# Lee v. Howard Hughes Medical Institute

> District Court, D. Massachusetts · June 9, 2022

URL: https://www.frixlaw.com/law-library/cases/10200345

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** June 9, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10200345

## How later opinions describe it (automated extraction)

- noting that, since the 1990s, a number of studies have concluded that “implicit biases are real, pervasive, and difficult to change”
- 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
- describing academic freedom as a “special concern of the First Amendment”
- explaining that “the elasticity of promotion standards for teachers in an academic setting does not constitute, in and of itself, evidence of discrimination”
- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10200345. Public record. Not legal advice.