Lee v. Howard Hughes Medical Institute

United States District Court

District of Massachusetts

___________________________________

)

Jeannie T. Lee, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 19-12289-NMG

Howard Hughes Medical Institute, )

)

Defendant. )

___________________________________)

MEMORANDUM & ORDER

GORTON, J.

This action arises from the decision of defendant Howard

Hughes Medical Institute (“the Institute” or “defendant”) not to

renew plaintiff Dr. Jeannie Lee (“Dr. Lee” or “plaintiff”) for a

fourth five-year term of employment as a research scientist.

Dr. Lee alleges that the decision was discriminatory and asserts

several claims against the Institute with respect to her non-

renewal and her salary.

Pending before the Court is the Institute’s motion for

summary judgment (Docket No. 71) which, for the reasons that

follow, will be allowed.

I. Background

A. Dr. Lee’s Appointment

In 2000, the Institute, a not-for-profit biomedical

research organization headquartered in Chevy Chase, Maryland,

appointed Dr. Lee to become a research scientist, referred to by

the parties as “an Investigator”. Dr. Lee is an Asian-American

molecular geneticist who holds M.D. and Ph.D. degrees from the

University of Pennsylvania. At the time of her appointment, she

worked at Massachusetts General Hospital (“MGH”) as a researcher

in its Department of Molecular Biology. Dr. Lee’s research has

focused on X-chromosome inactivation and the role of non-coding

RNA in that process, as well as basic biological mechanisms and

their translation to treat sex-linked disorders such as Rett

Syndrome, a rare genetic mutation affecting brain development.

Once appointed, an Investigator becomes an Institute

employee but continues to do research at his or her home

institution, albeit with the support of substantial funding from

the Institute. Dr. Lee, accordingly, continued her work at MGH

while on the payroll of the Institute and with the benefit of

Institute funds. That mutually beneficial relationship

continued for 15 years and through two reappointments in 2006

and 2011 as an Institute Investigator. In 2016, however, Dr.

Lee was not renewed for a fourth term.

B. The Institute’s Investigator Renewal Process

The Institute’s review and reappointment process is managed

by its Senior Scientific Officers, who, in 2016, were Dr.

Barbara Graves (“Dr. Graves”), Dr. Philip Perlman (“Dr.

Perlman”), Dr. Judith Glaven (“Dr. Glaven”) and Dr. Janet Shaw

(“Dr. Shaw” and, together with Drs. Graves, Perlman and Glaven,

“the Senior Scientific Officers”), in conjunction with its Vice

President and Chief Scientific Officer who, in 2016, was Dr.

David Clapham (“Dr. Clapham” or “the Vice President”). Those

officers are assisted by an advisory panel of many scientists

who are not Institute employees (“the advisory panelists”).

The Institute holds Investigator review meetings several

times each year at its headquarters. Prior to each meeting, it

assigns four advisory panelists to read and consider all the

written material submitted by an Investigator in support of his

or her renewal application. That material may include a

curriculum vitae, significant publications, descriptions of

research accomplishments and highlights of the Investigator’s

important activities.

At the review meeting, each Investigator is allotted 35

minutes to present his or her research program orally to the

whole advisory panel, after which a brief question-and-answer

session is held. The Investigator is excused and the four

assigned reviewers comment upon the Investigator’s progress,

strengths and weaknesses of his or her research and prospects

for future contributions. Thereafter, other members of the

advisory panel may share their opinions. Members of Institute

leadership will sometimes attend the presentation, question-and-

answer session and subsequent discussion as well.

Prior to the conclusion of the meeting, each advisory

panelist confidentially submits a score, in the form of a letter

grade, for the Investigator under review. (The advisory

panelists may also provide written comments if they so choose.)

The scores, which are “A”, “B” or “C”, evaluate an Investigator

as to whether:

i. they identify and pursue significant biological

questions in a rigorous and deep manner;

ii. they push their chosen research field into new areas

of inquiry, being consistently at its forefront;

iii. they develop new tools and methods that enable

creative experimental approaches to biological

questions, bringing to bear, when necessary, concepts

or techniques from other disciplines;

iv. they forge links between biology and medicine;

v. they demonstrate great promise of future original and

innovative contributions; and

vi. they are active in service and training in their host

institutions, and in the greater scientific community.

An “A” score reflects clear fulfilment of most of the

review criteria. A “B” score reflects a significant record of

accomplishment and productivity accompanied by some concerns

about the extent of the subject Investigator’s leadership in the

field, focus or depth of his or her research or prospects for

future contributions. A “C” score reflects a failure to meet

the review criteria.

After all the Investigators in the review cohort have been

evaluated by the advisory panel, the Vice President and the

Senior Scientific Officers convene and consider the panelists’

comments and scores. They then meet with the President of the

Institute, who at the time of the plaintiff’s relevant

evaluation was Dr. Erin O’Shea (“Dr. O’Shea” or “the

President”), to whom they present a recommendation with respect

to the renewal of each Investigator. The ultimate renewal

determination is made by the President, who has access to the

material relied upon by the advisory panel and the other

Institute executives.

Each Investigator is notified of his or her renewal or non-

renewal within two days of the President’s decision. Within

several weeks of the decision, the Investigator is also provided

with written critiques from his or her four assigned reviewers

addressing, inter alia, achievements, strengths and weaknesses,

as well as a review report from the Institute.

C. Dr. Lee’s Non-Renewal

Prior to her 2016 non-renewal, Dr. Lee had been twice

renewed as an Institute Investigator. In 2006, she received 21

“A” scores and no “B” or “C” scores. Her assigned reviewers

described her work in mostly favorable terms, albeit with a few

negative comments, and she was awarded an aggregate “A” score

and renewed for a second term. In 2011, Dr. Lee received 13 “A”

scores, one “B” score and no “C” scores. Again, Dr. Lee

received mostly favorable comments, and again, she was awarded

an aggregate “A” score and renewed for a third term.

In June, 2016, Dr. Lee submitted her review materials to

the Institute in support of her application for renewal for a

fourth term as an Institute Investigator. Dr. Lee’s materials

included, inter alia, a list of five publications from her

current term that she identified as her most important, a

curriculum vitae and a research summary. Dr. Lee was one of a

cohort of twelve Investigators up for review in September, 2016.

In September, 2016, Dr. Lee presented her work to the

advisory panel and answered questions from its 18 members,

including her four assigned reviewers. Dr. Lee then left the

meeting. Several advisory panelists expressed concern about Dr.

Lee’s research, including the rigor and testing of her

scientific models. At the conclusion of the meeting, Dr. Lee

received no “A” scores, 11 “B” scores and 7 “C” scores. Eight

panelists submitted comments, most of which reflected concern

about Dr. Lee’s models and approach to research.

The scores and comments of the advisory panel were relayed

to the Institute’s leadership, most of which had attended Dr.

Lee’s presentation to the advisory panel. The leadership, i.e.

the Senior Scientific Officers and the Vice President, Dr.

Clapham, recommended that the President, Dr. O’Shea, not renew

Dr. Lee as an Investigator. Dr. O’Shea ultimately decided not

to renew Dr. Lee for a fourth term as an Investigator.

On September 16, 2016, Dr. Lee was informed by email of the

non-renewal decision. Dr. Lee later received written critiques

from her four assigned reviewers and a copy of her review

report. She was one of four Investigators in her 12-person

cohort whose appointment was not renewed. In accordance with

Institute policies, Dr. Lee entered a two-year phase-out period

that concluded in September, 2018, after which she reverted to

her prior status as an MGH employee.

D. Dr. Lee’s Salary

Since the early 2000s, Dr. Lee claims she was underpaid

relative to other Investigators based at MGH. She expressed

that concern to her department chairs at the hospital on

numerous occasions between 2005 and 2016. In or about 2012, for

reasons not apparent from the record, MGH began to pay Dr. Lee

bonuses to compensate for the alleged disparity.1

1 Prior to September, 2018, Investigator salaries and raises were

set by the Institute in consultation with host institutions,

e.g. MGH. Since then, the Institute has set salaries by

reference to a scale which accounts for seniority, geography and

various merit-based considerations.

In 2016, Dr. Lee’s salary from the Institute was $250,000.

In May, 2016, Dr. O’Shea sent an email to the Vice President of

Research at MGH, Dr. Harry Orf (“Dr. Orf”), stating that there

would be a proposed Investigator salary increase of 2% for the

following fiscal year and requesting MGH’s recommendation for

the distribution of that increase among the Investigators at

MGH. Dr. Orf recommended that the Institute increase Dr. Lee’s

salary by 2% (i.e. to $255,000) which the Institute approved.

In August, 2016, Dr. Orf requested that the Institute

increase Dr. Lee’s salary by an additional $25,950. The request

arose from a salary and equity review that MGH had conducted

that focused on gender and seniority within its Department of

Molecular Biology (“the Department”). That review indicated

that Dr. Lee was underpaid relative to others in the Department.

(The Department consisted almost entirely of MGH, rather than

Institute, employees.) Dr. O’Shea agreed to raise Dr. Lee’s

salary by an additional $10,000 for the following fiscal year.

On August 26, 2016, MGH informed Dr. Lee of the additional

increase and shortly thereafter the Institute confirmed the

increase by email. The subject line of that email was “Revised

Compensation Statement”. The sender, Steven Barbour, the

Science Operations Manager for the Institute, informed Dr. Lee

that

Molecular Biology and Dr. Orf’s office made an equity

request on your behalf. This statement reflects the

approved increase.

II. Procedural History

In July, 2017, Dr. Lee filed a charge of discrimination

with the Massachusetts Commission Against Discrimination (“the

MCAD”), alleging that the Institute had discriminated against

her on the basis of age, race, sex and national origin when it

declined to renew her service as an Investigator. She also

claimed that, during her service as an Investigator, the

Institute had discriminatorily paid her a substandard salary.

A little over two years later, Dr. Lee commenced the

present action in Massachusetts Superior Court for Suffolk

County, alleging discriminatory nonrenewal, in violation of

M.G.L. c. 151B (“Count I”), salary discrimination, in violation

of M.G.L. c. 151B (“Count II”), salary discrimination, in

violation of M.G.L. c. 149, § 105A (“Count III”), breach of

contract arising out of her nonrenewal (“Count IV”) and breach

of contract arising out of her insufficient salary (“Count V”).

The Institute timely removed the action to this court and denied

all substantive allegations.

In May, 2020, the Court allowed defendant’s motion to

dismiss the two breach of contract claims. The Institute now

moves for summary judgment on Dr. Lee’s three remaining claims,

i.e. Counts I, II and III.2 Dr. Lee opposes the motion.

III. Motion for Summary Judgment

A. Legal Standard

The role of summary judgment is “to pierce the pleadings

and to assess the proof in order to see whether there is a

genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d

816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc.,

895 F.2d 46, 50 (1st Cir. 1990)). The burden is on the moving

party to show, through the pleadings, discovery and affidavits,

“that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a).

A fact is material if it “might affect the outcome of the

suit under the governing law . . . .” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A genuine issue of material

fact exists where the evidence with respect to the material fact

in dispute “is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

If the moving party satisfies its burden, the burden shifts

to the nonmoving party to set forth specific facts showing that

2 The complaint has been amended twice since the dismissal of the

breach of contract claims but neither amendment substantively

altered any of the claims.

there is a genuine, triable issue. Celotex Corp. v. Catrett, 477

U.S. 317, 324 (1986). The Court must view the entire record in

the light most favorable to the non-moving party and make all

reasonable inferences in that party's favor. O'Connor v.

Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary judgment is

appropriate if, after viewing the record in the non-moving

party's favor, the Court determines that no genuine issue of

material fact exists and that the moving party is entitled to

judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23.

B. Application

i. Non-renewal claim (Count I)

Dr. Lee alleges that the Institute did not renew her for a

fourth term as an Investigator due to biases harbored by her

reviewers. Specifically, she contends that the scores and

comments she received from the advisory panelists were not

substantively supported in light of her accomplishments and

submitted materials but, rather, were the result of their

“unexamined bias on the basis of gender and/or race/national

origin”. She argues that the ultimate non-renewal decision,

which relied heavily upon those scores, was, in turn, tainted by

the same discriminatory bias that infected the prior stage of

the review process and violates the non-discrimination

provisions of M.G.L. c. 151B.

Because Dr. Lee proffers no direct evidence of

discrimination (and, indeed, the parties agree that there is

none), the Court considers her claim under the familiar burden-

shifting framework set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). The McDonnell Douglas analysis

proceeds in three steps. Forsythe v. Wayfair Inc., 27 F.4th 67,

76 (1st Cir. 2022). First, Dr. Lee must adduce evidence

sufficient to make a prima facie case of discrimination. Then,

the Institute must proffer a legitimate, non-discriminatory

reason for Dr. Lee’s non-renewal. Finally, Dr. Lee must show

that the Institute’s stated reason, though facially legitimate,

was merely a pretext for unlawful discrimination. Although the

burden of production shifts back and forth during the McDonnell

Douglas analysis, the ultimate burden of persuasion rests with

plaintiff throughout. Rodriguez-Cuervos v. Wal-Mart Stores,

Inc., 181 F.3d 15, 19 n.1 (1st Cir. 1999) (citing Texas Dep’t of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

a. Prima facie showing

As a preliminary matter, there is some dispute as to the

standard to be applied at the first McDonnell Douglas step.

Typically, a plaintiff must show that:

(1) she is a member of a protected class; (2) she was

performing her job at a level that rules out the

possibility that she was fired for inadequate job

performance; (3) she suffered an adverse job action by her

employer; and (4) her employer sought a replacement for her

with roughly equivalent qualifications.

Smith v. Stratus Computer, 40 F.3d 11, 15 (1st Cir. 1994).

The First Circuit Court of Appeals (“the First Circuit”)

has, however, endorsed an adapted version of the first McDonnell

Douglas step in denial-of-tenure cases. See Villanueva v.

Wellesley College, 930 F.2d 124, 128 (1st Cir. 1991) (citing

Banerjee v. Board of Trustees of Smith College, 648 F.2d 61 (1st

Cir. 1981)); Barry v. Trustees of Emmanuel College, No. 16-

12473-IT, 2019 U.S. Dist. LEXIS 20511 at *27 (D. Mass. Feb. 8,

2019) (applying Banerjee). A plaintiff who has been denied

tenure must show

(1) that [she] is a member of a protected group; (2) that

[she] was a candidate for tenure and was qualified under

the college or university’s standards, practices or

customs; (3) that despite these qualifications [she] was

rejected and (4) that tenured positions in the relevant

department remained open at the time [she] was denied

tenure, in that others were granted tenure in the

department during the same general time period.

Villanueva, 930 F.2d at 128. Under both the usual standard and

its adaptation, the burden placed upon the plaintiff is

“relatively light” and, if met, the Court presumes that the

employer engaged in unlawful discrimination. Id. (citing

Burdine, 450 U.S. at 254).

Dr. Lee appears to urge the Court to consider her claim

under the adapted standard, whereas the Institute avers that the

denial-of-tenure cases are merely “instructive guidance

specifically for the purposes of pretext [i.e. step three]

analysis” and proffers Smith as the touchstone for its argument

at step one.

Although the Institute, a non-profit biomedical research

organization, is not a college or university, it nevertheless

bears most of the relevant hallmarks of an academic institution

and thus the adapted standard is appropriate. Similar to many

colleges and universities, the Institute expects high levels of

research activity from its appointees and evaluates them in

large part upon the fruits of their research program. The

differences between the Institute and traditional academic

institutions, where they exist, are not dispositive. For

instance, although Institute Investigators for the most part

lack the pedagogical responsibilities of college professors,

that fact serves only to remove one factor from the “tenure”

equation rather than change fundamentally the character of the

Institute’s review. On the whole, the renewal process is

substantially similar to a tenure decision, albeit one with a

greater-than-usual focus on the candidate’s research and,

accordingly, the Court considers whether Dr. Lee has made a

prima facie case under the denial-of-tenure standard.

The Institute does not dispute, for the purpose of summary

judgment, that Dr. Lee is a member of a protected class or that

she was rejected for renewal. It is also apparent that “tenured

positions . . . . remained open at the time” of Dr. Lee’s

nonrenewal, Villanueva, 930 F.2d at 128, because eight of the

twelve Investigators in Dr. Lee’s September, 2016, cohort were

renewed, and the parties agree that the Institute does not limit

the number of Investigators who may be renewed from any given

cohort. Thus, the only outstanding question at step one is

whether Dr. Lee was “qualified under the [Institute’s]

standards, practices or customs”. Id.

Dr. Lee contends that she was qualified for renewal as an

Investigator. She notes that two of her four assigned

reviewers, i.e. the people who likely would have conducted the

most thorough examination of her materials, assigned her B or B+

final grades. Those grades, although not at the top of the

scale, would have supported renewal of Dr. Lee for a fourth

term. She also observes that her assigned reviewers and the

Institute’s scientific leadership “conceded her many

achievements during her third term” and her continued leadership

in her field. Dr. Lee submits that, taken together, such

evidence establishes that she fell within the group of qualified

candidates for renewal as an Investigator.

The Institute disagrees and contends that Dr. Lee did not

meet its legitimate performance expectations.3 It cites the low

scores received by Dr. Lee and the significant criticism of her

work levied by her reviewers and notes that none gave Dr. Lee an

“A” score, meaning that not one of the 18 scientists who

considered her materials and presentation concluded that she

“very clearly fulfill[ed] most of the review criteria”. Rather,

several reviewers expressed concern about “sloppy thinking” and

adherence to weak, insufficiently tested models.

While underwhelming, the evidence proffered by Dr. Lee is

sufficient to make a prima facie case that she was qualified for

renewal. Several panelists, including two of those who had been

assigned to review all her materials, concluded that she

deserved a score in the “B” range, a score which the Institute

considered adequate for renewal. Barry, 2019 U.S. Dist. LEXIS

20511 at *31 (requiring that a plaintiff denied tenure show that

she was sufficiently qualified to be among those persons from

whom a selection would be made) (citing Banerjee, 648 F.3d at

63)).

Dr. Lee’s reviewers were uniform in their evaluation that

she was not an exceptional candidate warranting an “A” score.

3 While the Institute asserts under the usual, i.e. non-adapted,

standard at the first McDonnell Douglas step, the substance of

its argument on this point applies equally to a denial-of-tenure

case.

If the standard were such, Dr. Lee would not meet it. All that

she must show at this step, however, is that she was at least in

the middle range of candidates and her receipt of 11 “B” scores

make an adequate case that she was. Villanueva, 930 F.2d at 128

(explaining that the plaintiff must show that her qualifications

were at least comparable to those of a “middle group of tenure

candidates” for which both a grant and a denial of tenure could

be justified) (quoting Banerjee, 648 F.2d at 61).

b. Non-discriminatory rationale

Having determined that Dr. Lee has made a prima facie case,

the Court turns to the second McDonnell Douglas step, at which

the Institute must produce a legitimate, non-discriminatory

reason for the non-renewal decision. Che v. Mass. Bay Transp.

Auth., 342 F.3d 31, 39 (1st Cir. 2003). That intervening burden

is “not onerous”, and the Institute easily discharges it.

Matthews v. Ocean Spray Cranberries, 686 N.E.2d 1303, 1309

(Mass. 1997). The low scores assigned by the advisory panelists

based upon their widespread, expressed concern with the quality

of Dr. Lee’s research, is a sufficient reason for the non-

renewal decision. Santana-Vargas v. Banco Santander Puerto Rico,

948 F.3d 57, 60 (1st Cir. 2020).

c. Pretext

At the third McDonnell Douglas step, plaintiff must present

evidence from which a reasonable jury could infer that the

defendant’s proffered reason for its decision was pretextual.

Bulwer v. Mount Auburn Hospital, 46 N.E.3d 24, 33 (Mass. 2016).

Evidence tending to show that a given rationale is pretextual

may include “weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffer”.

Harrington v. Aggregate Industries-Northeast Region, Inc., 668

F.3d 25, 33 (1st Cir. 2012). Where the motive or intent of a

defendant employer is at issue, courts should be “particularly

cautious” in granting the employer’s motion for summary

judgment. Kelley v. Corr. Med. Servs., 2013 U.S. App. LEXIS 2588

(1st Cir. Feb. 6, 2013). Nevertheless, a plaintiff must offer

some “minimally sufficient” evidence of pretext to survive

summary judgment. Thiedon v. Harvard Univ., 948 F.3d 477, 497

(1st Cir. 2020); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896

F.2d 5, 8 (1st Cir. 1990).

Some special considerations apply in a denial-of-tenure

case, to which the present action is akin. Villanueva, 930 F.2d

at 129. It is no more the role of the Court to sit as a “super-

tenure” committee of one, id. (describing academic freedom as a

“special concern of the First Amendment”), than it is to second-

guess a company’s business judgment, Velez v. Thermo King de

Puerto Rico, Inc., 585 F.3d 441, 450 (1st Cir. 2009). On the

other hand, tenure decisions are not exempt from discrimination

law and the Court may not abdicate its duty of “eliminating

workplace discrimination” simply because the alleged

discrimination occurs in a research or academic setting.

Villanueva, 930 F.2d at 129; see Maw v. Bd. of Trs. of the Univ.

of the Dist. of Columbia, 926 F.3d 859, 864 (D.C. Cir. 2019)

(explaining that “[a]lthough the First Amendment grants a

university certain freedoms, the freedom to discriminate is not

among them”).

In the interest of maintaining the “delicate equilibrium”

of academic freedom and non-discrimination, the First Circuit

has instructed that a plaintiff at the third McDonnell Douglas

step must show that reasons for denial of tenure or, in this

case, non-renewal were “obviously weak or implausible,” or that

the prevailing tenure standards were “manifestly unequally

applied”. Villanueva, 930 F.2d at 129 (citing Brown v. Trustees

of Boston University, 891 F.2d 337, 346 (1st Cir. 1989)); see

Barry, 2019 U.S. Dist. LEXIS 20511 at *33 (applying denial-of-

tenure standard at step three of McDonnell Douglas analysis).

In evaluating the plaintiff’s argument, the Court may not

“simply substitute its own views” of her qualifications.

Villanueva, 930 F.2d at 129. Rather,

the evidence must be of such strength and quality as to

permit a reasonable finding that the denial of tenure was

“obviously” or “manifestly” unsupported.

Id.

Here, Dr. Lee contends that the Institute’s non-renewal

decision was both “obviously weak or implausible” and the

product of standards which were “manifestly unequally applied”.

Villanueva, 930 F.2d at 129. Both contentions essentially rest

upon the same theory and are supported by the same evidence. In

brief, Dr. Lee argues that, throughout her review process, she

was held to higher standards than male and non-Asian

comparators. That, according to Dr. Lee, evinces a manifestly

unequal application of the renewal standards and consequently

the Institute’s proffered rationale, i.e. that her non-renewal

was based upon its collective scientific judgment, is obviously

weak and implausible.

In support of those two related theories, Dr. Lee avers

that her reviewers 1) unfairly faulted her for disagreeing with

a white male Investigator, 2) unconsciously punished her for

acting against purported stereotypes of Asian women, 3) employed

a highly subjective review process susceptible to bias and 4)

departed from the standard process in her case, to her

prejudice. Dr. Lee submits that those facts, taken together,

create a “mosaic of circumstantial evidence” that would allow a

jury to infer that she was discriminated against. Taite v.

Bridgewater State University, Board of Trustees, 999 F.3d 86, 94

(1st Cir. 2021).

The Institute characterizes Dr. Lee’s arguments as

“strained and implausible” and contends that the negative

evaluation and ultimate non-renewal decision were the product of

the collective scientific judgment of the advisory panelists and

the Institute. It submits that because plaintiff has offered

nothing more than “conclusory allegations, improbable

inferences, and unsupported speculation” of discrimination,

citing LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841-42 (1st

Cir. 1993), summary judgment must enter in its favor.

Mindful that the evidence is to be considered as a whole,

the Court, in the interest of orderly analysis, addresses Dr.

Lee’s contentions seriatim. Taite, 999 F.3d at 94. Because the

evidence, taken together, does not raise “the slightest

inference that a discriminatory motive lurked beneath the

surface” of the proffered reasons for non-renewal, the

Institute’s motion for summary judgment will be allowed.

Villanueva, 930 F.2d at 131.

Dr. Lee first contends that the Institute applied a “double

standard”, subjecting her to greater scrutiny than white male

Investigators. She cites several examples of that purported

double standard, mostly arising from what she contends to be

disparate treatment of herself and another Investigator, Dr.

Thomas Cech, simultaneously up for renewal. Dr. Lee appears to

fault one of her four assigned reviewers in particular for

promulgating such unfair comparisons, which she asserts arose

out of the reviewer’s unconscious biases, but alleges that,

through a process of “group polarization”, the biases of that

reviewer were adopted by the entire advisory panel. That

adoption ultimately caused the President of the Institute not to

renew Dr. Lee for a fourth term.

None of the evidence proffered by Dr. Lee suggests that, in

her review, the Institute’s renewal standards were “manifestly

unequally applied”. Villanueva, 930 F.2d at 129. Rather, the

advisory panelists and Institute leadership considered and

critiqued Dr. Lee’s renewal application in the same manner, and

in accordance with the same standards, as other applications for

renewal of Investigators in her cohort. Dr. Lee’s contentions

are either conclusory or purport to require the Institute to

follow rules, such as a proscription on comparing one

Investigator to another and an accounting of “objective

accomplishments” (measured, in part, by the number of her

publications), to which it does not adhere. Certainly the

criticism of Dr. Lee was harsher than that leveled at most of

the other Investigators in her cohort. She fails, however, to

adduce evidence which would tend to show that the disparity was

due to the unequal application of Institute standards rather

than the collective scientific judgment of her reviewers.

Dr. Lee next contends that her reviewers’ criticism of her

research was a product of their unconscious bias. It has been

“long recognized” that unlawful discrimination can spring not

only from conscious animus but also from stereotypes and

unconscious bias. Thomas v. Eastman Kodak Co., 183 F.3d 38, 59

(1st Cir. 1999) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604

(1993)); see Commonwealth v. McCowen, 939 N.E.2d 735, 767 (Mass.

2010) (noting that, since the 1990s, a number of studies have

concluded that “implicit biases are real, pervasive, and

difficult to change”). Discrimination is, moreover, no less

unlawful because certain biases are unconscious, Douglas v. J.C.

Penney Co., 474 F.3d 10, 14 (1st Cir. 2007), or difficult to

apprehend, see, e.g., Christine Jolls & Cass Sunstein, The Law

of Implicit Bias, 94 Cal. L. Rev. 969, 976 (2006).

Nevertheless, speculation about the influence of bias,

unconscious or otherwise, is, without more, insufficient to

survive summary judgment, and here, again, it is speculation,

not evidence, that suggests the criticism of Dr. Lee was based

on bias. Miceli v. JetBlue Airways, 914 F.3d 73, 80-81 (1st Cir.

2019); Brader v. Biogen, 983 F.3d 39, 53 (1st Cir. 2020). Dr.

Lee has proffered no evidence from which a jury reasonably could

conclude that the defendant discriminated against her. Compare

Lugo-Mariani v. Nicholson, No. 06-1473-ADC, 2009 WL 10719987 at

*7 n.7 (D.P.R. Feb. 10, 2009) (entering summary judgment where

plaintiff “offer[ed] no evidence” that defendant harbored a bias

against Puerto Ricans because, if the case went to trial, “the

jury would be left to guess at the reasons behind the pretext”)

with Bulwer, 46 N.E.3d at 37 (holding that comments about

plaintiff Belizean doctor of African descent, including that he

was “not well suited for a career in internal medicine in this

country” could, considered with other evidence of disparate

treatment, indicate pretext). Rather, she adverts to a

succession of actions, comments and criticisms which uniformly

fail to evince bias.

Dr. Lee’s remaining arguments are also underwhelming. She

avers that the Institute departed from its normal procedures in

her renewal review. While an employer’s deviation from its

regular procedures may allow an inference of discrimination, Dr.

Lee fails to identify any such discrepancies here. See Taite,

999 F.3d at 96-97 (explaining that deviation from policy or

procedure may allow inference of pretext); Bulwer, 46 N.E.3d 37-

38 (same). Rather, she argues that Dr. Cech identified a

“somewhat controversial” scientific disagreement between them

when asked to disclose to the Institute any conflicts with the

advisory panel. (Dr. Lee, an Investigator, was not a member of

the advisory panel.)

Attempting to impute to the Institute whatever impropriety

might attend to that apparently unusual disclosure, Dr. Lee

alleges that the Institute improperly scheduled her review for

only a few hours after Dr. Cech’s and failed to remind her

reviewers to focus on her materials rather than her dispute with

Dr. Cech “or other non-scientific issues”. As a result,

plaintiff submits, “unconscious bias was permitted to taint

[her] review”. That argument avails Dr. Lee little because her

allegations of bias are conclusory and lack any connection to

Dr. Cech’s disclosure or the actions of the Institute.

Finally, Dr. Lee’s criticism of the “almost completely

unfettered subjectivity” of the renewal review criteria is

misplaced. Subjective criteria, far from prohibited, are often

vital to the tenure or renewal decisions of an academic entity

such as the Institute. See Sweeney v. Board of Trustees of Keene

State College, 569 F.2d 169, 176 n.14 (1st Cir. 1978) (observing

that “subjective evaluations are essential in certain positions”

and that “[j]udicial tolerance of subjective criteria seems to

increase with the complexity of the job involved”), rev’d on

other grounds, 439 U.S. 24 (1978). While that fact does not

excuse the Institute from its legal obligation not to

discriminate or excuse its decisions from judicial scrutiny, it

also does not, without more, give rise to an inference of

pretext sufficient to forestall summary judgment. Jackson v.

Harvard University, 721 F. Supp. 1397, 1404 (D. Mass. 1989)

(explaining that “the elasticity of promotion standards for

teachers in an academic setting does not constitute, in and of

itself, evidence of discrimination”). For the reasons

previously discussed, Dr. Lee fails to provide any evidence

which would suggest that discriminatory animus entered into her

renewal review under the auspices of “subjectivity”.

ii. Salary claims (Counts II and III)

Dr. Lee also alleges that, during her time as an

Investigator, the Institute paid her less than it did male

comparators at MGH for similar work. She claims that her

purportedly substandard compensation constitutes salary

discrimination in violation of M.G.L. c. 151B (“Chapter 151B”)

and M.G.L. c. 149, § 105A (“the Massachusetts Equal Pay Act” or

“MEPA”).

a. Statute of limitations

As a preliminary matter, the parties dispute whether Dr.

Lee’s salary claims were timely filed. Chapter 151B requires

that a plaintiff file her claim with the MCAD within 300 days of

its accrual, M.G.L. c. 151B, § 5; see Verdrager v. Mintz, Levin,

Cohn, Ferris, Glovsky & Popeo, P.C., 50 N.E.3d 778, 799 (Mass.

2016), and bring suit, if at all, within three years. M.G.L. c.

151B, § 9 (requiring that any civil action under the chapter be

brought “not later than three years after the alleged unlawful

practice occurred”).

For most of the period here at issue, MEPA imposed a

shorter statute of limitations, requiring that a plaintiff

commence an action within one year of the accrual of her claim,

M.G.L. c. 149, § 105A (1996); Silvestris v. Tantasqua Reg’l Sc.

Dist., 847 N.E.2d 328, 338-39 (Mass. 2006). An amended version

of the statute, extending the limitation period to three years,

went into effect in July, 2018. M.G.L. c. 149, § 105A(b) (2018)

(explaining that “[a]ny action based upon or arising under

section[] 105A . . . . shall be instituted within 3 years after

the date of the alleged violation”). Under Massachusetts law,

an amended statute of limitations applies to a claim only if it

is not already time-barred under the previously applicable

statute of limitations. Commonwealth v. Rocheleau, 533 N.E.2d

1333, 1334 (Mass. 1989) (citing Commonwealth v. Bargeron, 524

N.E.2d 829 (Mass. 1988)).

Resolution of the timeliness question requires

determination of the date on which Dr. Lee’s claims accrued.

Under Massachusetts law, a statute of limitations begins to run

when a plaintiff knows, or should have known, that she has been

harmed by the conduct giving rise to the claim. See Silvestris,

847 N.E.2d at 339. If the plaintiff asserts that she did not

know about the harm at the time it occurred, she bears the

burden of demonstrating that lack of knowledge as well as her

inability to discover the harm through the exercise of

reasonable diligence. Geo. Knight & Co. v. Watson Wyatt & Co.,

170 F.3d 210, 213 (1st Cir. 1999); Riley v. Presnell, 565 N.E.2d

780, 785 (Mass. 1991).

Further, while Massachusetts courts have concluded that

some kinds of discrimination claims, such as those alleging a

hostile work environment, concern a wrong of a unitary,

continuing nature and thus are timely if any part of that wrong

occurred within the limitations period, pay claims, which “give

rise to a cause of action each time they occur and are easily

identifiable”, do not. Silvestris, 847 N.E.2d at 339; Crocker v.

Townsend Oil Co., 979 N.E.2d 1077, 1085 (Mass. 2012) (quoting

Silvestris, 847 N.E.2d at 338).

1. Chapter 151B claim

The Institute contends that Dr. Lee knew or should have

known about the alleged pay discrimination when she communicated

concern about her compensation to with MGH officials in the

early 2000s or, in any event, no later than August, 2016, when

the Institute informed her that she would receive a salary

increase due to an equity request from MGH. Because Dr. Lee did

not file her MCAD claim until July, 2017, the Institute submits

that her Chapter 151B claim was untimely presented to the MCAD.

Dr. Lee rejoins that her Chapter 151B claim accrued in

January, 2017, when MGH shared with her a redacted version of a

letter from its Senior Vice President for Research concerning an

internal MGH salary equity study. Although she admits that she

was aware of the August, 2016 equity-based adjustment, she

maintains that she was unaware of the “specific details of the

decision that led to her underpayment from 2016 forward” until

January, 2017. Those “specific details” are the content of the

study which purportedly show that Dr. Lee’s salary was

approximately $26,000 lower than it should have been. She

contends that the Institute’s failure to adjust her salary to

the MGH-recommended amount was a “distinct wrong” which, once

discovered, she took action to remediate.

Dr. Lee’s Chapter 151B claim is time-barred because she had

sufficient notice of her injury at least as early as August,

2016. RTR Techs., Inc. v. Helming, 707 F.3d 84, 89 (1st Cir.

2013). Her contention that she did not know the “specific

details” of the alleged discrimination but only harbored a

“general sense that she was underpaid” is immaterial. The fact

that a plaintiff does not know the extent of her injury does not

arrest the statutory clock. Williams v. Ely, 668 N.E.2d 799, 804

(Mass. 1996); Silvestris, 847 N.E.2d at 336-37 (applying

discovery rule to c. 149 claim). Rather, all that is required

is that the plaintiff has been put on notice that she has

suffered appreciable harm from the conduct of the defendant. Id.

Here, “warning signs abounded”. RTR Techs., 707 F.3d at 90. The

August, 2016 email informing her that she would be receiving a

raise due to the review that MGH had conducted concerning pay as

it related to gender and seniority, was more than sufficient to

put her on notice.

In light of those facts, no reasonable jury could find that

Dr. Lee’s Chapter 151B claim accrued after August, 2016, and,

accordingly, summary judgment will enter for the Institute.

Patsos v. First Albany Corp., 741 N.E.2d 841, 847 (Mass. 2001).

2. Massachusetts Equal Pay Act claim

Although Dr. Lee contends that she was unlawfully underpaid

throughout her time as an Investigator, she confines her MEPA

claim to the paychecks that she received after the amended

version of the statute went into effect, i.e. from July, 2018,

to the end of her phase-out period in September, 2018. Because

she commenced the instant action within three years of July,

2018, she submits that her claim is timely, citing M.G.L. c.

149, § 105A(b).

The Institute asserts that, notwithstanding the 2018

amendment, the prior version of MEPA governs the plaintiff’s

claim. Because that version of the statute, unlike its

successor, imposes a one-year statute of limitations, the

Institute submits that Dr. Lee’s MEPA claim is barred.

That argument is unavailing. While Dr. Lee’s claims

predating July, 2018, are governed (and barred) by the prior

version of MEPA, the Court perceives no bar to the post-July 1,

2018 claims. Rather, those claims are governed by the successor

statute which provides that each unequal paycheck is a separate,

actionable violation subject to a three-year statute of

limitations. M.G.L. c. 149, § 105A. Because the statute of

limitations had not run when Dr. Lee brought her complaint, her

MEPA claims are timely insofar as they pertain to her July,

August and September, 2018 paychecks. M.G.L. c. 149, § 105A(b).

b. Merits

The Massachusetts Equal Pay Act prohibits disparate

compensation of individuals of different genders who perform

comparable work. M.G.L. c. 149, § 105A(b) (providing that “[n]o

employer shall discriminate in any way on the basis of gender in

the payment of wages, or pay any person in its employ a salary

or wage rate less than the rates paid to its employees of a

different gender for comparable work”); see Gu v. Boston Police

Dep’t, 312 F.3d 6, 15 (1st Cir. 2002). The statute allows,

however, for variations in pay based upon, inter alia,

seniority, merit, education, training and experience. M.G.L. c.

149, § 105A(b).

Whether work is “comparable” for the purpose of MEPA is

determined through a two-step analysis. Gu, 312 F.3d at 15

(citing Jancey v. School Comm’n of Everett, 658 N.E.2d 162, 167

(Mass. 1995) (“Jancey I”)). At the first step, the Court

inquires as to whether

the substantive content of the jobs is comparable, that is,

whether the duties of the jobs have important common

characteristics.

Jancey I, 658 N.E.2d at 167 (internal quotations omitted). If

so, the Court then considers “whether the two positions entail

comparable skill, effort, responsibility, and working

conditions”. Id. Only if both questions are answered

affirmatively is the employer obligated to compensate the

employees equally.

That analysis requires a comparator employee, and the

parties dispute whether one exists here. As a preliminary

matter, because Dr. Lee is an employee of the Institute, not

MGH, the only relevant comparators are other Investigators.4

M.G.L. c. 149, § 105A(b) (providing that no employer shall pay

different salaries to “its employees of a different gender”).

During the relevant period, four other Investigators were based

at MGH. All are male but three are plainly inapposite

comparators.5 The parties dispute whether the fourth, an

Investigator hereinafter referred to as “Investigator A”, is

4 The MGH study which precipitated Dr. Lee’s August, 2016 salary

increase, and upon which Dr. Lee relies here, is of minimal

probative value because, with only a few exceptions, it compared

Dr. Lee to MGH employees rather than to Institute employees.

5 Two Investigators had clinical (as opposed to exclusively

research) duties and the third was substantially senior to Dr.

Lee. M.G.L. c. 149, § 105A; see Jancey v. School Comm’n of

Everett, 695 N.E.2d 194, 196 (Mass. 1998) (“Jancey II”)

(applying MEPA).

suitable. The Institute argues that because Investigator A was

paid approximately the same amount as Dr. Lee during the

relevant period, he is not a proper comparator, citing Petsch-

Schmid v. Boston Edison Co., 914 F. Supp. 697 (D. Mass. 1996).

Dr. Lee rejoins that Investigator A was significantly junior to

her and, rather than foreclose her discrimination claim, their

comparable pay supports it.

In any event, plaintiff has proffered scant evidence that

the two jobs shared “common characteristics”. Jancey I, 658

N.E.2d at 167. In fact, there is very little evidence

concerning Investigator A at all. Even if the Court were to

ignore the de minimis record and presume commonality at the

first Jancey step due to the fact that both Investigator A and

Dr. Lee were Institute Investigators (a presumption which § 105A

cautions against) the dearth of information about the “skill,

effort, responsibility, and working conditions” of Investigator

A precludes a finding that at the second Jancey step that his

job was comparable to Dr. Lee’s. M.G.L. c. 149, § 105A(a)

(providing that “a job title or job description alone shall not

determine comparability”); see Jancey II, 695 N.E.2d at 196-97

(comparing, in detail, the “substantive job content of the

cafeteria worker and custodian positions”). Accordingly,

summary judgment will enter for the Institute on Dr. Lee’s MEPA

claim. See Petusch-Schmid, 914 F. Supp. at 706-07 (entering

summary judgment for defendant on MEPA claim where no evidence

of comparators was presented).

ORDER

For the foregoing reasons, the motion of defendant Howard

Hughes Medical Institute for summary judgment (Docket No. 71) is

ALLOWED. The motions in limine (Docket Nos. 87 and 90) filed by

the defendant are DENIED as moot.

So ordered.

_/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated June 9, 2022