United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
LEVY U.S. DISTRICT JUDGE.
Carlson has filed suit against her employer, the University
of New England (UNE), alleging that she was subject to
unlawful retaliation, in violation of Title VII of the Civil
Rights Act and the Maine Human Rights Act, for having
reported acts of sexual harassment by a supervisor. ECF No.
1-1. UNE moves for summary judgment on all claims against it.
ECF No. 35. For the reasons below, UNE's motion is
was hired by UNE as a tenure-track associate professor in the
Exercise and Sport Performance (ESP) Department in 2009. She
specializes in the field of exercise physiology and has
primarily taught exercise science classes, including Exercise
Physiology and Environmental Physiology while at UNE. In
2011, Paul Visich became the chair of the ESP Department, and
Carlson's direct supervisor. Carlson alleges that Visich
began sexually harassing her in the fall of 2011. She
reported the alleged harassment to UNE's Human Resources
Department in September 2012. In November 2012, Carlson and
UNE's HR Director met with Visich and discussed
Carlson's concerns about the alleged harassment.
asserts that following the November 2012 meeting, Visich and
UNE took a number of retaliatory actions against her. She
• Visich completed a negative annual review of her for
the 2012-2013 academic year.
• Visich led a campaign to remove her as head of the
College Bowl team, an extracurricular activity that Carlson
brought to UNE.
• The curriculum committee within the ESP Department
refused to grant exemptions to course prerequisites for
students seeking to take one of her classes, though similar
exemptions had been provided in the past.
• She was forced to transfer out of the ESP Department.
• Her course assignments changed so that she no longer
taught courses in her specialty of exercise physiology.
• Visich had her biography removed from the ESP
• UNE failed to give her credit in a news release about
the research of one of her former students, and also failed
to invite her to participate in a sports science initiative,
despite her expertise in that field.
• She is no longer advising Exercise Science majors,
which interferes with her ability to recruit candidates for
• She was given lower merit-based salary increases as a
consequence of her complaints.
to consider each of these allegations in greater depth.
annual review that Visich completed for Carlson for the
2012-2013 academic year stated, in part:
[Carlson's] involvement with the department this year has
been fairly minimal . . . . I believe part of [the] reason
for this is that she is the only faculty member in the
department that is not located in the [ESP building.] . . .
[T]here have been a couple of occasions we have spoken about
professional conduct as it pertains to interactions with
students and other faculty members in the department. . . .
[She] has done a very acceptable job in the courses she has
taught this past year, and is respected by the students. She
has also taken the initiative to bring in speakers . . . .
[She] has also promoted student research, which is greatly
needed within the department. . . . In regards to the
department, I believe this is the area for the greatest
improvement, where I hope she will become more involved in
promoting program activities.
31-2 at 52-53. Visich asked UNE's HR director to review
the evaluation before he submitted it to ensure that it in no
way impeded Carlson's ability to obtain tenure. Carlson
drafted a rebuttal to the evaluation, which Visich forwarded
to the HR department. The committee that reviewed the
evaluation and the rebuttal found that Carlson had
“adequately stated her case to have the letter revised,
” and determined that her level of teaching, service,
and scholarship “far exceed[ed] ‘very
acceptable.'” ECF No. 34 at 52-53. Carlson applied
for tenure in late 2013. Her application was supported at
every level of review, and she was awarded tenure and
promoted to Associate Professor in March 2014.
College Bowl Team
was a founding faculty member of UNE's student College
Bowl team, which participated in extracurricular trivia
contests. She led the team from 2009 to 2013. She contends
that in October 2013, after some discussion at a department
faculty meeting about how the selection process for the team
operated, Visich selected another person to run the team. UNE
contends that Visich merely promoted the idea that another
faculty member should help run the team with Carlson, and
that Carlson was welcomed to continue to help run the team,
but that she chose to stop participating rather than work
with the other faculty member.
Prerequisite Waiver Requests
December 2013, a number of students who wished to take
Carlson's Environmental Physiology course, but who lacked
the prerequisite coursework, applied for waivers of the
prerequisites. The waiver applications were reviewed by a
curriculum committee, which consisted of department faculty
members, and which granted only one of the waiver requests.
Carlson asserts that in the past Visich would typically
approve such waiver requests, and that this was the first
time the requests had been referred to a curriculum
committee. Carlson testified that she believed the requests
were denied because Visich wanted to encourage students to
take one of his own classes instead of her class.
Transfer from ESP Department
September 2013, Elizabeth Francis-Connolly became the new
dean of the Westbrook College of Health Professionals, the
college within UNE in which the ESP Department is located. In
January 2014, Carlson met with Francis-Connolly and UNE's
HR director to request a surrogate supervisor so that she did
not have to work as closely with Visich. Though
Francis-Connolly considered the idea, she ultimately decided
that it was not feasible for Carlson to be supervised by a
faculty member outside the ESP department while remaining in
the department, because that arrangement would likely create
a conflict and usurp the leadership of the Department.
Francis-Connolly instead proposed that Carlson be moved out
of the ESP department, in order to accommodate her request to
be separated from Visich. Carlson accepted this proposal with
the understanding that it was the only option that would
allow her to continue teaching her courses while no longer
being supervised by Visich. She moved out of the ESP
Department in February 2014. Francis-Connolly served as
Carlson's supervisor for a period, and Carlson was
eventually placed in the Physical Therapy Department.
2014-2015 academic year, the year following her move out of
the ESP Department, Carlson continued to teach Exercise
Physiology, though Visich asked that the course be assigned
to another faulty member. In the 2015/2016 academic year,
Carlson was not offered the Exercise Physiology or
Environmental Physiology courses she had been accustomed to
teaching, and instead taught an introductory course.
Francis-Connolly explained that the change occurred because
Carlson was no longer full-time in the ESP Department, and
she was trying to create distance between Carlson and Visich.
Visich had also complained that he had no control over the
course content when Carlson taught the courses because she
was no longer communicating with anyone in the ESP
Department. Following a sabbatical during the fall of 2016,
Carlson was assigned to teach Environmental Physiology again
for the spring semester in 2017, though the course was listed
through the Biology Department, rather than the ESP
2014, UNE removed a dedicated laboratory period from the
Exercise Physiology course that Carlson was teaching. Carlson
asserts that this change made it difficult for her to conduct
the lab that was part of her course. UNE contends that the
lab was unnecessary because its topics were already being
taught as part of existing courses, and removing the lab
allowed the university to avoid hiring adjunct faculty to
cover the additional laboratory time.
2015, Carlson and Francis-Connolly discussed cross-listing
the Environmental Physiology course with the Biology
Department. Carlson claims that Visich then had the Associate
Dean remove the cross-listed course from the course catalog.
UNE responds that the Associate Dean removed the course
because proper procedures were not followed in cross-listing
the course. While Visich agreed with the action, he claims he
did not request or instruct that the course be removed. The
Environmental Physiology course was eventually listed with
the Biology Department for the 2016-2017 academic year.
Removal from ...