Farzinpour v. Berklee College of Music

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

Peyman Farzinpour, )

)

Plaintiff, ) Civil Action

v. ) No. 20-11003-PBS

)

Berklee College of Music, )

)

Defendant. )

___________________________________)

MEMORANDUM AND ORDER

July 12, 2022

Saris, D.J.

INTRODUCTION

Plaintiff Peyman Farzinpour, a former associate professor at

Berklee College of Music (“Berklee”), alleges that Berklee

terminated him because of gender bias after a student complained

that he sexually harassed her. He also claims that Berklee reached

an erroneous outcome because of gender bias during an investigation

of another sexual harassment complaint after his termination.1

1 Plaintiff asserts seven counts against Berklee in the Amended

Complaint: Berklee reached an erroneous outcome on the student’s complaint

and subsequently fired him as a result of gender bias in violation of Title

IX of the Education Amendments of 1972 (Count I); Berklee retaliated against

him for complaining to the Equity Office that this student sexually harassed

him and for complaining to his classes that Berklee discriminated against

men, in violation of Mass. Gen. L. c. 151B (Count II) and Title VII of the

Civil Rights Act of 1964 (Count III); Berklee reached an erroneous outcome on

another student’s complaint as a result of gender bias in violation of Title

IX (Count IV); Berklee’s adverse actions stemming from both investigations

were the result of gender bias in violation of Chapter 151B (Count V) and

Title VII (Count VI); and Berklee subjected Farzinpour to a hostile work

environment in violation of Title VII (Count VII). Dkt. 61 at 1-2.

Berklee moves for summary judgment on all claims. After

hearing, this Court ALLOWS the motion with respect to Counts IV

and VII and DENIES it with respect to Counts I, II, III, V, and

VI.

STATEMENT OF FACTS

When all reasonable inferences are drawn in favor of the non-

moving party, Farzinpour, the record supports the following facts.

Many of the facts are disputed by Berklee.

I. Farzinpour’s Version of the Evening of July 24, 2019

Peyman Farzinpour was an associate professor of conducting at

Berklee College of Music. He began employment in the fall of 2014.

After class in July 2019, one of his students, Mina Alali, asked

him to meet to discuss yoga, mindfulness, and meditation. Both

Farzinpour and Alali are of Persian descent. They met on July 24,

2019 for pizza in the Prudential Center in Boston. During dinner,

Alali showed Farzinpour the cover of a new album she had recorded,

which included her picture. Alali asked Farzinpour for his opinion

on the album cover. After Farzinpour said it was nice, Alali thrust

her chest at him and stated her bra size. Farzinpour replied that

“Empirically speaking, by Western society standards, you are an

attractive woman.” Dkt. 70 at 9-10. Alali also asked Farzinpour

whether he sexualizes his students and asked other questions about

his sexual boundaries with students. After Farzinpour missed his

train home, Alali insisted on going to another establishment. They

went to a dual bar and coffee shop, had one cocktail each, and

then went to a third bar in the lobby of a hotel, where they each

had two more drinks. At the hotel bar, Alali asked Farzinpour to

get a hotel room for them and said “let’s go” while pointing to

the bathroom. Farzinpour excused himself to go to the bathroom.

Id. at 12-13. When Farzinpour returned, Alali suggested that they

may do this again next week, kissed him on the cheek three times

(one more than the typical Persian custom), and then the two parted

ways.

When Alali got home, she gave her boyfriend her account of

the evening and recorded the conversation. She stated that she

stayed with Farzinpour for over four hours, wanted to discern “what

his intentions were,” and that her actions looked questionable.

Id. at 13-14. She had also recorded the discussions with Farzinpour

earlier in the evening, although neither of the recordings are in

the record.2 Over the course of her outing with Farzinpour, Alali

told her boyfriend twice by text message that she was “good.” Id.

After he had left Alali, Farzinpour told his wife about the

encounter.

II. Alali’s Report

On July 26, 2019, Alali made a report against Farzinpour to

Berklee’s Equity Office alleging sexual harassment and improper

2 Berklee never listened to the tape-recording of her conversation with

Farzinpour because it was illegally obtained under Massachusetts law.

conduct under Berklee’s relationships policy. Id. at 14 (Pl. Tab

12, Dep. Ex. 83). She alleged that Farzinpour had made multiple

sexually explicit comments to her in a combination of Farsi and

English, including that she should come to the bathroom to shake

his genitalia. Alali spoke with Jaclyn Calovine, the Deputy for

Equity Investigations. Calovine then spoke with Kelly Downes, the

Chief Equity Officer/Title IX Coordinator, about the implications

of Alali’s allegations in the context of the sexual harassment

policy. Downes decided that the matter would proceed to an

investigation and that a formal complaint would be filed.

III. Next Steps

Calovine and Downes spoke with Eileen Alviti, the Vice

President of Human Resources. The three agreed that it would be

appropriate to put Farzinpour on paid administrative leave while

the investigation was ongoing because of the severity of the

allegations. Downes also spoke with Jennifer Burke, the Senior

Director of Employee Relations and Staffing, who concurred. No one

in the Equity Office spoke with Farzinpour to learn his version of

events prior to the decision to place him on leave and curtail

access to his emails.

On July 30, 2019, Downes spoke with Farzinpour to tell him

about Alali’s complaint and that he was being placed on

administrative leave effective immediately. Later that day, Downes

emailed Farzinpour notice of the investigation (including his

ability to identify witnesses and submit evidence). The email also

reiterated that he was being placed on administrative leave, would

be restricted from Berklee systems and activities, and his Berklee

email account had been suspended.

On August 5, 2019, Calovine conducted the first interview of

Farzinpour for approximately four hours. Farzinpour shared his

account of the events of July 24 and had an opportunity to identify

witnesses. He expressed concern that the Equity Office was

demonstrating gender bias towards men, including through its

distributed literature that is “one-sided in support of women.”

Dkt. 70 at 20. Farzinpour’s wife accompanied him to the interview

but was not interviewed.

IV. Farzinpour’s Request to Submit a Complaint Against Alali

In Farzinpour’s interview on August 5, 2019, and by email the

next day, he asked to file a complaint against Alali for sexually

harassing him on July 24. On August 8, Downes replied that

Farzinpour was entitled to request that Berklee file a complaint,

but she suggested that he raise the issue with Calovine first so

that it could be addressed within the existing investigation. That

evening, Farzinpour emailed Calovine and Downes, raising concerns

that Alali was telling other students about her allegations,3

asking to be protected from the allegations, and requesting to be

3 On August 2, 2019, Alali approached a group of Berklee students at a local

restaurant and bragged that she got Farzinpour fired.

reinstated. Later in the evening, Farzinpour emailed Calovine and

Downes stating that he wanted to report sexual harassment and

aggression. Farzinpour repeatedly expressed his concern about

fairness in the Equity Office. Berklee never filed a complaint

against Alali.

Downes met with Chris Kandus-Fisher, the Vice President for

Student Affairs, on August 13, 2019. Downes’s notes state that

Farzinpour was “on leave, no intention to bring back.” Dkt. 63 at

11.

On August 16, 2019, Calovine emailed Farzinpour to schedule

his second interview and an interview of his wife. Farzinpour

replied that he and his wife would be in California until September

5. After further correspondence, Farzinpour stated that he would

do a second interview. Farzinpour had provided his wife’s contact

information in an August 5 email, but his wife was never contacted.

In contrast, Alali’s boyfriend was interviewed.

V. Farzinpour’s Second Interview

Calovine interviewed Farzinpour a second time on August 30,

2019, by phone, with his sister (an attorney) serving as his

advisor. While he repeated his request to issue a complaint against

Alali, Calovine stated that he needed to articulate how Alali’s

behavior was severe and pervasive enough to create a hostile work

environment. Calovine concluded that Farzinpour’s claim that Alali

harassed him was not supported by a preponderance of the evidence

and the Equity Office never issued a formal complaint. Calovine

told Farzinpour that the investigation was done “through the lens

of the student.” Dkt. 70 at 33.

VI. Calovine’s Findings

Calovine’s investigative report concluded that Farzinpour did

not violate the relationships policy4 but that a preponderance of

the evidence showed that he violated the sexual harassment policy

based on unwanted and unwelcome sexual conduct toward Alali that

interfered with her academic performance. Calovine, after

considering Alali’s comments to her boyfriend, found Alali’s

explanation that she was feigning interest to determine

Farzinpour’s intentions to be credible. The report concluded that,

on the evening of July 24, 2019, Farzinpour made unwelcome comments

calling Alali “hella hot” and “sexy,” told Alali something was

missing from his marriage, and asked her to go to the bathroom to

“shake” his genitalia. Id. at 40. Calovine determined that Alali

provided consistent accounts, volunteered disadvantageous

information, provided all requested information, and appeared

honest. Calovine stated that Farzinpour’s explanations were

“objectively inappropriate, insufficient, and inconsistent.” Id.

at 42.

4 Berklee’s relationships policy prohibits “dating, romantic, or sexual

relationships between students . . . and faculty.” Dkt. 63 at 2.

Farzinpour disputes the report’s conclusions and points to

the recording of Alali’s conversation with her boyfriend where she

admitted to initiating sexual discussions by saying “I think you

are sexually attracted to me,” said she was “being such a good

actor,” and “was testing him.” Id. at 40.

Downes made the final decision on sanctions after conferring

with Alviti and Burke. She considered the severity of the conduct,

the possibility of training, the safety of the community, and prior

sanctions for similar violations (which included termination). On

December 13, 2019, Downes informed Farzinpour that he would be

suspended without pay for thirty days, required to undergo

training, prohibited from summer teaching, and banned from using

Berklee facilities outside of teaching. Downes’s letter notified

Farzinpour about his ability to view the report and appeal. She

also included a final warning stating “any further violations of

Berklee policy or standards of conduct, or willful disregard for

expectations, including failure to comply with the training

requirements set forth in this letter, will result in the

termination of your employment.” Id. at 43.

VII. Farzinpour’s Appeal

Farzinpour appealed on January 7, 2020. He argued that not

interviewing his wife was a procedural error; the investigation

was not thorough and impartial because it disregarded Alali’s

admission that she was testing him; Calovine improperly weighed

intent and credibility evidence; Calovine showed bias by including

an irrelevant off-color statement (that “the Equity Office should

be called ‘Fuck White Men In The Ass’”); the investigation took

months longer than the 60 days outlined in the Equity Policy; the

investigation materially deviated from standard processes; the

sanctions were disproportionate; and the investigation overlooked

his emails to Alali following up on his yoga and mindfulness

recommendations.

The panel unanimously decided that the appeal was meritless

after “very specifically looking at errors of due process or

procedure.” Id. at 45-47. It concluded that the long duration of

the investigation was not an issue because the 60-day timeline was

just a goal. The panel did not re-weigh the evidence because it

did not view its role as rehearing the case. It rejected the

argument that Calovine declined to interview Farzinpour’s wife

because she had made attempts to schedule one. Finally, the panel

concluded that the sanction was within the range of prior cases.

VIII. Post-Suspension Return to Teaching

Farzinpour returned to teaching on February 20, 2020, after

he completed his 30-day suspension.

On February 24, 2020, Farzinpour met with Richard Carrick,

his department chair, about “expectations moving forward.” Id. at

47. Farzinpour expressed displeasure with the case against him.

They discussed “professionalism and teaching the class.” Id. at

49. Farzinpour asked Carrick to put his requests “in writing” but

Carrick failed to do so. Id. at 48. Farzinpour does not recall

ever being instructed not to discuss the investigation in class.

On March 1, 2020, Alali publicly posted on social media that

she was sexually harassed by a professor, who received “light

sanctions” (returning to teach after an investigation found him

responsible). Dkt. 63 at 23-24. On March 2, Alali’s boyfriend

publicly commented on the post using Farzinpour’s name. On March

3, Berklee’s President Roger Brown reached out to Kandus-Fisher to

“understand the circumstances around this investigation and what

led to the suspension vs. termination” because the incident with

Farzinpour “seems to be coming to the fore as well.” Dkt. 70 at

51. On March 11, flyers were posted on and near campus listing

Farzinpour and seven other male Berklee professors with the phrase

“WE WILL NOT BE SILENCED.” Id. at 51. Berklee Public Safety took

down the flyers.

On March 11 and 12, 2020, Farzinpour spoke about his

harassment case in four different classes. His comments were in

response to “student demands.” Id. at 52. One student asked, “Why

is your name on these posters?” right after Farzinpour started

class. Id. Farzinpour described the atmosphere when he arrived at

his first class as “horrendously tense . . . [n]obody was talking.”

Id. Farzinpour believed “mak[ing] them feel safe” by telling them

the posters were “wildly wrong” was “the most professional thing

[he] could possibl[y] do.” Id. Farzinpour also claims that,

thereafter, he “answered the questions, as best as [he] could.”

Id.

On March 16, 2020, the Boston Globe published an article

entitled “Sexual harassment allegations against professors set off

social media frenzy at Berklee College of Music.” Id. at 53; Tab

60, Dep. Ex. 2. The article discussed Alali’s social media posts

and named Farzinpour alongside other Berklee professors. Alali

linked to the article on her public Facebook account, stating “a

huge issue that needs to be resolved ASAP.” Dkt. 70 at 53.

On March 17, 2020, President Brown wrote to the Berklee

community regarding the Boston Globe article and the social media

posts from Berklee students. President Brown’s letter stated his

“unwavering commitment to eliminating harassment and misconduct”

by doing “everything within our power.” Id. at 54. President

Brown’s letter encouraged students to report sexual harassment to

the Equity Office so it could conduct a “full and fair

investigation . . . using our equity process.” Id. at 53.

This was not the first time Berklee’s sexual harassment track

record had come under media scrutiny. Years prior, on November 8,

2017, the Boston Globe had published an article highlighting sexual

abuse at Berklee by faculty members. Shortly after, President Brown

spoke to the Berklee community about its commitment to preventing

harassment through fair processes and a “zero tolerance” approach.

Id. at 77. On November 13, the Boston Globe published an article

on President Brown’s speech titled “11 faculty members have been

terminated in 13 years for sex assault, harassment.” Id.

IX. Student Complaint About Farzinpour’s Class Discussions

On March 23, 2020, a professor covering one of Farzinpour’s

classes told Carrick about two students who mentioned Farzinpour

talking about his investigation in class. One student requested

video resources to prepare for the midterm because one of the two

classes with Farzinpour was not spent on the course material.

Also on March 23, a female student went to the Equity Office

and reported that Farzinpour used an hour of class to discuss the

investigation into his conduct. The student reported that

Farzinpour had made negative comments about the equity process and

Alali. She stated that Farzinpour was asked why his name was on

the posters and Farzinpour responded “yes, I want to address this.”

Dkt. 70-44 at 3. Farzinpour went on to argue “why he’s not guilty,

that the institution is out to get white men.” Id. The student

reported that she was “furious that the whole class was taking

space” for the conversation and it “fe[lt] uncomfortable remaining

in the class.” Id. Lee Cherry from the Equity Office forwarded the

intake report to Downes and Burke on March 24, 2020. On March 25,

2020, Carrick covered one of Farzinpour’s classes and multiple

students stated that Farzinpour had spent an hour and a half of

the previous class talking about his investigation.

X. Berklee Decides to Fire Farzinpour

On March 25, 2020, at about 4:00 p.m., Carrick emailed Downes

that a faculty member covering Farzinpour’s class received

multiple complaints about his use of class time. Within fifteen

minutes, the Senior Director of Employee Relations and Staffing,

Jennifer Burke, emailed Alviti the Equity Office intake report

with the subject line “New PF Concern.” Dkt. 70 at 62; Dkt. 70-46

at 3–4. Alviti immediately asked whether Farzinpour should be

terminated. A minute later, Burke replied that she thought they

should terminate him.

At 4:24 p.m. on the first thread, Burke told Downes that it

may be time to fire Farzinpour based on his use of class time.

Dkt. 70 at 62; Dkt. 70-48 at 2. At 4:26 p.m. on the “New PF Concern”

thread, Burke told Alviti she would wait until hearing from Downes

to make a recommendation and that she wanted to consult with

someone else before terminating. Alviti responded at 4:28 p.m.

agreeing with Burke’s plan and including a draft email stating

that Farzinpour directly violated instructions from his supervisor

about using class time. Burke agreed to send Alviti’s draft after

Carrick confirmed that he directly told Farzinpour not to discuss

the allegations against him in class.

On March 26, 2020, Carrick obtained and forwarded Burke more

information about the student comments regarding Farzinpour’s use

of class time. Also on March 26, Carrick and Burke spoke about

terminating Farzinpour for violating his final warning. Carrick

stated that termination would be the next step, and that he would

reach out to Farzinpour. On March 27, the Provost reached out to

President Brown stating the Farzinpour would be fired on Monday

(March 30).

On March 30, 2020, after the decision was made to terminate

Farzinpour, Carrick emailed Farzinpour saying that he had spent

time in multiple classes discussing the allegations against him.

Carrick asked why he did not stick to the curriculum. Farzinpour

wrote back saying that the students directly asked him what

happened, he had to explain the situation, he had a right to answer

student questions, and that he did stick to the curriculum even

during classes where his situation was discussed. Carrick and Burke

discussed Farzinpour’s response by phone. The President, Provost,

and Dean Nicholl were fully behind the decision to terminate

Farzinpour.

On April 2, 2020, Carrick sent the termination letter to

Farzinpour. The letter stated that Farzinpour had been given a

final warning about remaining professional and using class time

for the curriculum, yet he discussed the allegations against him

and criticized Berklee institutions in class. The letter

acknowledged Farzinpour’s belief that his behavior was justified

but suggested that there were other ways to relieve student

concerns without using class time.

XI. Roe Investigation

On March 11, 2020, Jane Roe, a recent Berklee, graduate,

submitted an online report to the Equity Office. She alleged that

between Spring and Fall 2018, while she was Farzinpour’s student,

he harassed her repeatedly. She said he told her during office

hours that she was “one of the hottest girls at Berklee.” Dkt. 70

at 54. She also stated that he asked her inappropriate questions:

“what are your favorite sex positions? Do you swallow? Do you refer

to a penis as a cock?” Id. Her report also recounted an instance

where Farzinpour “grabbed her wrist, arm, and shoulders and made

her walk with him to the train station, refusing to let her leave,

made her sit with him, made her feel uncomfortable and asked her

if he made her nervous.” Id. Roe said that after she told her close

friends, Farzinpour “aggressively” asked why she was spreading

lies about him and said she “knew better.” Id. at 54-55.

Downes met with Roe regarding her allegations and, on March

19, 2020, issued a notice of investigation letter to Farzinpour.

Downes told Farzinpour that he would be placed on paid

administrative leave effective immediately, and that he would

again be suspended from his email and campus access. Berklee

appointed an independent investigator, attorney Allyson Kurker,

who also interviewed Roe the following week.

Farzinpour was terminated on April 2, 2020, but Kurker

proceeded with her investigation. She interviewed nine witnesses

including Farzinpour (twice), Farzinpour’s wife (the only witness

Farzinpour identified), and Roe. Kurker also obtained text

messages, emails, social media posts, and other documents.

During his interviews and in a written statement, Farzinpour

raised concerns about Roe’s behavior. He told Kurker that in 2018,

Roe had encountered Farzinpour and his wife outside of class in a

hallway at Berklee. Roe asked him and his wife to kiss, which they

did. Farzinpour told Kurker that his wife was made uncomfortable

by the interaction. Roe made Farzinpour uncomfortable by sparking

conversations about personal romantic topics and calling Carrick

attractive. Farzinpour reported that he had unsuccessfully sought

to minimize contact with her. He encouraged Roe to take classes

with other professors and tried to avoid personal topics.

Nevertheless, Farzinpour noted that Roe took multiple classes with

him in different semesters, frequented his office hours, and tried

to get him to increase her grades. He agreed that Roe had

accompanied him to Back Bay train station, but asserted that he

had not done anything improper.

After Kurker produced a draft investigative report,

Farzinpour reviewed and responded to it. He denied many of the

allegations made by Roe, stated that he did not previously know

that he could submit non-first-hand witnesses, and asked to name

additional witnesses.

Kurker put out a finalized report on August 8, 2020. The

report found that it was more likely than not that Farzinpour had

violated the sexual harassment and retaliation policy. Kurker

concluded that Farzinpour made unwelcome sexual contact with Roe

when he repeatedly called her “hot,” asked her graphic sexual

questions, coerced her to come to Back Bay Station with him, and

commented on other female students’ appearances and clothing.

Kurker concluded that Farzinpour’s actions were severe and

pervasive, led Roe to feel helpless and scared, and caused her to

try avoiding meetings with her professor. Kurker credited Roe’s

explanation that scheduling conflicts had forced her to enroll in

his classes and that she hoped to reduce her contact with him

despite being in his classes. Kurker further concluded that

Farzinpour intimidated Roe by admonishing her not to tell others

about his treatment of her.

Kurker found Roe more credible than Farzinpour. She observed

that multiple contemporaneous statements from Roe to witnesses

corroborated her accounts. Kurker also found that Farzinpour’s

account of the hallway kiss incident was exaggerated and he never

reported it until after Roe filed her claim.

Kurker sent Farzinpour a letter finding him responsible for

sexual harassment and retaliation and told him he could view the

report and appeal. Downes concluded that the findings would have

justified termination if Farzinpour were still employed at

Berklee.

On September 4, 2020, Farzinpour appealed. He claimed that

the investigation processes were not followed and the hypothetical

sanction was out of step with other cases. Farzinpour argued that

Kurker improperly credited Roe’s statements about class scheduling

conflicts and that Kurker refused to interview additional

witnesses Farzinpour requested in response to the draft report. On

October 19, the appeal officer, Christopher Reade, informed

Farzinpour that the panel denied his appeal because Kurker took

reasonable steps to assess other course options for Roe and found

Roe’s explanations to be plausible. The panel also did not take

issue with the use of non-first-hand witnesses and found that the

sanction against Farzinpour was appropriate based on other cases.

On October 23, 2020, Farzinpour emailed the Equity Office to

file a complaint against Roe for asking him to kiss his wife.

Farzinpour complained that Kurker didn’t report the incident to

Berklee when Farzinpour raised it during an interview and didn’t

consider his complaint to be a complaint of sexual harassment.

Downes told him Berklee would not start a complaint because this

sole instance would be insufficient to interfere with his work,

even if taken as true. Farzinpour responded to Downes that Roe’s

action interfered with his job, occurred in public, embarrassed

him, affected his authority with students, caused him distress,

and made him feel lesser as a professor. Downes’s assessment was

unaffected. She believed the charge did not meet the definition of

sexual harassment because it was a single incident that would not

(as viewed by a reasonable person) have interfered with his work.

She also felt that the Equity Process was an inappropriate venue

to bring a claim against an alum after Farzinpour had been fired.

XII. The Equity Policy

Berklee’s Equity Policy “prohibits sexual harassment and

retaliation, among other conduct, and sets forth a process to

investigate and adjudicate complaints alleging violations of the

Policy.” Dkt. 63 at 1-2. The policy applies to “all members of the

Berklee community,” and to “[r]eports by third parties against a

current member of the Berklee community, where, in the Chief Equity

Officer/Title IX Coordinator’s sole discretion, the conduct

described in the complaint constitutes a sufficient present or

future risk to the Berklee community to warrant further review.”

Id. at 2. Berklee has a detailed process for evaluating equity

complaints that involves preliminary determinations, interim

measures, and written notice requirements. The process vests

substantial discretion in members of the Equity Office but also

grants a right to appeal.

LEGAL STANDARD

Summary judgment is appropriate when, based upon the

pleadings, affidavits, and depositions, “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). Courts

construe the record in the light most favorable to the nonmovant.

See Zampierollo-Rheinfeldt v. Ingersoll-Rand de P.R., Inc., 999

F.3d 37, 43 (1st Cir. 2021) (citing Ocasio-Hernández v. Fortuño-

Burset, 777 F.3d 1, 4 (1st Cir. 2015)). “To succeed, the moving

party must show that there is an absence of evidence to support

the nonmoving party’s position.” Rogers v. Fair, 902 F.2d 140, 143

(1st Cir. 1990). If the moving party shows the absence of a

disputed material fact, the burden shifts to the nonmoving party

to “set forth specific facts showing that there is a genuine issue

for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256

(1986)).

“[C]onclusory allegations, improbable inferences, and

unsupported speculation” are insufficient to create a genuine

issue of material fact to survive summary judgment. Sullivan v.

City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009). Moreover,

“‘the mere existence of a scintilla of evidence’ is insufficient

to defeat a properly supported motion for summary judgment.” Torres

v. E.I. Dupont De Nemours & Co., 219 F.3d 13, 18 (1st Cir. 2000)

(quoting Anderson, 477 U.S. at 252); Kahan v. Slippery Rock Univ.

of Pennsylvania, 50 F. Supp. 3d 667, 684–85 (W.D. Pa.

2014), aff’d, 664 F. App’x 170 (3d Cir. 2016) (quoting Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986))

(“The nonmoving party must ‘do more than simply show that there is

some metaphysical doubt as to the material facts.’ . . . [T]he

dispute over the material fact must be genuine, such that a

reasonable jury could resolve it in the nonmoving party’s favor.”).

DISCUSSION

I. Count I – Title IX - Alali

Plaintiff alleges that Berklee discriminated against him

based on gender when it suspended him after a flawed investigation

into Alali’s sexual harassment complaint.

Title IX provides that “[n]o person in the United States

shall, on the basis of sex, . . . be subjected to discrimination

under any education program or activity receiving [f]ederal

financial assistance.” 20 U.S.C. § 1681(a). Title IX was intended

to provide private recourse for employees as well as students. See

Doe v. Mercy Cath. Med. Ctr., 850 F.3d 545, 562 (3d Cir. 2017);

see also Bedard v. Roger Williams Univ., 989 F. Supp. 94, 97 (D.

R.I. 1997). Berklee does not dispute at this stage that professors

are entitled to protection under Title IX.

To succeed on an erroneous outcome claim, a plaintiff must

show: “(1) particular facts sufficient to cast some articulable

doubt on the accuracy of the outcome of the disciplinary

proceeding”; and (2) “a causal connection between the flawed

outcome and gender bias.” Yusuf v. Vassar Coll., 35 F.3d 709, 715

(2d Cir. 1994). The First Circuit makes clear that plaintiffs must

show specific evidence that “gender bias was a motivating factor

in the disciplinary process.” Haidak v. Univ. of Mass.-Amherst,

933 F.3d 56, 74 (1st Cir. 2019) (quoting Trs. of Bos. Coll., 892

F.3d 67, 90 (1st Cir. 2018)).

The Second Circuit has issued helpful cases on point. In

Vengalattore v. Cornell Univ. 36 F.4th 87, 106 (2d Cir. 2022)

involving a Title IX claim by a professor accused of sexual

harassment, the Second Circuit held that gender bias may be

inferred when the following four factors are all met: the school

“made findings against the accused male that were ‘incorrect and

contrary to the weight of the evidence’”; failed to follow its

procedures to protect the accused; failed to seek out potential

witnesses; and faced criticism for not addressing female

complaints against males. Id. at 106 (reversing a district court’s

order allowing a motion to dismiss). In Doe v. Columbia Univ., 831

F.3d 46, 56–57 (2d Cir. 2016), it held that the evidence

“substantially favor[ed]” a different outcome than the evaluator

concluded, the school “failed to act in accordance with” its own

procedures, the school endured pressure to vindicate female

student complaints, and the school declined to seek out potential

witnesses Plaintiff had identified. See also Menaker v. Hofstra

Univ., 935 F.3d 20, 33-34 (2d Cir. 2019) (finding that the school

had undergone a “clearly irregular investigat[ion]” that

“completely disregarded” its own process, faced criticism about

vindicating female students’ complaints, failed to seek out

witnesses, and the Vice President of the school “knew” that at

least one of the accusations was deliberately false).

Plaintiff contends the investigatory process had numerous

flaws. First, he highlights that Berklee did not give sufficient

weight to the audio recording of Alali and her boyfriend where she

stated that she was “such a good actor,” was “testing him,” that

she stayed out for “four plus hours” to ascertain “what his

intentions were,” and she “indulg[ed] in the drinks he ordered.”

Dkt. 70 at 14, 38-41. She also showed him a suggestive photo on

the cover of her album. Dkt. 69 at 5-6. In his view, she admitted

she was trying to sexually attract him.

Second, Plaintiff complains that Calovine’s decision to

conduct the investigation “through the lens of the student”

demonstrated gender bias. Dkt. 70 at 20. She did not pursue

Plaintiff’s claims against Alali for the same events and therefore

declined to view his allegations through an equally favorable lens.

Third, Plaintiff argues that Berklee did not fairly pursue

evidence on his behalf. For example, he points out that Calovine

did not interview his wife but did interview Alali’s boyfriend.

Fourth, Plaintiff contends that Berklee prejudged the case.

Berklee placed him on administrative leave before notifying or

interviewing him. Downes wrote an internal note in August 2019

that Plaintiff was “likely to be held responsible.” Id. at 26.

Fifth, Plaintiff notes that external pressure skewed the

investigation against him in favor of Alali. He argues that the

posters around Back Bay, media attention (including from the Boston

Globe), and social media tumult led to an investigation with a

pre-ordained outcome.

Berklee responds to each of these contentions. First, Berklee

argues that Calovine reviewed the recording of Alali speaking to

her boyfriend, asked Alali about it, and ultimately found Alali to

be credible when she said that she was only seeking to determine

Plaintiff’s intentions.

Second, Berklee argues that a bias in favor of students over

faculty (or of complainants over the accused) does not relate to

gender. See Doe v. Univ. of Denver, 952 F.3d 1182, 1196 (10th Cir.

2020) (“Most courts to have addressed the issue have concluded

that evidence of a school’s anti-respondent bias does not create

a reasonable inference of anti-male bias . . . . We agree.”); Doe

v. Harvard Univ., 462 F. Supp. 3d 51, 62 (D. Mass. 2020); Doe v.

Univ. of Mass.-Amherst, No. CV 14-30143, 2015 WL 4306521, at *9

(D. Mass. July 14, 2015). Because the set of faculty members is a

group that can contain people of any gender, Berklee argues bias

against faculty is not sufficient for evidence of gender bias. Cf.

Univ. of Denver, 952 F.3d at 1196 (quoting Gossett v. Okla. ex

rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1176 (10th

Cir. 2001)) (“[Under Title VII] evidence of an employer’s

discriminatory treatment of a group to which both genders can

belong does not give rise to an inference of gender discrimination

. . . . ‘Courts have generally assessed Title IX discrimination

claims under the same legal analysis as Title VII claims.’”). In

fact, Berklee points out it has used a substantially similar

process in a case against a female professor.

Third, Berklee argues that it had made an effort to interview

Plaintiff’s wife but decided that it was ultimately not necessary

because it fully credited Plaintiff’s description of what he told

her.

Fourth, Berklee argues that it placed Plaintiff on

administrative leave based on the nature of Alali’s allegations

and the statement that he was “likely to be held responsible” was

merely a preliminary assessment.

Fifth, Berklee denies that either gender bias or external

pressure (by the media and on campus) influenced the outcome.

When the evidence is seen in the light most favorable to

Plaintiff, Plaintiff has presented particular facts which cast an

articulable doubt on the accuracy of the outcome of the

disciplinary proceeding and particular circumstances that gender

bias was a motivating factor behind the erroneous outcome. Of

particular concern is the evidence that Berklee reached an

erroneous outcome because during the investigation the student

admitted both that she was testing Plaintiff to determine his

sexual intent and that her actions looked “questionable.” Dkt. 70

at 38.

II. Count IV – Title IX – Roe

Plaintiff alleges that Berklee violated Title IX because it

reached an erroneous outcome as a result of gender bias during the

investigation of Roe’s complaint of sexual harassment. To

determine whether the outcome was motivated by gender bias, the

Court again looks at the Vengalattore factors. 36 F. 4th at 106.

First, while the facts asserted were disputed, no reasonable

factfinder would determine that Berklee’s credibility findings

were contrary to the weight of evidence. For starters, the

investigator was an attorney who was independent of Berklee, so

she was not involved in the earlier investigation. Kurker concluded

that Plaintiff’s description of the hallway incident became

increasingly exaggerated during the investigation; Roe had no

motivation to lie; Roe’s account was more plausible than

Plaintiff’s; and multiple witnesses corroborated Roe’s account

through contemporaneous statements.

Second, Plaintiff argues that the investigation of Roe’s

claims against Plaintiff was improper because neither Roe nor

Plaintiff was affiliated with Berklee for most of it. However,

Plaintiff was still on the faculty when the complaint was issued,

and Roe was interviewed by Kurker before Plaintiff was terminated.

Berklee’s policy states that it “applies generally” to “all members

of the Berklee community” and to reports “by third parties against

a current member of the Berklee community where, in the Chief

Equity Officer/Title IX Coordinator’s sole discretion, the conduct

described in the complaint constitutes a sufficient present or

future risk to the Berklee community to warrant further review.”

Dkt. 70 at 4 (citing Dkt. 70-16 at 2). Because plaintiff was (and

still is) seeking reinstatement and the alleged offense of

harassment occurred while he was a professor, Berklee did not

violate its policy.5

Third, the investigation was not one-sided. Kurker

interviewed Plaintiff’s wife, the only specific witness he

advanced. While Plaintiff asked to be allowed to name additional

non-first-hand witnesses after the draft report came out, he did

not name any specific witnesses or identify how their accounts

would aid the investigation.

Fourth, Plaintiff notes that Berklee never filed his sexual

harassment complaint against Roe. Four months after he had been

found responsible for harassing her and retaliating against her,

Plaintiff asked that a complaint be initiated against Roe for

asking him to kiss his wife. Over Plaintiff’s protest, Downes

concluded that, even taking the allegation as true, Plaintiff would

not be able to show that the single request unreasonably interfered

5 There is no claim that Berklee violated a contractual obligation it owed to

Plaintiff. Cf. Sonoiki v. Harvard Univ., No. 20-1689, 2022 WL 2128619, at *14

(1st Cir. 2022).

with his work. Additionally, Downes reasonably decided that the

Equity Process was not an appropriate venue for a former professor

to assert a claim against a former student.

Fifth, Plaintiff points out the public pressure Berklee faced

from media coverage and widely distributed posters that accused

its professors of sexual harassment. The Boston Globe article about

Alali and other allegations led to President Brown’s letter about

the school’s commitment to eliminating harassment and pursuing

fair investigations. This factor weighs against Berklee because it

was subject to criticism about its treatment of sexual harassment

of students.

In light of the above factors, only one of which weighed in

Plaintiff’s favor, no reasonable fact finder could find that the

investigation involving Roe was gender-biased in violation of

Title IX. Plaintiff’s allegations in Count IV do not survive

summary judgment.

III. Counts V and VI – Title VII and M.G.L. Chapter 151B –

Gender Discrimination

Plaintiff alleges gender discrimination under Chapter 151B of

the Massachusetts General Laws (Count V) and Title VII of the Civil

Rights Act of 1964 (Count VI).

The court applies the well-known McDonnell Douglas burden-

shifting framework in both Title VII and Chapter 151B cases. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, a

Plaintiff must make a prima facie case for employment

discrimination. A prima facie case for Title VII discrimination is

demonstrated by showing (1) membership in a protected class, (2)

the employee met the employer’s expectations, (3) the employee

suffered adverse employment action, and (4) similarly-situated

employees outside the protected class received more favorable

treatment. See Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d

77, 88 (1st Cir. 2018).

Step two shifts the burden to Defendant to produce evidence

that the employment actions were taken for “legitimate,

nondiscriminatory reason[s].” Id. (quoting Cham v. Station

Operators, Inc., 685 F.3d 87, 94 (1st Cir. 2012)).

At step three, Plaintiff must prove, by a preponderance of

the evidence, that Defendant’s explanation is “a pretext for

unlawful discrimination.” Id. (quoting Mariani-Colón v. Dep’t of

Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 221 (1st Cir. 2007)).

Notably, throughout the three-step framework, only the burden of

production changes; the burden of persuasion always remains with

the plaintiff. See id. at 89 (quoting Caraballo-Caraballo v. Corr.

Admin., 892 F.3d 53, 57 n.4 (1st Cir. 2018)).

At step one, gender is the relevant protected characteristic

and Plaintiff suffered an adverse employment action. Plaintiff has

provided evidence that he was qualified for his job as a professor

of conducting.

At step two, Berklee offers the legitimate, nondiscriminatory

justification that the adverse employment actions were a result of

Plaintiff’s sexual harassment of Alali and his improper use of

class time.

At step three, the plaintiff must point to some evidence that

the stated reason was “pretextual and that the actual reason is

discriminatory.” Taite v. Bridgewater State Univ., Bd. of

Trustees, 999 F.3d 86, 94 (1st Cir. 2021). The same evidence that

supports the Title IX claim supports the allegations here.

Therefore, counts V and VI survive summary judgment.

IV. Counts II and III – Title VII and M.G.L. Chapter 151B –

Retaliation

Plaintiff’s primary retaliation claim is that he was

terminated for criticizing gender bias in Berklee’s investigation.6

Berklee argues that his termination was appropriate because he

misused class time in violation of warnings he had received.

The Plaintiff must make a prima facie case that he engaged in

protected activity, suffered adverse employment consequences, and

that there was a causal connection between the two. See Noviello

6 Plaintiff also argues that he was retaliated against for raising a sexual

harassment claim against Alali and that Berklee took adverse actions against

him by putting him on leave and failing to file his harassment claim or take

other action against Alali. However, these claims fail because they are

“largely conclusory and lacking in the concrete documentation necessary to

prove the causal link.” Pearson v. Massachusetts Bay Transp. Auth., 723 F.3d

36, 42 (1st Cir. 2013) (quoting, Ramos v. Roche Prods. Inc., 936 F.2d 43, 49

(1st Cir. 1991)). The relatively light sanctions for conduct Plaintiff was

found responsible for in the Alali matter, the elapsed time and intervening

events before the supposed retaliation, and Berklee’s documented reasons for

its actions defeat Plaintiff’s claims.

v. City of Bos., 398 F.3d 76, 88 (1st Cir. 2005). “‘[P]rotected

activity’ refers to action taken by the plaintiff ‘to protest or

oppose statutorily prohibited discrimination.’” Bettencourt v.

Town of Mendon, 334 F. Supp. 3d 468, 490 (D. Mass. 2018) (quoting

Fantini v. Salem State Coll., 557 F.3d 22, 32 (1st Cir. 2009)).

Title VII requires “that the desire to retaliate was the but-for

cause of the challenged employment action.” Univ. of Texas Sw.

Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013); Psy-Ed Corp. v.

Klein, 947 N.E.2d 520, 530 (Mass. 2011).

There is no dispute that Plaintiff complained about the

investigation conducted by Berklee’s Equity Office in his classes.

As a general matter, complaints about impermissible gender

discrimination constitute protected protest. See Bettencourt, 334

F. Supp. 3d at 490. However, if his speech interfered with his job

performance, the activity would not have been protected. See

Hochstadt v. Worcester Found. for Experimental Biology, 545 F.2d

222, 233 (1st Cir. 1976) (Title VII “does not afford an employee

unlimited license to complain at any and all times and places.”).

The parties dispute whether Plaintiff was given a warning

about discussing his case in class. They also dispute whether the

curriculum was adequately covered. The timing of internal emails

supports a reasonable inference that the precipitating events for

Plaintiff’s termination were his in-class statements that were

critical of Berklee’s investigation. The factual question of

whether the termination was retaliation for complaining about the

school’s alleged gender bias or his violation of an order must be

resolved in Plaintiff’s favor at this stage. Therefore, summary

judgment is denied.

V. Count VII – Title VII – Hostile Work Environment

Plaintiff claims that Berklee is liable under Title VII for

creating a hostile work environment. Plaintiff points to five

activities that allegedly created a hostile work environment: (1)

Berklee’s non-investigation of Plaintiff’s sexual harassment

complaint; (2) imposing administrative leave; (3) not disciplining

Alali for speaking to other students about her allegations; (4)

erroneously finding Plaintiff responsible in the investigations;

and (5) firing Plaintiff in retaliation for criticizing the

proceedings. See Dkt. 69 at 25.

Hostile work environment claims under Title VII exist when a

“workplace is permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive to

alter the conditions of the victim’s employment and create an

abusive working environment.” Kosereis v. Rhode Island, 331 F.3d

207, 216 (1st Cir. 2003) (quoting Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993)). To establish a hostile work environment

claim, Plaintiff must demonstrate:

(1) that [he] is a member of a protected class; (2) that

[he] was subjected to unwelcome harassment; (3) that the

harassment was based on [his] membership of the

protected class; (4) that the harassment was so severe

or pervasive that it altered the conditions of [his]

employment and created an abusive work environment; (5)

that the objectionable conduct was objectively and

subjectively offensive, such that a reasonable person

would find it hostile or abusive and the victim in fact

did perceive it to be so; and (6) that some basis for

employer liability has been established.

Torres-Negron v. Merck & Co., Inc., 488 F.3d 34, 39 (1st Cir. 2007)

(citing O’Rourke v. City of Providence, 235 F.3d 713, 728 (1st

Cir. 2001)).

Even allegedly “baseless, improper, and biased

investigation[s]” do not necessarily “constitute the frequent,

severe, physically threatening or psychologically humiliating

activity necessary to sustain a hostile work environment claim.”

Norloff v. Virginia, 173 F.3d 424 (4th Cir. 1999). Even if a jury

found that the investigation of Alali’s claim and Plaintiff’s

subsequent termination were the result of gender bias, Berklee’s

actions were not so pervasive and severe as to create a hostile

work environment. Plaintiff also points to sexualizing conduct by

Alali as well as comments by student on social media, but there is

no evidence that Berklee caused this conduct, encouraged it, or

was deliberately indifferent to it. Roy v. Correct Care Sols.,

LLC, 914 F.3d 52, 72 (1st Cir. 2019). Indeed, Berklee took down

the posters around campus and cautioned Alali not to discuss the

case (even though it believed her statements did not violate any

policies). This claim fails to survive summary judgment.

ORDER

For the reasons set forth above, the Court ALLOWS Defendant’s

motion for Summary Judgment with respect to Counts IV and VII and

DENIES it with respect to Counts I, II, III, V, and VI.

SO ORDERED.

/s/ Patti B. Saris

Hon. Patti B. Saris

United States District Judge