Harrington v. Lesley University

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

MICKI HARRINGTON, )

)

Plaintiff, )

)

) CIVIL ACTION NO.

v. ) 20-11718-DPW

)

)

LESLEY UNIVERSITY )

& HEDI BENAICHA, )

)

Defendants. )

MEMORANDUM AND ORDER

August 12, 2021

This case, which is now before me on a motion to dismiss,

presents questions concerning the interplay between two separate

federal statutory schemes that address gender discrimination:

Title VII of the Civil Rights Act of 1964 (“Title VII”), Pub. L.

No. 88-352, 78 Stat. 241, 253–266 (codified as amended at 42

U.S.C. §§ 2000e to 2000e-17), which prohibits employment

discrimination because of “sex,” among several protected

classifications, and Title IX of the Education Amendments of

1972 (“Title IX”), Pub. L. No. 92-318, 86 Stat. 373 (codified as

amended at 20 U.S.C. §§ 1681–1688), which, with singular focus,

proscribes discrimination “on the basis of sex” in any federally

funded educational program or activity. An employee of a

federally funded educational institution who alleges sex-based

employment discrimination can come within the literal statutory

language of both federal statutes.

The fundamental question posed is whether Plaintiff Micki

Harrington may bring employment discrimination claims against

her current employer, Lesley University, and her former

supervisor, Dean Hedi BenAicha, under both Title VII and Title

IX. I find that she may, subject to the constraints of the

statutes of limitations proscriptions separately applicable to

the two statutory schemes.1

I. BACKGROUND

A. Factual Allegations

Except where noted, the following facts drawn from the

allegations of the operative First Amended Complaint are not in

dispute for the purposes of the motion to dismiss. To the

extent that alleged facts are disputed, I view them in the light

most favorable to Ms. Harrington, the non-moving party. See

Ramírez-Lluveras v. Rivera-Merced, 759 F.3d 10, 13 (1st Cir.

2014).

1. Sexual Harassment Allegations

On or around August 22, 2016, Ms. Harrington began

1 Also implicated is the separate state statutory scheme under

the Massachusetts Fair Employment Practices Act, Massachusetts

General Laws ch. 151B (“Chapter 151B”), proscribing sex-based

discrimination as a form of unlawful employment discrimination.

As explained more fully in this Memorandum, I find that the

statute of limitations proscription applicable to the

Massachusetts statutory scheme forecloses Ms. Harrington’s

claims under Chapter 151B.

employment in the position of Temporary Art Librarian with

Lesley University. See First Amended Complaint (“FAC”) ¶ 9

[Dkt. No. 12]. Lesley University is a higher education

institution providing federally funded undergraduate, masters,

and doctoral programs. Id. ¶ 8. Ms. Harrington reported

directly to the individual Defendant, Hedi BenAicha, the Dean of

University Libraries. Id. ¶ 9. Throughout this period, he

subjected Ms. Harrington to persistent verbal and physical

sexual harassment. Id. ¶ 15.

Ms. Harrington alleges that, in every workplace meeting,

Dean BenAicha engaged in nonconsensual, sexualized physical

contact. Id. A few examples follow.

On or around July 18, 2017, he put his arm around her waist

without permission as they left a meeting on the University

campus. Id. ¶ 16. When she attempted to move away, he

tightened his grip. Id.

In August 2017, he placed his hand on her back and traced

his fingers up and down her spine during a conversation with

another colleague on the University campus. Id. ¶ 17. He

repeated this nonconsensual physical touching in a staff meeting

two months later. Id. ¶ 19.

On or around September 7, 2017, Dean BenAicha approached

Ms. Harrington at the circulation desk of the University library

and massaged her shoulders without consent. Id. ¶ 18. To

terminate the physical contact, Ms. Harrington had to stand up

and move to a different chair. Id.

In the same month, on or around September 7, 2017, Dean

BenAicha learned that a visitor had exposed himself to Ms.

Harrington in the library. He intrusively asked her about the

incident, inquiring: “How much did you see?” and “What did you

think of it?” Id. ¶ 24. She had to walk away to end his

sexually charged questioning. Id.

While they were in the workplace, Dean BenAicha repeatedly

told Ms. Harrington that he preferred she wear skirts to work

instead of pants. Id. ¶ 20. He frequently referred to her as

his “daughter.” Id.

On or around November 20, 2018, Ms. Harrington filed a

complaint with the Title IX coordinator at Lesley University

describing Dean BenAicha’s sexual harassment and gender

discrimination. Id. ¶ 26. Two weeks later, on or around

December 4, 2018, Dean BenAicha took medical leave. Id. ¶ 27.

As of the filing of this litigation, he had not returned. Id.

The University has not issued any findings in response to the

Title IX complaint. Id. ¶ 28.

2. Wage Discrimination Allegations

Prior to accepting employment with Lesley University as

Temporary Art Librarian, Ms. Harrington had spoken to Dean

BenAicha about the position. Id. ¶ 11. During this

conversation, he promised her that she would receive relocation

benefits and guaranteed professional development funds as part

of her compensation. Id. He also promised that, after a

probationary period, she would be promoted to the permanent

position of Head Librarian and would receive a raise in salary.

Id. Relying on these oral promises, Ms. Harrington terminated

her employment of approximately eight years in the Library

Department of Keene State College and, on August 22, 2016, she

accepted employment with Lesley University. Id. ¶¶ 10, 11.

Around November 2016, the University transitioned her from

a temporary employee to a salaried employee. Her pay, however,

actually decreased from $4,835.20 per month to $4,583.00 per

month. Id.

From 2016 through 2018, Dean BenAicha continued to promise

Ms. Harrington that her promotion to Head Librarian – and a

raise in salary – was imminent. Id. ¶ 14. For example, on or

around September 5, 2017, at a faculty development day focused

on diversity, he put his arm on the back of her chair and

whispered in her ear that he knew she was dissatisfied with her

pay and that he would fix her title and salary. Id. ¶ 23. He

also told her, in response to the ongoing presentation on

diversity, that inequity in the publishing field of academia is

“normal” and not actually a problem. Id.

Dean BenAicha continuously reported to Ms. Harrington that

he was working diligently with Human Resources to finalize her

promotion to Head Librarian. Id. ¶ 29. He promised that her

salary would increase to over $70,000.00 per year with the

change of title. Id. ¶ 25. He warned her, however, that if she

ever went to Human Resources with her complaints about her title

and salary, it would jeopardize his efforts to “fix” her

position classification. Id. Ms. Harrington repeatedly asked

Dean BenAicha to put these promises in writing, but she failed

to obtain a written promise. Id. She alleges that Dean

BenAicha held the promised promotion out of reach for years as

an incentive not to report his sexual harassment to the

University. Id.

After Ms. Harrington filed a Title IX complaint, Dean

BenAicha announced that he was taking medical leave. Id. ¶ 26.

Before he left, Dean BenAicha submitted an elevation plan to

Human Resources.2 This plan did not include any documentation

for Ms. Harrington’s promised re-classification. Id. ¶ 29.

On or around January 3, 2019, Acting Dean of Libraries

Constance Vrattos told Ms. Harrington that, based on her job

2 The First Amended Complaint does not specifically allege

whether Dean BenAicha submitted this elevation plan to Human

Resources before or after Ms. Harrington filed a complaint with

Lesley University’s Title IX coordinator on or around November

20, 2018.

description, her salary was around $20,000.00 per year less than

what it should have been. Id. Accordingly, Dean Vrattos told

Ms. Harrington that she would submit a request to the University

for a salary change of two levels on the basis that the

requested salary grade level and title recognized what Ms.

Harrington’s position had been the entire time she worked at the

University. Id. Dean Vrattos apologized to Ms. Harrington that

it had taken so long to fix her salary and title. Id.

On or around June 24, 2019, Lesley University rejected the

request as presented and approved only a one-grade salary

increase. Id. ¶ 30. Dean Vrattos told Ms. Harrington that,

because her salary was on the lowest rung of the relevant salary

range, the one-grade salary increase amounted to a 6.7% raise,

or $4,000.00 per year. Id. Two male colleagues in the library

received raises of 13.7% and of 11% at that time. Id. ¶ 31.

Even after her June 2019 raise, Ms. Harrington’s salary was

substantially equivalent to her 2016 starting salary as

Temporary Art Librarian.

Ms. Harrington is currently employed by the University in

the position of Art Librarian and Head of Moriarty Library. Id.

¶ 7. She has never received the relocation benefits or

professional development funds that Dean BenAicha promised would

be part of her compensation or benefits. Id. ¶¶ 12, 32.

B. Procedural History

1. Title VII Administrative Exhaustion

Ms. Harrington filed a Complaint with the Massachusetts

Commission Against Discrimination (“MCAD”) on June 30, 2020

against the Defendants. Id. ¶ 4. She alleged violations of the

Massachusetts Fair Employment Practices Act, Massachusetts

General Laws ch. 151B (“Chapter 151B”), and of Title VII.

On October 13, 2020, Ms. Harrington filed a Notice of

Withdrawal of her Complaint with the MCAD. Id. ¶ 5. See 804

Mass. Code Regs. § 1.04(12)(c). On the following day, she

received a Notice of Right to Sue from the U.S. Equal Employment

Opportunity Commission (“EEOC”). See FAC ¶ 6.

2. Commencing a Lawsuit and Removal to Federal Court

On June 30, 2020, the same day Ms. Harrington filed her

MCAD Complaint, she sued Lesley University and Dean BenAicha in

Massachusetts state superior court. See Complaint, Micki

Harrington v. Lesley Univ. & Hedi BenAicha, No. 2081CV01502,

2020 WL 3915002 (Mass. Super. June 30, 2020). She alleged one

count of civil battery (Count V) against Dean BenAicha and six

counts against Lesley University. Under Title IX, she alleged

sexual harassment (Count I), wage discrimination (Count II), and

retaliation (Count III). She also alleged promissory estoppel

(Count IV), negligent retention and supervision (Count VI), and

negligent infliction of emotion distress (Count VII). Id.

The Defendants removed the case to federal court. On

September 25, 2020, the University moved to dismiss all claims

against it (Counts I-IV, VI, VII).

On October 14, 2020, the same day that Ms. Harrington

received her Notice of Right to Sue from the EEOC, she filed a

First Amended Complaint with newly differentiated counts under

Chapter 151B and Title VII. See FAC ¶¶ 34–70 (Counts I–VII).

With respect to Lesley University, she now alleged ten claims.

Under Chapter 151B, she alleged sexual harassment (Count I),

wage discrimination (Count II), and retaliation (Count III).

Under Title VII, she alleged sexual harassment (Count IV), wage

discrimination (Count V), and retaliation (Count VI). Under

Title IX, she alleged sexual harassment (Count VIII), wage

discrimination (Count IX), and retaliation (Count X). In

addition, she alleged promissory estoppel (Count XI). With

respect to the individual Defendant, Dean BenAicha, she alleged

sexual harassment under Chapter 151B (Count VII) and civil

battery (Count XII).

Two weeks later, the Defendants filed a renewed joint

motion to dismiss eleven3 of the twelve counts: all claims

against Lesley University (Counts I-VI, VIII-XI) and the sexual

3 No motion to dismiss was made as to the civil battery claim

(Count XII) against Dean BenAicha.

harassment claim under Chapter 151B against Dean BenAicha (Count

VII). That motion is the subject of this Memorandum.

II. MOTION TO DISMISS

To survive a motion to dismiss under Rule 12(b)(6), a

complaint must contain “sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The

plausibility standard “does not demand ‘a high degree of factual

specificity,’” García-Catalán v. United States, 734 F.3d 100,

103 (1st Cir. 2013) (quoting Grajales v. P.R. Ports Auth., 682

F.3d 40, 47 (1st Cir. 2012)), nor must the plaintiff

“demonstrate that she is likely to prevail” at this stage, only

that her claims are facially plausible, id. at 102. Plausible

means “enough to raise a right to relief above the speculative

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

And “the choice between or among plausible interpretations of

the evidence will be a task for the factfinder.” Evergreen

Partnering Grp., Inc. v. Pactiv Corp., 720 F.3d 33, 46 (1st Cir.

2013) (quoting Anderson News, L.L.C. v. Am. Media, Inc., 680

F.3d 162, 190 (2d Cir. 2012)).

The Defendants advance three principal arguments for

dismissal of Ms. Harrington’s claims: (1) that the statute of

limitations has passed with respect to Title VII and Chapter

151B; (2) that she lacks a private cause of action as an

employee under Title IX; and (3) that she fails to allege

sufficient facts to establish wage discrimination, retaliation,

and promissory estoppel. I will comprehensively address the

first two arguments in Sections II.A and II.B before considering

the remaining argument in Section II.C.

A. Title VII and Chapter 151B

Discrimination claims under Title VII and Chapter 151B must

be pursued administratively prior to the filing of a lawsuit.

Under both statutes, a charge must be filed with the MCAD within

300 days of the latest alleged discriminatory event. See 42

U.S.C. § 2000e-5(e)(1); Mass. Gen. Laws ch. 151B § 5. Failure

to file a timely MCAD charge requires the dismissal of any

subsequent lawsuit. See Davis v. Lucent Techs., Inc., 251 F.3d

227, 236 (1st Cir. 2001).

Ms. Harrington filed her MCAD charge on June 30, 2020. She

alleges no discriminatory events within the 300 days prior to

that filing – September 4, 2019 to June 30, 2020. The latest

discriminatory event alleged occurred on June 24, 2019, when Ms.

Harrington received a raise of only one salary grade level.

Ms. Harrington contends that the statute of limitations has

not yet run on her claims for three reasons: (1) her Title VII

wage discrimination claim in Count V falls under the Lilly

Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 125 Stat. 5

(codified at 42 U.S.C. § 2000e-5(e)(3)(A)); (2) her claims are

tolled by the general pandemic relief orders entered by the

Massachusetts Supreme Judicial Court (the “SJC”); and, in the

alternative, (3) her claims are preserved by the continuing

violation doctrine.

1. Continued Receipt of Paychecks and the Lilly Ledbetter

Fair Pay Act

Ms. Harrington contends that her claim of wage

discrimination (Count V) under Title VII is preserved by the

Lilly Ledbetter Fair Pay Act, which provides that wage

discrimination occurs “each time wages, benefits, or other

compensation is paid, resulting in whole or in part from” a

discriminatory compensation decision or practice. 42 U.S.C. §

2000e-5(e)(3)(A).

Congress passed the Lilly Ledbetter Fair Pay Act in

response to the Supreme Court’s holding in Ledbetter v. Goodyear

Tire & Rubber Co., Inc., 550 U.S. 618 (2007). The significance

of that statute in this case requires an extended discussion.

In Ledbetter, Ms. Ledbetter alleged that, throughout her

employment at Goodyear from 1979 to 1998, her supervisors

evaluated her poorly on the basis of her sex, which resulted in

lower pay than if her evaluations had been non-discriminatory.

Id. at 621. At trial, she proved that the string of

discriminatory pay decisions resulted in a significantly lower

salary than that of her male peers. Id. at 622. The jury found

in her favor and awarded her backpay and damages. Id.

On review, the Supreme Court reversed the verdict and held

that Ms. Ledbetter’s theory of a continuing harm renewed with

each paycheck was not viable because a “new violation does not

occur, and a new charging period does not commence, upon the

occurrence of subsequent nondiscriminatory acts that entail

adverse effects resulting from the past discrimination.” Id. at

628.

Justice Ginsburg dissented and contended that compensation

discrimination fundamentally differed from discrete adverse

employment actions:

Pay disparities often occur, as they did in Ledbetter’s

case, in small increments; cause to suspect that

discrimination is at work develops only over time.

Comparative pay information, moreover, is often hidden

from the employee’s view. . . . Pay disparities are thus

significantly different from adverse actions “such as

termination, failure to promote, . . . or refusal to

hire,” all involving fully communicated discrete acts,

“easy to identify” as discriminatory. It is only when

the disparity becomes apparent and sizable, e.g.,

through future raises calculated as a percentage of

current salaries, that an employee in Ledbetter’s

situation is likely to comprehend her plight and,

therefore, to complain.

Id. at 645 (Ginsburg, J., dissenting) (quoting Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002)). Justice

Ginsburg called upon Congress “to correct this Court’s

parsimonious reading of Title VII.” Id. at 661. Congress

responded by enacting the Lilly Ledbetter Fair Pay Act.

The Lilly Ledbetter Fair Pay Act amended Title VII by

adding the following language:

[A]n unlawful employment practice occurs, with respect

to discrimination in compensation . . ., when a

discriminatory compensation decision or other practice

is adopted, when an individual becomes subject to a

discriminatory compensation decision or other practice,

or when an individual is affected by application of a

discriminatory compensation decision or other practice,

including each time wages, benefits, or other

compensation is paid, resulting in whole or in part from

such a decision or other practice.

42 U.S.C. § 2000e-5(e)(3)(A) (emphasis added).4 In its statutory

findings, Congress adopted the logic of Justice Ginsberg’s

dissent, observing that Ledbetter “unduly restrict[ed] the time

period in which victims of discrimination can challenge and

recover for discriminatory compensation decisions.” Pub. L. 111-

2, 123 Stat. 5 § 2(1).

Under the Lilly Ledbetter Fair Pay Act, “‘a new cause of

4 The Lilly Ledbetter Fair Pay Act further provides that a

plaintiff may assert facts arising from events outside “the

charge filing period” when advancing a claim of wage

discrimination in compensation under Title VII:

[L]iability may accrue and an aggrieved person may

obtain . . . recovery of back pay for up to two years

preceding the filing of the charge[] where the

unlawful employment practices that have occurred

during the charge filing period are similar or related

to unlawful employment practices with regard to

discrimination in compensation that occurred outside

the time for filing a charge.

42 U.S.C. § 2000e-5(e)(3)(B).

action for pay discrimination ar[ises] every time a plaintiff

receive[s] a paycheck resulting from an earlier discriminatory

compensation practice’ – even one that ‘occurr[ed] outside the

statute of limitations period.’” Kellogg v. Ball State Univ.,

984 F.3d 525, 529 (7th Cir. 2021) (alterations in original)

(quoting Groesch v. City of Springfield, 635 F.3d 1020, 1027

(7th Cir. 2011)). The language of the Lilly Ledbetter Fair Pay

Act may be read as broad enough to encompass any employment

discrimination claim. Although the First Circuit has yet to

speak on the issue, the Second, Third, Tenth, and D.C. Circuits,

have, however, limited the reach of the Act to the specific

claim in Ledbetter – that an employer is “paying different wages

or providing different benefits to similarly situated

employees.” Daniels v. United Parcel Serv., Inc., 701 F.3d 620,

630–31 (10th Cir. 2012) (quoting Schuler v.

PricewaterhouseCoopers, LLP, 595 F.3d 370, 374 (D.C. Cir.

2010)); see also Davis v. Bombardier Transp. Holdings (USA)

Inc., 794 F.3d 266, 271 (2d Cir. 2015); Schuler v.

PricewaterhouseCoopers, LLP, 595 F.3d 370, 375 (D.C. Cir. 2010);

Noel v. The Boeing Co., 622 F.3d 266, 274 (3d Cir. 2010).

The Fifth and Seventh Circuits have each addressed claims

similar to that before me: a wage discrimination claim with

origins either in an employee’s depressed starting salary or in

accumulated discriminatory wage raises. This year, the Seventh

Circuit concluded that a pay disparity resulting from a

depressed starting salary is “precisely the kind of decision

covered by the Ledbetter Act.” Kellogg, 984 F.3d at 529

(quoting Groesch, 635 F.3d at 1025). The Seventh Circuit held

that all of the plaintiff’s pay encompassed in continued

paychecks resulted from that initial decision “because the

[defendant] admittedly based [the plaintiff’s] later pay on

raises from her starting salary.” Id. Thus, each of the

plaintiff’s subsequent paychecks gave rise to a new cause of

action. Id.

Similarly, in an unpublished decision, the Fifth Circuit

held that the Lilly Ledbetter Fair Pay Act tolled the Title VII

wage-discrimination claims of a plaintiff who alleged that she

and a male colleague in the same role “were hired during the

same year and for the same compensation, [then the colleague]

received increasingly higher compensation than [the plaintiff]

during each successive year of their employment.” Niwayama v.

Tex. Tech Univ., 590 F. App’x 351, 354 (5th Cir. 2014) (per

curiam). The court ruled that “each paycheck at an allegedly

discriminatory rate [was] a separate, discrete act of

discrimination, effectively resetting the statute of limitations

for filing an EEOC charge.” Id. at 356.

Under such Court of Appeals caselaw outside the First

Circuit, Ms. Harrington must allege, in order to fall within the

coverage of the Lilly Ledbetter Fair Pay Act, that her depressed

salary resulted either from a low initial salary, see Kellogg,

984 F.3d at 529, or from a series of accumulating inequitable

promotions, see Niwayama, 590 F. App’x at 354 n.1. The First

Amended Complaint alleges facts under both theories. The

conversation in January 2019 with Dean Vrattos reflects that Ms.

Harrington’s salary was around $20,000 per year, or two grade

levels, less than appropriate for her job description throughout

her employment at Lesley University. The allegations also

reflect that the University approved a salary grade increase of

one level in June 2019. The one level increase resulted in only

a 6.7% raise because Ms. Harrington’s salary was at the lowest

rung of the relevant salary range. By contrast, two of her male

colleagues received raises of 11% and 13.7%, respectively.

Whether the alleged pay disparity resulted from a depressed

starting salary or from unequal promotions, Ms. Harrington

alleges increasing pay discrimination resulting from “future

raises calculated as a percentage of [her] current salar[y].”

Ledbetter, 550 U.S. at 645 (Ginsburg, J., dissenting).

That said, Ms. Harrington fails to allege with sufficient

particularity two critical elements. First, she fails to

identify the two male colleagues as “similarly situated . . . in

terms of performance, qualifications and conduct, ‘without such

differentiating or mitigating circumstances that would

distinguish’ their situations.” Smith v. Stratus Comput., Inc.,

40 F.3d 11, 17 (1st Cir. 1994) (quoting Mitchell v. Toledo

Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). The First Amended

Complaint states only that, “[a]t the same time that the

Plaintiff received a 6.7% raise, two male colleagues that worked

in the library received raises of 13.7% and 11%, respectively.”

FAC ¶ 31. This assertion is insufficient as a matter of law to

allege adequately that the two male colleagues were “similarly

situated” comparisons.

Second, she fails to clarify whether she continued to

receive a depressed salary through, at least, September 4, 2019,

thereby placing her within the 300-day statute of limitations.

Her First Amended Complaint states only that, “[t]o date, Ms.

Harrington has not received the full compensation and benefits

to which she is entitled from Lesley University.” Id. ¶ 32.

At this point, Ms. Harrington has failed to allege

adequately that the Lilly Ledbetter Fair Pay Act tolls the

statute of limitations on her wage discrimination claim under

Title VII. Given the lack of governing First Circuit case law,

I will not, however, permit the inadequately crafted First

Amended Complaint to end the pleadings in this matter without

affording Ms. Harrington one final opportunity to present

sufficient facts supporting viable allegations that Ms.

Harrington continued to receive depressed paychecks from Lesley

University after September 4, 2019, and that these depressed

paychecks resulted in lower pay than her similarly situated male

counterparts.

I will allow the motion to dismiss as to Title VII without

prejudice to Ms. Harrington’s opportunity to file a Second

Amended Complaint addressing her claim of wage discrimination

under Title VII (Count V).5

2. Supreme Judicial Court Tolling Policy

Ms. Harrington contends that both her Chapter 151B and

Title VII claims survive because the SJC, the highest

Massachusetts state court, tolled all statutes of limitations

effective as of March 17, 2020 – meaning that her June 30, 2020

MCAD Complaint would satisfy the limitations period of both

statutes. See In Re Covid-19 (Coronavirus) Pandemic, OE-144

Second Updated Order Regarding Court Operations Under the

Exigent Circumstances Created by the COVID-19 (Coronavirus)

Pandemic (“SJC Order”) (repealed July 1, 2020),

5 I conclude that the Lilly Ledbetter Fair Pay Act does not apply

to Ms. Harrington’s sexual harassment (Count IV) and retaliation

(Count VI) claims under Title VII because they fall outside the

core meaning of compensation discrimination. See Schuler v.

PricewaterhouseCoopers, LLP, 595 F.3d 370, 375 (D.C. Cir. 2010)

(holding that the Lilly Ledbetter Fair Pay Act “is directed at

the specific type of discrimination involved in [Ledbetter] and

not to other unspecified types of discrimination in

employment”); Rzepiennik v. Archstone-Smith, Inc., 331 F. App’x

584, 589 n.3 (10th Cir. 2009) (“There is no indication in the

[Lilly Ledbetter Fair Pay Act] that Congress intended this

change to affect retaliation claims . . . .”).

https://www.mass.gov/doc/repealed-sjc-second-updated-order-

regarding-court-operations-under-the-exigent-

circumstances/download. “[P]ursuant to its superintendence and

rule-making authority,” the SJC declared that “[a]ll civil

statutes of limitations are tolled from March 17, 2020, through

June 30, 2020, when the tolling period shall end . . . .” Id. ¶

12.

Turning first to application of the SJC Order to federal

law, I must recognize as a general rule that a state supreme

court has no authority over federal courts in their application

of federal law. See, e.g., United States v. Bedford, 519 F.2d

650, 653 n.3 (3d Cir. 1975) (“It is a recognized principle that

a federal court is not bound by a state court’s interpretation

of federal laws . . . .”). See generally U.S. Const. art. VI

cl. 2 (“[T]he Laws of the United States . . . shall be the

supreme Law of the Land; and the Judges in every State shall be

bound thereby . . . .”).

Ms. Harrington contends that the SJC Order can toll the

Title VII statute of limitations because the MCAD has initial

jurisdiction over Title VII claims. While the MCAD has initial

jurisdiction over Title VII charges filed within the

Commonwealth, the EEOC’s “deferral policy” does not (and cannot)

thereby supplant the statute of limitations fixed by Congress

under federal law. The processing of discrimination claims by

state entities is a matter of federal law, not a displacement of

federal law. See 29 C.F.R. § 1601.13(a)(3)(ii) (granting

“States and their political subdivisions the exclusive right to

process allegations of discrimination filed by a person . . . .

After the expiration of the exclusive processing period, the

[Equal Employment Opportunity] Commission may commence

processing the allegation of discrimination”).

Whether the SJC has authority to toll the statute of

limitations for state law under Chapter 151B is not so clear.

Massachusetts General Laws Chapter 211 provides that the SJC’s

“general superintendence shall not include the authority to

supersede any general or special law unless the supreme judicial

court . . . finds such law to be unconstitutional in any case or

controversy.” Mass. Gen. Laws ch. 211, § 3. And while the SJC

has rejected these provisos “as limitations on this court’s

inherent power to superintend the court system,” Sullivan v.

Chief Justice for Admin. & Mgmt. of Trial Ct., 858 N.E.2d 699,

721 (Mass. 2006), the Court still has no general superintendence

authority over an administrative agency designated by the

Commonwealth as the primary enforcement agency for certain state

laws, such as the MCAD for Chapter 151B claims.6 Indeed, by its

terms, the SJC’s order applies only to “courts.” SJC Order ¶ 2.

6 The SJC has “general superintendence” authority to “issue all

writs and processes to [courts of inferior jurisdiction] and to

The SJC has held that the “primary responsibility to

determine the scope of [Chapter 151B] has been entrusted to the

MCAD, not to the courts.” Rock v. Mass. Comm’n Against

Discrimination, 424 N.E.2d 244, 249 (Mass. 1981), abrogated on

other grounds by Clifton v. Mass. Bay Transp. Auth., 839 N.E.2d

314, 321 (Mass. 2005). Accordingly, the SJC “ha[s] consistently

granted deference to MCAD decisions and policies” where the SJC

finds that the MCAD’s “interpretation and application . . . is

reasonable and conforms to the agency’s statutory directive.”

Cuddyer v. Stop & Shop Supermarket Co., 750 N.E.2d 928, 938

(Mass. 2001). Cf. Desando v. Lucent Techs., 193 F. Supp. 2d

358, 362 (D. Mass. 2002) (granting deference to the MCAD’s

grievance process tolling rule). During the COVID-19 pandemic,

the MCAD in fact issued its own directive tolling Chapter 151B

deadlines on a case-by-case basis at the discretion of an

individual commissioner. See MCAD COVID-19 Information Resource

Center: How to Submit a Request for Tolling and Extensions,

MASS.GOV (2021), https://www.mass.gov/guides/mcad-covid-19-

information-resource-center.

The MCAD’s pandemic tolling rule is the relevant policy to

apply in this case. State law required Ms. Harrington to file a

corporations and individuals which may be necessary to the

furtherance of justice and to the regular execution of the

laws.” Mass. Gen. Laws ch. 211 § 3. This power by its terms

does not extend to state administrative agencies.

complaint within 300 days with the MCAD, not with the courts.

See Mass. Gen. Laws ch. 151B, § 5. Pursuant to its rule

promulgating authority, id. § 3(5), the MCAD decided to toll the

statute of limitations on the complaints before it on a case-by-

case basis. But Ms. Harrington does not allege that she sought

this relief from the MCAD. Thus, I find that the statute of

limitations on Ms. Harrington’s Chapter 151B claims has not been

tolled.

3. Continuing Violation Doctrine

Alternatively, Ms. Harrington contends that her Title VII

and Chapter 151B claims are preserved by the continuing

violation doctrine, which provides, with respect to Chapter

151B, that “[w]hen facts are alleged which indicate unlawful

conduct is of a continuing nature and part of an ongoing pattern

of discrimination, the complaint may include actions outside of

the statutory filing period so long as the last discriminatory

act in the pattern occurred within the statutory filing period.”

804 Mass. Code Regs. § 1.04(4)(b). Under Title VII, the

continuing violation is an “equitable exception that allows an

employee to seek damages for otherwise time-barred allegations

if they are deemed part of an ongoing series of discriminatory

acts and there is ‘some violation within the statute of

limitations period that anchors the earlier claims.’” O’Rourke

v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001)

(quoting Provencher v. CVS Pharmacy, Div. of Melville Corp., 145

F.3d 5, 14 (1st Cir. 1998)). Ms. Harrington bears the burden of

establishing that the continuing violation doctrine applies.

See Shervin v. Partners Healthcare Sys., Inc., 804 F.3d 23, 34

(1st Cir. 2014) (addressing both state-law and federal-law

claims of unlawful discrimination and retaliation).

To establish the availability of the continuing violation

doctrine, a plaintiff must allege three prerequisites. First,

the claim must arise from “a series of related events that have

to be viewed in their totality in order to assess adequately

their discriminatory nature and impact.” Cuddyer, 750 N.E.2d at

936. Second, at least one incident of discrimination must have

occurred within the limitations period. Shervin, 804 F.3d at

35. And third, a reasonable person in Ms. Harrington’s

circumstances would have refrained from filing a complaint

within the limitations period. Cuddyer, 750 N.E.2d at 942.7

7 On the third element, the federal-law and state-law standards

under the continuing violation doctrine differ substantively.

The federal-law inquiry is whether a plaintiff was aware that

she was being discriminated against and “would deny a plaintiff

damages for unlawful conduct falling outside of the statute of

limitations period if, at the time the conduct occurred, she had

notice that she had an actionable claim.” Cuddyer v. Stop &

Shop Supermarket Co., 750 N.E.2d 928, 942 (Mass. 2001). By

contrast, the state-law test “focuses on the plaintiff’s

knowledge of the hopelessness of her work environment, and

allows her to litigate alleged, otherwise time-barred,

[unlawful] acts . . . unless her delay in initiating the

lawsuit, considered under an objective standard, was

unreasonable.” Id. The separate standards under state and

Ms. Harrington stumbles at the second prerequisite. She

contends that her anchoring act is Lesley University’s denial of

a two-level salary increase on June 24, 2019. But this event

occurred more than 300 days prior to her filing of charges with

the MCAD on June 30, 2020. The continuing violation doctrine

was not designed as an end run to evade the statute of

limitations but as a mechanism to preserve the legitimate claims

of plaintiffs who “might not realize that a violation has

occurred, or might not have sufficient evidence to support a

Title VII claim until more than the general time limit to file

their claims has elapsed.” Ayala v. Shinseki, 780 F.3d 52, 58

(1st Cir. 2015); see also Cuddyer, 750 N.E.2d at 941 (holding,

with respect to a hostile work environment claim under Chapter

151B, that the continuing violation doctrine “recognize[s] . . .

an employee who suffers from recurring acts of [discrimination]

. . . may be unable to appreciate the true character and

enormity of the discriminatory environment until after it has

continued for an appreciable length of time.”).

I find that Ms. Harrington has failed to establish that the

continuing violation doctrine applies to her claims under Title

federal law are not relevant in the case now before me because

Ms. Harrington’s claims under both Title VII and Chapter 151B

fail at the second step of the continuing violation doctrine for

lack of allegations that at least one incident of discrimination

occurred within the limitations period.

VII and Chapter 151B.8

8 Ms. Harrington argues two additional reasons for a conclusion

that the statute of limitations on her claims under Title VII

and Chapter 151B should be tolled. First, she invokes the

equitable tolling doctrine exception, which is available to a

plaintiff where she is “excusably ignorant” of the statutory

filing requirements or where she is “affirmatively misled” by

the defendant (or the MCAD). Davis v. Lucent Techs., Inc., 251

F.3d 227, 234 (1st Cir. 2001) (emphasis omitted) (quoting

Andrews v. Arkwright Mut. Ins. Co., 673 N.E.2d 40, 41 (Mass.

1996)) (applying to a wrongful termination claim under Chapter

151B); see also Rys v. U.S. Postal Serv., 886 F.2d 443, 446 (1st

Cir. 1989) (equitable tolling doctrine applies “[where] a

claimant has received inadequate notice, or where a motion for

appointment of counsel is pending and equity would justify

tolling the statutory period until the motion is acted upon, or

where the court has led the plaintiff to believe that she had

done everything required of her, . . . [or] where affirmative

misconduct on the part of a defendant lulled the plaintiff into

inaction” (alterations in original) (quoting Baldwin Cty.

Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984)).

However, “equitable tolling is reserved for exceptional

cases.” Chico-Velez v. Roche Prods., Inc., 139 F.3d 56, 59 (1st

Cir. 1998) (unlawful discrimination under Title VII); see also

Adamczyk v. Augat, Inc., 755 N.E.2d 824, 830 (Mass. App. Ct.

2001) (noting, with respect to claim of unlawful discrimination

under Chapter 151B, that “[c]ourts apply the principle of

equitable tolling sparingly in employment discrimination

cases”). The doctrine does not apply where a plaintiff simply

failed to exercise due diligence to discover the information

necessary to bring her charge. See Hall v. FMR Corp., 559 F.

Supp. 2d 120, 126 n.9 (D. Mass. 2008) (citing state law)

(unlawful discrimination under Chapter 151B); see also Mercado

v. Ritz-Carlton San Juan Hotel, Spa & Casino, 410 F.3d 41, 48

(1st Cir. 2005) (noting, with respect to unlawful discrimination

claims under Title VII, that courts generally consider

“diligence in pursuing one’s rights” when determining whether to

allow equitable tolling).

To be sure, Ms. Harrington contends that she diligently

pursued her rights because she filed a formal complaint with the

Title IX coordinator at Lesley University in November 2018 and

then waited to file suit with the MCAD while the Title IX

findings were pending for two years. However, that Ms.

Harrington chose to delay filing her MCAD charge on that basis

does not make her “excusably ignorant” of the statutory filing

* * * *

I find that the statute of limitations has run on Ms.

Harrington’s claims under Chapter 151B against Lesley University

(Counts I, II, III) and against Dean BenAicha (Count VII), and

on her claims as alleged under Title VII against Lesley

University (Counts IV, V, VI). However, with respect to Ms.

Harrington’s allegation of wage discrimination under Title VII

against Lesley University (Count V), I will allow Ms. Harrington

to file a Second Amended Complaint pleading the claim with

greater particularity.

B. Title IX

The Defendants contend that Ms. Harrington’s claims of

employment discrimination under Title IX fail as a matter of law

because the comprehensive administrative scheme under Title VII

requirements nor “affirmatively misled” by Lesley University or

by the MCAD. This is not the sort of exceptional case for which

the equitable tolling doctrine is reserved.

Second, Ms. Harrington contends that the MCAD’s grievance

proceeding policy tolls her Chapter 151B claims. The MCAD

recognizes an exception to the 300-day limitations period when

“a grievance on behalf of an individual is filed pursuant to a

collective bargaining agreement.” 804 Mass. Code Regs.

1.04(4)(a). However, Ms. Harrington fails to allege that her

employment is covered by a collective bargaining agreement and

that she raised a formal grievance. Thus, she cannot invoke the

grievance exception. See Shervin, 805 F.3d at 39 (holding the

grievance exception did not apply because plaintiff did not

invoke any grievance proceedings pursuant to a collective

bargaining agreement).

I find that neither the equitable tolling doctrine nor the

grievance proceeding policy tolls the statute of limitations on

Ms. Harrington’s claims under Title VII and Chapter 151B.

occupies the field. This argument draws from language in Title

IX, which provides one express enforcement mechanism: withdrawal

of federal funding by federal agencies. See 20 U.S.C. § 1682.

But the Supreme Court has long held that an implied cause of

action for private litigants exists under Title IX. See Cannon

v. Univ. of Chi., 441 U.S. 677, 717 (1979). The Defendants

contend, however, that the private right of action created in

Cannon is limited to students and thus that Ms. Harrington’s

claims as an employee fall outside its scope.

1. The Split Among the Federal Circuits

Federal circuit courts are split over the question whether,

and under what circumstances, Title IX provides employees of

federally funded educational institutions a private cause of

action for employment discrimination claims. The Defendants

urge me to follow the Fifth and Seventh Circuits, which have

held that Title VII provides the “exclusive means of relief” for

employees claiming employment discrimination – regardless of

whether their employer is a federally funded educational

institution. Lakoski v. James, 66 F.3d 751, 752 (5th Cir.

1995); see also Waid v. Merrill Area Pub. Schs., 91 F.3d 857,

862 (7th Cir. 1996) (“Title VII provided the only way by which

[the plaintiff] could obtain make-whole relief.”), abrogated on

other grounds by Fitzgerald v. Barnstable Sch. Comm., 555 U.S.

246 (2009).9 Those courts cite the detailed administrative

exhaustion requirements under Title VII as evidence of

congressional intent to exclude a damages remedy under Title IX

for employees. See Lakoski, 66 F.3d at 753; Waid, 91 F.3d at

861–62. They reason that allowing employees to invoke Title IX

protection under Cannon would “disrupt a carefully balanced

remedial scheme for redressing employment discrimination by

employers.” Lakoski, 66 F.3d at 754; see Waid, 91 F.3d at 862.10

But the majority of federal circuit courts have rejected

the contention that Title VII automatically preempts employment

discrimination claims brought under Title IX. See Doe v. Mercy

9 The Supreme Court abrogated the Seventh Circuit’s decision in

Waid v. Merrill Area Public Schools, 91 F.3d 857 (7th Cir.

1996), by holding that Title IX was not the exclusive remedy

addressing sex-based discrimination in schools, thus a student

could bring a claim under 42 U.S.C. § 1983 alongside her claim

under Title IX. See Fitzgerald v. Barnstable Sch. Comm., 555

U.S. 246, 259 (2009).

10 I note the decisions in the Fifth and Seventh Circuits predate

the Supreme Court’s holding in Jackson v. Birmingham Bd. of

Education, 544 U.S. 167, 173 (2005), that Title IX provides a

private cause of action to employees of educational institutions

for retaliation claims based on the Court’s identification of

significant differences between the statutory schemes of Title

VII and Title IX. Post-Jackson, the only federal circuit court

to address directly the question before me held that Title IX

provides a private right of action for employees alleging

employment discrimination. See Doe v. Mercy Catholic Med. Ctr.,

850 F.3d 545, 560 (3d Cir. 2017). In another post-Jackson

opinion by a federal circuit court, the Tenth Circuit allowed an

employee of a federally funded educational institution to bring

federal claims for sex discrimination under both Title VII and

Title IX without explicitly addressing the question before me.

See Hiatt v. Colo. Seminary, 858 F.3d 1307, 1312 & n.8 (10th

Cir. 2017).

Catholic Med. Ctr., 850 F.3d 545, 563 (3d Cir. 2017) (holding

that a medical resident at a private hospital could allege

employment discrimination claims for retaliation, quid pro quo

harassment, and hostile work environment under Title IX); Hiatt

v. Colo. Seminary, 858 F.3d 1307, 1315 (10th Cir. 2017)

(allowing an employee of a university to proceed with parallel

Title VII and Title IX claims in the same suit because Title IX

“includes a prohibition on employment discrimination in

federally funded educational programs”); Preston v. Com. of Va.

ex rel. New River Cmty. Coll., 31 F.3d 203, 205-06 (4th Cir.

1994) (allowing a counselor at a community college to allege

retaliatory employment discrimination under both Title VII and

Title IX); Ivan v. Kent State Univ., No. 94-4090, 1996 U.S. App.

LEXIS 22269, at *6 (6th Cir. July 26, 1996) (per curiam)

(allowing a graduate student to allege employment discrimination

under both Title VII and Title IX); Lipsett v. Univ. of P.R.,

864 F.2d 881, 896–97 (1st Cir. 1988) (holding that a medical

resident at a private hospital could allege employment

discrimination claims for retaliation, harassment, and hostile

work environment under Title IX).

These courts have held that Title IX does not carve out

private suits brought by employees and faculty from Title IX’s

protection against employment discrimination. None of these

courts have questioned that employees come within the literal

language of Title IX’s statutory text. The First Circuit and

the Third Circuit, which have provided the fullest discussion,

both expressly relied on the Supreme Court’s guidance to federal

courts to interpret the scope of Title IX’s coverage

broadly. See, e.g., Mercy Catholic Med. Ctr., 850 F.3d at 555

(citing Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 171

(2005)); Lipsett, 864 F.2d at 896 (citing North Haven Bd. of

Educ. v. Bell, 456 U.S. 512, 521 (1982)).11

Ms. Harrington contends that Lipsett v. University of

Puerto Rico has already settled this question before me in the

First Circuit. The Defendants contend that the holding in

Lipsett is limited to student-employees.

In Lipsett, the First Circuit allowed a medical resident to

bring employment discrimination claims against her university-

employer under Title IX. 864 F.2d at 895. The precise question

facing the court was what substantive standard to apply. In

holding that the Title VII standard should be extended to

employment discrimination claims under Title IX, the court noted

that the plaintiff was “both an employee and a student,” and

thus, the court “ha[d] no difficulty extending the Title VII

11 I note the Department of Justice has long “take[n] the

position that Title IX and Title VII are separate enforcement

mechanisms” and that “[i]ndividuals can use both statutes to

attack the same violations.” Title IX Legal Manual 77, U.S.

Dep’t of Justice (Jan. 11, 2001).

standard to discriminatory treatment by a supervisor in this

mixed employment-training context.” Id. at 897 (emphasis in

original).

Lipsett did not by its terms purport to limit its holding

to student plaintiffs. Rather, the court recited that “the

Supreme Court’s only guidance” in interpreting Title IX is “that

it must be accorded ‘a sweep as broad as its language.’”

Lipsett, 864 F.2d at 896 (quoting N. Haven Bd. of Educ. v. Bell,

456 U.S. 512, 521 (1982)).12 Nevertheless, because of Lipsett’s

distinct factual setting of a “mixed employment-training

context,” I find that it does not definitively dictate the rise

or fall of Ms. Harrington’s Title IX claims before me on the

motion to dismiss. 864 F.2d at 897.13 The question requires

12 Moreover, Lipsett v. University of Puerto Rico, 864 F.2d 881,

896–97 (1st Cir. 1988), relied on Mabry v. State Board of

Community Colleges and Occupational Education, 813 F.2d 311

(10th Cir. 1987), in which the Tenth Circuit considered a Title

IX claim of employment discrimination brought by an employee

plaintiff. Id. at 315. The Tenth Circuit ultimately held that

the employee’s claim was barred – not because Title VII

precluded it but because the district court had already

adjudicated the plaintiff’s Title VII claim of employment

discrimination. Id. at 316. Thus, under issue preclusion

principles, the plaintiff “would be bound by [the court’s]

earlier finding of no sex discrimination under Title VII

[because] the same legal standard applies to sex discrimination

under Titles VII and IX.” Id. The bottom line is that the

Tenth Circuit case, referenced favorably by the First Circuit in

Lipsett, recognized that the plaintiff had parallel rights

against employment discrimination under both Title VII and Title

IX.

13 I note that at least two district judges within this Circuit

have considered the question before me and both have found that

more extended discussion.

2. Implied Rights of Action

Whether a federal statute implies a private right of action

turns on analysis of four factors:

First, is the plaintiff “one of the class for whose

especial benefit the statute was enacted” . . .? Second,

is there any indication of legislative intent, explicit

or implicit, either to create such a remedy or to deny

one? Third, is it consistent with the underlying

purposes of the legislative scheme to imply such a remedy

for the plaintiff? And finally, is the cause of action

one traditionally relegated to state law, in an area

basically the concern of the States, so that it would be

inappropriate to infer a cause of action based solely on

federal law?

Cort v. Ash, 422 U.S. 66, 78 (1975) (internal citations

omitted). Congressional intent is the “focal point.” Thompson

v. Thompson, 484 U.S. 174, 179 (1988), see also id. at 189

(Scalia, J., concurring) (“[C]ongressional intent[] [is] the

determinative factor.” (emphasis in original)); Transamerica

Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 23–24 (1979) (“The

a private right of action exists for employees claiming

employment discrimination under Title IX. See Farzinpour v.

Berklee Coll. of Music, No. 20-11003-PBS, 2021 WL 256953, at *4

(D. Mass. Jan. 26, 2021) (recognizing that “the factual context

of Lipsett makes its holding less than clear-cut, [but that]

courts have cited Lipsett for the proposition that Title VII

does not preempt employment-discrimination claims brought under

Title IX”); Bedard v. Roger Williams Univ., 989 F. Supp. 94, 97

(D.R.I. 1997) (“[T]his court agrees with those courts which

predictively view the Supreme Court’s ‘next logical step’ as

being to recognize a private cause of action under Title IX for

employment discrimination against a federally funded education

program.”).

central inquiry remains whether Congress intended to create,

either expressly, or by implication, a private cause of

action.”). Congressional intent “may appear implicitly in the

language or structure of the statute, or in the circumstances of

its enactment,” id. at 18, and does not require evidence that

Congress “actually had in mind the creation of a private cause

of action,” Thompson, 484 U.S. at 179.

3. Statutory Text of Title IX

The text serves as the starting point. See Touche Ross &

Co. v. Redington, 442 U.S. 560, 568 (1979). Title IX provides

that “[n]o person . . . 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(a). A plain reading of Title IX does not distinguish

between students and employees. The term “person” encompasses

claims of both students and employees of federally funded

educational programs and activities.

The Supreme Court has held, “[t]here is no doubt that ‘if

we are to give [Title IX] the scope that its origins dictate, we

must accord it a sweep as broad as its language,’” N. Haven Bd.

of Educ. v. Bell, 456 U.S. 512, 521 (1982) (quoting United

States v. Price, 383 U.S. 787, 801 (1966)). Indeed, the Court

has already held that an employee qualifies as a “person” within

the meaning of Title IX both for the purposes of an

administrative proceeding resulting in the withdrawal of federal

funds, see id. at 520, and in the context of a private

retaliation claim, see Jackson v. Birmingham Bd. of Educ., 544

U.S. 167, 171 (2005). The Court noted that “Congress easily

could have substituted ‘student’ or ‘beneficiary’ for the word

‘person’ if it had wished to restrict the scope of” Title IX,

and yet Congress chose the word “person” instead. N. Haven Bd.

of Educ., 456 U.S. at 521.

I find that the text of Title IX evidences no clear

congressional intent to exclude employees of educational

institutions from its protection. Rather, it appears plainly to

contemplate inclusion of employees within its protections. I

now turn to the structure of statutory schemes established by

Title VII and Title IX.

4. The Statutory Schemes of Title VII and Title IX

The Defendants contend that the structure of administrative

exhaustion requirements under Title VII evidences congressional

intent to preclude claims of employment discrimination under

Title IX.

a. Administrative Exhaustion Requirements Under

Title VII

Title VII makes it unlawful for an employer to discriminate

against any individual “because of such individual’s race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-

2(a)(1). Title VII provides an express private cause of action

in federal court but requires plaintiffs first to exhaust their

administrative remedies and obtain a right to sue letter. See

Id. §§ 2000e-5(b), 2000d-5(f).

The statute of limitations for filing with the MCAD – the

EEOC counterpart in the Commonwealth – is 300 days from the last

alleged violation. See 42 U.S.C. § 2000e-5(e)(1); see also 29

C.F.R. § 1601.13(a)(4)(ii)(A). The MCAD then has 60 days to

consider and investigate the charges. 42 U.S.C. § 2000e-5(c).

If the MCAD waives its jurisdiction over the charges, or if the

60-day period runs out, the employee can then file charges with

the EEOC. Id. The EEOC has exclusive jurisdiction for up to

180 days to determine whether probable cause exists. See id. §

2000e-5(b). If the EEOC finds no probable cause, the charge is

dismissed without granting the complainant the right to sue.

See id. If probable cause is found, then the EEOC will use

informal methods of “conference, conciliation, and persuasion”

to remedy the employer’s unlawful discrimination. Id. If the

plaintiff is unsatisfied with the informal methods after the

expiration of the MCAD’s 60-day period of exclusive

jurisdiction, she can request a “right to sue” letter. Upon

receipt, the plaintiff has 90 days to sue in federal court. Id.

§ 2000e-5(f). If a plaintiff does not exhaust these

administrative requirements, she is precluded from bringing suit

under Title VII. See id. §§ 2000e-5(b), § 2000d-5(f).

b. Direct Access to Courts Under Title IX

A claim under Title IX allows a plaintiff direct access to

the courthouse. See Cannon, 441 U.S. at 717. The Defendants

contend that, as a consequence, allowing employment

discrimination claims to proceed under Title IX disrupts the

enforcement scheme structured under Title VII.14 The Supreme

Court has recognized that a comprehensive statutory scheme to

vindicate a protected right lends the presumption of exclusivity

absent clear evidence of legislative intent to the contrary.

See Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366,

378 (1979) (holding 42 U.S.C. § 1985(3) precluded by Title VII),

superseded in part on other grounds by the 1991 Amendments to

the Civil Rights Act of 1964, Pub. L. No. 102-166, 105 Stat.

1071. However, this argument only holds if Title IX and Title

14 While it is true that allowing Ms. Harrington’s claim of

employment discrimination to proceed under Title IX would

recognize a distinction between how the claims of employees are

treated inside and outside of educational institutions, it is

equally true that not allowing her claim to proceed would create

a disparity between employees who claim sex-based employment

discrimination and employees who claim race-based employment

discrimination. Under 42 U.S.C. § 1981, an employee complaining

of racial discrimination can sue directly and bypass the Title

VII exhaustion requirements. See Johnson v. Ry. Express Agency,

Inc., 421 U.S. 454, 465–66 (1975) (“Congress clearly has

retained [Section] 1981 as a remedy against private employment

discrimination separate from and independent of the more

elaborate and time-consuming procedures of Title VII.”).

VII are conceived to be merely “two remedies for the same right,

not two rights addressing the same problem.” Lakoski, 66 F.3d

at 756. But Title IX is – in design, remedy, constitutional

basis, and intended impact – a fundamentally different statute

structurally from Title VII.

c. Distinctions Between Title VII and Title IX

As the Supreme Court has recognized, “Title VII . . . is a

vastly different statute from Title IX,” Jackson, 544 U.S. at

175, in part because “Congress enacted Title IX not only to

prevent the use of federal dollars to support discriminatory

practices, but also ‘to provide individual citizens effective

protection against those practices,’” id. at 180 (quoting

Cannon, 441 U.S. at 704).

First, the remedies in each statute are distinct. Punitive

damages are available under Title VII but not under Title IX.

See Title VII, 42 U.S.C. § 1981a(a)(1); Mercer v. Duke Univ., 50

F. App’x 643, 644 (4th Cir. 2002) (holding that, because Title

IX was patterned after Title VI, the unavailability of punitive

damages under Title VI “compels the conclusion that punitive

damages are not available for private actions brought to enforce

Title IX”). Damages under Title VII are capped at $300,000 and

Title IX contains no cap for compensatory damages. See Title

VII, 42 U.S.C. § 1981a(b); Gebser v. Lago Vista Indep. Sch.

Dist., 524 U.S. 274, 285 (1998) (“Because Congress did not

expressly create a private right of action under Title IX, the

statutory text does not shed light on Congress’ intent with

respect to the scope of available remedies.”).

Second, the limitations period permitted plaintiffs under

each statute is distinct. Title IX does not expressly prescribe

a statute of limitations period so courts generally import the

statute of limitations under state law for a personal injury

claim. See, e.g., Doe v. Town of Bourne, No. CIV.A.02-11363-

DPW, 2004 WL 1212075, at *11 (D. Mass. May 28, 2004) (applying a

three-year statute of limitations based on Massachusetts state

law). Thus, the limitations period under Title IX actions is

often longer than the 300 days afforded under Title VII.

Third, “Congress enacted Title IX against a backdrop of

three recently issued implied-cause-of-action decisions of [the

Supreme] Court involving civil rights statutes with language

similar to that in Title IX. In all three, a cause of action

was found.” Cannon, 441 U.S. at 698 n.22. By contrast, Title

VII contains an express private right of action and, as

discussed, a wholly different statutory scheme.

Fourth, the statutes are derived from wholly separate

constitutional provisions. Title VII was “enacted pursuant to

the commerce power to regulate purely private decisionmaking.”

United Steelworkers of Am., AFL-CIO-CLC v. Weber, 443 U.S. 193,

206 n.6 (1979). Title IX was passed under the Spending Clause,

U.S. Const., Art. I, § 8, cl. 1, which offers an alternative

ground for remedy bolstered by the traditional private suit. By

“conditioning an offer of federal funding on a promise by the

recipient not to discriminate,” Title IX creates a contractual

obligation to “‘protect[]’ individuals from discriminatory

practices carried out by recipients of federal funds.” Gebser,

524 U.S. at 286–87. As a structural matter, “[t]hat contractual

framework distinguishes Title IX from Title VII, which is framed

in terms not of a condition but of an outright prohibition.”

Id. at 286.

Finally, Title IX and Title VII serve distinct goals.

Title VII has a singular goal of addressing workplace disputes

and its statutory language “spells out in . . . detail the

conduct that constitutes discrimination in violation of that

statute.” Jackson, 544 U.S. at 175. Its administrative

exhaustion scheme evidences a preference for “conference,

conciliation, and persuasion” outside the judicial process. 42

U.S.C. § 2000e-5(b). By contrast, Title IX’s statutory language

presents a different structure: it “is a broadly written general

prohibition on discrimination, followed by specific, narrow

exceptions to that broad prohibition.” Jackson, 544 U.S. at

175. And because it lacks administrative exhaustion

requirements, the statute allows for direct access to the

courts. The separate exhaustion requirements represent the

distinct goals of each federal statute. Title VII aims to “make

persons whole for injuries suffered through past

discrimination,” Gebser, 524 U.S. at 287 (quoting Landgraf v.

USI Film Prods., 511 U.S. 244, 254 (1994)), whereas “Title IX

focuses more on ‘protecting’ individuals,” id. (quoting Cannon,

441 U.S. at 704).

Through Title IX, Congress “sought to accomplish two

related, but nevertheless somewhat different, objectives.”

Cannon, 441 U.S. at 704. First, “Congress wanted to avoid the

use of federal resources to support discriminatory practices.”

Id. Second, it “wanted to provide individual citizens effective

protection against those practices.” Id. Consistent with these

dual purposes, Title IX is enforced both through administrative

action and through private individual actions. Title IX

operates in both a top-down and a bottom-up fashion to secure

the core mission of a learning environment free from sex-based

discrimination.

These significant differences between the statutes reflect

that Title IX and Title VII afford two separate federal rights,

each with a distinct scope and an independent end, not two

separate remedies addressing the same harm. Neither statute

should be read to support judicial restriction of the legal

tools available to litigants to advance those goals.

The Court addressed a similar question of preclusion in

Johnson v. Railway Express Agency, Inc., 421 U.S. 454 (1975),

when it considered the overlap of actions under Title VII and

actions under the Civil Rights Act of 1991, which grants “[a]ll

persons within the jurisdiction of the United States . . . the

same right . . . to the full and equal benefit of all laws and

proceedings.” 42 U.S.C. § 1981. The Court held that “remedies

available under Title VII and under [Section] 1981, although

related, and although directed to most of the same ends, are

separate, distinct, and independent.” Johnson, 421 U.S. at 461

(emphasis added). The Court thus rejected concerns respecting

circumvention of Title VII’s exhaustive administrative

requirements:

Conciliation and persuasion through the [EEOC’s]

administrative process [under Title VII], to be sure,

often constitute a desirable approach to settlement of

disputes based on sensitive and emotional charges of

invidious employment discrimination. We recognize, too,

that the filing of a lawsuit [under § 1981] might tend

to deter efforts at conciliation [under Title VII], that

lack of success in the legal action could weaken the

[EEOC’s] efforts to induce voluntary compliance, and

that a suit is privately oriented and narrow, rather

than broad, in application, as successful conciliation

tends to be. But these are the natural effects of the

choice Congress has made available to the claimant by

its conferring upon him independent administrative and

judicial remedies. The choice is a valuable one. Under

some circumstances, the administrative route may be

highly preferred over the litigatory; under others the

reverse may be true.

Id. at 461.15

The Supreme Court’s logic in Johnson applies as much to the

overlap between Title VII and Title IX as it does to the overlap

between Title VII and § 1981.16 Whereas Title VII offers

15 By contrast, in Great American Federal Savings & Loan

Association v. Novotny, the Supreme Court concluded that 42

U.S.C. § 1985(3) was precluded by the administrative scheme in

Title VII. 442 U.S. 366, 378 (1979). However, the Court’s

holding relied on the fact that § 1985(3) “provides no

substantive rights itself; it merely provides a remedy for

violation of the rights it designates.” Id. at 372. Thus,

Title VII could not be the basis for a cause of action under 42

U.S.C. § 1985(3). Such a dependent right could only be enforced

through a cause of action under Title VII.

The case now before me is more akin to Johnson v. Railway

Express Agency, Inc., 421 U.S. 454 (1975). Ms. Harrington seeks

to enforce her independent rights under Title IX, which

“explicitly confers a benefit on persons discriminated against

on the basis of sex” in federally funded educational

institutions. Cannon v. Univ. of Chi., 441 U.S. 677, 694

(1979). Title IX is not simply a remedial law and does not

provide a cause of action to vindicate rights established in

other federal statutes.

16 The Defendants, of course, resist this comparison. They point

to the fact that, just months before Congress enacted Title IX

without an express private right of action, it repealed an

exemption for educational institutions in Title VII. See Equal

Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat.

103, 103, 104 (1972) (codified as amended at 42 U.S.C. §§ 2000e–

2000e-17). Their logic is that, by addressing sex-based

employment discrimination through amendment of Title VII,

Congress had no reason, and thus did not intend, to provide

overlapping coverage under Title IX. Cf. Lakoski, 66 F.3d at

757 (making the same argument with reliance on the accompanying

House Report, which stated that the Amendment would close the

loophole in Title VII by “bring[ing] those in education under

the equal employment provision”).

But this argument is premised on the notion that Title IX was

modeled after Title VII, or in other words, that the lack of an

explicit cause of action in Title IX should be considered in

relation to the grant of an explicit cause of action in Title

VII. That premise is faulty.

administrative remedies for informal conciliation, Title IX

prioritizes direct resolution through an adversarial process.

Whereas Title IX does not limit plaintiffs to a statutory

damages cap, Title VII offers plaintiffs the opportunity to

obtain punitive damages for intentional violations. Whether a

plaintiff will obtain higher damages under one statute or the

other depends on the specific facts underlying the claims.

Finally, whereas Title VII brings within its framework

discrimination against a broad range protected classes in the

workplace, Title IX aims its protection on the impacts of only

sex-based discrimination and only in the educational

environment.

First, Title IX was modeled after Title VI of the Civil Rights

Act of 1964, which also lacks an express private cause of

action. See 42 U.S.C. § 2000d; Cannon, 441 U.S. at 694 n.16

(noting the “identical” statutory language). Thus, after the

Court held that Title VI afforded an implied private right of

action, see Guardians Ass’n v. Civil Serv. Comm’n of N.Y., 463

U.S. 582, 597 (1983), the Court also held that Title IX offered

an implied private right of action, see Cannon, 441 U.S. at 716–

17. Congress has, since Cannon, amended Title IX twice, but

declined to restrict the cause of action in any way on both

occasions. See Rehabilitation Act Amendments of 1986, 99-506,

100 Stat. 1845; Civil Rights Restoration Act of 1987, Pub. L.

No. 100-259, 102 Stat. 28.

Second, the Supreme Court has explicitly recognized that Title

VII – which the Defendants contend categorically precludes Title

IX – was never intended to be an exclusive remedy: “[T]he

legislative history of Title VII manifests a congressional

intent to allow an individual to pursue independently his rights

under both Title VII and other applicable state and federal

statutes.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 48

(1974).

d. No Basis to Conclude Congress Intended to

Distinguish Employees from Employee-Students

It is apparent that members of Congress were deeply

concerned by employment discrimination against school employees

at the time of Title IX’s enactment. The statute “grew out of

hearings on gender discrimination in education, held in 1970 by

a special House Subcommittee on Education[,] . . . [and] [m]uch

of the testimony focused on discrimination against women in

employment.” N. Haven Bd. of Educ., 456 U.S. at 523 n.13.

Despite its sparse legislative history,17 there is no lack of

reference to Title IX’s protection of employees. See, e.g., S.

Rep. No. 64, 100th Cong., 1st Sess. 18 (1987) (noting that Title

IX “would apply only to the students and employees of

educational programs”); 118 Cong. Rec. 5812 (1972) (Sen. Bayh)

(noting Title IX extended to “employment, . . . as a member of a

faculty or whatever . . . we permit no exceptions”).18

By the time Title IX was enacted in 1972, “a backlog of

53,000 [EEOC] charges existed,” including an unexpectedly high

number of sex-discrimination charges. E. Patrick McDermott, et

17 Because Title IX was conceived of as a floor amendment, it was

enacted through a legislative process in which there is

generally an “absence of secondary legislative materials.” ,

Cohen v. Brown Univ., 991 F.2d 888, 893 (1st Cir. 1993).

18 “Although the statements of one legislator made during debate

may not be controlling, Senator Bayh’s remarks, as those of the

sponsor of the language ultimately enacted, are an authoritative

guide to the statute’s construction.” N. Haven Bd. of Educ. v.

Bell, 456 U.S. 512, 526–27 (1982) (internal citations omitted).

al., An Evaluation of the Equal Employment Opportunity

Commission Mediation Program, EEOC Order No. 9/0900/7632/2

(Sept. 20, 2000), https://www.eeoc.gov/evaluation-equal-

employment-opportunity-commission-mediation-program. Congress

was legislating in the shadow of this growing buildup of such

claims. Allowing employees of federally funded educational

institutions the option to bypass Title VII’s lengthy

administrative procedures (in exchange for distinct remedies)

served Title IX’s broad goal to eradicate sex-based

discrimination from the educational setting via a direct route

to court for all victims involved.

Moreover, sex-based employment discrimination in the

education context jeopardizes one of the statute’s primary

goals: that “students . . . not be denied access to educational

benefits and opportunities on the basis of gender.” Davis v.

Monroe Cty. Bd. of Educ., 526 U.S. 629, 650 (1999). Where a

federally funded educational institution discriminates against

its employees on the basis of sex, students are denied the

opportunities and benefits of an education free from sex-based

employment discrimination practices regarding mentors and role

models.19

19 While the gap in students’ gender representation in higher

education programs has closed since the enactment of Title IX,

it bears noting that current accounts evidence a gap in relative

gender hierarchies remains. Despite the fact that women

Finally, schools play an important role inculcating the

values of citizenship. The vast majority of students in the

United States are educated within federally funded schoolhouse

gates. The school, then, “is the first opportunity most

citizens have to experience the power of government. . . . The

values they learn there, they take with them in life.” New

Jersey v. T.L.O, 469 U.S. 325, 385–86 (1985) (Stevens, J.,

concurring in part and dissenting in part). Educational staff

are highly visible models on campus and sex-based discrimination

shapes the learning environment in which students absorb gender

expectations. Cf. Sweezy v. New Hampshire, 354 U.S. 234, 250

(1957) (“No one should underestimate the vital role in a

democracy that is played by those who guide and train our

youth.”). By the way in which they treat those in the

educational community on the basis of sex, employers in

represent 53% of all PhD enrollments in the United States in

2018, “women are more likely to be found in lower-ranking

academic positions.” Women in Higher Education: Has the Female

Advantage Put an End to Gender Inequalities?, at 27, UNESCO

(Mar. 8, 2021). Apparently, at all faculty levels, men out-earn

women. Id. at 29 (“[O]n average, faculty salaries for women

were 81.4% of those for men.”).

Considering the question of sexual harassment alleged in this

case before me, it bears further note that a meta-analysis

across work environments studying the prevalence of sexual

harassment found that academia (58%) comes second only to the

military (69%). See Remus Ilies, Nancy Hauserman, Susan

Schwochau, & John Stibal, Reported Incidence Rates of Work-

Related Sexual Harassment in the United States: Using Meta-

Analysis to Explain Reported Rate Disparities, 56 Personnel

Psych. 607, 622–24 (2003).

federally funded educational institutions necessarily cultivate

in students an understanding of gender attitudes, for good or

ill.

In describing the need for an implied private cause of

action in Cannon, the Supreme Court recognized that “complaints

involving sex discrimination in higher education academic

employment” are among “precisely those areas where private suits

can be most effective.” Cannon, 441 U.S. at 708 n.42 (quoting

40 Fed. Reg. 24148 (1975) (emphasis added)). “[A] female

employee who works in a federally funded education program is

‘subjected to discrimination under’ that program if she is paid

a lower salary for like work, given less opportunity for

promotion, or forced to work under more adverse conditions than

are her male colleagues.” N. Haven Bd. of Educ., 456 U.S. at

521. This is no less true for female employees than it is for

female student-employees protected under Lipsett. 864 F.2d at

896–97.

At the heart of Title IX was a Congressional intention to

eradicate sex-based discrimination in the education environment.

Achievement of this goal turns on the nature of the employer as

an educational provider, not on the status of the plaintiff as a

student. See N. Haven Bd. of Educ., 456 U.S. at 530–31. Title

IX’s comprehensive goal of fostering equal gender opportunity in

federally funded education environments encompasses the impact

of employment discrimination in the academic setting.

5. The Supreme Court’s Treatment of Title IX

The Supreme Court has yet to address the relationship

between Title IX and Title VII specifically, but its unfolding

case law over the past 40 years has consistently supported a

broad reading of Title IX. A series of four cases merit note.

In Cannon v. University of Chicago, decided in 1979, the

Court held that Title IX provides “person[s]” at federally

funded educational institutions with a private cause of action

to remedy sex-based discrimination by suing the employer

directly. 441 U.S. at 709.

Two years later, in North Haven Board of Education v. Bell,

the Court concluded that Title IX covered sex-based employment

discrimination complaints because Congress could have simply

chosen to exclude employees by restricting the scope of

“person[s]” covered under the statute, but had chosen not to do

so as a matter of policy. 456 U.S. at 525, 539–40.20

In 1992, a unanimous Court held that the implied right of

action to enforce Title IX includes both injunctive relief and a

damages remedy to redress intentional violations of the statute.

20 Because the North Haven plaintiffs had filed charges with the

administrative agency to terminate their institutions’ funding,

the Court did not address whether employees had a private cause

of action to vindicate their established rights under Title IX.

See Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S. 60 (1992).

As relevant here, the Franklin Court considered and rejected

that the remedies available under Title IX were limited to

backpay and prospective relief. 503 U.S. at 75–76.

Consideration of this argument would make little sense if the

Court did not envision employment-discrimination complaints as

falling under Title IX’s protection. Id. at 76.

Finally, in Jackson, the Supreme Court expressly recognized

that Title IX extends to employee-plaintiffs, at least in the

context of a retaliation claim. See 544 U.S. at 171. Although

Jackson did not discuss the relationship between Title IX and

Title VII, it definitively opened the door to employees to bring

suit under Title IX against their employers for discrimination

that directly impacted their employment.

From these cases, four key principles emerge: (1) persons

protected by Title IX have a private cause of action to

vindicate their rights under the statute (Cannon, 1979); (2) a

compensatory damages remedy is available (Franklin, 1992); (3)

Congress intended to protect employees of federally funded

educational institutions from sex-based discrimination (North

Haven Board of Education, 1982); and (4) such employees have, at

the minimum, a private cause of action to sue for retaliation

(Jackson, 2005).

These cases must also be viewed in light of the Supreme

Court’s admonition against finding Title VII precludes victims

of discrimination from pursuing their choice of remedies, see

Johnson, 451 U.S. at 461, and the Court’s “repeated[] . . .

recogni[tion] that Congress has provided a variety of remedies,

at times overlapping, to eradicate employment discrimination,”

N. Haven Bd. of Educ., 456 U.S. at 535 n.26 (citing Electrical

Workers v. Robbins & Myers, Inc., 429 U.S. 229, 236–39 (1976)

(holding that the availability of a remedy under Title VII did

not preclude grievance procedure under a collective bargaining

agreement)); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47-49

(1974) (availability of contractual rights under a collective

bargaining agreement does not preclude Title VII remedy).

* * * *

The Defendants have raised arguments for why, as a matter

of policy, they believe that Title VII should be read to

supervene Title IX employment discrimination claims brought on

the basis of sex by employees of educational institutions. It

is not the judicial role to determine the wisdom of policy

decisions. Where two federal laws are capable of coexistence,

and absent a clearly expressed congressional intention to the

contrary, it is the responsibility of the courts “to regard each

as effective” and to recognize the intended scope of each.

Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S.

528, 533 (1995) (quoting Morton v. Mancari, 417 U.S. 535, 551

(1974)). The Supreme Court “has not hesitated to give effect to

two statutes that overlap, so long as each reaches some distinct

cases.” J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l., Inc.,

534 U.S. 124, 144 (2001) (rejecting that “‘dual protection’

cannot exist” in the context of overlapping patent laws with

separate statutory scopes and procedures).

More specifically, the Supreme Court has never explicitly

limited Title IX’s coverage to students, but has generally

recognized the statute’s expansive reach regarding sex

discrimination in the educational environment since its

enactment. Indeed, the Court has clearly instructed that, “if

[federal courts] are to give [Title IX] the scope that its

origins dictate, [federal courts] must accord it a sweep as

broad as its language.” N. Haven Bd. of Education, 456 U.S. at

521 (quoting Price, 383 U.S. at 801).

Construing Title IX in that fashion, I find that Title VII

and Title IX are separate enforcement mechanisms, either or both

of which an individual may use to challenge sex-based employment

discrimination in a federally funded educational program.

Accordingly, I will deny the motion to dismiss Ms. Harrington’s

Title IX claims (Counts VII, IX, X) against Lesley University.

C. Promissory Estoppel

Ms. Harrington claims promissory estoppel premised on

alleged oral promises made by Dean BenAicha in early August of

2016 with respect to the benefits of her employment in order to

induce her to accept the position.

Under Massachusetts law, a promisee’s reliance on a promise

may suffice as a substitute for consideration to bring about the

formation of a binding and enforceable contract. See R.I. Hosp.

Trust Nat’l Bank v. Varadian, 647 N.E.2d 1174, 1179 (Mass. 1995)

(“[A]n action based on reliance is equivalent to a contract

action, and the party bringing such an action must prove all the

necessary elements of a contract other than consideration.”).

To state a claim for promissory estoppel, a plaintiff must

allege that: “(1) a promisor makes a promise which he should

reasonably expect to induce action or forbearance of a definite

and substantial character on the part of the promise, (2) the

promise does induce such action or forbearance, and (3)

injustice can be avoided only by enforcement of the promise.”

Carroll v. Xerox Corp., 294 F.3d 231, 242 (1st Cir. 2002)

(quoting Loranger Const. Corp. v. E.F. Hauserman Co., 374 N.E.2d

306, 308 (Mass. 1978)).

As with any contract, a necessary dimension to considering

a contract formed by reliance is the character of the “promise”

sought to be enforced. The terms of the promise must be

“definite and certain” such that the promisor would reasonably

foresee that the promise would induce reliance. Santoni v.

FDIC, 677 F.2d 174, 179 (1st Cir. 1982). Accordingly, the

promise must also be one by which the promisor expects and

intends to be legally bound. See R.I. Hosp. Trust Nat’l Bank,

647 N.E.2d at 1179. An expression of present intent, id., or a

statement that “merely gives rise to a hope or expectation on

the part of the promisee” is insufficient, Kiely v. Raytheon

Co., 914 F. Supp. 708, 712 (D. Mass. 1996).

Defendants contend that reliance on promises made by Dean

BenAicha about the terms of employment with the University was

unreasonable as a matter of law because the promises were not

reduced to writing, were not sufficiently specific to support

reasonable reliance, and were not represented to be approved by

anyone at the University.

Claims for promissory estoppel must allege reasonable

reliance on “an unambiguous promise.” Upton v. JWP

Businessland, 682 N.E.2d 1357, 1360 (Mass. 1997). Most of the

terms set out in the oral promises given by Dean BenAicha are

uncertain in material respects and reflect that the promises

were ambiguous. For example, Dean BenAicha stated that Ms.

Harrington’s initial position at the University would be

“temporary” and that she would be promoted to Head Librarian

after an unspecified “probationary period.” FAC ¶ 11. This

general description of her potential career trajectory is too

indefinite to form a contractual agreement. See Saxon Theatre

Corp. of Bos. v. Sage, 200 N.E.2d 241, 244 (Mass. 1964) (holding

that a promise bearing “general description[s]” where details

are “left unsettled” is “too indefinite to be enforced as an

agreement”).

That Ms. Harrington relied on Dean BenAicha’s vague

promises does not change the matter: “[A] promise that was only

‘implicit’ [is] not one that [can] be made into a contract by

[the employee’s] reliance on it.” Kiely v. Raytheon Co., 914 F.

Supp. 708, 712 (D. Mass. 1996). At most, the promise of a

promotion to Head Librarian created an agreement to enter into a

future employment contract. And “[a]n agreement to enter into a

contract which leaves the terms of that contract for future

negotiation is too indefinite to be enforced.” Lucey v. Hero

Int’l Corp., 281 N.E.2d 266, 270 (Mass. 1972) (quoting Caggiano

v. Marchegiano, 99 N.E.2d 861, 865 (Mass. 1951)).

In addition, Ms. Harrington’s offer of employment21

specifically describes her role as “an employee at-will,”

21 The Defendants contend that I should consider Ms. Harrington’s

offer of initial employment as an extrinsic document. Courts

may not ordinarily consider extrinsic documents as part of a

motion to dismiss except in “narrow exceptions,” such as where

documents have been “sufficiently referred to in the complaint.”

Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). Although I do

not find that the First Amended Complaint sufficiently refers to

the University’s written offer of employment to allow its

introduction, I find that Ms. Harrington, in her opposition

brief to the Defendants’ motion to dismiss, invites its

introduction by referring to it in her responding arguments. I

conclude that it is proper to consider the initial documented

meaning that Lesley University would “have the right to

terminate [her] employment for any reason or no reason.” These

terms directly contradict the oral promise of promotion to Head

Librarian. Under Massachusetts law, “[w]here a written

statement conflicts with an oral statement, Massachusetts law

assumes that a reasonable person will investigate further.”

McMahon v. Dig. Equip. Corp., 162 F.3d 28, 39 (1st Cir. 1998).

Here, Ms. Harrington “has simply chosen to believe the more

appealing of two conflicting statements.” Id. For the same

reason, Ms. Harrington’s allegations with respect to Dean

BenAicha’s promises of a raise in salary tied to her promotion

to Head Librarian fail.

But Dean BenAicha’s promise of relocation benefits and

professional development funds as part of her compensation at

the University are another matter. I find this promise

sufficiently discrete and specific to support reliance.

Moreover, nothing in the written employment contract contradicts

the promise of those benefits.

I find that the First Amended Complaint sufficiently

alleges a claim of promissory estoppel with respect to the

relocation benefits and professional development funds promised

offer of employment as extrinsic evidence for the purpose of

this motion to dismiss.

to Ms. Harrington by Dean BenAicha. I will deny in part the

motion to dismiss Count XI (promissory estoppel) on that basis.22

III. CONCLUSION

For the foregoing reasons, I GRANT in part and DENY in part

the Defendants’ Motion [Dkt. No. 16] to dismiss the First

Amended Complaint. As to Ms. Harrington’s claims under Chapter

151B and Title VII, I GRANT the Motion and dismiss Counts I–VI

against Lesley University and Count VII against Dean BenAicha.

With respect to the claims under Title IX, I DENY the Motion to

dismiss Counts VIII to X against Lesley University. I also DENY

the Motion to dismiss the claim of common law promissory

estoppel in Count XI against Lesley University to the extent it

22 The Defendants also contend that Ms. Harrington’s retaliation

claims under Title VII (Count VI) and Title IX (Count X) fail as

a matter of law because she does not allege a retaliatory

motive. I disagree. I find that Ms. Harrington has set forth

sufficient allegations to survive a motion to dismiss. Although

seven months passed between her filing of a Title IX complaint

in November 2018 and the University’s rejection of a two-level

salary increase in June 2019, the inference of retaliation is

here reinforced by other corroborative evidence. In a January

2019 meeting, Dean Vrattos apologized to Ms. Harrington that her

salary was $20,000.00 per year less than what it should have

been throughout her employment at the University, based on her

job description. In a June 2019 meeting, the Dean acknowledged

to Ms. Harrington that her salary was on the lowest side of the

relevant salary range. These statements must also be considered

in light of Lesley University’s continuing failure to share

findings from its Title IX investigation. The allegations may

be thin but at this early stage prior to discovery they are

sufficient to survive a motion to dismiss.

alleges claims for relocation expenses and professional

development funds.

I will grant Ms. Harrington leave on or before August 31,

2021, to file a Second Amended Complaint to allege a wage

discrimination claim under Title VII against Lesley University

with greater particularity, failing which the allowance of the

motion to dismiss that claim for the reasons stated in this

Memorandum will stand. If such a Second Amended Complaint

compliant with Fed. R. Civ. P. 11 is timely filed, the dismissal

of the wage discrimination claim under Title VII, asserted in

Count V of the First Amended Complaint, will be vacated and the

parties shall proceed to discovery as to all outstanding claims

in accordance with the scheduling order they have proposed which

I will adopt today in somewhat modified form.

/s/ Douglas P. Woodlock_______

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE