adviser) is relevant only to her retaliation claim.
1. Defendants' Legitimate, Nondiscriminatory Reasons
In step two of the analysis, BU bears the burden to articulate a lawful reason, supported by credible evidence, for not hiring Ms. Emerson as Director of Student Programs and Leadership. Abramian, 432 Mass. at 116. BU's burden at this stage is " one of production and not persuasion, " and it " need not prove that the reasons were nondiscriminatory." Sullivan, 444 Mass. at 51.
The defendants state that Ms. Emerson was not selected because she presented poorly to the Search Committee, and because her experience as an academic advisor did not align well with the core needs of the posted position (viz., to advise student leaders, extracurricular clubs, and organizations). Associate Dean Jarvi was not convinced that Ms. Emerson would be able to connect well with student-advisees, and questioned whether he and Ms. Emerson shared the same educational philosophy regarding students. By contrast, Ms. Bane was " engaging and dynamic" during the interview, and the Search Committee liked her " past experience" with undergraduates and her " ideas on leadership, " evidenced by her involvement and leadership in student service programs at Boston College, Harvard University, and Berklee College of Music. Moreover, Dean Sapiro was favorably impressed by Ms. Bane's ability to connect theories on student success and retention with the responsibilities of the Director of Student Programs and Leadership. These stated non-discriminatory reasons for the University's preference are legitimate, and reflect no bias or animus against the plaintiff--particularly in light of the overwhelming evidence that Ms. Emerson was a valued employee who was treated fairly and supportively by BU management throughout her employment.
BU received 90 applications for the posted position. Ms. Emerson made the first cut, when the pool was reduced to nine, and made the second cut when four candidates were not invited to an interview. This means that Ms. Emerson was one of five finalists out of a group of 90, hardly evidence that the University's decision-makers were discriminating against her on account of her age, disability or for having made internal complaints about her working conditions. There is likewise a great deal of evidence of the defendants' very positive treatment of Ms. Emerson throughout her tenure at BU (i.e., favorable performance evaluations, laudatory informal feedback, and special pay raises), including during periods of time coincident with and succeeding her complaints that she was not being accommodated sufficiently in terms of her asthma and chemical sensitivities. Once again, these facts cut sharply against any reasonable inference that the University's failure to select Ms. Emerson for a single job (for which she was competing in a pool of 90) reflects discriminatory animus against her. Bhatti v. Trustees of Boston Univ., 659 F.3d 64, 73 n.16 (1st Cir. 2011) (" Far from suffering any actual adversity, Bhatti has received regular raises and a permanent workstation, and the most recent evidence shows that she receives generally positive comments on her performance reviews").
The evidence likewise strongly reflects that BU endeavored to be supportive to Ms. Emerson both in terms of accommodating her special respiratory needs and attempting to find her another position within BU. Ms. Doherty, with the assistance of many others, took a significant number of measures in response to Ms. Emerson's complaints, including: posting " No Smoking" signs outside her building; conducting special facilities testing; moving Ms. Emerson from one building to another during a maintenance project; arranging temporary spaces for her; actively seeking Ms. Emerson's insight as to what chemicals affected her; changing the cleaning products used by the University's Facilities staff to mitigate known effects on Ms. Emerson; and having certain air fresheners removed from University bathrooms, as well as other efforts at improved ventilation. The lone occasion when Ms. Emerson drew criticism for the strident tone she took with a member of the maintenance staff (cited repeatedly by the plaintiff in her opposition to summary judgment) appears entirely well taken and unexceptional. Indeed, the reprimand was itself extremely complimentary to Ms. Emerson in text and tone, even as it conveyed the message that she needed to bring a greater sense of restraint to her airing of grievances to laborers who were doing their best to improve her situation.
Furthermore, in an email exchange between Dean Sapiro and James Schmidt in September of 2010 (approximately eight months before the job interviews), both agreed that Ms. Emerson was an asset to BU but Dean Sapiro expressed concerns about whether an " appropriate" position would be available for her. Dean Sapiro thus stated:
Unfortunately, I can't make up jobs in order to keep people--we just don't have extra budget lying around. I had thought that UHC might have positions, and I'm sorry it doesn't.
. . .
She certainly does have a lot to contribute, and if there is an appropriate job at BU open (or will be later this year), I know you and everyone else associated with the program will give her a great recommendation. Wish I could offer better.
This conversation, consistent with the other evidence, reflects both an appreciation of Ms. Emerson and a desire to retain her as an employee of the University--sentiments obviously inconsistent with the unlawful bias plaintiff ascribes to the defendants. Even Dean Sapiro's concern that, after her current position terminates, there might not be another one available that suits her experience and skill set is expressed with a frustration and commitment to support Ms. Emerson that simply cannot be squared with the unlawful job bias the plaintiff claims to be truly motivating her.
Because their stated reasons for decision are reasonable on their face and have evidentiary support, the defendants have satisfied their second-stage burden of articulation. The presumption of discrimination created by the prima facie case thus disappears, and the proceedings advance to the third stage of analysis. Abramian, 432 Mass. at 117.
2. Whether the Defendants' Stated Reasons are a Pretext for Discrimination
In the third stage, Ms. Emerson must come forward with significantly probative evidence permitting the reasonable inference that, more likely than not, " the basis of the employer's decision was unlawful discrimination." Abramian, 432 Mass. at 117. This may be accomplished by presenting evidence that " the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The plaintiff challenges the defendants' stated reasons on several grounds, none of which (singly or in combination) allow for the reasonable inference that the defendants' true motivations in their hiring decision in this case were unlawful age or disability bias.
First, Ms. Emerson states that she is significantly more experienced than the successful candidate, Ms. Bane, a fact warranting an inference of discrimination. See Velez v. Thermo King de P.R., Inc., 585 F.3d 441, 452 (1st Cir. 2009) (holding that an employer's explanation for firing an employee may " so lack[ ] rationality that it supports the inference that the real reason for firing [the employee] was his age"). More specifically, Ms. Emerson takes issue with the fact that the position posting suggested five to seven years of student life experience; and she had ten years while Ms. Bane purportedly had only two. However, in Associate Dean Jarvi's estimation, Ms. Bane did possess the approximate amount of suggested experience, and it is Jarvi's view of relevance (and not Ms. Emerson's) that matters when assessing a claim of discrimination. It is not for the Court to evaluate the soundness of his decision-making in this respect. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 56-57, 825 N.E.2d 522 (2005). Ms. Emerson's own subjective belief that she is more qualified than Ms. Bane to fill the position of Director of Student Programs and Leadership is, without more, insufficient to permit an inference that BU's reasons for preferring Ms. Bane are a pretext for unlawful discrimination. See Dunn v. Trustees of Boston Univ., No. 13-2272, 761 F.3d 63, at *25 (1st Cir. July 30, 2014) (interpreting Chapter 151B and noting that " a plaintiff cannot make pretext a trialworthy issue by essentially relying on his personal belief that he was more qualified for a job that his employer gave to someone outside of the protected class") (quotations omitted).
It is hardly true that it would be unreasonable for Associate Dean Jarvi to look favorably upon Ms. Bane's relevant experience, considering her previous-held positions between 2003 and 2010: Interim Director of New Student Programs at Berklee College of Music; Student Activities Graduate Assistant at Harvard University's Office of Student Life; Student Admissions Ambassador at Harvard University's Office of Graduate Admission; and Staff Assistant and Orientation Leader at Boston College's Office of First Year Experience. (Ex. 44.)
Regardless, there is no evidence that Associate Dean Jarvi was required to adhere strictly to every detail of the job posting. Employers adjust their expectations in hiring all the time as they confront the realities of their particular applicant pool. Perhaps more to the point, nothing in logic or law prohibited Jarvi from attaching greater significance to the quality of Ms. Bane's student-related experience relative to that of Ms. Emerson, and to the traits of personality and leadership revealed in the interviews that garnered substantially more favorable reviews for this candidate from the Search Committee. Years of experience were not the only selection criterion looked to by the University when filling this particular position; and, absent evidence of age or disability bias against Ms. Emerson, Associate Dean Jarvi was well within his warrant to place greater weight on other criteria in his selection decision. The discrimination laws do not authorize this Court to second-guess that business judgment, no matter how forcefully Ms. Emerson may happen to disagree with it. See Tate v. Department of Mental Health, 419 Mass. 356, 363, 645 N.E.2d 1159 (1995) (an employer's " reasons for its decision . . . may be unsound or even absurd, but if they are not discriminatory and if the plaintiff does not prove they are pretexts, the plaintiff cannot prevail"); Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 766, 493 N.E.2d 867 (1986) (same).
Ms. Emerson next challenges BU's decision on the ground that it is based on subjective characteristics, namely, her personality and presentation at the interview and how Associate Dean Jarvi " connected" with her. See Keyes v. Secretary of the Navy, 853 F.2d 1016, 1026 n.12 (1st Cir. 1988) (" Evaluating an applicant at an interview is a highly subjective exercise"). These factors are concededly subjective; but that fact, without more, will not render them illegitimate. A job that entails managing and advising extracurricular student groups in a college setting may naturally call upon the incumbent to possess intangible qualities of personality that are more important to successful performance than quantifiable knowledge or technical skills. The subjectivity of one's assessment of these qualities hardly discredits the qualities themselves from consideration in the hiring decision. It is true that " an employer's asserted strong reliance on subjective feelings about the candidates may mask discrimination, " Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1298, 332 U.S.App.D.C. 256 (D.C. Cir. 1998), but the burden rests upon the plaintiff to demonstrate that this was the case here, and to do so with probative evidence. See, e.g., Poon v. Massachusetts Inst. of Tech., 74 Mass.App.Ct. 185, 199, 905 N.E.2d 137 (2009) (granting summary judgment against employee for failure to produce evidence showing discriminatory pretext where employer denied promotion for poor " interpersonal relations"); see also Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 56, 825 N.E.2d 522 (1995) (employer's reliance on subjective assessment of plaintiff held insufficient to demonstrate decision-making process masked discriminatory animus); Butler v. Wellington Mgmt. Co., No. 10-P-236, (Mass.App.Ct. June 22, 2011) (noting that plaintiff failed to produce sufficient evidence demonstrating pretext where employer did not believe plaintiff possessed " sufficiently mature or professional interpersonal skills"). This the plaintiff has not done.
The Court notes that subjective considerations were not the only criteria relied upon by the defendants in their decision not to select the plaintiff for this position. Ms. Emerson's orientation toward academic advising, and its obvious disconnect with the extracurricular focus of the posted position, cannot fairly be considered a subjective ground.
Ms. Emerson further contends that evidence of discrimination can be gleaned from the fact that Dean Sapiro did not intercede to help her secure the posted position, and from the fact that external candidates (such as Ms. Bane) were permitted to meet with Dean Sapiro before becoming a finalist. These contentions lack merit. Dean Sapiro had no obligation to request a special waiver in order to facilitate Ms. Emerson's selection (and thereby preempt the entire hiring process), as Ms. Emerson urges she should have done. Such preference-giving is precisely the sort of disparate treatment that the plaintiff's lawsuit purports to decry. Likewise, the fact that all out-of-state candidates were allowed to meet with Dean Sapiro during their initial visit was plainly a bow to practicality and convenience for these candidates, and in no sense placed Ms. Emerson at any kind of competitive disadvantage. Indeed, the initial first-choice applicant for the job (who took himself out of the process) was an internal candidate who had not been afforded an interview with Dean Sapiro. No fair inference of discrimination against the plaintiff (for any reason) can be drawn from these facts.
Last, Ms. Emerson argues that Associate Dean Jarvi falsely stated that he was unaware of the plaintiff's disability prior to the interview process. Ms. Emerson contends that such falsity permits the inference that the defendants have " something to hide" and that " the real reason [for their decision] was a forbidden one." Aka, 156 F.3d at 1298. While the Court agrees that a jury could permissibly conclude from the emails sent to Jarvi that he knew Ms. Emerson had serious chemical sensitivities affecting her ability to work, his failure to recognize this as a " disability" does not rationally permit an inference of deliberate mendacity. Jarvi may have understood that Ms. Emerson was highly intolerant of chemicals used within her building, and even that she required workplace accommodations. But these facts hardly compel the conclusion that she suffered a " disability, " and they do not even permit a rational inference that Associate Dean Jarvi was lying. Indeed, the Court notes that a number of courts construing federal handicap discrimination law have failed to treat " multiple chemical sensitivity" as a protected disability at all. See, e.g., Jones v. Indiana Civil Rights Comm'n, No. 1:02-cv-1701-SEB-VSS, at *7-9 (S.D.Ind. Mar. 17, 2006) (granting employer's motion for summary judgment, because chemical sensitivity not a disability where employer mitigated exposure of chemical irritants and plaintiff did not suffer comparable sensitivities at home); Mulloy v. Acushnet Co., No. 03-11077-DPW, at *14 (D.Mass. June 20, 2005) (allowing summary judgment for employer because sensitivities to certain irritants triggering asthma and allergy-related symptoms, although impairing, not substantial where plaintiff was asymptomatic most of the time); Gits v. 3M, No. 99-1925, at *20 (D.Minn. June 15, 2001) (granting summary judgment for employer, where employee suffered asthma and allergy-related symptoms caused by temporary exposure to chemicals at work; holding multiple chemical sensitivities not protected disability). Associate Dean Jarvi cannot in fairness be deemed a discriminator merely for failing to accord " disability" status to a condition the courts themselves have not always treated as such. In all events, Jarvi's isolated misstatement (whatever its intentionality) that he was unaware that the plaintiff suffered from a disability is not, without more, sufficiently probative of handicap bias to allow a reasonable finding that BU's decision not to hire Ms. Emerson as its Director of Student Programs and Leadership was the product of unlawful discrimination. See Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 47-48 (1st Cir. 2002) (strong evidence supporting employer's position outweighed plaintiff's weak proof suggesting pretext in its stated reason for decision).
In all, Ms. Emerson has not presented sufficient evidence to demonstrate that the defendants' hiring decision was more likely than not made with discriminatory intent. The defendants' motion for summary judgment, therefore, will be allowed as to the claims of age and disability discrimination contained in Counts I and II of the Complaint.
II. Retaliation (Count III)
To present a prima facie claim of retaliation, Ms. Emerson must prove that (1) she " engaged in protected conduct"; (2) an " adverse action" was taken against her (i.e . an action taken to " discharge . . . or otherwise discriminate against" her); and (3) " there is a causal connection between elements one and two--that is, the adverse action was motivated at least in part by the plaintiff's protected conduct." Mole v. University of Mass., 442 Mass. 582, 602, 814 N.E.2d 329 (2004) (quotations omitted). " For this claim, the causation analysis focuses on whether the adverse action was motivated in substantial part by the plaintiff's protected activity." Id. at 603 (quotation omitted). Here, Ms. Emerson identifies her protected conduct as having sought reasonable accommodations for her claimed disability. The adverse actions at issue are (a) BU's alleged failure to provide reasonable accommodations in response to these demands for accommodation, and (b) its failure to hire Ms. Emerson into one of three posted positions for which she applied.
1. Statute of Limitations
The defendants first challenge the plaintiff's failure to accommodate-based retaliation claim on statute of limitation grounds. Claims alleging discrimination or retaliation must be filed with the Massachusetts Commission Against Discrimination (" MCAD") " within 300 days after the alleged act of discrimination ." G.L.c. 151B, § 5 (emphasis added). Ms. Emerson filed her MCAD complaint on November 2, 2011. At issue here, therefore, is whether allegedly retaliatory acts that occurred several years prior to the start of the 300-day limitations period (and are by this measure untimely) may be the subject of a claim pursuant to the " continuing violation" doctrine.
Generally, a discrete discriminatory act will trigger commencement of Chapter 151B's 300-day statute of limitations period. Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. 632, 641, 808 N.E.2d 257 (2004). However, in certain circumstances, the date of alleged discrimination can be difficult to determine because the " improper conduct continues or evolves over a course of time." Id. To address such circumstances, courts have created a " continuing violation" exception to the general rule, recognizing that " some claims of discrimination involve a series of related events that have to be viewed in their totality in order to assess adequately their discriminatory impact and nature." Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 531, 750 N.E.2d 928 (2001). This is not such a case.
For the " continuing violation" doctrine to apply, Ms. Emerson must prove that " (1) at least one discriminatory act occurred within the [300-day] limitations period; (2) the alleged timely discriminatory acts have a substantial relationship to the alleged untimely discriminatory acts . . . [and] (3) earlier violations outside the [300-day] limitations period did not trigger [her] 'awareness and duty' to assert [her] rights, i.e., that [she] could not have formed a reasonable belief at the time the employment actions occurred that they were discriminatory." Ocean Spray, 441 Mass. at 642-43. " When an employer refuses an employee's request for a reasonable accommodation, the refusal is a discrete discriminatory act triggering the statutory limitations period." Id. at 645. Thus, for purposes of continuing violation analysis, when the employer takes " unequivocal action, " the statute of limitations period begins to run " at the point thereafter when the employee knew or reasonably should have been aware that the employer was unlikely to afford him a reasonable accommodation" or, in other words, when the employee is " able to appreciate that the requests will not be accommodated, and an act of discrimination has occurred." Id.
In Cuddyer, the plaintiff filed an MCAD complaint in 1995 against her employer for hostile environment sex discrimination based upon acts of harassment from co-workers and supervisors dating back to 1986. 434 Mass. at 526-27. Opposing the employer's motion for summary judgment, the plaintiff argued that, under the " continuing violation" doctrine, the statute of limitations did not bar her hostile work environment claim because the alleged discriminatory acts in 1994 anchored her claims outside of the statutory period. Id. at 529. The SJC agreed with the plaintiff. The Court noted that the " continuing violation" doctrine is appropriate where the alleged discriminatory events are part of an ongoing pattern of discrimination--a pattern necessary to the underlying claim. Id. at 531-32. Distinguishing continuing violations under Chapter 151B from its federal counterpart, the Court declared that a plaintiff's more than 300-day-old claim will be barred by the statute of limitations if the plaintiff knew or reasonably should have known of discrimination and that conditions were unlikely to improve; and, thus, a reasonable person would have filed a complaint with the MCAD before the statute of limitations period expired. Id. at 539.
The defendants, citing to Ocean Spray, argue that the statute of limitations in this case began to run in either 2008 or 2009, when Ms. Emerson complained of " violations" of her accommodations plan and asserted that this was " retaliation" for prior complaints made regarding her accommodation requests. In response, Ms. Emerson argues, without citation, that she " held on to the belief that they would eventually get it right and as such she did not file her MCAD complaint until 11/2/2011." Ms. Emerson maintains that her " January 2011 accommodation request anchors all those prior requests per the continuing violations theory, " and thus renders them timely.
In 2007 and 2008, Ms. Emerson made several complaints regarding her working conditions, and BU responded with the following measures: it installed a fan in a vacant conference room adjacent to Ms. Emerson's office and moved her to a different office after Ms. Emerson complained of fumes (March 2007); installed " No Smoking" signs outside Ms. Emerson's building (April 2007); convened a meeting with Ms. Emerson to discuss an asbestos abatement project scheduled to occur in the basement of Ms. Emerson's building (June 2007); tested Ms. Emerson's building for mold and installed fans (September 2008); and removed air fresheners in the women's bathroom and opened the windows to improve ventilation (December 2008). These responses are well summarized in the defendants' memorandum. (See Def. Memo. at 24-25.)
The Court agrees with the defendants that any alleged retaliatory or discriminatory acts that occurred in 2007-2008 are not saved by the continuing violation doctrine. Assuming without deciding that BU's accommodations to the plaintiff during 2007-2008 were inadequate, Ms. Emerson was aware of these purported deficiencies in December of 2008, when she emailed Walsh and Shaheed complaining of " illegal discrimination" and " violations, " and when she subsequently continued to complain about such violations in early 2009. Applying the Cuddyer test, Ms. Emerson knew or should have known, at the very latest, in early 2009 that her requests for accommodations were being inadequately addressed, and should thus have filed a charge with the MCAD within 300 days of that time. Because the plaintiff was unmistakably aware of BU's purportedly deficient response to her requests for accommodations in 2008 and 2009, the statute of limitations was triggered irrespective of whether they were related in subject matter to later requests. See Ocean Spray, 441 Mass. at 646-47 (although requests by visually impaired employee for more lighting and for move to different area were denied in 1993, 1994 and 1995, only the denial in 1995 fell within the statute of limitations).
And the Court is highly dubious of this assumption, given the great lengths the University went to in its efforts to address Ms. Emerson's concerns. See ante .
Although this decision obviously does not limit the continuing violation doctrine's applicability to hostile environment claims, Massachusetts courts have mostly applied the doctrine in such cases because the underlying claims depend upon a showing of ongoing patterns of discrimination or harassment that, " by [their] very nature, often [are] apparent only in hindsight." Cuddyer, 434 Mass. at 538; Morrison v. North Essex Cmty Coll., 56 Mass.App.Ct. 784, 795, 780 N.E.2d 132 (2002) (noting that hostile environment claims occur over time and, " in direct contrast to discrete acts, a single act of harassment may not be actionable on its own"). Ms. Emerson presents no such case. Unlike Cuddyer, where the hostile work environment claim could only be evaluated in its totality and over time in order to assess its discriminatory effect on the plaintiff, Ms. Emerson's claims of retaliation for alleged failures to accommodate each represent discrete acts of adverse action, which became apparent in 2008 and 2009. The claim does not depend upon a showing of any ongoing pattern of mistreatment. Accordingly, the plaintiff's requests for accommodation in 2007-2008, and the University's responses thereto, may not be the subject of a discrimination or retaliation charge not filed until 2011.
2. Adverse Personnel Action
Even if BU's purported unresponsiveness to the plaintiff's serial complaints about her working conditions were not time-barred, the Court finds that the claimed failures of accommodation attributed to the University do not rise to the level of " adverse personnel actions" for purposes of grounding retaliation liability under Chapter 151B. It is well settled that not every unpleasant or discomforting workplace experience will qualify as an adverse employment action justifying relief. The Supreme Judicial Court has emphasized that there must be objective evidence of unlawful treatment for the employer's conduct to be actionable. Thus, in MacCormack v. Boston Edison Co., 423 Mass. 652, 672 N.E.2d 1 (1996), the Court held that a plaintiff's " subjective feelings of disappointment and disillusionment" could not rise to the level of unlawful retaliation unless there were " objective evidence that he had been disadvantaged in respect to salary, grade, or other terms and conditions of employment." Id. at 663-64 (affirming directed verdict for employer; where employee's job grade and pay level remained unchanged, the fact that he lost certain job responsibilities, received a lower ranking within a modified organizational structure, and was not--unlike certain peers--assigned a higher job grade held insufficient to permit conclusion that employee suffered " adverse employment action"). See also Psy-Ed Corp. v. Klein, 459 Mass. 697, 707-08, 947 N.E.2d 520 (2011) (adverse personnel actions are those that are " substantial enough to have materially disadvantaged an employee"); Romero v. UHS of Westwood Pembroke, Inc., 72 Mass.App.Ct. 539, 544-45, 893 N.E.2d 355 (2008) (no adverse action in job restructuring that, while creating " new layer of reporting between the plaintiff and [the CEO], " did not change employee's job duties or pay); Bhatti v. Trustees of Boston Univ., 659 F.3d 64, 73 (1st Cir. 2011) (reprimands without tangible consequences held not to constitute adverse employment actions under Title VII); Ruffino v. State St. Bank & Trust Co., 908 F.Supp. 1019, 1045 (D.Mass. 1995) (" Generally, a plaintiff must demonstrate that he or she was denied a term, condition or privilege of employment").
In accordance with the foregoing authorities, the plaintiff's apparent dissatisfaction with BU's efforts to accommodate her chemical sensitivities at work do not rise to the level of an adverse personnel action. However inadequate Ms. Emerson may have found these efforts to be, it cannot be gainsaid that they in no sense made her workplace conditions worse ; and, in all events, the evidence is undisputed that the plaintiff's title, position level, duties, compensation and benefits at the University remained unchanged following her internal complaints. In these circumstances, an essential element of a viable retaliation claim--an adverse action taken against her by the defendants--is lacking. Summary judgment is warranted for this independently sufficient reason.
3. Sufficiency of the Evidence
Finally, the defendants argue that summary judgment is appropriate on the plaintiff's failure to hire-based retaliation claim because Ms. Emerson cannot show any causal link between her efforts to secure accommodations and her failure to be offered any of the jobs for which she made application between 2011 and 2013. The Court agrees.
Ms. Emerson's requests for accommodations between 2007 and 2009 (and BU's responses thereto), are simply too far removed from the University's 2011 hiring decision to permit a reasonable inference of retaliation. See Mole, 442 Mass. at 595-96 (insufficient evidence of causation where salary reductions occurred three and four years after employee's discrimination charge filed), citing Oliver v. Digital Equip. Corp., 846 F.2d 103, 110-11 (1st Cir. 1988) (causation not shown where firing occurred more than two years after filing charge); Ahern v. Shinseki, 629 F.3d 49, 58 (1st Cir. 2010) (absent other evidence of causation, " a gap of several months cannot alone ground an inference of a causal connection between a complaint and an allegedly retaliatory action"); McMillan v. Massachusetts Soc'y for Prevention of Cruelty to Animals, 140 F.3d 288, 310 (1st Cir. 1998) (employee discharge two years after filing complaint did not support retaliation claim); Cooper v. North Olmsted, 795 F.2d 1265, 1272-73 (6th Cir. 1986) (same; no causal inference permitted where firing occurred four months after filing charge).
There is likewise insufficient evidence that the plaintiff's January 2011 requests for accommodations were related to BU's May 2011 hiring decision. These requests spanned a total of eight days, beginning with Ms. Emerson's complaint about fumes on the sixth floor on January 11 and continuing sporadically until January 18. Within two days of the initial complaint, Doherty had investigated the matter and concluded that the problem was not the carpet shampoo, but might possibly relate to painting that was taking place on the third and fourth floors. On January 14, pursuant to Associate Dean Jarvi's authorization, Doherty notified Ms. Emerson that she could temporarily move to another building (away from the fumes), which she did. On January 18, BU sampled floors 1, 3, 4, 5 and 6 of 745 Commonwealth Avenue for Volatile Organic Compounds, and concluded that there were not any in evidence.
These accommodations were surely reasonable; and, more to the point, the extensiveness of the effort by the University undeniably belies any fair inference of retaliatory animus toward Ms. Emerson. In all events, the plaintiff cites no evidence suggesting that her requests for accommodation factored into Associate Dean Jarvi's hiring decision some five months later. See Mole, 442 Mass. at 595 (" unless the termination is very closely connected in time to the protected activity, the plaintiff must rely on additional evidence beyond temporal proximity to establish causation"), quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (stating " a one and one-half month period between protected activity and adverse action may, by itself, establish causation, " but " a three-month period, standing alone, is insufficient to establish causation").
The plaintiff's reliance on the 2008 reprimand from Dean Sapiro to supply evidence of retaliatory animus is misplaced. For one, Dean Sapiro's reprimand was " merely directed at correcting some workplace behavior that management perceived as needing correction." Bhatti v. Trustees of Boston Univ., 659 F.3d 64, 73 (1st Cir. 2011). The reprimand was the mildest of rebukes, and was in fact conveyed in language reinforcing the high personal regard in which Ms. Emerson continued to be held by Dean Sapiro. See ante . It in no rational sense suggests retaliatory animus. Even if it did, however, the record in this case makes clear that Dean Sapiro played no personal role in the decision to deny Ms. Emerson any of the jobs for which she made application. See Somers v. Converged Access, Inc., 454 Mass. 582, 597, 911 N.E.2d 739 (2009) (statements by one who did not participate in employment decision not probative of bias); Brunner v. Stone & Webster Eng'g Corp., 413 Mass. 698, 704, 603 N.E.2d 206 (1992) (" The biases of one who neither makes nor influences the challenged personnel decisions are not probative in an employment discrimination case"), quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 10 (1st Cir. 1990). In point of fact, it bears mention that the only evidence of Dean Sapiro's connection to the plaintiff in this entire hiring process was her email to Professor Schmidt urging that every reasonable effort be made to try to retain Ms. Emerson at BU. There is no inference of retaliation to be drawn in these circumstances.
Finally, even if the failure of the University to hire the plaintiff in 2011 had occurred in sufficiently close temporal proximity to her complaints about her working conditions to permit a prima facie inference of retaliation, such threshold inference would not be sufficient to ground liability in the face of the compelling evidence of BU's legitimate reasons for its selection decisions. See MacCormack, 423 Mass. at 662-64 and n.11 (1996); Mole, 58 Mass.App.Ct. at 41. As set forth ante, BU had strong grounds for hiring candidates with demonstrably better backgrounds for the positions that were posted; and Ms. Emerson has presented no evidence remotely suggesting that the University's asserted reasons for preferring these candidates are in fact pretexts masking retaliatory animus related to years-old complaints about plaintiff's working conditions. Furthermore, Ms. Emerson has failed to demonstrate whether there was any involvement in the hiring decisions for the positions of Director of Enrollment Service Center, School of Management Assistant Dean, and Pre-Med Academic Adviser by individuals with knowledge of her disability and accommodation requests, an evidentiary deficit further defeating Ms. Emerson's contention that her statutorily protected right to accommodations was causally related to the denial of the listed job opportunities. Accordingly, the defendants' motion for summary judgment will be allowed as to the retaliation claim (Count III).
CONCLUSION AND ORDER
In accordance with the foregoing discussion, the Defendants' Motion for Summary Judgment is ALLOWED .
SO ORDERED.