AMENDED ORDER ON DEFENDANT UNIVERSITY OF MAINE SYSTEM'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Dilip K. Lakshman, Ph.D. (Lakshman), is employed as aSenior Scientist at the University of Maine. A dark skinned maleof East Asian descent, Dr. Lakshman was born in India and speakswith an Indian accent.1 He has filed suit, claiming theUniversity of Maine System (University) violated his legal rightsdue to his race, color, ethnicity, national origin, and gender.This Court grants the University's Motion for Summary Judgment,because Dr. Lakshman's claims are either time barred or fail tocreate genuine issues of material fact within strictures of thestatutory provisions he has invoked.
I. Statement of Facts.
In accordance with the "conventional summary judgment praxis,"the Court recounts the facts in a light most favorable to Dr.Lakshman's theory of the case, consistent with record support.2 Gillen v. FallonAmbulance Serv., 283 F.3d 11, 16 (1st Cir. 2002). The Court hasrelied either on the uncontested facts or on Dr. Lakshman'sversion, if in conflict. After receiving his doctorate in plantpathology from Cornell University in 1984 and undertaking twoyears of post-doctoral study, Dr. Lakshman became employed at theUniversity of Maine in 1986 as a post-doctoral Research Associatein the Department of Biological Sciences (Department).3Dr. Lakshman was hired to assist with the research projects ofDr. Stellos Tavantzis, a Professor of Plant Pathology. Dr.Lakshman's job was a non-tenure track position within the MaineAgricultural and Forestry Experiment Station (MAFES).4
There are at least two career paths for post-doctoralprofessionals within research universities. The first is thetraditional tenured faculty route; the second, less welltraveled, is the non-faculty scientist route. Having obtained aPh.D., many scientists seek a tenure track appointment, but theseprized positions become available sporadically and, while waitingfor a faculty position to open, the scientist might settle, asDr. Lakshman did, for a temporary research associate appointment.Encouraged by Dr. Tavantzis, Dr. Lakshman remained at MAFES, theresearch arm of the University, in the hope his loyalty andtalent would lead to a tenure track appointment when theopportunity presented itself. This did not prove true. Over the years, Dr. Lakshman foundhimself confined to the role of research scientist.5 Hisefforts to obtain tenure track positions at the University wererebuffed and he was paid substantially less than his facultycolleagues. Although the University contends that Dr. Lakshmanchose the research scientist career path, Dr. Lakshman disagrees.He contends that he did not freely elect a less remunerativecareer path and was not content to remain a research scientistunder the direction of higher paid and tenured faculty members ofequal qualification. Instead, the University pigeonholed him intoa poorly paid position and blocked his efforts to break out intoa position consistent with his education and ability.
Dr. Lakshman's explanation for the University's actions formsthe basis for his claim. When he came to the University in 1986,he was and still remains one of few non-Caucasian employees inhis Department. Although he concedes the University had anaffirmative action plan, which applied to Asians, he contendsthat upon urging by female faculty, the University focused itsattention on the recruitment of women, to the detriment ofminority males. Dr. Lakshman believes he was, in effect, thevictim of two institutional biases: (1) a bias in favor of femalefaculty candidates; and, (2) a bias against his race,nationality, ethnicity, and color. These biases, he asserts,coalesced to freeze him into a low paying, non-faculty position,and out of a faculty appointment.
Dr. Lakshman alleges the University's discrimination began in1989, when he expressed an interest in an open tenure trackposition in the Department.6 When he questioned Dr. Tavantzis about the position, Dr. Tavantzisreplied it was marked for a woman.7 Although qualified,Dr. Lakshman did not apply for the position, and it went to JodyJellison, Ph.D., a female. In 1993, Dr. Lakshman says he appliedfor a position as an Assistant Research Professor and wasrejected.8 Instead, he was awarded an Associate Scientistposition, a job requiring only a bachelors degree and paying only$1,300 more than he had been making. In 1995, Dr. Lakshman againapproached Dr. Tavantzis. He asked to be promoted to the positionof Senior Scientist; instead, he was placed in an AssociateScientist position, requiring only a masters degree, again at asalary far below the level of his qualifications.
In 1997, a tenure track position, in mycology, became availableat the University. Dr. Jellison was the chair of the searchcommittee and Dr. Tavantzis was a member. Dr. Lakshmanapproached Dr. Jellison about the position and she told him notto apply, as she had "some thing else in mind." She said: "If youapply, you won't get it." Upon learning Dr. Jellison's response,Dr. Tavantzis shook his head and said it was unfortunate after somany years of mycological research, Lakshman could not apply andwould not be considered. The University hired Seania Annis,Ph.D., a female, for the mycologist position.9 Dr. Annisreceived her Ph.D. in 1995 in the same field as Dr. Lakshman's:plant pathology. Dr. Lakshman says he was more qualified than Dr.Annis for the mycology position. In 1998, Dr. Lakshman asked Dr. Tavantzis to request apromotion and raise. Dr. Tavantzis did so, writing to ChristopherCampbell, Ph.D., then the Associate Chair of the Department.After Dr. Campbell failed to respond for over a year, Dr.Lakshman wrote him directly on November 20, 2000. In response, onNovember 27, 2000, Dr. Campbell commissioned a salary study onDr. Lakshman's behalf and requested the Peer Review Committee toreview Dr. Lakshman's promotion request.
Sometime in November and December, 2000, Dr. Lakshman met withEvelyn Silver, Ph.D., the University's Equal EmploymentOpportunity Director. They discussed his concerns about themycology position and Dr. Silver gave Dr. Lakshman a copy of hisrights under the University's equal opportunity program. Duringthe meeting, after she suggested there must be a misunderstandingwithin the Department, Dr. Lakshman told Dr. Silver not to takeany action on his behalf.
On December 14, 2000, Dr. Lakshman met with Dr. Campbell abouthis salary inequity and discrimination concerns. Following thatmeeting, Dr. Campbell repeatedly asked Dr. Tavantzis whether Dr.Lakshman was an "unhappy person." Dr. Tavantzis also told Dr.Lakshman that Dr. Campbell, then the Department Chair, and SusanHunter, Ph.D., the Vice Chair, wanted Dr. Lakshman to know thatthey intended to create "disincentives," so that he could nolonger work at the University.10 On February 14, 2001,Dr. Lakshman's union representative wrote Dr. Campbell seekingthe status of his promotion request and on February 21, 2001, Dr. Lakshman filed acomplaint with the Maine Human Rights Commission(MHRC).11
On March 8, 2001, the Peer Review Committee recommended Dr.Lakshman's promotion to Senior Scientist, but did not specify theamount of his raise or his job description. On March 21, 2001,Dr. Campbell and Dr. Hunter wrote to Dr. Lakshman and informedhim, he would now have to work for three faculty, not just one.Dr. Lakshman considered this change of job description to be the"disincentive" Drs. Campbell and Hunter had mentioned to Dr.Tavantzis. After the Campbell — Hunter letter, Dr. Jellison metwith Dr. Lakshman and told him he was "an unhappy person" and shewas going to "closely monitor him for misbehavior or bad behaviorin her lab." Dr. Lakshman contends and the University agrees thathe has never behaved badly during his entire time at theUniversity. Dr. Lakshman's union filed a grievance with theUniversity, based on what they alleged was an adverse job actionin retaliation for his complaints.
Although the University characterizes ensuing discussionsbetween Dr. Lakshman and the Department as collaborative, Dr.Lakshman says in February 2002, he met with G. Bruce Wiersma,Ph.D., then Dean of the Department and Director of MAFES, and washanded an ultimatum: work on only two projects and be paid$45,000 for ten months or leave the University. At the meeting,Dr. Lakshman, feeling he had no other choice, accepted the newjob assignment and salary arrangement. On February 22, 2002, Dr.Lakshman's union filed a grievance, alleging among other thingsthat faculty members have created a hostile and intimidating workenvironment by using implied threats of negative job evaluations. On May 10, 2002, Dr. Lakshman re-filedhis complaint with the MHRC and the EEOC, alleging discriminationon the basis of race/ethnicity and gender.
Dr. Lakshman includes two further contentions. First, heasserts virtually throughout his employment at the University,his salary has been woefully inadequate, far less than theaverage salary for similarly situated post-doctoral scientists.Second, he points to discriminatory remarks by members of theDepartment faculty. In addition to Dr. Tavantzis' comment in 1989and Dr. Jellison's comment in 1997, Dr. Lakshman refers to thefollowing remarks: (1) in 1995-96, Professor Frank Manzer toldthe Department Chair Douglas Gelinas, Ph.D., and Dr. Lakshman'ssupervisor, Dr. Tavantzis, he did not know why Dr. Lakshman didnot "go back to India"; (2) Dr. Gelinas remarked that Dr.Lakshman could have been considered for jobs in the 1990s if hehad been a female or a "Native Indian"; (3) Dr. Tavantzis'comment that the mycologist would have to teach undergraduatesand they do not like to listen to "someone with an accent"; (4)Dr. Tavantzis' statement that foreign born scientists have towork "ten times harder to be on a par with Americans"; (5) Dr.Jellison's statement in 2001 that he must be an "unhappy person"and she would have to closely monitor him for bad behavior; and,(6) Dr. Tavantzis' statements to Dr. Lakshman that if he goes tocourt, he will have difficulty working at the University, thatDr. Tavantzis would say he does not recall many of theirconversations, and that the University would be a "very, veryuncomfortable" place for him to work. II. Procedural Posture.
After filing complaints with both the EEOC and the Maine HumanRights Commission (MHRC) on May 10, 2002, and receiving "right tosue" letters in December, 2002, Dr. Lakshman initiated hiscomplaint in State of Maine Superior Court on February 20,2003.12 In his complaint, he alleged six counts ofdiscrimination in violation of 42 U.S.C. § 1981; the Maine HumanRights Act; Title VII of the Civil Rights Act of 1964; Title IXof the Education Amendment of 1972; and two counts of retaliatorybehavior in violation of Title VII and the Maine Human RightsAct. The University filed a Petition and Notice of Removal tothis Court and simultaneously filed its answer and defenses onMarch 27, 2003.
III. Legal Standard.
The moving party is entitled to summary judgment if there is nogenuine issue as to any material fact and the moving party isentitled to judgment as a matter of law. Fed.R. Civ. P. 56(c)."In this regard, `material' means that a contested fact has thepotential to change the outcome of the suit under the governinglaw if the dispute over it is resolved favorably to thenonmovant. By like token, `genuine' means that `the evidenceabout the fact is such that a reasonable jury could resolve thepoint in favor of the nonmoving party.'" Navarro v. PfizerCorp., 261 F.3d 90, 93-94 (1st Cir. 2001) (quoting McCarthy v.Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995));see also York Ins. Co. v. Schultz, 307 F. Supp.2d 108, 112 (D. Me. 2004).The party moving for summary judgment must demonstrate an absenceof evidence to support the nonmoving party's case. Celotex Corp.v. Catrett, 477 U.S. 317, 325 (1986). The trial court isobligated to "view the entire record in the light most hospitableto the party opposing summary judgment, indulging in allreasonable references in that party's favor." Feliciano De LaCruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5(1st Cir. 2000); Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1stCir. 1990). In a discrimination action, however, "caution isappropriate when considering summary judgment for an employer."Bilodeau v. Mega Indus., 50 F. Supp.2d 27, 44 (D. Me. 1999).
IV. Legal Analysis.
A. Dr. Lakshman's Claims Under Title VII and the Maine HumanRights Act.
In Counts II-V of his Complaint, Dr. Lakshman contends theUniversity violated Title VII of the Civil Rights Act of196413 and the Maine Human Rights Act (MHRA).1442 U.S.C. § 2000e-2000e-17; 5 M.R.S.A. §§ 4551-4634. Morespecifically, he alleges (1) because of his race, color,ethnicity, national origin, and/or gender, the University paidhim less than similarly situated individuals; and, (2) theUniversity failed to promote him on the same improper grounds.The University posits two defenses: (1) it contends that anyclaims based on "discrete incidents" prior to July 24, 2001 arebarred by the statute of limitation; and, (2) Dr. Lakshman hasfailed to establish his prima facie case to refute the University's explanation of legitimatenon-discriminatory reasons for its actions or to demonstrate adiscriminatory animus.
1. Statute of Limitations.
a. The Title VII Statute of Limitations.
Section 2000e-5(e)(1) requires a plaintiff to file any chargewith the Equal Employment Opportunity Commission within 180 days"after the alleged unlawful employment practice occurred" beforefiling the action in court.15 42 U.S.C. § 2000e-5(e)(1);see also National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,104 (2002). In "deferral states," including Maine, where thestate has its own anti-discrimination laws and agency, thatperiod is extended to 300 days. Id.; Maarrero v. Goya of P.R.,Inc., 304 F.3d 7, 13 (1st Cir. 1998); Paquin v. MBNA MarketingSystems, Inc., 233 F. Supp.2d 58, 62 (D.Me. 2002); Hunter v.Siemens Medical Solutions Health Services Corp., 2003 WL21087010, *8 n. 4 (D.Me. 2003). In National Railroad, theSupreme Court concluded that "[e]ach discrete discriminatory act starts a new clock forfiling charges alleging that act. The charge, therefore, must befiled within the . . . 300 day time period after the discretediscriminatory act occurred." National Railroad, 536 U.S. at113. Dr. Lakshman filed complaints with the Maine Human RightsCommission and the EEOC on May 10, 2002. Under federal law,therefore, Dr. Lakshman's claims of discrimination due to"discrete acts" that occurred before July 14, 2001 are timebarred.16
Tracking Dr. Lakshman's recitation of his history ofdiscrimination with the University, this Court must dismiss hisComplaint under Title VII for the following discrete acts ofalleged discrimination: (1) the 1989 open tenure track positionawarded to Dr. Jellison; (2) the 1993 Assistant ResearchProfessor position; (3) the 1997 mycology position awarded to Dr.Annis; (4) claims of discriminatory underpayment from 1989 toJuly 14, 2001; and, (5) claims of failure to promote from 1989 toJuly 14, 2001. The single remaining discrete act not barred bythe federal statute of limitations is the reconfiguration of Dr.Lakshman's job description, a process that began before July 14,2001, but completed in February, 2002.
b. The MHRA Statute of Limitations.
A similar analysis applies to the Maine Human Rights Act claim.Under § 4613(C), a MHRA action must "be commenced not more than 2years after the act of unlawful discrimination complained of." 5M.R.S.A. § 4613(C). The critical date for the MHRA is the datethe complaint was filed in court, not the date the complaint wasfiled with the MHRC. Compare 5 M.R.S.A. § 4613(C) ("[t]he action mustbe commenced not more than two years after the act . . .");with 42 U.S.C. § 2000e-5(e)(1) ("A charge under this sectionshall be filed . . . within three hundred days after the allegedunlawful employment practice occurred . . ."). Morrison v.Carleton Woolen Mills, 108 F.3d 429, 438 (1st Cir. 1997);Pouliot v. Fairfield, 184 F. Supp.2d 38, 52-53 (D.Me. 2002).
The two year statute of limitations in Maine backs up the datefor discrete acts to February 23, 2001, two years prior to thedate the action was commenced in state court. As such, inaddition to the rewriting of the job description, the eventssurrounding and subsequent to the March 8, 2001 Peer ReviewCommittee recommendations are also captured and may beconsidered. Any separate events before February 23, 2001 may notform the basis for Dr. Lakshman's MHRA cause of action fordiscrete acts of discrimination.
2. Remaining Discrete Act Claim: McDonnell DouglasAnalysis.
The remaining discrete act claim focuses upon the University'sresponse to Dr. Lakshman's request for a raise and promotion, arequest that originated in 1998.17 Dr. Lakshman contendsthe University's February, 2002 decision to require him to workfor two, not one, faculty and to receive $45,000 for ten monthswork was grounded on its improper biases. Even considering theout of time acts as background evidence of discriminatory motive, this Court concludes that the evidence isinsufficient to allow the conclusion that the University'sactions violated the protections of Title VII and the MRHA.
Although Dr. Lakshman alleges intentional discrimination in hisComplaint, there is no direct evidence of intentionaldiscrimination in this record.18 The Court views hisallegations under the lens of disparate treatment and will employthe familiar burden-shifting framework enunciated in McDonnellDouglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnellDouglas, the plaintiff bears the initial burden to establish aprima facie case of discrimination. Id. at 802.
Dr. Lakshman seeks to satisfy his burden under two separatetheories of discrimination: unequal pay and failure to promote.Turning first to the unequal pay claim, Dr. Lakshman's argumentis based on the assumption that the McDonnell Douglasburden-shifting framework applies.19 To sustain hisinitial burden under the McDonnell Douglas analysis, Dr. Lakshman must show that: (1) he is amember of a protected class; (2) he performed his job in keepingwith the University's expectations; and, (3) he was paid lessthan members outside his protected class who held the sameposition. Rathbun v. Autozone, Inc., 361 F.3d 62, 77 (1st Cir.2004). Upon sustaining his initial burden, the burden shifts tothe University to articulate a legitimate, non-discriminatoryreason for the pay disparity. Watson v. Fort Worth Bank &Trust, 487 U.S. 977, 986 (1988). If the University carries itsburden of production, the burden then shifts back to Dr. Lakshmanto demonstrate by a preponderance of the evidence that thelegitimate reasons offered by the University were a pretext fordiscrimination. Watson, 487 U.S. at 986; Rathbun, 361 F.3d at71-72 & 77-80; Malloy v. Blanchard, 115 F.3d 86, 91 (1st Cir.1997).
Although production of the plaintiff's prima facie case is"not onerous," Watson, 487 U.S. at 986, the First Circuit hasstated that the plaintiff's claim for salary disparity must"identify and relate specific instances where person situatedsimilarly in all relevant aspects were treated differently."Malloy, 115 F.3d at 91 (quoting Dartmouth Review v. DartmouthCollege, 889 F.2d 13, 19 (1st Cir. 1989)). As the First Circuitexplained in Dartmouth Review, the test is "whether a prudentperson, looking objectively at the incidents, would think themroughly equivalent and the protagonist similarly situated." Id.An exact correlation "is neither likely nor necessary, but thecases must be fair congeners. In other words, apples should becompared to apples." Id.; see also Marcoux v. Maine,797 F.2d 1100, 1107 (1st Cir. 1986) (noting that the plaintiff does nothave to show her job was "perfectly congruent" with that of her malecounterpart in order to succeed on a claim of sex-based wagediscrimination).
Dr. Lakshman has cleared the first two hurdles: he is a memberof a protected class and he has performed his job in keeping withthe University's expectations. He stumbles, however, at the thirdhurdle: that he has been paid less than members outside hisprotected class holding the same position. To sustain his burdenof proof, Dr. Lakshman has presented a statistical analysiscomparing his salary to the salaries of other Ph.D.'s in theCollege of Natural Sciences, Forestry and Agriculture. The studyreveals that in 2003, Dr. Lakshman was paid $45,000; the averagesalary for Ph.D.'s (excluding recent post-doctoral hires) was$62,180 and the average salary for Ph.D.'s who began work, as Dr.Lakshman did, in 1986 was $72,078. In the year 2001, the averagesalary for non-faculty research professionals was $44,852, higherthan Dr. Lakshman's salary of $36,326. During most of his time atthe University, Dr. Lakshman has been the only non-Caucasian inhis Department and, therefore, the individuals comprising thecomparison group would be members outside one or more of hisprotected classifications.
Where gross statistical disparities can be shown, they alonemay in a proper case constitute prima facie proof of a patternor practice of discrimination. Hazelwood School Dist. v. UnitedStates, 433 U.S. 299, 307-08 (1977); Teamsters v. UnitedStates, 431 U.S. 324, 339 (1977). However, in considering theimpact of statistics, the First Circuit recently cautioned thatthe statistical analysis "must still cross a threshold ofdependability." Rathbun, 361 F.3d at 79. The probative worth ofstatistical testimony must be evaluated in light "of themethodology employed, the data available, and the factual mosaicunique to the case at hand" Id. (quoting Freeman v. PackageMachinery Co., 865 F.2d 1331, 1342 n. 5 (1st Cir. 1988)); see alsoSchuler v. Polaroid Corp., 848 F.2d 276, 279 (1st Cir. 1988)(noting plaintiff failed at prima facie stage to presentevidence about "the size of the pool of potentially affectedemployees, the age of kind of employee likely in the pool, thenature of the work force . . ., or the way in which theseemployees were treated that would permit a fact finder to findactionable age discrimination."). In Rathbun, the First Circuitfound the failure to determine the extent to which thestatistical disparities were attributable to factors other thangender to be a "significant shortcoming." Rathbun, 361 F.3d at79. Dr. Lakshman's statistical analysis was performed by Dr.Dennis McConnell, a University economics professor, and,therefore, is not the "rudimentary analysis" conducted by theparty's counsel that troubled the Rathbun Court. Id.
Nevertheless, the study does not sustain Dr. Lakshman's primafacie burden. First, for his more significant conclusions, Dr.McConnell included all Ph.D. holders in the College, whether theywere research scientists or teaching faculty.20 Second,Dr. McConnell considered only the individual's degree and date ofhire. Third, he failed to consider race or gender, both essentialcomponents of Lakshman's claim. Finally, Dr. McConnell omittednumerous other factors, which could have explained thestatistical disparity including the type of work performed, thePh.D. holders' responsibilities, skills required for theposition, pre- or post-employment achievement and distinction,generation of revenue, affirmative action, or competition. ThisCourt simply cannot conclude from Dr. McConnell's generalizedstudy that it compared Dr. Lakshman's salary with the salaries of individuals who have held "the sameposition." Rathbun, 361 F.3d at 77.
Assuming, arguendo, that Dr. Lakshman sustained his burden toshow a prima facie case, the burden shifts to the University todemonstrate a legitimate, nondiscriminatory reason for thediscrepancy between Dr. Lakshman's salary and the salaries ofother similarly situated individuals. The University contendsthat Dr. Lakshman was hired as a non-tenure track position andhis lower salary is attributable to his career path, not theUniversity's discriminatory animus. At least as regards theinclusion of higher paid tenured faculty in the statisticalsample, the University's response sustains its burden ofproduction to show a legitimate, non-discriminatory reason forthe discrepancy. In this response, the University has sustainedits burden of production.
Once the University met its burden of production, the inferenceof discrimi nation fades away and the burden returns to theplaintiff to show that the employer's explanation is a pretextfor unlawful discrimination. Che v. Mass. Bay Transp. Auth.,342 F.3d 31, 39 (1st Cir. 2003); Rivera-Aponte v. Rest. Metropol# 3, Inc., 338 F.3d 9, 11 (1st Cir. 2003). In the Court's view,Dr. Lakshman has not demonstrated that the University's decisionto pay faculty members more than non-faculty research scientistswas motivated by discriminatory animus against Dr. Lakshman. Onthis point, the University is entitled to summary judgment.
The analysis cannot, however, stop there. In addition to hisbroader claim of unequal pay, Dr. Lakshman has a more focusedpoint. Even when only research scientists are considered, Dr.Lakshman has presented evidence that he was underpaid. Dr.McConnell's study confirmed that in 2001, Dr. Lakshman was beingpaid $36,326 compared with an average of $44,852 among research scientists.Following the initiation of a pay inequity study in 2001, theUniversity ended up increasing Dr. Lakshman's salary to $45,000for ten months work, allowing him to earn an additional $9,000for the remaining two months from grant sources. Dr. Lakshman hasalso provided evidence that allows this Court to infer most, ifnot all, research scientists were not members of legallyprotected classes, that they were performing substantially thesame work, and that he was paid significantly less than hisfellow research scientists. In sum, Dr. Lakshman has sustainedhis prima facie burden: (1) he is a member of a protectedclass; (2) he performed his job in keeping with Universityexpectations; and, (3) he was paid less than members outside hisprotected class who held the same position.
In response, to meet its burden of production, the Universitystates it was Dr. Lakshman's late decision to elect the researchscientist career ladder that explains his lagging salary. TheUniversity says it did not originally anticipate he would remainpermanently in the career track for a research scientist and,therefore, did not move him up that career ladder. It claimsafter it came upon this realization in 1993, it consistentlypromoted Dr. Lakshman and increased his salary. It points out itnever refused Dr. Lakshman a request for a promotion or increasein pay in that career ladder and ultimately, he became a SeniorScientist, the highest MAFES career category. This Courtconcludes that the University has sustained its burden ofproduction to articulate "a legitimate, nondiscriminatory reasonfor the pay disparity." Rathbun, 361 F.3d at 78.
With this, the burden returns to Dr. Lakshman "to prove . . .that the legitimate reasons offered by the (employer) were notits true reasons, but were a pretext for discrimination."Burdine, 450 U.S. at 253. In the words of Mesnick, to thisend, "many veins of circumstantial evidence . . . may be mined." Mesnick,950 F.2d at 824. These "include — but are by no means limited to— evidence of differential treatment, evidence of discriminatorycomments, statistical evidence, and comparative evidence."Rathbun, 361 F.3d at 72. Independent evidence of discriminatoryanimus is not required and in the proper case, the trier may"infer the ultimate fact of discrimination from components of theplaintiff's prima facie showing combined with compelling proof ofthe pretextual nature of the employer's explanation." Id. Inthe context of this summary judgment motion, Dr. Lakshman mustoffer "some minimally sufficient evidence, direct or indirect,both of pretext and of the employer's discriminatory animus toprevail in the face of a properly drawn Rule 56 motion."Mesnick, 950 F.2d at 825; Rathbun, 361 F.3d at 72; Thomas v.Eastman Kodak Co., 183 F.3d 38, 62 (1st Cir. 1999).
Once the pay disparity is limited only to research scientists,the issue becomes closer. First, Dr. Lakshman has shown he wasthe sole minority among research scientists within his Departmentfor most of his term of employment. In 1993, when the Universityacknowledges it knew Dr. Lakshman had, in its view, decided uponthe research scientist career route, it promoted him into theposition of assistant scientist, a position that requires only abachelors degree. Although he was advanced quickly into theposition of Associate Scientist in 1995, this position requiredonly a masters degree. By the year 2000, when compared with otherPh.D.s among research professionals, Dr. Lakshman's salary was$33,785 compared with an average of $47,175. The next year, 2001,the disparity was reduced from $44,852 to $36,326, but itremained substantial. It was not until 2002, when the Universityincreased Dr. Lakshman to $45,000 for ten months work that hissalary became comparable to other Ph.D. level researchscientists. The disparity is even odder, since the University seems to agreethat Dr. Lakshman has been an excellent researcher and presentsno evidence at all of any untoward behavior during his entirecourse of employment. The extreme degree of the disparity, theextended period it persisted, Dr. Lakshman's acknowledgedcompetence, and his value as a researcher are all powerfulevidence in his favor.
What is less persuasive is evidence that this salary disparitywas precipitated by discriminatory animus or that theUniversity's reason for the disparity was pretextual. To thispoint, Dr. Lakshman points to the discriminatory comments hereceived at work and Dr. Campbell's failure to respond for over ayear to his promotion and salary requests. Although perhapsinsensitive, there is no evidence the offensive comments werereflected in a University decision. Apart from the salarydisparity, there is no evidence at all of any differentialtreatment among research scientists, much less evidence ofdifferential treatment based on prohibited factors. There is noclaim of the more obvious forms of non-salary-based academicdiscrimination, such as denial of specific projects, laboratoryaccess, grant opportunities, publication credit, furthereducational chances, monetary allocations to projects, or othernon-financial forms of individual recognition.
Given Dr. Lakshman's educational and research achievements, theCourt is left to puzzle as to the cause of an unusual degree ofadministrative inertia. But, what is lacking is any probativeevidence this institutional inaction was improperlymotivated.21 Dr. Lakshman may well have been taken forgranted or neglected, but this Court cannot conclude on this record the University's inaction was because ofimproper animus. The University's motion for summary judgment onthe allegation of unequal pay must be granted.
The sole remaining failure to promote claim is based on Dr.Lakshman's 1998 request for promotion to Senior Scientist and theUniversity's 2002 decision to grant him the title, but to alterhis job description. To establish a prima facie case, Dr.Lakshman must show: (1) that he is a member of a protected class;(2) that an adverse employment action occurred; (3) that he wasat least arguably qualified for the position he sought; and, (4)that the position was filled by others whose credentials weremore or less comparable to his. Dr. Lakshman's failure to promoteclaim is misplaced, since there is no evidence in this recordsatisfying the last criterion. Dr. Lakshman was ultimatelypromoted to the position of Senior Scientist and he makes nocontention that the Senior Scientist position was awarded tosomeone else, much less that their credentials were comparable tohis. Dr. Lakshman seems to be asserting that the University'sdecision to alter his job description and salary was inretaliation for his discrimination complaints, a contention thisCourt addresses later in this Order.
3. Desert Palace Analysis: Title VII.
At oral argument, Dr. Lakshman clarified that, in addition tothe McDonnell Douglas burden shifting framework, he is pressinga Desert Palace mixed motive analysis in his Title VIIclaim.22 Desert Palace, Inc. v. Costa, 539 U.S. 90(2003). In doing so, he gains nothing. As the First Circuit stated inHillstrom v. Best Western TLD Hotel, "even in mixed-motivecases, plaintiffs must present enough evidence to permit afinding that there was differential treatment in an employmentaction and that the adverse employment decision was caused atleast in part by a forbidden type of bias." 354 F.3d 27, 31 (1stCir. 2003). This is true, even though as Desert Palace taught,circumstantial as well as direct evidence may be used to satisfythis burden. Desert Palace, 539 U.S. at 97-101.
In his argument, Dr. Lakshman baldly asserts there is evidencefrom which a jury could directly conclude and evidence from whicha jury could infer that the University's employment actions werethe result of racial or ethnic bias. He then string cites ("see,e.g. inter alia") four paragraphs to demonstrate directevidence23 and thirty-three paragraphs to demonstratecircumstantial evidence.24 Based on Dr. Lakshman'sargument, this Court concludes that the evidence is insufficientto find the University's actions were the result of mixed motiveand grants the University's motion for summary judgment on theTitle VII claim to the extent it is grounded on a Desert Palaceanalysis. Davis v. Emery Worldwide Corp., 267 F. Supp.2d 109,120 n. 2 (D. Me. 2003) (stating "because no possibility of a mixed motive for the defendant'sactions with respect to this incident is raised by the evidencein the summary judgment record . . . Desert Palace . . . doesnot apply.")
4. Dr. Lakshman's Claims of Hostile Work Environment.
In Counts I through V, Dr. Lakshman initially allegeddiscrimination in the form of a hostile work environment on thebasis of race, color, ethnicity, national origin, and genderpursuant to the MHRA and Title VII. At oral argument, Dr.Lakshman expressly waived his argument of a hostile workenvironment under Title VII and the MHRA. The University's motionfor summary judgment on each such claim is, therefore, granted.
B. Dr. Lakshman's § 1981 Claims.
In addition to his causes of action under Title VII and theMHRA, Dr. Lakshman has initiated claims of discrimination andhostile work environment under 42 U.S.C. § 1981. The Universityhas asserted a statute of limitations defense to the § 1981claims and has reiterated the same contentions to the merits ofeach legal theory.
1. Statute of Limitations: 42 U.S.C. § 1981.
42 U.S.C. § 1981 provides in pertinent part: Statement of Equal Rights. All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contract . . . as enjoyed by white citizens. . . . 42 U.S.C. § 1981(a).25 Section 1981 forbids racial discrimination in the making and enforcement of private contracts, but contains no express statute of limitations. See generally 42 U.S.C. § 1981(a). In 1987, the United States Supreme Court charged federal courts to select the most appropriate or analogous state statute of limitations to apply to § 1981 claims. Goodman v. Lukens Steel Co., 482 U.S. 656, 661 (1987). This Court concluded that the six-year statute of limitations in Maine, 14 M.R.S.A. § 752, should apply to § 1981 actions. De Salle v. Key Bank of Southern Maine, 685 F. Supp. 282, 285 (D.Me. 1988). See also Small v. Inhabitants of Belfast, 796 F.2d 544, 545-49 (1st Cir. 1986) (applied six-year statute of limitations to federal civil rights claim under section 1983); McKenney v. Greene Acres Manor, 650 A.2d 699, 701 (Me. 1994) (applied six-year statute of limitations to § 1983 action).
After Goodman, on December 1, 1990, Congress passed28 U.S.C. § 1658, a general statute of limitations applicable to allfederal statues enacted after that date. It provides in pertinentpart:
Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of enactment of this section may not be commenced later than 4 years after the cause of action accrues.28 U.S.C. § 1658. On May 3, 2004, the United States Supreme Courtresolved the question of whether the four-year statute oflimitations in 28 U.S.C. § 1658 applies to § 1981 claims. InJones v. R.R. Donnelley & Sons Co., ___ U.S. ___,124 S.Ct. 1836 (2004), the Supreme Court held that the four year statute of limitations in §1658 applied to the petitioners' hostile work environment,wrongful termination, and failure-to-transfer claims, becausethey were made possible by the 1991 amendments to § 1981.Applying Jones to Dr. Lakshman's § 1981 claim, his hostile workenvironment, failure to promote, and unequal pay claims would nothave stated causes of action under the original version of §1981, since they occurred after the formation of Dr. Lakshman'scontract with the University. Patterson v. McLean Credit Union,491 U.S. 164, 177-78 (1989). Because his § 1981 claims were "madepossible" by the 1991 amendment, § 1658's four-year statute oflimitations must apply.
The critical date, therefore, for Dr. Lakshman's § 1981 claimsis February 23, 1999, four years prior to the date Dr. Lakshmanfiled his complaint in Maine Superior Court. Events occurringprior to that time cannot form the basis of his § 1981 discreteacts claims, but may be considered as background evidence insupport of a timely claim; events occurring prior to that timemay be considered as part of the hostile work environment claimso long as any act contributing to the hostile environment tookplace within the statutory period.
2. Disparate Treatment Under § 1981.
Dr. Lakshman's § 1981 disparate treatment claims must beconsidered under the same analytic framework as his Title VIIclaims, limited however to considerations of race, ethnicity, andnational origin, excluding gender. Ayala-Gerena v. BristolMyers-Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996). The narrowquestion is whether reaching back to February 23, 1999 changesthe result. It does not. There is still no direct evidence ofintentional discrimination; Dr. Lakshman has still failed tosustain his burden to make a prima facie showing; and, the University has stillpresented a legitimate, nondiscriminatory reason for its actions,which Dr. Lakshman has still failed to demonstrate arepretextual. McDonnell Douglas, 411 U.S. at 802.
The Title VII analysis for unequal pay also applies here. Themore general claim of unequal pay as against all Ph.D. holdersfails at the prima facie stage for the same reasons. Under §1981, the unequal pay claim for Dr. Lakshman's work as a researchscientist can reach back to February 23, 1999, instead of themore limited allowable period under Title VII. The additionaltime does not, however, affect the result. In the § 1981 claimfor unequal pay, he has made his prima facie case; theUniversity has met its burden of production; and, he has failedto show that the University's reasons were pretextual.
3. Hostile Work Environment Under § 1981.
In Count I, Dr. Lakshman alleges discrimination in the form ofa hostile work environment on the basis of race, color,ethnicity, and national origin pursuant to § 1981. Dr. Lakshmanfailed to respond to the University's argument on the hostilework environment claims and, therefore, has waived the right toobject. Grenier v. Cyanamid Plastics, 70 F.3d 667, 687 (1stCir. 1995) (noting that "[b]y failing to make this argument inhis opposition to summary judgment, Grenier has failed topreserve this claim.") Nevertheless, under Fed.R.Civ.P. 56(e),the court may grant summary judgment if the adverse party failsto respond, only if summary judgment is "appropriate" and at oralargument, Dr. Lakshman stated, in contrast to the Title VII andMHRA hostile work environment claims, he wished to pursue the §1981 hostile work environment allegation. The First Circuit hasconcluded that, even in the absence of a response by the opposing party, the district court "must review the motion and thesupporting papers to determine whether they establish the absenceof a genuine issue of material fact." Jaroma v. Massey,873 F.2d 17, 20 (1st Cir. 1989).
Even if he had responded, Dr. Lakshman's hostile workenvironment claim falls far short of his burden to establish aprima facie case. To satisfy his burden, Dr. Lakshman mustdemonstrate that (1) he is a member of a protected class; (2)that he was subjected to unwelcome harassment; (3) that theharassment was based on his race, ethnicity, color, or nationalorigin; (4) that the harassment was sufficiently severe orpervasive so as to alter the conditions of his employment andcreate an abusive work environment; (5) that the objectionableconduct was both objectively and subjectively offensive, suchthat a reasonable person would find it hostile or abusive and thevictim in fact did perceive to be so; and, (6) that some basisfor employer liability has been established. O'Rourke v. City ofProvidence, 235 F.3d 713, 728 (1st Cir. 2001). The environmentmust be sufficiently hostile or abusive in light of all thecircumstances, including the "frequency of the discriminatoryconduct; its severity; whether it is physically threatening orhumiliating, or a mere offensive utterance; and whether itunreasonably interferes with an employee's work performance."Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998); seealso Reed v. MBNA Marketing Sys., 231 F. Supp.2d 363, 371 (D.Me.2002). Unlike the constraint imposed on a discrete act claim, theCourt may consider "the entire scope of a hostile workenvironment claim, including behavior alleged outside thestatutory time period, . . . so long as any act contributing tothat hostile environment takes place within the statutoryperiod." Morgan, 536 U.S. at 104. Dr. Lakshman contends the hostile work environment arose fromthe following incidents: (1) being asked if he was going back toIndia; (2) being told he was an unhappy person; (3) being told hewould not be a "very good teacher" because of his accent; (4)being told his chances for promotion would have been better if hehad been a "Native Indian"; (5) being told he had to work "tentimes harder to be on a par with Americans"; and, (6) being toldthat if he pursued the claim against the University, it wouldbecome a "very, very uncomfortable place" to work.26
Even accepting Dr. Lakshman's version of the evidence in alight most favorable to him, these comments simply do not rise toa level of harassment and pervasiveness necessary to sustain ahostile work environment cause of action. In terms of frequency,the record indicates these comments occurred over a fifteen-yearperiod. Although there is no "absolute numerical standard" bywhich to determine whether harassment has created a hostileenvironment, Donco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8,16 (1st Cir. 1999) (quoting Vance v. Southern Bell Telephone &Telegraph Co., 863 F.2d 1503, 1511 (11th Cir. 1989), fewer thanten offensive comments over a fifteen year period is hardlyevidence of "pervasive" harassment. None was physicallythreatening. Dr. Lakshman may have found the comments aboutreturning to India and his accent humiliating, but it isdifficult to conclude that these were more than offensiveutterances. Significantly, there is no showing these commentsactually interfered with Dr. Lakshman's ability to perform hisjob. Wills v. Brown Univ., 184 F.3d 20, 26 (1st Cir. 1999)(noting "[b]roadly speaking, a hostile environment claim requiresthe victim to have been subject to harassment severe enough tocompromise the victim's employment or educational opportunities . . ."). To the contrary, Dr.Lakshman's complaint against the University is based in part onits failure to recognize his superior performance as an employedscientist. In Farragher, the Supreme Court noted that theconduct forming the basis for a hostile work environment claimmust be "extreme to amount to a change in the terms andconditions of employment'" and cautioned against interpretingTitle VII as a "general civility code." Farragher, 524 U.S. at788.
The cases where courts have found a hostile work environmentare simply different in degree and kind from the facts in thiscase. Harris v. Forklift Systems, 510 U.S. 17 (1993) (employeerepeatedly insulted, made the target of sexual innuendo,denigrated); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57(1988) (employee forcibly raped, repeated demands for sexualfavors, fondled in front of other employees); O'Rouke,235 F.3d 713 (female firefighter hired under newly implemented affirmativeaction policy subjected to overtly sexual behavior, stacks ofpornographic magazines, systematic and sustained exclusion andisolation, vandalism, discipline); Hernandez-Loring v.Universidad Metropolitana, 233 F.3d 49 (1st Cir. 2003) (femalefaculty member pawed and lasciviously addressed by chancellor,repeatedly propositioned by head of academic committee); Whitev. New Hampshire Dep't of Corrections, 221 F.3d 254 (1st Cir.2000) (daily, constant sexual references; explicit remarks andinnuendo concerning plaintiff); Danco, Inc. v. Wal-Mart Stores,Inc., 178 F.3d 8 (1st Cir. 1999) (racial graffiti, physicalthreat; racial slur over three month interval); Lipsett v. Univ.of Puerto Rico, 864 F.2d 881 (1st Cir. 1988) (female medicalresident subjected to three year period of ongoing sexualharassment, propositioning, and academic discipline). Viewing theevidence in a light most favorable to Dr. Lakshman, this Courtcannot conclude there is sufficient evidence of a hostile workenvironment at the University to withstand its motion for summaryjudgment on this cause of action.
C. Dr. Lakshman's Claims of Retaliation Under Title VII AndMHRA.
In Counts VII and VIII, Dr. Lakshman alleges that as a resultof filing complaints with the MHRC and the EEOC, members of hisDepartment at the University retaliated against him, creating ahostile work environment in violation of 42 U.S.C. § 2000e-3(a)and 5 M.R.S.A. § 4633.27 In particular, Dr. Lakshmancontends the University retaliated by implementing a dramaticrevision of his job responsibilities, effectively demoting him infact while promoting him in name, and by increasing his salary toan amount lower than it otherwise would have done.
Even where the underlying alleged discrimination may not beviable, a claim for retaliation may survive. Benoit v. TechnicalMfg. Corp., 331 F.3d 166, 174 (1st Cir. 2003); Mesnick v.General Electric, 950 F.2d 816, 827 (1st Cir. 1991); O'Meara v.Mineta, 2003 U.S. Dist. LEXIS 17444, * 31. To make out a primafacie case of unlawful retaliation, whether under Title VII orthe MHRA, an employee must show: (1) he engaged in protectedactivity; (2) he suffered an adverse employment action after orcontemporaneous with such activity; and, (3) there existed acausal link between the protected activity and the adverse jobaction. Benoit, 331 F.3d at 175; Wyatt v. City of Boston,35 F.3d 13, 16 (1st Cir. 1994); Bishop, 143 F. Supp.2d at 62.There is no doubt that Dr. Lakshman's filing of a complaint withthe EEOC and the MHRC constituted "protected activity" and,therefore, this Court will turn to the latter two criteria. The First Circuit has defined "adverse employment action" asincluding a variety of conduct, including "demotions,disadvantageous transfers or assignments, refusals to promote,unwarranted negative job evaluations, and toleration ofharassment by other employees." Hernandez-Torres v.Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998).Dr. Lakshman made his first assertion of Title VII or MHRA rightsin either November or December, 2000, when he visited Dr. Silver,the University's Equal Employment Opportunity Director.28This was roughly at the same time Dr. Campbell had referred hispromotion to the Peer Review Committee and had commissioned asalary study. According to Dr. Lakshman, on December 14, 2000, hemet with Dr. Campbell, then the Department Chair, and informedhim of his concerns about pay inequity and discrimination. Dr.Lakshman asserts that after that meeting, Dr. Campbellcontinually referred to him as an "unhappy person," and Drs.Campbell and Hunter stated that they would create "disincentives"to force Dr. Lakshman from the University.
Turning first to the salary issue, Dr. Lakshman earned $33,735in 2000. As a result of his request for a raise, the Universityended up increasing his salary to $45,000 in February, 2002 forten months work and allowing him the opportunity to earn anadditional $9,000 in grant money for the remaining two months. Inhis Memorandum, Dr. Lakshman fails to clarify whether heconsiders his raise in 2002 to be an adverse employmentaction.29 This Court concludes there is no evidence tosupport the contention that the University's 2002 decision to increase Dr.Lakshman's salary to $45,000 for ten months work was either anadverse employment action or in any way causally linked to hiscomplaints of discrimination.
Turning next to the "demotion" issue, Dr. Lakshman claims thatafter his discrimination complaints became known and wereformalized, the University altered his job responsibilities. Thetiming is significant. Dr. Lakshman first complained ofdiscrimination in November/December 2000 and it is shortlythereafter, he is told of the Campbell/Hunter "disincentive"remark. Dr. Campbell repeatedly referred to Dr. Lakshman as an"unhappy person." He formally filed complaints with the EEOC andMHRC on February 21, 2001. The Peer Review Committee recommendedhis promotion on March 8, 2001, and on March 21, 2001, Drs.Campbell and Hunter wrote to him, informing him that his jobdescription was going to change. Instead of working solely forDr. Tavantzis, as he had since 1986, he was now going to workunder three faculty members. Dr. Lakshman considered this changea major transformation, since his scientific energies and talentswould be dissipated and he would become more a technician than ascientist. Shortly, Dr. Jellison, one of those faculty members,met with him and informed him, she knew he was an "unhappyperson" and she was going to closely monitor him for misbehavioror bad behavior in her lab. The University has agreed that therehas never been any indication of bad behavior on the part of Dr.Lakshman during his employment there.
During the summer and fall of 2001, Dr. Tavantzis repeatedlywarned Dr. Lakshman against maintaining his legal action. He toldhim his fellow faculty members have been making remarks about Dr. Lakshman that have made itdifficult for him to work with them. He also said that if hecontinued with his legal action, it would be very difficult forhim at the University, because "if you fight the people you workwith, no one is happy." Finally, Dr. Tavantzis told Dr. Lakshmanthat if the matter proceeded to court, he would testify againsthim and would fail to recall conversations with Dr. Lakshman.After the University altered his job description to require himto report to two faculty members, Dr. Lakshman found that he wasmonitored on a daily basis. When he questioned this change ofpractice, he was told that Dr. Campbell had expressly demanded adaily report on Dr. Lakshman.
The demotion claim deserves scrutiny. The First Circuit hasnoted that "there are many sources of circumstantial evidencethat, theoretically, can demonstrate retaliation in a waysufficient to leap the summary judgment or directed verdicthurdles." Mesnick v. General Electric Co., 950 F.2d 816, 828(1st Cir. 1991). These include: (1) differential treatment in theworkplace; (2) temporal proximity; (3) statistical evidence; and,(4) comments by the employer that intimate a retaliatory mindset.Id. Dr. Lakshman has produced evidence of differentialtreatment in the University's individualized daily monitoring.The timing also favors Dr. Lakshman. His initial informalcomplaints were in November/December, 2000, his initial formalfiling was in late February, 2001, and the "demotion" decisionwas made in late March, 2001. He has not presented anystatistical evidence, but he has produced evidence of comments byhis employer indicative of a discriminatory mindset. He has, inthis Court's view, sustained his prima facie burden. Under the McDonnell Douglas framework, the burden ofproduction shifts to the University to articulate a legitimate,nondiscriminatory reason for its actions. This it has done. TheUniversity has produced evidence that its division ofresponsibilities among the scientific staff was part of anoverall reallocation of its resources among a range of projects,since some MAFES projects had the support of one scientificsupport staff while others had none. Moreover, the changes wereapplicable to all scientific support staff and were not personalto Dr. Lakshman. To the extent Dr. Lakshman was singled out, itwas only Dr. Lakshman, who received a contemporaneous promotionand salary increase. In fact, the University pointed out that Dr.Lakshman was the last of the scientific staff to work on only oneproject. With this series of explanations, the University has metits burden of production.
Under the McDonnell Douglas burden-shifting process, theburden returns to Dr. Lakshman to demonstrate the University'sstated reasons were pretextual. Dr. Lakshman can meet this burden"either directly, by persuading the Court that a discriminatoryreason more likely motivated the employer or indirectly, byshowing that the employer's proffered explanation is unworthy ofcredence." Texas Dep't of Community Affairs v. Burdine,450 U.S. 248, 256 (1981). In performing its analysis, this Court ismindful of the First Circuit's preference to allow juryresolution of issues of motive and intention. Petitti v. NewEngland Tel. & Tel. Co., 909 F.2d 28, 34 (1st Cir. 1990); Rossyv. Roche Products Inc., 880 F.2d 621, 624 (1st Cir. 1989).
Again, viewing the evidence in a light most favorable to Dr.Lakshman, the record reveals the comments of Drs. Campbell andHunter about "disincentive" and the troublesome evidence aboutDr. Jellison's actions: comments about Dr. Lakshman's unhappiness, singling him out for reporting requirements, andmost significantly, stating that he would have to be monitoredclosely for "bad behavior" when there is no evidence Dr. Lakshmanever behaved badly. But, to sustain his burden, Dr. Lakshman mustproduce evidence that the University's animus against him was sostrong, it was willing to reorganize the job descriptions of itsentire research scientist staff to retaliate against him alone.There is simply no evidence in this record to support such asweeping allegation. Weston-Smith v. Cooley Dickinson Hospital,Inc., 282 F.3d 60 (1st Cir. 2002) (finding hospital-widereorganization not discriminatory). Dr. Lakshman has failed toproduce "names, dates, incidents, and supporting testimony" whichwould give "rise to an inference of discriminatory animus" in thedepartment-wide alteration the job descriptions of theUniversity's research scientists. Lipsett, 864 F.2d at 895.
D. Dr. Lakshman's Title IX Claim.
Dr. Lakshman's Title IX claim presents a slight twist on theissues this Court has discussed. In Count VI, he asserts that theUniversity intentionally discriminated against him on the basisof gender: (1) by failing or refusing to promote him; (2) byfailing to increase his salary; and, (3) by fostering a hostilework environment, based on his gender.
Title IX of the Education Amendments of 1972 provides inpertinent part: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. . . .20 U.S.C. § 1681.
Title IX imposes an obligation on educational institutionsreceiving federal funds to refrain from denying educationalopportunities on the basis of sex.30 Wills v. Brown Univ., 184 F.3d 20, 35 (1st Cir. 1999). The statute'senforcement machinery includes an implied private right of actionthrough which an aggrieved party may seek money damages. Gebserv. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 283-84 (1998);Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 64 (1st Cir.2002). Because relevant legal analysis under Title IX is sparse,therefore the Court will apply Title VII case law byanalogy.31 Lipsett, 864 F.2d at 896; Brown v. Hot,Sexy & Safe Prods., 68 F.3d 525, 540 (1st. Cir. 1995).
1. Statute of Limitations.
Like § 1981, the text of Title IX contains no statute oflimitations. 20 U.S.C. § 1681. Unlike § 1981, however, Congresshas not amended § 1681 since December 1, 1990 and, therefore,under Jones v. R.R. Donnelly, the applicable Maine statestatute of limitations must apply. Because Title IX redresses sexdiscrimination, an injury to fundamental individual rights, thisCourt concludes it should apply the statute of limitationsgoverning personal injury actions. 14 M.R.S.A. § 752; De Salle,685 F. Supp. at 285 (applying 6 year statute of limitations to §1981 claim); Small, 796 F.2d at 545-49 (applying 6 year statuteof limitations to § 1983 claim); McKenney v. Green Acres Manor,650 A.2d at 701 (applying 6 year statute of limitations to § 1983claims). This Court will consider only those claims from February20, 1997, forward, including the alleged failures to promote in1998 and 2000, the failure to award the mycology position in1997, the alleged pay disparities from February 20, 1997, onward,and the claim of a hostile work environment. 2. Hostile Work Environment Claim.
In his complaint, Dr. Lakshman alleged a hostile workenvironment claim under Title IX; however, at oral argument, hewaived any such claim. Accordingly, this Court grants theUniversity's motion for summary judgment on the hostile workenvironment claim in Count VII of the complaint.
3. Pay Disparities.
This Court has previously discussed Dr. Lakshman's allegationsof pay disparities under its Title VII analysis. Regarding thepay disparity between research scientists and faculty, the sameanalysis and conclusion is applicable here: Dr. Lakshman hasfailed to show a prima facie case; the University has sustainedits burden of production, and he has failed to demonstrate itsreasons are pretextual.
Restricting the Rathbun analysis to gender, there is noevidence that the difference between his wage and the wages ofother research scientists was based on his gender. Unlike therecord for the Title VII claim, there is no evidence in Dr.Lakshman's Statement of Material Facts about the gender of theother research scientists, the number of female as opposed tomale researchers, the salary levels for female as opposed to maleresearch scientists, and whether the differences, if they exist,can be attributed to factors other than gender. Dr. Lakshman hasfailed to present any evidence he was paid less than the femaleresearchers. Rathbun, 361 F.3d at 77 (finding to make out aprima facie case of unequal pay, employee must show, amongother things, that "[he] was paid less than [women] who held thesame position"). 4. Failure To Promote.
To sustain his burden to demonstrate a prima facie case, Dr.Lakshman must show: (1) he was a member of a protected class; (2)he was qualified for the position; (3) he was not hired despitehis qualifications; and, (4) the job was given to a female.Keyes v. Secretary of Navy, 853 F.2d 1016, 1023 (1st Cir.1988). Dr. Lakshman's first complaint, the 1998 Tavantzisrecommendation, fails, because he has not demonstrated that anyposition actually existed. In 1998, Dr. Tavantzis recommended Dr.Lakshman for a raise and promotion to the position of SeniorScientist, a recommendation that Dr. Campbell failed to receive,ignored, or forgot about for over a year. However, there is noevidence in this record that a position as a Senior Scientistactually opened up and was given to a female during thatinterval.
Dr. Lakshman's second complaint relates to the failure topromote in 2000, when although ultimately awarded the position ofSenior Scientist, he was in fact demoted by job description. Forthe same reasons set forth above, Dr. Lakshman failed to sustainhis prima facie burden on this position under Title IX as well.
This leaves the 1997 mycology position. This is moretroublesome. The Court is required at this stage to view theevidence in a light most favorable to Dr. Lakshman. With this inmind, the Court concludes that he has met the burden todemonstrate a prima facie case: (1) he is male; (2) he wasqualified for the position; (3) he was not hired despite hisqualifications; and, (4) the job was given to a female. Thisconclusion, however, is not without hesitation. Dr. Lakshmannever actually applied for the mycology position. Although it seems illogical to hold an employer legallyresponsible for failing to hire someone who never applied, itwould be equally unreasonable to reward an employer who activelyand successfully discourages potential applicants for legallyimpermissible reasons. In general, the failure to file a formalapplication will not bar a plaintiff from establishing a primafacie case of discriminatory hiring provided the plaintiff "madeevery reasonable attempt to convey his interest in the job to theemployer." Equal Employment Opportunity Comm. v. Metal ServiceCo., 892 F.2d 341, 348 (3rd Cir. 1990) (Title VII claim). Againin a Title VII context, the Supreme Court concluded that "anonapplicant can be a victim of unlawful discrimination entitledto make-whole relief when an application would have been auseless act serving only to confirm a discriminatee's knowledgethat the job he wanted was unavailable to him." Int'l Bd. ofTeamsters v. United States, 431 U.S. 324, 367 (1977). In thiscase, after he expressed interest in the mycology position to Dr.Tavantzis, Dr. Jellison, the Chair of the Selection Committee,came to Dr. Lakshman and said: "If you apply, you won't get it."A more forceful and direct discouragement is hard to imagine. Dr.Lakshman can hardly be faulted for taking Dr. Jellison at herword and failing to file an application, even if he thought hewas qualified for the position.
Once Dr. Lakshman met his prima facie burden, the Universityhas the burden of production to articulate a legitimate,nondiscriminatory reason for its actions. This it has done.First, setting aside for the moment the discouragement issue, theUniversity asserts it could not hire Dr. Lakshman, since he neverapplied. Second, the University asserts that of the threefinalists, two were male. Third, the University states that itoffered the position to the two of the final three candidates (atleast one of whom had to be male), each of whom turned the University down. Fourth, the Universitydeclined to offer the position to the third finalist, based onthe interview and evaluation process. Fifth, the position wasthen offered to the next candidate, Dr. Annis. Sixth, one of Dr.Jellison's female post-doctoral assistants had applied for themycologist position and was eliminated in the first round.Seventh, Dr. Tavantzis believed Dr. Lakshman was not qualifiedfor the appointment. These accumulated facts more than meet theUniversity's burden of production.
A more difficult issue remains: whether Dr. Lakshman haspresented evidence that the University's stated reasons for itsactions were pretextual. The evidence on this score focuses onDr. Jellison, who chaired the search committee, and whether herdiscouragement of Dr. Lakshman's application on the assertedbasis of lack of qualifications was a pretext for her unstatedgender bias against him. Dr. Lakshman's evidence of hiscomparative qualifications includes: (1) his Ph.D. in 1984 fromCornell University in plant pathology; (2) Dr. Tavantzis'statement that it is "too bad" someone with Dr. Lakshman'squalifications in mycology could not be considered; (3) Dr.Seania Annis' degree was in plant pathology, the same disciplineas Dr. Lakshman's Ph.D.; and, (4) Dr. Annis had received herPh.D. in 1995 and had only two years post-doctoral training.Based on Dr. Lakshman's evidence, there is a factual question asto whether his qualifications met or exceeded Dr. Annis'qualifications.
Dr. Lakshman's evidence of the University's impropergender-based motivation comes in three forms. First, theUniversity had long emphasized the recruitment and hiring offemale faculty, an emphasis pre-dating the 1997 mycology opening.Second, upon being informed by Dr. Tavantzis of Dr. Lakshman'sinterest in the mycology position, Dr. Jellison actively discouraged him from evensubmitting an application. Third, Dr. Jellison is the facultymember, who in 2002, persisted in describing Dr. Lakshman as an"unhappy" person and told him she would monitor him for hisillusory "bad behavior."32
For Title IX purposes, Dr. Lakshman's aggregation of evidenceon pretext is fatally flawed. When the evidentiary circle isexamined for gender alone, its circumference becomes extremelycircumscribed. There is Dr. Tavantzis' remark in 1989 about a jobbeing marked for a woman and Dr. Gelinas's undated remark that ifDr. Lakshman had been a female or "Native Indian," he would havebeen considered for some jobs. But, there is virtually noevidence in the record that the University's actions regardingthe mycology position in 1997 were motivated by gender bias. Tothe contrary, although Dr. Jellison discouraged Dr. Lakshman fromapplying, she similarly discouraged a female research scientistand two of the final three candidates were male. The FirstCircuit has reminded us that "a slight suggestion of pretext,absent other evidence from which discrimination can be inferred,[does not] meet plaintiff's ultimate burden." Weston-Smith,282 F.3d at 70 (quoting Zapata-Matos v. Reckitt & Colman, Inc.,277 F.3d 40, 47 (1st Cir. 2002). This Court concludes the Dr.Lakshman's evidence of sex discrimination in the University's1997 decision to fill the mycology position is inadequate towithstand summary judgment.
E. Dr. Lakshman's Punitive Damages Claim.
In its motion, the University states that Dr. Lakshman'sComplaint "appears to seek an award of punitive damages." Def.'sMem. at 29. Dr. Lakshman responded to the University by objecting to the issuance of summary judgment "withrespect to punitive damages". Pl.'s Mem. at 40, However, atoral argument, Dr. Lakshman waived any punitive damages claim.Accordingly, the Court will not consider the University's Motionfor Summary Judgment on the punitive damages issue; Dr. Lakshmanis barred from asserting such a claim.
Dr. Lakshman's complaint consists of an unusually complexseries of actions, requiring for each theory a separate analysisunder differing periods of limitation, the application of avariety of statutory criteria, and compliance with differingappellate authority. In the final analysis, the University hasdemonstrated that there exist no genuine issues of material factunder the intricate legal analyses compelled by this motion andthat it is entitled to judgment as a matter of law. TheUniversity of Maine System's Motion for Summary Judgment is,therefore, GRANTED.
1. Dr. Lakshman became an American citizen in 1999.
2. Prior to this decision, the Court issued an extensiveOrder, ruling on hundreds of objections to the Statements ofMaterial Fact. This recitation is a distillation of the factsthat have survived the prior Order.
3. The University of Maine, located in Orono, is one of sevenuniversities within the Defendant University of Maine System. TheDepartment of Biological Sciences is a department within theCollege of Natural Sciences, Forestry, and Agriculture at theUniversity of Maine.
4. The Maine Agricultural and Forestry Experiment Station isaffiliated with the University. It is funded in part by theUnited States Department of Agriculture and performs appliedresearch for state constituencies, such as the blueberry andpotato industries.
5. While he remained at MAFES, however, Dr. Lakshman wasconfined to the MAFES career ladder, beginning with ResearchAssistant, and continuing to Research Associate, AssistantScientist, Associate Scientist, and ending with Senior Scientist,the highest rung on the non-faculty research scientist ladder.
6. The Plaintiff uses two different dates for the Jellisonappointment. In his Statement of Material Facts, he asserts thatshe was hired in 1989; in his Opposition Memorandum, he statesthat he expressed an interest in the position for which Jellisonwas hired in 1993.
7. Dr. Lakshman says Dr. Tavantzis told him: "We need morewomen in the faculty."
8. The University denies Dr. Lakshman ever applied for thisposition. It says Dr. Tavantzis recommended Dr. Lakshman forthree positions in 1993, including Assistant Research Professor,and Dr. Lakshman was awarded one of the other recommendedpositions: Assistant Scientist. There is no information in therecord whether there was in fact an open position as an"Assistant Research Professor" and, if so, who received theappointment. There is no further information about thisposition.
9. The University states that the Search Committee initiallynarrowed its search to three finalists: two males and one female.It says it offered the position to two of the candidates, each ofwhom turned the offer down, and decided not to offer the positionto the third. Instead, the Committee offered the position to thenext candidate, Dr. Annis.
10. It is unclear in this record when the "disincentives"comment was made. Dr. Lakshman's memorandum assumes the commentwas made "shortly after Lakshman met with Campbell", Pl.'s Mem.at 10, on December 14, 2000, but the record citation, LakshmanDep. at 318: 5-20, makes no mention of the timing of thecomment. There is no direct evidence in the record on the point,except the compelled conclusion that the comment, assuming it wasresponsive to his complaints, was made after the complaints.
11. Dr. Lakshman withdrew the complaint on November 18, 2001,and the MHRC dismissed it in December, 2001.
12. Under 42 U.S.C. § 2000e-5(f)(1), Dr. Lakshman was requiredto file this action within ninety days of receiving his right tosue letter from the EEOC. Pouliot v. Fairfield, 184 F. Supp.2d 38,52 (D.Me. 2002). There is no claim that Dr. Lakshman failedto comply with this aspect of the federal statute of limitations.Under § 4611 of the Maine Human Rights Act (MHRA), a complainanthas six months "after the alleged act of unlawful discrimination"to file a complaint with the MHRC. 5 M.R.S.A. § 4611. Once thecomplaint is filed, the complainant may request a "right to sue"letter if within 180 days, the MHRC has not filed a civil actionor has not entered into a conciliation agreement. If the letteris issued, the MHRC ends its investigation. 5 M.R.S.A. § 4612(6).Dr. Lakshman attached to his Complaint a copy of right to sueletters from the EEOC and the MHRC. MHRC letter dated December11, 2002; EEOC Notice of Right to Sue dated December 12, 2002.Walton v. Nalco Chem. Co., 272 F.3d 13, 21-22 (1st Cir. 2001).
13. Title VII states that an employer may not "discriminateagainst any individual with respect to his compensation, terms,conditions, or privileges of employment, because of suchindividual's race, color, religion, sex, or nationalorigin. . . ." 42 U.S.C. § 2000e-2(a)(1).
14. The MHRA provides that it is unlawful for any employer to"discriminate with respect to hire, tenure, promotion, transfer,compensation, terms, conditions or privileges of employment orany other matter directly or indirectly related to employment. . . because of race or color, sex . . . ancestry or nationalorigin. . . ." 5 M.R.S.A. § 4572(1)(A).
15. 42 U.S.C. § 2000e-5(e)(1) provides in pertinent part: A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred . . ., except in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State . . . agency with authority to grant or seek relief from such practice . . ., such charge shall be filed . . . within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State . . . has terminated the proceedings under the State law . . ., whichever is earlier. . . .5 M.R.S.A. § 4611 provides in pertinent part: Any person who believes that the person has been subject to unlawful discrimination . . . may file a complaint under oath with the commission . . ., provided that such complaints must be filed . . . not more than 6 months after the alleged act of unlawful discrimination.Maine is considered a "deferral state" under this statute,meaning that it is a state in which a plaintiff may instituteproceedings on such a claim with a state agency, making thedeadline for filing court action 300 days after the practice atissue occurred rather than 180 days. Hunter v. Siemens MedicalSolutions Health Services Corp., 2003 WL 21087010, *8 n. 4 (D.Me2003). 5 M.R.S.A. § 4613(2)(C) provides "[t]he action shall becommenced not more than 2 years after the act of unlawfuldiscrimination complained of."
16. As National Railroad clarified, "discrete acts" claims"are different in kind" from "hostile environment claims."National Railroad, 536 U.S. at 115. Unlike discrete act claims,in a hostile work environment claim, it does not matter that someof the component acts of the hostile work environment falloutside the statutory time period, provided an act contributingto the claim occurs within the filing period. Id. at 117. Thisportion of the Court's ruling addresses only the "discrete acts"claims under both Title VII and the MHRA.
17. This claim itself rests substantially upon events prior toFebruary 20, 2001 and July 14, 2001. The change in jobdescription and salary did not take place until sometime inFebruary, 2002 well within both statutes of limitation. However,the University's action stands out of context unless out of timeevents are considered, including (1) the University's previousdiscouragement of his interest in a faculty position and hiringof less qualified female applicants; (2) Dr. Campbell's failureto respond to his 1998 salary and classification inquiry for overa year; (3) the "unhappy person" comments that followed hisDecember, 2000 meeting with Dr. Campbell; (4) (depending on thedate) the "disincentive" comments from Drs. Campbell and Hunter;and, (5) the stray comments going back to 1995. Under Nat'l R.R.Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002), Dr.Lakshman would not be barred from "using the prior acts asbackground evidence in support of a timely claim." Vesprini v.Shaw Contract Flooring Services, Inc., 315 F.3d 37, 42 n. 4 (1stCir. 2002); Martin v. Inhabitants of the City of Biddeford,2003 WL 1712510 * 8 (D.Me. 2003).
18. In his Opposition Memorandum, Dr. Lakshman states he has"pointed to sufficient facts, if believed, from which a jurycould directly conclude that he was discriminated against onthe basis of race/ethnicity." Pl.'s Opp. Mem. at 15 (emphasisin original). He then string cites four references to the record:paragraphs 57, 246, 247, and 276. Paragraph 57 is theUniversity's statement that Dr. Jellison's belief that Dr.Lakshman was not competitive for the mycology position wasunrelated to his race, ethnicity, national origin, color, orgender. Dr. Lakshman responded by denying the University'sstatement and making a record reference to Dr. Lakshman'sdeposition testimony that Dr. Tavantzis told him the Universityneeded someone to teach BIO 101 and his accent could pose aproblem. Paragraph 246 is Plaintiff's statement that "Dr.Tavantzis told [him] that Dr. Gelinas had said he [would havebeen] considered for some of those [jobs] if he [had been] afemale or a `Native Indian.'" Paragraph 247 is Plaintiff'sstatement that "Dr. Tavantzis told [him] he should work ten timesharder to be on a par with Americans in research." Finally,paragraph 276 is Plaintiff's statement that in 1995-96,"Professor Frank Manzer told the Department Chair Gelinas and hissupervisor Tavantzis that Plaintiff should go back to India." Contrary to Plaintiff's assertion, none of these referencesconstitutes direct evidence of the University's discriminatorymotivation in its actions in February, 2002. The First Circuithas defined "direct evidence" as "statements by a decisionmakerthat directly reflect the alleged animus and bear squarely on thecontested employment decision." Wennik v. PolyGram GroupDistrib., 304 F.3d 123, 132 (1st Cir. 2002); Kirk v. HitchcockClinic, 216 F.3d 75, 79 (1st Cir. 2001); Febres v. ChallengerCaribbean Corp., 214 F.3d 57, 60 (1st Cir. 2000). None of thesestatements fits the First Circuit definition.
19. This case is thus similar to Rathbun, where the FirstCircuit recently noted that since the plaintiff had "acquiescedin this mode of analysis," the district court properly applied itand the plaintiff "forfeited the opportunity to argue for theapplication of a different, more plaintiff-friendly standard."Rathbun v. Autozone, Inc., 361 F.3d 62, 72 (1st Cir. 2004). Itis by no means clear the McDonnell Douglas burden shiftinganalysis should be applied in equal pay claims initiated underTitle VII. As Rathbun pointed out, federal courts are dividedon this issue. Id. at 73. In this case, however, Dr. Lakshmanhas elected not to make an Equal Pay Act, 29 U.S.C. § 206(d)(1),claim directly and, as in Rathbun, has "abjured any suggestionthat the Equal Pay Act framework might apply." Id. Rathbunconcluded that the decision to apply McDonnell Douglas to theemployee's claim could not "plausibly sink to [the] level" ofplain error. Id. at 73 n. 4.
20. The flaw in this part of Dr. Lakshman's argument is iterroneously equates academic degree with academic position.
21. The Court can only speculate why the University paid Dr.Lakshman less over an extended period. Was this an institutionalapplication of Newton's First Law: "A body at rest tends to stayat rest"? Was it an example of Downeast parsimoniousness? Dr.Tavantzis's lack of influence on behalf of his subordinatecolleague with the Department Chairs? Dr. Lakshman's inability toindependently generate grant and research funding? All of theseare possible and speculative. What is equally speculative andfatal is any evidence that connects the University's inaction toimproper bias.
22. Dr. Lakshman made a Desert Palace argument in only themost oblique and cursory manner. There is nothing on the face ofhis complaint triggering a mixed motive analysis. On theunderstandable assumption that Dr. Lakshman was not engaging in aDesert Palace approach, the University did not mention a mixedmotive analysis in its initial Summary Judgment Memorandum. Inhis reply, Dr. Lakshman's references to Desert Palace appear inthe context of whether direct evidence is necessary to sustain aclaim of Title VII discrimination. During the discussion, Dr.Lakshman mentions the rubric from Desert Palace that unlawfulemployment discrimination can be established if the plaintiff"demonstrates that . . . an illegitimate criterion was amotivating factor for any employment practice, even though otherfactors may have motivated the practice." Desert Palace,539 U.S. 90. However, his memorandum fails to engage in a DesertPalace analysis; there is no attempt to fit the law to thefacts. He simply argues he has "pointed to sufficient facts, ifbelieved, from which a jury could directly conclude that he wasdiscriminated against on the basis of race/ethnicity." Pl.'sReply Brief at 14-15. To give Dr. Lakshman the benefit of thedoubt, the Court will address these conclusory assertions ashaving raised a mixed motive theory of discrimination. In failingto explain his argument, Dr. Lakshman has left the University andthe Court in the dark to guess why he contends he has establishedthe factual predicate for the application of Desert Palace.
23. This Court has already discussed Dr. Lakshman's referencesto "direct evidence" in SMFs ¶¶ 57, 246, 247, and 276 andconcluded they did not constitute direct evidence as defined bythe First Circuit.
24. The thirty three paragraphs string cited forcircumstantial evidence amount to a classic scattershot. Some arewithin time; most are out of time. The vast bulk has nothing todo with the remaining Title VII discrete act claim. The plaintiffseems to be saying to the Court: "There must be some evidencesupporting my case somewhere in my statement of material facts.You go find it." The Court declines the plaintiff's invitation toact as his advocate. Cadle Co. v. Hayes, 116 F.3d 957, 960 (1stCir. 1997) (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co.,896 F.2d 5, 8 (1st Cir. 1990) (The Court will not pay heed to"conclusory allegations, improbable inferences (or) unsupportedspeculation.")).
25. Congress amended § 1981 by adding § 101 of the CivilRights Act of 1991: "[f]or purposes of this section, the term,`make and enforce contracts' includes the making, performance,modification, and termination of all benefits, privileges, andconditions of the contractual relationship." Pub.L. 102-166, 105Stat. 1071 codified in 42 U.S.C. § 1981(b). The congressionalenactment followed the Supreme Court's decision in Patterson v.McLean Credit Union, 491 U.S. 164, 177-78 (1989), which heldthat while § 1981's "make and enforce contracts" languageprohibited discriminatory hiring, it did not proscribediscriminatory termination or other discriminatory actionsoccurring after the employment relationship was formed. The 1991provision made § 1981's prohibition against racial discriminationin the making and enforcement of contracts apply "to all phasesand incidents of the contractual relationship, includingdiscriminatory contract terminations." Rivers v. RoadwayExpress, 511 U.S. 298, 302 (1994).
26. Dr. Lakshman also contends he was told that his chancesfor promotion would have been greater if he had been female andthat he was unqualified for the mycology position because he wasmale. These comments would not be applicable to a § 1981 cause ofaction, since they involve potential gender bias.
27. The retaliation provisions of Maine statutory lawessentially track the provisions of federal law and the sameanalytic processes apply to each. Bishop v. Bell AtlanticCorp., 143 F. Supp.2d 59, 62 (D.Me. 2001).
28. With respect to Dr. Lakshman's claims for salary disparityand change in job description, for purposes of the statute oflimitations, the dates are the same as determined in the TitleVII and MHRA discussion, supra Section (A)(1)(a), (b): February23, 2001 under the MHRA and July 14, 2001 under Title VII. TheCourt's recitation of the events prior to these dates is forbackground purposes only. Infra n. 17.
29. Dr. Lakshman states that "although his raise was increasedby 19%, his previous salary was so low that it was only increasedfrom $37,000 to $45,000, approximately by $8,000. Surely that$8,000 alone would not in itself have caused the time and energyexpended by University agents in battling this matter withPlaintiff and the union for over a year." Pl.'s Mem. at 38-39.His complaint alleges lost wages and lost future earnings as aconsequence of the University's alleged retaliation.
30. The University has admitted in its Answer it receivesfederal funds. Pl.'s Complaint para. 51; Def.'s Answer atp.51.
31. Title VII (and thus Title IX) strikes "at the entirespectrum of disparate treatment of men and women, includingconduct having the purpose or effect of unreasonably interferingwith an individual's performance or creating an intimidating,hostile or offensive environment." Brown, 68 F.3d at 540(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64-65(1986)) (internal quotation marks excluded).
32. As it turned out, Dr. Jellison was not the individual wholater initiated the daily reporting requirement that furthersingled out Dr. Lakshman. There is no evidence as to who thisperson was or why the daily reporting requirement wasinstituted.