United States Court of Appeals

For the First Circuit 

No. 18-1279 

 

KIMBERLY THEIDON, 

Plaintiff, Appellant, 

 v. 

HARVARD UNIVERSITY; 

PRESIDENT AND FELLOWS OF HARVARD COLLEGE, 

 Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Leo T. Sorokin, U.S. District Judge] 

Before 

Torruella, Lynch, and Thompson, 

Circuit Judges. 

Lauren A. Khouri, with whom Linda M. Correia, Correia & Puth, 

PLLC, Philip J. Gordon, Elizabeth A. Rodgers, and Gordon Law Group, 

LLP were on brief, for appellant. 

Martin F. Murphy, with whom Michael P. Boudett, Samuel C. 

Bauer, and Foley Hoag LLP were on brief, for appellees. 
January 31, 2020 

[REDACTED OPINION]

 



 The full version of this opinion was filed on January 22, 2020, 

and remains on file, under seal, in the Clerk's Office. 
- 3 -

THOMPSON, Circuit Judge. 

OVERVIEW 

We consider here whether Harvard University and the 

President and Fellows of Harvard College (collectively, "Harvard") 

denied Kimberly Theidon a tenured position within Harvard's 

Anthropology Department on the basis of sex discrimination and 

retaliation for engaging in protected conduct in violation of 

federal and state antidiscrimination laws, including Title VII of 

the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2; Title IX of the 

Education Amendments of 1972, 20 U.S.C. § 1681; and Mass. Gen. 

Laws ch. 151B, § 4. The district court denied Theidon's claims on 

summary judgment and declined Theidon's invitation to alter or 

amend that ruling under Fed. R. Civ. P. 59(e). Seeing no 

reversible error, we affirm. 

GETTING OUR FACTUAL BEARINGS 

The undisputed material facts of this case are recounted 

here in the light most favorable to Theidon, the non-moving party, 

consistent with our mandate when reviewing an order granting 

summary judgment.1 Given the district court's impressively 

 1 At the summary judgment phase below, Theidon objected to 

several of Harvard's proffered statements of material fact as 

"subjective" and "self-serving." Because Theidon did not 

otherwise challenge the accuracy or admissibility of the 

statements at issue, we (like the district court) consider these 

facts undisputed unless otherwise noted herein. 
- 4 -

detailed recitation of the facts, we need not repeat the whole 

story again here; rather, we focus on those facts germane to 

Theidon's claims and our analysis of them (which are nonetheless 

extensive, but important to detail in order to get a big-picture 

understanding of just what happened, so we beg the reader's 

patience). Also, given the numerous cast of characters and the 

roles they play in this narrative, we will periodically drop a 

reminder of who's who. 

Theidon is an anthropologist and scholar of Latin 

American studies who has conducted award-winning anthropological 

research on violence, gender, and post-conflict reconciliation in 

Latin America. Since 2015, Theidon has served as the Henry J. 

Leir Professor of International Humanitarian Studies at the 

Fletcher School of International Affairs at Tufts University. The 

matter before us, however, concerns Theidon's unsuccessful tenyear pursuit of tenure at Harvard, a private academic institution 

just two miles up the road from Tufts, in Cambridge, Massachusetts. 

The Early Years at Harvard 

Theidon received her undergraduate degree in Latin 

American Studies from the University of California, Santa Cruz in 

1991. She went on to receive three graduate-level degrees from 

the University of California, Berkeley, including a Ph.D. in 

Medical Anthropology in 2002. In 2004, Harvard hired Theidon as 
- 5 -

an Assistant Professor within the Anthropology Department of the 

Faculty of Arts and Sciences.2 That same year, the Instituto de 

Estudios Peruanos, a prestigious Peruvian academic press, 

published Theidon's first book, Entre prójimos: el conflicto 

armado interno y la política de la reconciliación en el Perú 

("Entre prójimos"), a Spanish-language text examining Theidon's 

research and fieldwork on reconciliation following violent 

internal conflict in Peru's Ayacucho region. Entre prójimos 

attracted considerable critical acclaim, winning the Premio 

Iberoamericano Book Award Honorable Mention from the Latin 

American Studies Association for outstanding book in Spanish or 

Portuguese in the social sciences. It also served as the 

inspiration for the 2010 Oscar-nominated film "The Milk of Sorrow." 

By June 2008, Harvard had promoted Theidon to Associate 

Professor with "unanimously positive" support from leading 

scholars in the fields of social anthropology and Latin American 

studies. In a letter confirming Theidon's promotion, then Acting 

Chair of the Anthropology Department, Mary Steedly, praised 

 2 Harvard's Anthropology Department has two wings: Social 

Anthropology and Archaeology. Theidon joined the former and, 

later, came up for tenure within the Social Anthropology wing of 

the Department. For future reference: when we refer to Harvard's 

Anthropology Department herein, we mean the Department as a whole 

(including both the Social Anthropology and Archaeology wings) 

unless otherwise noted. 
- 6 -

Theidon for "outstanding" performance in many areas of evaluation, 

including ability to secure external funding for research 

projects, teaching and advising, and Theidon's exemplary service 

to Harvard. In addition to the accolades, Steedly also penned the 

following "specific recommendations" to strengthen Theidon's case 

for tenure down the road: (1) publish Intimate Enemies, the draft 

manuscript that would eventually become Theidon's second book 

concerning her research and fieldwork on violence and 

reconciliation in Peru, in a timely manner so that it can be 

"reviewed in major journals in the fields of socio-cultural 

anthropology and Latin American studies"; (2) publish "articles in 

a set of journals that are recognized as the top outlets for social 

anthropology research"; and (3) have a "second project 

substantially underway, not only in terms of a book manuscript but 

also significant articles published or in press."3 Steedly also 

cautioned Theidon against stretching herself too thin by focusing 

on research projects outside the field of anthropology that might 

distract from the production of written work product that could be 

 3 In recommending that Theidon have a second research project 

"substantially underway," Steedly encouraged Theidon to push ahead 

with her new drug-related research project, titled "Coca and 

Conflict in Peru," in anticipation of publishing more work prior 

to her tenure review. As discussed later, Theidon did not come up 

for tenure with a new research project substantially underway (at 

least from Harvard's perspective) in terms of a book manuscript or 

significant articles published or in press. 
- 7 -

submitted for publication.4 Theidon understood that the letter 

and enclosed recommendations provided a "roadmap" to tenure. 

Six years after she began at Harvard, on August 25, 2010, 

the Dean of Harvard's Faculty of Arts and Sciences, Michael D. 

Smith, notified Theidon that she was being appointed to the 

position of "John L. Loeb Associate Professor of the Social 

Sciences," "one of a small number of endowed positions for 

[Harvard's] most distinguished tenure-track faculty." Dean Smith 

commended Theidon on an "honor richly deserved," one which 

"recognizes outstanding achievement in teaching, research, and 

departmental citizenship." 

Theidon Criticizes the Anthropology Department 

Relevant to Theidon's claims, less than a week after 

being elevated to John L. Loeb Associate Professor, Theidon met 

with Judith Singer, Senior Vice Provost for Faculty Development 

and Diversity at Harvard, to express concerns about gender 

disparities in the Anthropology Department.5 According to Singer's 

 4 Several months after her promotion, in an email dated 

November 24, 2008, Theidon similarly acknowledged that she needed 

to shift her focus to publishing in peer-reviewed anthropological 

journals to increase her chances of receiving tenure. In the 

academic arena, the alliterative aphorism associated with the 

pressure to publish academic work is known as "publish or perish." 

5 For those wondering how a junior faculty member found 

herself in a meeting with Harvard's Senior Vice Provost for Faculty 

Development and Diversity, here's the short of it. In the weeks 

prior to Theidon's meeting with Singer, Theidon had reached out to 
- 8 -

handwritten notes from the meeting and an email recap she sent two 

years later (more on the email in a few), Theidon complained that 

women were given the "lion's share of the undergrad teaching load," 

and that there was only one senior, tenured female professor within 

the Anthropology Department, at the time, Mary Steedly, who had 

been counseling Theidon in ways that were "totally inappropriate," 

including by suggesting Theidon downplay her intelligence and 

warning that Theidon would be "evaluated by a higher standard." 

On at least one occasion early on in Theidon's career, Steedly 

told Theidon she needed to be a "dutiful daughter" to succeed in 

the Department. A "dutiful daughter," according to Steedly, is a 

woman who "doesn't complain about the extra workload" and 

"expectations placed on female faculty members that are not placed 

on male faculty members." 

On August 30, 2010, Singer reached out to Marten Liander, 

Associate Secretary in Harvard's Office of the Governing Boards, 

to find a time to discuss Theidon's concerns. At the time, Liander 

was tasked with organizing the upcoming Visiting Committee from 

Harvard's Board of Governors ("Visiting Committee"). The Visiting 

 

senior faculty within the Anthropology Department regarding her 

compensation, future at Harvard, and the way a female senior 

faculty member, Steedly (who Theidon described in emails as a 

"Gender Viper"), had been advising her. Theidon's concerns were 

passed on to the Dean of Social Science at the time, who, in turn, 

connected Theidon with Singer. 
- 9 -

Committee convened in November 2010 to evaluate diversity at 

Harvard, including within the Anthropology Department. The 

Visiting Committee released a report on March 15, 2011, concluding 

(in relevant part) that the Anthropology Department lacked 

diversity at the tenured level in terms of gender and ethnicity 

and, as a result, Harvard needed to pursue stronger efforts to 

recruit and retain diverse tenured faculty. 

Singer's notes from the 2010 meeting surfaced again in 

September 2012, when Theidon's tenure review process was ongoing. 

This time, Singer emailed her notes and a recap of the meeting to 

Dean of Social Science Peter Marsden and Assistant Dean of Social 

Science Christopher Kruegler, who had asked Singer to provide 

background information about "issues between [Theidon] and her 

department" so they could be as "heads-up" as possible while 

Theidon's tenure review was underway.6 In the body of her email, 

Singer described the then extant Anthropology Department as 

"dysfunctional" and questioned the mentoring Theidon had received, 

including by Steedly. 

The Road to Tenure 

Before turning to the tenure case at issue here, we take 

a detour to discuss the tenure review process at Harvard more 

 6 The record does not indicate how (or if) Singer's notes were 

used during Theidon's tenure review process going forward. 
- 10 -

generally. As with most institutions of higher learning, tenure 

appointments at Harvard are lifelong. Harvard views tenure as a 

privilege reserved for "scholars of the first order of eminence 

who have demonstrated excellence in teaching and research and who 

have the capacity to make significant and lasting contributions to 

the department(s) that proposes the appointment." The tenure 

review process is rigorous to say the least. Here are the steps: 

(1) Shortly before or during the penultimate year of a tenure 

candidate's appointment as an associate professor, the 

candidate is instructed to submit a dossier to her academic 

department for inclusion in the candidate's tenure file, 

including a curriculum vitae ("CV"), copies of all 

publications (including any forthcoming publications) or 

other scholarly materials, teaching and advising materials 

(i.e., a list of student theses supervised by the 

candidate, graduate students for whom the candidate had 

primary responsibility, representative course syllabi, and 

any evidence of teaching effectiveness), a teaching 

statement, and a research statement. 

(2) A committee composed of tenured faculty within the 

candidate's academic department reviews the tenure file 

and determines whether to proceed to the next step. 
- 11 -

(3) The relevant department chair solicits twelve to fifteen 

external letters from external scholars who are charged 

with assessing the candidate's scholarly achievements as 

compared to her contemporaries in the field.7 

(4) The review committee prepares a draft case statement, which 

is basically a list of the candidate's pros and cons that 

is shared with tenured members of the department who, in 

turn, vote on whether to recommend the candidate's 

promotion to tenured professor. 

(5) Assuming a favorable vote from the candidate's department, 

the next step is for tenured faculty members to write 

confidential letters to the Dean of the Faculty of Arts 

and Sciences for inclusion in the candidate's tenure file. 

(6) The chair and the review committee finalize the candidate's 

case statement and add it to the tenure file. 

(7) The Faculty of Arts and Sciences Committee on Appointments 

and Promotions reviews the tenure file and proposes next 

steps to the Dean of the Faculty of Arts and Sciences, 

including submitting the case to Harvard's President for a 

 7 To assist with the external scholars' evaluations, Harvard 

sends the scholars a copy of the candidate's CV, a "sampling" of 

the candidate's work, the candidate's research and teaching 

statements, significant reviews of the candidate's work, and a 

link to the candidate's website. 
- 12 -

final decision or (as is relevant here) the optional step 

of recommending further review by an ad hoc committee.8 

(8) As was the case for Theidon, an ad hoc committee of external 

scholars and Harvard professors reviews the case and makes 

a recommendation regarding whether the candidate should 

receive tenure. 

(9) Finally, the ad hoc committee's recommendation (along with 

the candidate's tenure file) is forwarded to and reviewed 

by Harvard's President, who then renders a final decision 

on the candidate's tenure application. 

With the process delineated, we turn back to the 

controversy at hand. Theidon became eligible for tenure the summer 

after her seventh year at Harvard, but in March 2011 Theidon asked 

Harvard to postpone her tenure review process for a year. Theidon 

explained to her superiors that if given such an extension she 

could "come up for tenure review with: two published books [i.e., 

her Peru-related research] . . . and a complete draft of [her] 

third book, Pasts Imperfect: Working with Former Combatants in 

 8 The ad hoc committee will typically consist of "three active 

professors from outside Harvard, two active professors at Harvard 

(who are not from the department making the recommendation), the 

President or Provost, the Dean of the Faculty, the Senior Vice 

Provost for Faculty Development and Diversity, and the divisional 

dean responsible for the case." The ad hoc committee's role is 

advisory, as the final decision regarding a candidate's tenure is 

made by Harvard's President. 
- 13 -

Colombia." Dean Marsden (Dean of Social Science) granted Theidon's 

request. She then spent the 2011-2012 academic year as a fellow 

at Princeton University, a time away from Harvard's campus she 

later described as an opportunity to "get to write . . . [and] 

finish a polished draft of [her] third book." As we later learn, 

Theidon never delivered on the promised third book, which would 

have covered a new area of research for her. She nevertheless 

returned to Harvard in June 2012 and took her first steps on the 

road to tenure.9 

Steps 1 and 2: The Dossier and the Review Committee 

Theidon learned in late June that Harvard had approved 

her tenure review committee, which included four tenured 

professors from Harvard's Anthropology Department: 

 Gary Urton, Anthropology Department Chair 

 Mary Steedly, Review Committee Chair (Previous 

Acting Department Chair) 

 9 Around this same time, and presumably in the ordinary course 

of business, on June 4, 2012, Dean Marsden (Dean of Social Science) 

emailed Dean Smith (Dean of the Faculty of Arts and Sciences) a 

document titled "Departmental outlook and priorities for 2012-13," 

which included an overview of the Anthropology Department's 

priorities, including (as is relevant here) the status of upcoming 

tenure reviews. Notably, under the sub-heading "Tenure-track 

faculty pipeline," the document states "Theidon prospects mixed." 

Other tenure candidate's prospects are described as "weak" and 

"just beginning." The record tells us nothing more about this 

document or how it was used relative to Theidon's tenure review. 
- 14 -

 Professor 1 

 Professor 2 

In August 2012, Theidon submitted her dossier to 

Harvard, which would then compile a tenure file.10 Theidon's 

dossier included her CV, teaching and research statements, ten 

syllabi from the courses she taught at Harvard, a list of 

recommended scholars for her external evaluations, a list of her 

student advisees, and the following of Theidon's publications: 

Entre prójimos (her first book), a draft manuscript of Theidon's 

forthcoming second book Intimate Enemies,11 five published journal 

articles concerning Theidon's new research on gender, violence, 

and transitional justice in Colombia, and thirteen of what Theidon 

described at the time as "miscellaneous articles," which we presume 

from context concerned her research and fieldwork in Peru.12 

 10 Harvard's tenure handbook adopts the term "dossier" to 

describe the set of materials tenure candidates must submit to 

Harvard at the beginning of their review and the set of materials 

Harvard disseminates to internal and external evaluators during 

the review process. To avoid confusion here, we'll use the term 

"dossier" only when referring to Theidon's submission, and we'll 

use the term "tenure file" to account for what Harvard compiled 

and circulated to Theidon's evaluators. 

11 Intimate Enemies was published in November 2012, a month 

after Harvard first circulated Theidon's tenure file to external 

scholars for evaluations. 

12 Harvard's tenure handbook requests that candidates submit 

all their publications (including forthcoming) and other scholarly 

materials at this stage in the process. It is not clear from the 

record whether the materials Theidon submitted, including her two 
- 15 -

Theidon's dossier failed to reflect progress in areas 

recommended to her by Harvard in the 2008 promotion letter. In 

particular, Theidon had as yet failed to publish Intimate Enemies 

in time for its merits to be assessed and reviewed by major 

anthropology journals before her tenure review process began; the 

dossier was devoid of articles published in the major anthropology 

journals that were listed in Harvard's letter; and Theidon did not 

have a second research project "substantially underway" in terms 

of producing a draft manuscript or significant articles published 

or in press concerning that research. 

Step 3: External Evaluations

Next, the review committee solicited assessments of 

Theidon's qualifications and recommendations on her tenure case 

from twenty-five external scholars.13 Seventeen of the scholars 

Harvard contacted agreed to submit letters evaluating Theidon's 

tenure prospects. Prior to circulating Theidon's materials to 

these external scholars, Steedly encouraged Theidon to update her 

 

books (one published and one in draft manuscript form), the five 

Colombia-related articles, and thirteen miscellaneous articles, 

represented all her published or forthcoming scholarship at the 

time. 

13 In August 2012, Theidon submitted a list of potential 

external evaluators when she turned in her dossier. The review 

committee requested evaluations from at least some of Theidon's 

recommended scholars as well as others of their own choosing. 
- 16 -

website by adding recent publications since external scholars 

would likely review it as part of their evaluations. 

In October 2012, Harvard sent the external scholars who 

had agreed to evaluate Theidon a copy of her CV, teaching and 

research statements, a PDF copy of the draft manuscript for 

Intimate Enemies, a link to her website (noting that it may include 

a "current [CV] and papers"), additional guidance regarding the 

criteria for tenure at Harvard,14 and a list of four anthropology 

professors to compare with Theidon.15 Even though the tenure 

dossier Theidon submitted to the review committee included five 

published articles reflecting her Colombia-related research and 

thirteen miscellaneous articles concerning Peru, Harvard did not 

include copies of these materials in the tenure file it distributed 

to external scholars.16 However, Theidon's website did contain 

 14 Harvard's letter to the external scholars states that the 

"foremost criteria for both external appointment and promotion to 

tenure are: scholarly achievement and impact on the field, 

potential for future accomplishments, evidence of intellectual 

leadership and creative accomplishments, teaching and advising 

effectiveness in a variety of settings with both undergraduate and 

graduate students, and contributions to the University and broader 

scholarly communities." 

15 Theidon's comparison list included a professor and an 

associate professor of anthropology at Rutgers University, as well 

as professors of anthropology from Duke University and Lehmann 

College of the City University of New York. 

16 We address Harvard's response to the omission of the 

articles later. 
- 17 -

links to PDFs of three of her published Colombia-related articles, 

which several external scholars commented on in their letters, as 

well as links to several of Theidon's other articles concerning 

her research and fieldwork in Peru. 

Theidon received mostly positive feedback from the 

sixteen scholars who submitted letters.17 External scholars 

described Theidon as a "first-rate, brilliant and original 

scholar," "whose name came to the top of the list of young scholars 

who will soon be shaping the field." Notwithstanding the encomium, 

even the most positive reviews came with commentary on Theidon's 

productivity. Scholars described Intimate Enemies, which was 

published after her tenure review started and eight years after 

Entre prójimos, as "overdue" and "long-awaited," and one scholar 

went so far as to recommend tenure with "hesitancy" because (among 

other things) Theidon's record of journal publications was "on the 

low side for a tenured appointment" in terms of numbers and range; 

the scholar did not see a "pattern of growth" between Theidon's 

first and second books, and Theidon had failed to engage the 

broader anthropological community in her work. 

Another scholar who at first supported tenure, later 

retracted her positive letter about Theidon's scholarship and, 

 17 All but one of the external scholars who agreed to submit 

letters did so by Harvard's deadline. 
- 18 -

instead, recommended against tenure. This scholar had initially 

praised Theidon for Intimate Enemies and enthusiastically 

supported the case for tenure, noting at the time that she had not 

read Theidon's first book, Entre prójimos, and thus could not 

comment on how it "departs from or overlaps with [Intimate 

Enemies]." But after eventually reading Entre prójimos, the 

scholar emailed the Anthropology Department's Chair and tenure 

review committee member Urton explaining that she would have 

written a "different" letter had she realized Theidon's first book 

was "substantially similar in theme and content to Intimate 

Enemies" given her belief that "the second book of a candidate for 

full professor should mark a clear departure from previous research 

projects." After consulting review committee chair Steedly and 

Dean Kruegler (Assistant Dean of Social Science), Urton offered 

the external scholar the opportunity to revise her prior letter 

and recommendation on Theidon's tenure case. In a second letter, 

the external scholar concluded Theidon did not meet the criteria 

for promotion because "Intimate Enemies and Entre prójimos are 

substantially the same book" since they cover the same themes, 

issues, and research. Despite Urton's directive that the first 

letter be retracted and the scholar's second, oppositional letter 

be included in Theidon's tenure file as her case moved forward, 

that second letter was inadvertently omitted from the file 
- 19 -

circulated to evaluators at the next stage in Theidon's tenure 

review. The initial positive letter remained.18 

Step 4: Draft Case Statement and Department Vote 

With the external scholars' letters collected, members 

of the review committee began preparing Theidon's case statement 

-- an important document referenced by evaluators along the lengthy 

tenure review chain -- setting forth the pros and cons of Theidon's 

tenure bid. Steedly was tasked to serve as the case statement's 

lead drafter, and in that role received, throughout the drafting 

process, much feedback from the review committee and senior members 

of Harvard's administration. The case statement saw several 

iterations before the final version reached the ultimate round of 

reviewers and the President.19 

Early in the drafting process, review committee members 

offered competing opinions on how best to describe Theidon's 

scholarship and contributions to the field of anthropology in the 

case statement. Her level of productivity and breadth of research 

 18 On January 7, 2013, Urton asked the Anthropology 

Department's administrative coordinator to remove the external 

scholar's first letter from Theidon's review file and replace it 

with the second letter. Several hours later, the administrative 

coordinator confirmed that this would be done "right now" though 

it appears it never was. 

19 For some reason, versions of the case statement, including 

drafts we know are from March and April based on the cover emails 

to which they are attached, are all dated February 2013. 
- 20 -

within the field of anthropology surfaced from the start as issues 

needing to be addressed. Initiating a back and forth exchange, 

Urton, in a February 17, 2013 email to Steedly, observed that 

although Theidon had come up for tenure with two published books, 

Entre prójimos and Intimate Enemies, those books "pertain to the 

same research project and substantially to the same body of 

fieldwork."20 Urton, an archaeologist who specializes in preColombian studies, was one of a few professors in the Anthropology 

Department fluent in Spanish; he was the only member of the review 

committee to read Theidon's first book (written entirely in 

Spanish) and her second book in tandem. In response to Urton's 

observation, Steedly proposed that the case statement would frame 

Theidon's Peru-based scholarship in "terms of [research] projects 

rather than books" and, in so doing, the statement would describe 

Theidon's Colombia-related research, which had generated the five 

published articles Theidon submitted as part of her dossier, as 

her "'true' second research project." Steedly also reminded Urton 

 20 This was not the first time Urton expressed the view that 

Theidon's books expound upon the same body of research relating to 

post-conflict Peru. In October 2012, Urton stated in an email to 

review committee members that Theidon's books "deal with a similar 

set of concerns and research agendas in relation to performances 

of violence during Peru's period of terrorism" and thus "the two 

books appear to be species of a genus (the former in Spanish, the 

latter in English), with the later work taking on new problems and 

issues not addressed in the former . . . ." 
- 21 -

that Harvard did not require tenure applicants to produce a 

completed second book; rather, what Harvard valued was a second 

research project substantially underway. 

Then, on February 19, 2013, after Steedly circulated the 

first draft case statement to the review committee, committee 

member Professor 2 surfaced another concern: she disagreed with 

language which suggested Theidon's total body of work essentially 

excused the need for her to have published in major anthropology 

journals, as Harvard had recommended in Theidon's 2008 promotion 

letter. Instead, Professor 2 proposed replacing the draft's "more 

than ma[d]e up for" language with a sentence stating that Theidon's 

publications in other journals "help to compensate" for her 

relative absence from leading anthropology journals. Eventually, 

reflecting a review committee compromise about its two chief 

concerns over Theidon's publication history, the February Draft 

(1) describes the research overlap problem between Theidon's two 

books as "alleviated" by Theidon's second research project on 

Colombia; and (2) states that Theidon's publication in human rights 

journals "compensat[es]" for her failure to meet the specific 

recommendation of publishing in peer-reviewed major anthropology 

journals. Pertinent to Theidon's claims, the February Draft 

concludes by describing Theidon's retention as a "matter of 

importance" for the Anthropology Department and Harvard as a whole. 
- 22 -

The draft case statement was eventually circulated to 

the Anthropology Department's senior faculty members, who mostly 

voted in favor of promoting Theidon to tenured professor.21 

Step 5: Confidential Faculty Letters 

Next, tenured faculty members of the Anthropology 

Department submitted confidential letters to the review committee. 

In all but two of the confidential letters, Theidon received 

unequivocal support from her colleagues. One letter, from 

Professor 2, did express her ongoing concerns over whether Theidon 

would be a leading figure in the field of anthropology given the 

similarity between Theidon's books and her failure to publish in 

top, peer-reviewed journals in the field. A second letter of 

import here, from Urton, reiterated his apprehension about the 

similarity between Theidon's two books and the research underlying 

them. Although Urton remained positive on Theidon's prospects, he 

queried whether she would play a vital role in the intellectual 

life of the Anthropology Department and recommended referral of 

Theidon's case for consideration and recommendation by an ad hoc 

committee (Step 8), the optional step in the review process right 

 21 One Anthropology Department faculty member abstained from 

the February 27, 2013 vote on Theidon's case. He explained in 

email correspondence shortly thereafter that he had never heard a 

"more tempered, doubt ridden report" on a tenure candidate and 

wondered "what was the meaningful result[] of [Theidon's] 

research." 
- 23 -

before Theidon's case was to reach Harvard's President at the time, 

Drew Gilpin Faust, for a final determination. 

Step 6: Finalizing the Case Statement 

By early March 2013, Steedly was hard at work, 

incorporating the feedback from Theidon's external evaluations and 

departmental vote into another iteration of the case statement in 

preparation for the next step in the tenure process: review of 

Theidon's tenure application by the Faculty of Arts and Sciences 

Committee on Appointments and Promotions ("CAP"). On March 9, 

2013, she received an email from Urton spelling out Dean (of Social 

Science) Marsden's proposed revisions to the February Draft. 

Although, according to Urton, Dean Marsden generally approved of 

the case statement draft, he took issue with a couple of its 

points, which he found misleading. Germane to Theidon's claims, 

Steedly's February Draft suggested that the external scholars' 

expressed reservations about Theidon's scholarly productivity (as 

described in some of their letters) could have been reduced or 

eliminated if they had received copies of Theidon's Colombiarelated research articles. The draft said the articles had not 

been provided to external scholars, in part, because circulating 

those materials would violate a Faculty of Arts and Sciences rule 

requiring that the review committee include only a "limited sample" 
- 24 -

of a tenure candidate's submitted scholarship in the tenure file.22 

But, as Dean Marsden pointed out, there was no such rule or 

procedure barring the review committee from sending Theidon's 

Colombia-related articles, in particular, to external reviewers 

and the failure to do so was in his words a "major mistake." 

Therefore, he proposed edits to Theidon's case statement that 

deleted references to the mischaracterization of Harvard's rules 

and eliminated language speculating about the potential impact of 

the Colombia materials on Theidon's external evaluations given 

that (as mentioned before) some of these materials were clearly 

available on Theidon's website, and many external scholars did 

factor Theidon's Colombia-related research and articles into their 

evaluations.23 Dean Marsden, according to Urton's email, also 

proposed that "substantive comments on and evaluations" of the 

 22 Later, in an email to Urton from March 12, 2013, Steedly 

explained that the draft's mischaracterization of Harvard's policy 

(and, by extension, the resulting omission of other articles from 

the external review tenure file) was the result of a 

"miscommunication." There appears to be nothing else in the record 

shedding light on how the miscommunication occurred. Harvard's 

tenure review handbook states that a "sampling" (as opposed to a 

"limited sample") of a candidate's materials should be circulated 

to external reviewers and does not otherwise include a document 

quota or page count necessary to satisfy (or exceed) the "sampling" 

requirement. 

23 The district court found that just under half of the 

external scholars mentioned Theidon's Colombia-related articles. 

We count over ten (out of sixteen) external scholars who expressly 

referenced and/or demonstrated familiarity with Theidon's 

Colombia-related research and publications. 
- 25 -

Colombia-related articles and research be included in Theidon's 

tenure file. Steedly's March Draft circulated to CAP on March 12, 

2013 reflected Dean Marsden's recommended edits, and the tenure 

file CAP received included hard copies of Theidon's Colombiarelated articles and other articles concerning her fieldwork in 

Peru.24 

Step 7: CAP Recommendation and Preparation for the Ad Hoc 

After evaluating Theidon's case statement, confidential 

faculty letters, letters from the external scholars, and other 

documents in her tenure file, CAP (like Urton) recommended that 

Theidon's tenure bid proceed to ad hoc review. With this 

recommendation adopted came additional and final proposed tweaks 

to the case statement by the review committee. The April Draft, 

incorporating CAP's suggestions, included more information on how 

Theidon's tenure would support the work of and vision for the 

Anthropology Department, a section explaining how Theidon ranked 

among other scholars in her field, and other minor edits. Perhaps 

most importantly here (at least for purposes of Theidon's claims), 

the April Draft included stronger language in support of tenure, 

ending by describing Theidon's retention as a "matter of necessity 

 24 As we note later, the tenure file Theidon's ad hoc committee 

received at Step 8 in the review process also included copies of 

the Colombia-related articles and articles concerning her 

fieldwork in Peru. 
- 26 -

not just for the Department of Anthropology but for the University 

as a whole." On April 22, 2013, Urton sent the April Draft to the 

administrative coordinator for Theidon's tenure review, noting 

"[h]ere is the final case report . . . [t]his can now be sent to 

[Dean Smith, Dean of Harvard's Faculty of Arts and Sciences]" for 

review and sign-off before circulation to the ad hoc committee and 

Harvard's President in accordance with the tenure handbook.25 For 

reasons unknown, however, the April Draft, was not part of the 

tenure file sent to either the ad hoc committee or President Faust. 

Instead, everyone received the March Draft, which described 

Theidon's retention as a "matter of importance" rather than a 

"matter of necessity." 

Step 8: The Ad Hoc Committee Convenes 

Theidon's tenure case eventually got handed over to an 

ad hoc committee comprised of three social and/or medical 

anthropology professors from outside universities: External Ad 

Hoc Member 1 from University A, External Ad Hoc Member 2 from 

University B, and External Ad Hoc Member 3 from University C. 

Harvard also invited the participation of two Harvard professors 

from other departments: Internal Ad Hoc Member 1 and Internal Ad 

 25 Harvard's tenure handbook states that the Faculty of Arts 

and Sciences Dean, in this case Dean Smith, forwards the tenure 

file, including the final case statement, to the ad hoc committee 

and President Faust. 
- 27 -

Hoc Member 2. Provost Alan Garber, Harvard's chief academic 

officer, presided over the ad hoc committee and Singer (Senior 

Vice Provost for Faculty Development and Diversity), Dean Marsden 

(Dean of Social Science), and Dean Smith (Dean of the Faculty of 

Arts and Sciences) attended the committee meeting as ex officio 

members. 

The ad hoc committee assembled on May 23, 2013. In 

advance of the meeting, each committee member had received "a copy 

of Intimate Enemies, the selected publications from [Theidon's] 

dossier (including articles on Colombia), . . . research and 

teaching statements, and internal and external letters," as well 

as the review committee's case statement (albeit not the final 

draft). This is how the meeting progressed. The committee first 

heard testimony from four departmental witnesses: Urton kicked 

things off followed by Steedly, Professor 2, and lastly Professor 

3, the latter being a member of the Anthropology Department who 

submitted a positive internal letter in support of Theidon. 

Surprised by the unenthusiastic tenor of Urton's opening comments, 

Singer, who observes forty to fifty tenure decisions per year and 

"rarely take[s] notes during [an ad hoc] meeting -- and certainly 

not during the testimony," felt compelled to take notes this time 
- 28 -

around.26 In them, Singer described Urton's testimony as 

"ambivalent." Later, in an email to President Faust, following 

the ad hoc committee meeting, Singer explained that Urton "selfpresent[ed] much more negatively [to the ad hoc committee] than 

his [departmental] letter (by his own admission)." Like Urton, 

Professor 2, according to Singer's notes, also expressed 

reservations regarding Theidon's case. Professor 2's comments 

were consistent with her departmental letter, including concerns 

that Theidon "[d]oesn't publish in general anthro[pology] journals 

despite being told to do so," was "not engaging w[ith] 

anthro[pology] or even med[ical] anthro[pology]," and her "[n]ew 

projects are more of the same." By contrast, in describing both 

Steedly's and Professor 3's testimony about Theidon's tenure 

prospects, Singer wrote "strong case" and "enthusiastic," 

respectively. 

After the oral presentations concluded, the ad hoc 

committee privately discussed Theidon's tenure case. Per Singer's 

notes and email recap, when asked if Theidon was a "rising star" 

 26 Singer's notes appear to be the only contemporaneous 

account of the ad hoc committee proceeding in the record given 

that there was not an official notetaker and, according to Singer, 

notes taken by other members of the committee were shredded per 

custom. To the extent other ad hoc committee members or 

participants took notes, Singer's notes appear to be the only ones 

that survived. 
- 29 -

in the field of anthropology, the three external anthropologists 

on the committee said "no." The committee ultimately recommended 

Theidon's tenure application be denied. Provost Garber shared the 

ad hoc committee's vote with President Faust. 

Step 9: Harvard's President Denies Theidon Tenure 

On May 24, 2013, President Faust emailed Provost Garber 

"a bit bewildered" about the disparity between Theidon's tenure 

file and the ad hoc committee's recommendation, asking "[w]hat is 

going on here?" Provost Garber explained, in part, that although 

Theidon's book, Intimate Enemies, was "wonderful," there were 

questions about its basis in anthropological theory and Theidon's 

overall productivity. He concluded that Theidon "sounds like a 

great person in many ways but not an anthropologist who would make 

a mark on the field." After her conversation with Provost Garber, 

President Faust reached out to Singer about the adverse 

recommendation. Singer noted that the "substantive negatives" of 

Theidon's application included: (1) concerns that Intimate 

Enemies "is certainly not a completely second book" from Entre 

prójimos; (2) although Steedly and Professor 3 argued that Intimate 

Enemies made a contribution to anthropology, the external ad hoc 

committee members wondered whether "the book would be setting the 

agenda in the field"; (3) there were "serious concerns about 

[Theidon] not publishing in major anthropology journals," 
- 30 -

especially given that her Peru-based books comprised only one 

research project; (4) the committee worried that Theidon's 

Colombia-related research was "essentially more of the same"; and 

(5) Theidon was not "seen as a rising star in the anthro[pology] 

community writ large, the Latin American anthro[pology] community, 

or the medical anthro[pology] community." Singer concluded that 

she "so wanted this to go through," but that after the ad hoc 

committee discussion, she supported the decision to recommend 

against tenure. After her discussions with Singer and Provost 

Garber, President Faust accepted the ad hoc committee's 

recommendation and denied Theidon tenure. When asked to state her 

reasoning, President Faust explained in deposition testimony: "I 

determined that Kimberly Theidon was not a scholar of anthropology 

of the first rank; that her accomplishments included a book that 

was not seen as making an advance in the field of anthropology; 

and that there was not evidence that she would be a leading scholar 

of anthropology of the sort that we would wish to have at Harvard 

for the future." President Faust opined further that Theidon's 

scholarship did not result in major contributions to discourse 

occurring within the field of anthropology, she was not likely to 

advance the field given the level and quality of her work, and her 
- 31 -

productivity was lacking as evidenced by her two published books, 

which were essentially "one project."27 

Theidon's Response to Alleged Sexual Misconduct at Harvard 

Additionally relevant to her retaliation claims, Theidon 

says that, preceding and simultaneous to her tenure review, she 

observed and opposed multiple times a toxic culture of gender 

discrimination and sexual misconduct on Harvard's campus. We've 

already discussed Theidon's complaints about the lack of gender 

diversity within the Anthropology Department and Steedly's 

invocation of the dumb-down and "dutiful daughter" guide to success 

as a female faculty member. We consider now the undisputed 

material facts concerning Theidon's involvement in the debate 

around and complaints regarding sexual misconduct on Harvard's 

campus. 

Theidon was a vocal supporter of efforts to improve 

Harvard's response to sexual misconduct allegations. In Fall 2012 

and Spring 2013, Theidon presented at conferences and on panels 

before Harvard faculty and students regarding comparative studies 

 27 On May 29, 2013, after President Faust denied Theidon 

tenure, Urton shared the decision with tenured members of the 

Anthropology Department. He explained in a follow-up email that, 

if any faculty members wanted to protest the decision, he would 

"support [their] right to do that" and would "join [them] in such 

action." There is no indication in the record whether any such 

protest occurred. 
- 32 -

of gender and violence. After her panel in Spring 2013, she 

responded to questions about sexual assault on Harvard's campus. 

Theidon regularly tweeted and blogged about sexual assault, 

including on Harvard's campus. And at the conclusion of one 

particular class period, she permitted a student to distribute 

leaflets on sexual assault and make verbal announcements on behalf 

of the group "Our Harvard Can Do Better." Theidon has 

acknowledged, however, that she did not receive any criticism from 

any source at Harvard in response to the aforementioned conduct. 

On March 7, 2013, Harvard's student paper, the Harvard 

Crimson (the "Crimson"), published an article titled "Sexual 

Assault at Harvard." After internet trolls posted incendiary 

comments in response to the article on the Crimson's online 

platform, Theidon jumped to the defense of survivors of sexual 

assault and those working to address the issues highlighted in the 

article. Of note here, Theidon posted the following comment 

online: "I want to lend a voice of support for the many people 

-– men, women and other genders -– who work with great commitment 

on the Harvard campus to insure that everyone receives equal, 

respectful and dignified treatment." Although Theidon made these 

comments while her tenure review was ongoing, there is no evidence 

in the record stating that the members of Theidon's ad hoc 

committee or President Faust were aware of them. 
- 33 -

On March 27, 2013, Theidon spoke with a former graduate 

student who accused a professor within the Anthropology Department 

of inappropriate behavior. Theidon directed this individual to 

Urton and Steedly -- the formal channels for reporting misconduct. 

During a meeting with Urton, on April 26, 2013, the former graduate 

student explained that Theidon had suggested she reach out to 

Urton. At the meeting, Urton told the graduate student not to 

involve Theidon any further, stating "I can take care of this" and 

that Theidon had "enough on her plate" with her tenure review. 

Around the same time, Theidon's tenure application was referred to 

the ad hoc committee for review, but there is no indication the ad 

hoc committee or President Faust were aware of Theidon's 

conversation with the graduate student. 

Aftermath 

Theidon filed an internal grievance shortly after being 

denied tenure in 2013. On May 23, 2014, Dean Smith denied the 

same based on the findings of a newly-assembled, ad hoc grievance 

panel. Later that year, Theidon left Harvard to join Tufts 

University (where she remains) as an Associate Professor of Human 

Security in the Fletcher School of International Affairs. 

In 2014, Theidon filed a complaint against Harvard with 

the Massachusetts Commission Against Discrimination ("MCAD"), 

alleging that she was denied tenure because of her gender and in 
- 34 -

retaliation for her advocacy relating to sexual misconduct on 

campus. MCAD denied her grievance. Having exhausted her 

administrative options, Theidon filed this civil suit against 

Harvard on March 12, 2015. 

With discovery complete and all dispositive motions teed 

up for resolution, the district court dismissed Theidon's claims 

on summary judgment on February 28, 2018. One day prior to the 

district court's order, The Chronicle of Higher Education ("The 

Chronicle") published an article, detailing sexual misconduct 

allegations against Jorge Domínguez. Domínguez was a prominent 

Harvard professor of Latin American studies in the Government 

Department, who gave Theidon career advice during her time at 

Harvard, but had no vote or say in her tenure bid. After the story 

broke, multiple women came forward accusing Domínguez of sexual 

assault.28 Theidon, in turn, filed a Rule 59(e) motion to alter 

or amend the district court's summary judgment order and to reopen 

discovery on a limited basis in light of The Chronicle's watershed 

investigation into Domínguez's misconduct. Theidon argued that 

Domínguez, her former mentor, played a role in her tenure denial 

as retaliation for Theidon's public and private encouragement of 

survivors of sexual harassment and violence, which purportedly 

 28 Theidon lodges no personal allegations of sexual misconduct 

against Domínguez. 
- 35 -

threatened Domínguez's position as a respected administrator and 

scholar. On April 2, 2018, the district court denied Theidon's 

motion, concluding there was no new evidence connecting Domínguez 

to Theidon's denial of tenure and allegations of retaliation. 

OUR TAKE 

That brings us to the present, with Theidon appealing 

the district court's grant of summary judgment on all claims and 

its denial of Theidon's Rule 59(e) motion filed in the aftermath 

of The Chronicle's revelations regarding Domínguez. 

The Standard of Review 

Our review of the grant of summary judgment is de novo. 

Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir. 2013). Summary 

judgment is warranted if the record, construed in the light most 

flattering to the nonmovant, presents "no genuine dispute as to 

any material fact and the moving party is entitled to judgment as 

a matter of law." Id. When a plaintiff opposes summary judgment, 

she bears "the burden of producing specific facts sufficient to 

deflect the swing of the summary judgment scythe." Mulvihill v. 

Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003). For this 

purpose, she cannot rely on "conclusory allegations, improbable 

inferences, acrimonious invective, or rank speculation." Ahern v. 

Shinseki, 629 F.3d 49, 54 (1st Cir. 2010). 
- 36 -

By contrast to the summary judgment standard, "we review 

a district court's ruling on a Rule 59(e) motion for abuse of 

discretion." Franchina v. City of Providence, 881 F.3d 32, 56 

(1st Cir. 2018). "In doing so, we keep in mind that '[s]uch a 

motion must either establish a clear error of law or point to newly 

discovered evidence of sufficient consequence to make a 

difference.'" Id. (alteration in original) (quoting GuadalupeBáez v. Pesquera, 819 F.3d 509, 518 (1st Cir. 2016)). 

Analysis 

In a capsule, Theidon brings federal and state law 

antidiscrimination claims against Harvard. She alleges that 

Harvard denied her application for tenure because of sex 

discrimination in violation of Title VII and Mass. Gen. Laws ch. 

151B, § 4 (Counts II and III, respectively) and/or as retaliation 

for her purported advocacy on Harvard's campus in violation of 

Title IX and Mass. Gen. Laws ch. 151B, § 4 (Counts I and IV, 

respectively). Although there is substantial overlap between our 

analysis of these claims, we avoid confusion by taking them in 

turn (starting with discrimination). We conclude with a few words 

on the district court's denial of Theidon's Rule 59(e) motion. 

Sex Discrimination 

Before jumping into the fray, a brief primer on Title 

VII, the federal statue underlying Theidon's claims of 
- 37 -

discrimination, might prove helpful. Title VII forbids employers 

like Harvard from failing or refusing to hire, discharging, or 

otherwise discriminating against any individual "with respect to 

[her] compensation, terms, conditions, or privileges of 

employment, because of such individual's . . . sex[.]" 42 U.S.C. 

§ 2000e-2(a)(1). We have consistently recognized that where, as 

here, one alleges discrimination because of sex, there is seldom 

"'smoking gun' evidence to prove their employers' discriminatory 

motivations." Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 

77, 88 (1st Cir. 2018) (quoting Vélez v. Thermo King de P.R., Inc., 

585 F.3d 441, 446 (1st Cir. 2009)). But for plaintiffs like 

Theidon, who have not proffered direct evidence of discrimination, 

we invoke the three-step burden-shifting scheme outlined in 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to assess 

whether we can infer discrimination from the undisputed material 

facts. 

Under the McDonnell Douglas framework employed by this 

court in assessing adverse tenure decisions, Theidon at step one 

can make out a prima facie case of discrimination by showing: (1) 

she is a member of a protected class; (2) "she was a candidate for 

tenure and was qualified under [Harvard's] standards, practices or 

customs"; (3) "despite her qualifications she was rejected"; and 

(4) "tenure positions in the Department of [Anthropology] at 
- 38 -

[Harvard] were open at the time [she] was denied tenure, in the 

sense that others were granted tenure in the department during a 

period relatively near to the time [Theidon] was denied tenure." 

Fields v. Clark Univ., 966 F.2d 49, 53 (1st Cir. 1992). At step 

two in the analysis, "the burden of production -- but not the 

burden of persuasion -- shifts to [Harvard], who must articulate 

a legitimate, non-discriminatory reason" for denying Theidon 

tenure. Johnson, 714 F.3d at 53-54 (quoting Lockridge v. Univ. of 

Me. Sys., 597 F.3d 464, 470 (1st Cir. 2010)). If Harvard provides 

such a reason, "the McDonnell Douglas framework 'disappears' and 

the sole remaining issue is 'discrimination vel non.'" Ray v. 

Ropes & Gray LLP, 799 F.3d 99, 113 (1st Cir. 2015) (quoting Cham 

v. Station Operators, Inc., 685 F.3d 87, 93 (1st Cir. 2012)). At 

step three, to avoid summary judgment, Theidon must "show by a 

preponderance of the evidence that [Harvard's] proffered reason is 

pretextual and that the actual reason for the adverse employment 

action is discriminatory."29 Johnson, 714 F.3d at 54. 

 29 Pretext and discriminatory animus are often lumped together 

in Title VII analysis, but the plaintiff's burden at this stage 

comprises two separate tasks. See Domínguez-Cruz v. Suttle Caribe, 

Inc., 202 F.3d 424, 430 n.5 (1st Cir. 2000). "The plaintiff must 

present sufficient evidence to show both that 'the employer's 

articulated reason for [the adverse employment decision] is a 

pretext' and that 'the true reason is discriminatory.'" Id. 

(quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 56 (1st Cir. 

1999)). However, "[e]vidence that makes out a prima facie case 

together with evidence of pretext can suffice to defeat summary 

judgment 'provided that the evidence is adequate to enable a 
- 39 -

We proceed with caution and restraint when considering 

summary judgment motions where, as here, issues of motive and 

intent must be resolved. See Oliver v. Digital Equip. Corp., 846 

F.2d 103, 109 (1st Cir. 1988) (emphasizing the importance of 

judicial caution and restraint in reviewing employment 

discrimination claims but nonetheless affirming district court's 

dismissal of such claims on summary judgment as warranted). 

"Nevertheless, '[e]ven in cases where elusive concepts such as 

motive or intent are at issue, summary judgment may be appropriate 

if the nonmoving party rests merely upon conclusory allegations, 

improbable inferences, and unsupported speculation.'" Coll v. PB 

Diagnostic Sys., Inc., 50 F.3d 1115, 1121 (1st Cir. 1995) 

(alteration in original) (quoting Medina–Muñoz v. R.J. Reynolds 

Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). 

Transitioning from the general to the specific, we apply 

McDonnell Douglas to the case at hand. With respect to step one, 

 

rational factfinder reasonably to infer that unlawful 

discrimination was a determinative factor in the adverse 

employment action.'" Id. (quoting Rodríguez–Cuervos v. Wal–Mart 

Stores, Inc., 181 F.3d 15, 22 n.5 (1st Cir. 1999)); see Reeves v. 

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). 

Accordingly, the ultimate question is whether, "viewing the 

'aggregate package of proof offered by the plaintiff' and taking 

all inferences in the plaintiff's favor, the plaintiff has raised 

a genuine issue of fact as to whether the termination of the 

plaintiff's employment was motivated by . . . discrimination" at 

issue. Domínguez-Cruz, 202 F.3d at 431 (quoting Mesnick v. Gen. 

Elec. Co., 950 F.2d 816, 824-25 (1st. Cir. 1991)). 
- 40 -

the prima facie case, there is no dispute that Theidon is a member 

of a protected class (i.e., women) who was denied tenure when such 

positions were available in the Anthropology Department. Theidon, 

therefore, needed only show that she was qualified for tenure which 

we favorably assume she did, thereby shifting the burden of 

production to Harvard to articulate a legitimate, 

nondiscriminatory reason for denying her tenure. To satisfy its 

step two burden, Harvard relies upon the testimony of final tenure 

decisionmaker, President Faust, who considered the recommendation 

of the ad hoc committee and reviewed Theidon's tenure file, and 

concluded (among other things) that due to Theidon's failure to 

make major contributions to the field of anthropology and her lack 

of publication productivity she did not meet Harvard's standard 

for promotion to full professor with tenure. Harvard having 

articulated a legitimate, nondiscriminatory reason for denying 

Theidon tenure, the pendulum swings back to Theidon to prove 

Harvard's stated reason for denying her tenure is pretext covering 

its discriminatory animus toward her. For purposes of our 

analysis, we focus our attention on step three, the pretext 

inquiry, as we find it dispositive of Theidon's sex discrimination 

claim. 

At the third and final phase of the McDonnell Douglas 

burden-shifting analysis we ask: whether, after assessing all of 
- 41 -

the evidence on the record in the light most favorable to Theidon, 

she has raised a genuine issue of material fact as to whether 

Harvard's stated reason for denying her tenure -- that Theidon did 

not meet Harvard's standard -- was merely pretext for 

discrimination. To meet this burden, Theidon "must offer 'some 

minimally sufficient evidence, direct or indirect, both of pretext 

and of [Harvard's] discriminatory animus.'" Pearson v. Mass. Bay 

Transp. Auth., 723 F.3d 36, 40 (1st Cir. 2013) (emphasis in 

original) (quoting Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 

F.3d 128, 140 (1st Cir. 2012)); see García v. Bristol-Myers Squibb 

Co., 535 F.3d 23, 31 (1st Cir. 2008). "[M]ere questions regarding 

the employer's business judgment are insufficient to raise a 

triable issue as to pretext." Pearson, 723 F.3d at 40 (alteration 

in original) (quoting Acevedo-Parrilla, 696 F.3d at 140) 

(affirming grant of summary judgment where employer's "merely 

questionable behavior" did not constitute minimally sufficient 

evidence of pretext for discrimination). By contrast, "[p]retext 

can be shown by such weaknesses, implausibilities, 

inconsistencies, incoherencies, or contradictions in the 

employer's proffered legitimate reasons for its action that a 

reasonable factfinder could rationally find them unworthy of 

credence and hence infer that the employer did not act for the 

asserted non-discriminatory reasons." Adamson v. Walgreens Co., 
- 42 -

750 F.3d 73, 79 (1st Cir. 2014) (quoting Gómez–González v. Rural 

Opportunities Inc., 626 F.3d 654, 662–63 (1st Cir. 2010)). "[I]n 

assessing pretext, a court's focus must be on the perception of 

the decisionmaker, that is, whether the employer believed its 

stated reason to be credible." Vélez, 585 F.3d at 452 (quoting 

Azimi v. Jordan's Meats, Inc., 456 F.3d 228, 246 (1st Cir. 2006)). 

"We understand that it is not enough for a plaintiff merely to 

impugn the veracity of the employer's justification; [s]he must 

elucidate specific facts which would enable a jury to find that 

the reason given is not only a sham, but a sham intended to cover 

up the employer's real and unlawful motive of discrimination." 

Id. (cleaned up). 

Below and on appeal, Theidon first points to four 

perceived irregularities in her tenure review process in 

attempting to meet her burden of showing Harvard's stated reason 

was merely pretext for discrimination. From the district court's 

vantage, the irregularities Theidon claimed, to the extent they 

were supported by the record, were insufficient to create a genuine 

issue of material fact as to whether Harvard's decision to deny 

Theidon tenure served as pretext for discrimination. Mindful of 

her protestation that the district court erred (badly) by drawing 

inferences in Harvard's favor, we tackle each of Theidon's claims 

of irregularity in turn. 
- 43 -

A. Procedural Irregularities 

1. The Publication Sample Sent to External Evaluators 

As Theidon tells it, Harvard deviated from standard 

procedure and sabotaged her tenure prospects by failing to send 

out a sampling of her publications to external scholars tasked 

with evaluating her contributions to the field of anthropology at 

Step 3 of her tenure review process. Theidon complains, in 

particular, that external scholars should have received PDF copies 

of at least some of the published articles she submitted to Harvard 

as part of her dossier, including five Colombia-related journal 

articles and thirteen articles concerning her Peru-based research. 

In her view, the omission of journal articles from her external 

review tenure file, coupled with Harvard's deletion of this selfdescribed mistake from future draft case statements, is probative 

of pretext. However, we believe no reasonable jury viewing the 

record as a whole could conclude that Harvard's conduct during 

Theidon's external evaluation process evinces pretext for 

discrimination. Before explaining why, we provide a quick reminder 

of Harvard's standard procedure at the external evaluation phase 

of the tenure review process. 

As spelled out in Harvard's handbook, the purpose of 

external review is to aid the various tenure review bodies at 

Harvard in evaluating a candidate's scholarly footprint as 
- 44 -

compared to other scholars in their field. The handbook goes on 

to explain that external scholars' views on a candidate's 

"scholarly impact" and "future trajectory" help internal 

stakeholders at Harvard determine whether a candidate's work has 

met the standard for tenure. To assist with this process, Harvard 

sends external scholars a comparison list of academics in the 

relevant field or subfield as well as a copy of the candidate's 

CV, "a sampling of [the candidate's] work" from the publications 

and other materials submitted by the candidate as part of their 

tenure dossier, research and teaching statements, significant 

reviews of the candidate's work, and a link to the candidate's 

website. The handbook establishes neither a floor nor ceiling for 

the sampling of publications from a candidate's dossier that must 

be circulated as part of the candidate's tenure file. Here, 

external scholars received the draft manuscript for Intimate 

Enemies, Theidon's then-forthcoming four-hundred-page book based 

on her research and fieldwork in Peru; her website's URL, which 

included links to some of her other scholarship, including three 

journal articles concerning Theidon's Colombia-related research 

and other articles concerning Peru;30 and Theidon's research and 

 30 Steedly advised Theidon to update her website before the 

external evaluation process, explaining that scholars may check 

out her website as part of their review. Yet, when external 

scholars received the link to Theidon's website, it did not include 

two of the Colombia-related articles she submitted to Harvard as 
- 45 -

teaching statements and CV, which describe Theidon's Colombiarelated and Peru-related research. 

That said, on appeal, even Harvard appears to recognize 

a snafu in its circulation of Theidon's external review tenure 

file. Harvard acknowledges that the review committee erred when 

it failed to send external reviewers Theidon's Colombia-related 

articles and stated in an early draft of Theidon's case statement 

that a Faculty of Arts and Sciences rule prevented the circulation 

of these materials.31 Upon review of the draft case statement at 

issue, Dean Marsden pointed out that Harvard's standard tenure 

procedures did not prohibit the review committee from sending 

external scholars Theidon's articles and suggested revisions to 

the case statement in line with this correction. In response, 

Steedly deleted the mischaracterization of Harvard's procedures 

from the case statement, and later explained via email to Urton 

that the error was the result of a miscommunication. At subsequent 

steps in Theidon's tenure review, Harvard circulated PDF copies of 

 

part of her dossier. Theidon offers no reason for her failure to 

heed Steedly's counseling on this occasion. 

31 The inaccuracy in the draft case statement at issue follows: 

"[I]t should be noted that the concerns [external scholars] raised, 

which mostly had to do with [Theidon's] publication record, were 

in part the result of the FAS requirement that we provide only a 

limited sample of the materials included in Theidon's dossier." 
- 46 -

the Colombia-related articles and other scholarship as part of 

Theidon's tenure file. 

Evidence that Harvard "deviated from its standard 

procedure or policies in taking an adverse employment action 

against [Theidon] may be relevant to the pretext inquiry." 

Rodríguez-Cardi v. MMM Holdings, Inc., 936 F.3d 40, 50 (1st Cir. 

2019) (citing Acevedo-Parrilla, 696 F.3d at 142-43). "The 

rationale is that if an employer has a policy or procedure that 

governs a specific situation but fails to adhere to the same in 

taking an adverse employment action . . . , then it might be 

inferred that the reason articulated for taking the adverse 

employment action against the employee was not true." Id. Here, 

by contrast, Theidon has not pointed us to any evidence in the 

record from which a reasonable jury might infer that Harvard's 

external evaluation process was "cloaked" in sex-based animus. 

Id. at 48. First, even if it was, as described in the email 

outlining Dean Marsden's concerns with the draft case statement, 

a "major mistake" not to circulate PDF copies of Theidon's 

Colombia-related articles to external reviewers, in this instance, 

we fail to see how Harvard's erroneous omission of those 

publications renders pretextual Harvard's stated reason for 

denying Theidon tenure. At best, Theidon has identified an 

administrative error, but not one from which a reasonable jury 
- 47 -

could glean a perceivable or demonstrable motivation that aligns 

with Theidon's theory of the case. See Rodríguez-Cardi,936 F.3d 

at 48-49 (stating that "when faced with employment decisions that 

lack a clear discriminatory motive, '[c]ourts may not sit as super 

personnel departments, assessing the merits -- or even the 

rationality -- of employers' nondiscriminatory business 

decisions'" (alteration in original) (quoting Mesnick, 950 F.2d at 

825)). We accept that Harvard's omission may have been less than 

ideal (at least from Theidon's perspective). "But a bare showing 

of administrative error, without more, does not make out a case of 

either pretext or discriminat[ion] . . . ." Miceli v. JetBlue 

Airways Corp., 914 F.3d 73, 84 (1st Cir. 2019). This is because 

"the anti-discrimination laws do not insure against inaccuracy or 

flawed business judgment on the employer's part; rather, they are 

designed to protect against, and to prevent, actions spurred by 

some discriminatory animus." Kouvchinov v. Parametric Tech. 

Corp., 537 F.3d 62, 67 (1st Cir. 2008); see Rivas Rosado v. Radio 

Shack, Inc., 312 F.3d 532, 535 (1st Cir. 2002) ("Title VII . . . 

does not ensure against inaccuracy by an employer, only against 

gender-based discrimination."). Second, Theidon's theory that 

Harvard attempted to "cover-up" its alleged sabotage finds no 

support in the record. In emails contemporaneous to the review 

committee's edits to the case statement, Dean Marsden offered a 
- 48 -

reasonable explanation for the request that Steedly remove 

reference to the rule: it was inaccurate and (most importantly) 

much of Theidon's Colombia-related research was in fact available 

to external scholars via Theidon's website and described in other 

circulated materials, including her CV and research and teaching 

statements. The review committee's conduct during the external 

review process, including the circulation of other documents that 

discussed the omitted scholarship and correction of the draft case 

statement, is devoid of the inexplicable and troubling 

inconsistencies that give rise to a reasonable inference of 

pretext. See Harrington v. Aggregate Indus. Ne. Region, Inc., 668 

F.3d 25, 33-34 (1st Cir. 2012) (finding evidence of pretext in a 

"close case" where employer violated company procedure on at least 

three occasions in the effort to force an employee to take what it 

described as a "random" drug test and where other evidence 

suggested the test was not actually random and, instead, the 

employee at issue had been targeted); Brennan v. GTE Gov't Sys. 

Corp., 150 F.3d 21, 29 (1st Cir. 1998) (finding "thin" evidence of 

pretext in age discrimination case where employer failed to follow 

layoff procedure giving deference to seniority and, instead, 

"simply fill[ed] in names of persons to be laid off" based on a 

list compiled a year prior with a different set of criteria). 
- 49 -

Moreover, "the totality of the circumstances, rather 

than proving [Theidon's] pretextual argument, instead show a lack 

of foundation for [Theidon's] claim." Rodríguez-Cardi, 936 F.3d 

at 51. Theidon's suggestion that we infer pretext from the review 

committee's behavior at the external evaluation juncture is 

especially dubious since there is no indication that this perceived 

procedural irregularity was relevant to or had any bearing on 

Harvard's evaluation of her tenure prospects. The materials 

circulated by Theidon's tenure review committee (e.g., link to 

Theidon's website, research and teaching statements, and CV) 

provided significant information about her Colombia-related 

research to allow the external scholars (who, let us not forget, 

nearly unanimously recommended Theidon be given tenure) to provide 

their take on it. After reviewing these materials, over half of 

Theidon's external evaluators submitted letters expressly 

mentioning her other scholarship. One such external letter 

includes a lengthy discussion of Pasts Imperfect, one of the 

Colombia-related publications that Theidon complains was neither 

in the materials Harvard sent to external scholars nor linked to 

Theidon's website. The record also establishes (and we consider 

as part of our "totality of the circumstances" approach) that after 

the external scholar review process Harvard holistically evaluated 

Theidon based on her full body of work, including in tenured 
- 50 -

faculty letters from the Anthropology Department, in multiple 

iterations of the case statement, during the CAP evaluation, in 

the ad hoc committee review, and before final decisionmaker, 

President Faust. In sum, viewing the record as a whole, no 

reasonable jury could infer pretext and discriminatory animus from 

Harvard's fumbling during the external evaluation process. 

Theidon also contends that Harvard treated her 

differently than the Anthropology Department's male candidates up 

for tenure. With respect to her "sampling-gate" theory, Theidon 

argues only that Harvard sent external evaluators a more robust 

selection of her comparators' work, purportedly sending a "full 

set of materials" to evaluators for a male candidate in 2011 and 

circulating a "zip link with multiple publications" for a male 

candidate in 2013. Theidon points to nothing in the record that 

helps us compare the file Harvard sent her external reviewers to 

the "sampling" of publications Harvard circulated on behalf of 

male comparators. We do not have before us, for example, the list 

of publications comparators compiled for their dossiers.32 But 

 32 The record includes what purports to be tenure files for 

Theidon's three male comparators. Each file includes a document 

titled either "selected recent publications to be circulated to 

reviewers," "list of included publications," or "publications 

list." The candidates' tenure dossiers, i.e., the materials they 

submitted to Harvard, are not in their files nor do they exist 

elsewhere in the record. 
- 51 -

even if Theidon could show she was treated differently, she has 

not overcome the additional hurdle of establishing situational 

similarity with any such comparators. There are relevant 

differences between Theidon and her male comparators that cannot 

be ignored simply because they were all up for tenure at some point 

in one of two wings forming Harvard's Anthropology Department. 

See García, 535 F.3d at 31 (explaining that "a plaintiff must show 

'that others similarly situated to [her] in all relevant respects 

were treated differently by the employer'" (alteration in 

original) (quoting Kosereis v. Rhode Island, 331 F.3d 207, 214 

(1st Cir. 2003)). For instance, Theidon's subfields at Harvard 

included social and medical anthropology whereas the male 

comparators she points to came up for tenure with subfields in 

visual and sensory anthropology as well as archaeology. Although 

"comparison cases 'need not be perfect replicas,' . . . they must 

'closely resemble one another in respect to relevant facts and 

circumstances.'" Id. (quoting Conward v. Cambridge Sch. Comm., 

171 F.3d 12, 20-21 (1st Cir. 1999)); see id. at 32 (affirming 

denial of sex discrimination claims where (among other things) 

male comparators had different job responsibilities and titles 

within the same department). In academia, the differences between 

subfields matter. Harvard's tenure handbook indicates that the 

quality and quantity of publications necessary to achieve tenure 
- 52 -

vary by division, department, and even subfield. Accordingly, a 

representative sampling of materials circulated to reviewers 

evaluating a visual and sensory anthropologist, for example, will 

necessarily be different than a sampling of materials circulated 

on behalf of a medical and social anthropologist. The same thing 

goes for candidates seeking tenure in the archaeology subfield, 

which is described as its own separate "wing" within Harvard's 

Anthropology Department. At bottom, it is Theidon's burden to 

connect the dots between her candidacy for tenure and that of her 

male comparators, including at the external evaluation phase. 

Contrary to Theidon's contention, the record simply does not 

provide a basis from which a reasonable jury could conclude that 

the three male comparators she identifies were in fact similarly 

situated to her (despite differences in the various subfields). 

2. The Battle of the Draft Case Statements 

Theidon's next irregularity gripe is that Harvard 

deviated from procedure by circulating the penultimate draft of 

her tenure case statement (as opposed to a later, slightly revised 

draft) to the ad hoc committee and President Faust. Recall that, 

despite Urton's email to a Harvard administrative coordinator 

attaching the final, April Draft, the March Draft was sent to 

evaluators and President Faust instead. In Theidon's view, the 

key difference warranting our consideration is this: the 
- 53 -

circulated draft described Theidon's retention as a "matter of 

importance" and the final draft that never saw the light of day 

described Theidon's retention as a "matter of necessity." As an 

initial matter, Theidon has not identified here a procedure from 

which Harvard has deviated (though it stands to reason that the 

review committee's final report would best reflect its most 

considered recommendation). And assuming arguendo that Harvard's 

circulation of the penultimate draft was not an inadvertent, 

clerical error, we nevertheless struggle to understand how the 

circulation of the notably praiseworthy, even if slightly less 

laudable earlier draft recommending tenure, adds heft to Theidon's 

claim of sex discrimination. This is especially the case given 

our review of the notes from the ad hoc committee's deliberation, 

which suggest the recommendation to deny tenure had little to do 

with the case statement's conclusionary verbiage and a whole lot 

to do with the external committee members' professional 

determination that Theidon had not made a substantial contribution 

to her field either in terms of publications in leading journals 

or progress on a second major research project. As such, Theidon's 

"failure to circulate" theory would not lead a reasonable jury to 
- 54 -

conclude Harvard's stated reason for denying her tenure was 

pretextual. 

3. Theidon's Complaints about the Anthropology Department 

Theidon also argues that Harvard improperly inserted her 

complaints about sex discrimination into the tenure review 

process. We mentioned earlier that in 2010 Theidon complained to 

Singer about the lack of gender diversity among tenured faculty 

within the Anthropology Department and certain comments suggesting 

(among other things) that Theidon needed to be a "dutiful daughter" 

to succeed there. Singer shared her notes from the meeting with 

Kruegler and Dean Marsden, who participated at various stages in 

Theidon's tenure review. It is not immediately apparent whether 

reference to this alleged deviation is meant to support Theidon's 

burden of proof as to her discrimination claims or retaliation 

claims. This argument is nonetheless meritless since there is no 

evidence that the voting members of the ad hoc committee were aware 

of Theidon's complaints prior to recommending the denial of 

tenure.33 Nor is there suggestion from Singer's notes outlining 

the ad hoc committee's deliberation that Theidon's complaints 

(known by two persons in attendance at the meeting, i.e., Singer 

 33 The record contains this excerpt from a voting ad hoc 

member's deposition testimony: "This was a completely scholarly 

based discussion." 
- 55 -

and Dean Marsden, and not mentioned in any circulated tenure file) 

were weighed against her case. In a long email that Singer admits 

provided "much more detail" than warranted, Singer summarized the 

ad hoc committee's reasoning for President Faust. Absent from 

this email (and, more generally, from the record concerning the ad 

hoc committee's deliberation) is any mention of Theidon's 

complaints about gender disparities or sex discrimination.34 And 

Theidon has not pointed to anything in the record that would 

suggest President Faust was aware of Theidon's complaints and, 

even if aware, she points to nothing suggesting President Faust 

factored this knowledge into her final deliberation. Although 

this court is required to make all reasonable inferences in 

Theidon's favor from evidence which could be viewed as supporting 

pretext, we cannot accept "conclusory allegations, improbable 

inferences, and unsupported speculation." Benoit v. Tech. Mfg. 

Corp., 331 F.3d 166, 173 (1st Cir. 2003) (quoting Feliciano de la 

Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st 

Cir. 2000)). 

 34 Theidon never explains why, in her opinion, Harvard's 

internal communications among University leaders, including the 

Senior Vice Provost for Faculty Development and Diversity, 

regarding her complaints of bias would have been inappropriate 

merely because they came up again during her tenure review. 
- 56 -

4. The "Two-Book" Standard 

Theidon's final claim of procedural irregularity is that 

Harvard implemented a stricter publication requirement during her 

tenure review than was required by the tenure procedures or imposed 

upon male comparators who received tenure in the Anthropology 

Department in 2011, 2012, and 2014. Specifically, Theidon contends 

Harvard erroneously led the ad hoc committee to believe candidates 

needed a second published book for tenure at Harvard (despite the 

fact there was no such requirement at Harvard) and thus the 

committee recommended to President Faust that Theidon be denied 

tenure because they believed her two books were too similar to be 

considered separate texts. For support, Theidon cites to the 

deposition testimony of one ad hoc committee member who explained 

that anthropology scholars at her university must have a second 

book and a second research project to receive tenure, suggesting, 

as Theidon tells it, that the committee member superimposed her 

university's standards onto Theidon. As a result, the committee, 

according to Theidon, erroneously subjected her to a more stringent 
- 57 -

publication standard than Harvard actually requires and Harvard 

did nothing to stop it.35 

Harvard, on the other hand, argues that it never prompted 

the ad hoc committee to impose a two-book standard and the 

committee never did so; rather, it concluded Theidon lacked 

substantial progress on a second research project in her field, as 

was recommended in the 2008 promotion letter. According to 

Harvard, the ad hoc committee determined Theidon's two books 

comprised only "one project" and, after evaluating the Colombiarelated articles, decided they too did not represent substantial 

progress on a second research project. As such, Theidon simply 

fell short of meeting its overall quality criteria to merit tenure. 

In her challenge, Theidon can point to no instance of 

Harvard espousing a two-book policy in any communications with the 

committee or during the ad hoc committee's deliberation. At best, 

Theidon's argument is that Harvard should have corrected any 

external ad hoc member's possible misconception of Harvard's 

policy. But even assuming any one ad hoc committee member 

mistakenly harbored such a belief that Harvard was aware of but 

 35 To be clear, the deposition testimony Theidon primarily 

relies upon does not suggest the ad hoc committee collectively 

discussed or imposed a two-book quota during its consideration of 

Theidon's case. Before the scholar being deposed could explain 

what the ad hoc committee cared about as she attempted to do, 

Theidon's counsel cut her off. 
- 58 -

failed to clarify (though the record does not support such an 

inference here), Theidon's scholarly productivity was only one of 

many factors that informed the ad hoc committee's recommendation. 

Crucially and unrebutted by Theidon, the three external scholars 

and two Harvard professors on the committee also raised "serious 

concern" about Theidon's failure to publish in major anthropology 

journals and about the quality of the various human rights journals 

in which Theidon's work was published instead; they expressed 

doubts as to Theidon's sustained contribution to the field of 

anthropology based on their review of Intimate Enemies; and they 

believed Theidon was unlikely to grow as a scholar given their 

criticism that her Colombia-related research and new research on 

Peru constituted "more of the same." 

At the end of the tenure review process, President Faust, 

the final decisionmaker, considered the ad hoc committee's 

recommendation, reviewed Theidon's file, and concluded she was not 

a leading contributor to the advancement of the field and her work, 

including (as President Faust described it) "two books that were 

. . . essentially one project," which had not made a major 

contribution to the discourse of the field. Although reasonable 

people could differ, and did differ, on the quality and quantity 

of Theidon's academic work and on whether Theidon was deserving or 

not of tenure, unless the evidence is sufficient to support a 
- 59 -

finding that a decisionmaker's doubts about the "scholarly merits 

of [a] [tenure] candidate's academic work . . . are influenced by 

forbidden considerations such as sex or race, universities are 

free to establish departmental priorities, to set their own 

required levels of academic potential and achievements and to act 

upon the good faith judgments of their departmental faculties or 

reviewing authorities." Villanueva v. Wellesley Coll., 930 F.2d 

124, 131 (1st Cir. 1991) (quoting Zahorik v. Cornell Univ., 729 

F.2d 85, 94 (2d Cir. 1984)). And where, as here, absent such 

evidence pointing to pretext and discriminatory animus, Theidon 

has failed to create a genuine issue of material fact necessary to 

succeed on her claim.36 

 36 Since the facts do not support Theidon's complaints about 

being subjected to a two-book standard, we need not spill excess 

ink on her argument that male comparators received tenure with 

less than two books. For the sake of completeness, however, we 

provide the following abbreviated sketch of her comparators' 

publication records at the time they were up for tenure based on 

tenure case statements Harvard produced for each: 

1. (archaeologist one): one published book and a second 

book in "preparation" that captures research not covered 

in the prior book, and numerous peer-reviewed journal 

articles; 

2. (archaeologist two): three major research projects and 

author or co-author of nearly thirty articles in peerreviewed journals; and 

3. (visual and sensory anthropologist): a co-authored 

book, two full-length feature films on distinct subject 

matter described as the "equivalent of major books," 

shorter video pieces and photography, and described as 
- 60 -

B. The Hail Mary Evidence 

But we're not done. Aside from the purported procedural 

irregularities Theidon claims tainted her review process, Theidon 

also points to the Anthropology Department's alleged 

discriminatory work environment as evidence she contends would 

permit a reasonable jury to infer pretext and discriminatory 

animus. Here, Theidon argues that Steedly's fascination with the 

"dutiful daughter" method of advancement and Steedly's other 

unsolicited strategies for success, coupled with the Anthropology 

Department's "lack-of-diversity" criticism leveled by Singer and 

the Visiting Committee, provide circumstantial evidence of 

discrimination. We address these in turn. 

First, Steedly's remarks, made years before Theidon's 

tenure decision, are insufficient to satisfy Theidon's burden of 

proof on the pretext and animus prong of the McDonnell Douglas 

burden-shifting analysis. See Ray, 799 F.3d at 116 (explaining 

the "probative value" of stray discriminatory remarks is 

"circumscribed if they were made in a situation temporally remote 

 

having an "anomalous CV in that his major 

accomplishments are films rather than books." 

At a minimum, Theidon's comparators seem to have received the memo 

that more than one research project is necessary for tenure at 

Harvard. Regardless, as previously mentioned, Theidon has not set 

forth any facts establishing that she and her comparators were 

similarly situated during Harvard's tenure review processes. 
- 61 -

from the date of the employment decision in question, or if they 

. . . were made by nondecisionmakers" (quoting Bonefont–Igaravidez 

v. Int'l Shipping Corp., 659 F.3d 120, 125 (1st Cir. 2011))). And 

notwithstanding Steedly's early on ill-advised mentoring advice to 

Theidon, she proved to be a zealous advocate for Theidon's tenure 

case throughout the process of drafting multiple iterations of the 

case statement (diligently correcting the case statement's 

mistakes and holes early on), in her confidential faculty letter, 

and during testimony before the ad hoc committee. Theidon does 

not argue to the contrary. Such unwavering support for Theidon's 

case further diminishes the significance (if any) of the "dutiful 

daughter" trope (and other remarks) to Theidon's allegations of 

pretext and discrimination during her tenure review.37 Second, 

Singer's observations, after meeting Theidon in 2010, that the 

Anthropology Department was "dysfunctional" and the Visiting 

Committee's recommendations for increasing gender and racial 

diversity among tenured professors within the Department are too 

general to constitute circumstantial evidence of discriminatory 

animus against Theidon in particular.38 

 37 Theidon does not allege anyone on the ad hoc committee was 

aware of or agreed with Steedly's "dutiful daughter" theory of 

advancement. 

38 Theidon also urges us to consider Urton's reservations 

about her tenure case as evidence supporting both her 

discrimination and retaliation claims. But in her analysis of 
- 62 -

Even if this evidence, together with the perceived 

procedural irregularities dispensed with earlier, "raise doubts 

about the wisdom of [Harvard's] tenure decisions[,] . . . '[m]erely 

casting doubt on the employer's articulated reason does not suffice 

to meet [Theidon's] burden of demonstrating discriminatory 

intent.'" Villanueva, 930 F.2d at 131 (quoting Menard v. First 

Sec. Servs. Corp., 848 F.2d 281, 287 (1st Cir. 1988)). In sum, 

the undisputed material facts do not support Theidon's claims of 

sex discrimination under Title VII.

State Law Discrimination 

As for Theidon's state law discrimination claim under 

151B, similarly it, too, fails. "Massachusetts law also makes use 

of the McDonnell Douglas burden-shifting framework." Ray, 799 

F.3d at 113 n.8. However, because "Massachusetts is a pretext 

only jurisdiction," a plaintiff "need only present evidence from 

which a reasonable jury could infer that 'the [employer's] facially 

 

Urton's conduct and how it ties into her theory of the case, 

Theidon actually argues that Urton injected negative feedback into 

her tenure review and influenced the outcome against her as 

retaliation for her protected activity. Indeed, each reference to 

Urton in her analysis is normally preceded or followed by mention 

of Theidon's protected activity and/or Urton's retaliatory animus. 

Nevertheless, we have considered the totality of Theidon's 

circumstantial evidence, including Urton's role in the tenure 

review process, in concluding Theidon has not demonstrated her 

burden of proof as to discrimination. We will address Theidon's 

specific argument that Urton harbored retaliatory animus next. 
- 63 -

proper reasons given for its action against [her] were not the 

real reasons for that action'" to survive summary judgment.39 

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

(quoting Wheelock Coll. v. Mass. Comm'n Against Discrimination, 

355 N.E.2d 309, 315 (Mass. 1976)). For the reasons already 

explained, Theidon's proffered evidence of pretext cannot satisfy 

her burden. 

Retaliation 

We again look to McDonnell Douglas to assess Theidon's 

retaliation claims under Title IX. See Frazier v. Fairhaven Sch. 

Comm., 276 F.3d 52, 67 (1st Cir. 2002) ("[T]he jurisprudence of 

Title VII supplies an applicable legal framework [for Title IX 

claims]."). To establish a prima facie case of retaliation, 

Theidon must prove: "(1) she engaged in protected conduct; (2) 

she was subjected to an adverse employment action; and (3) the 

adverse employment action is causally linked to the protected 

conduct." Rivera-Rivera, 898 F.3d at 94. With respect to 

causation, Theidon must show that Harvard's "desire to retaliate 

was the but-for cause of the challenged employment action." Univ. 

of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 339 (2013). 

 39 In other words, Massachusetts law differs from federal law 

in that plaintiffs do not need to establish both discriminatory 

animus and pretext; they just need to show pretext. See Bulwer, 

46 N.E.3d at 33. 
- 64 -

To begin, Theidon identifies two instances of protected 

activity on appeal that purportedly caused Harvard to retaliate 

against her by denying her tenure. First, on March 7, 2013, 

Theidon commented on the online version of an article in 

the Crimson, Harvard's student paper, that criticized Harvard's 

response to complaints of sexual assault and misconduct on campus. 

Second, on March 27, 2013, she advised a former graduate student 

to speak with Urton and Steedly about inappropriate behavior of a 

male professor.40 The district court did not opine on whether 

these instances rise to the level of protected activity and, 

despite Harvard's urging, we'll sidestep the fray on that issue 

for now as well. 

Since there's no dispute that Theidon suffered an 

adverse employment decision under prong two of the prima facie 

 40 Before the district court, Theidon identified at least two 

other protected activities, including her complaints to Singer 

from 2010 and the fact that she allowed students to distribute 

leaflets following her class in October 2012. Theidon does not 

press this conduct in earnest in connection with her retaliation 

claim on appeal. And, even if she did, the arguments in support 

would fail given that the underlying activities were "far too 

temporally remote from the challenged actions to support an 

inference of causality." Abril-Rivera v. Johnson, 806 F.3d 599, 

609 (1st Cir. 2015) (declining to consider as protected activity 

conduct that occurred over a year after the adverse employment 

decision at issue); see Calero–Cerezo v. U.S. Dep't of Justice, 

355 F.3d 6, 25 (1st Cir. 2004) (noting that periods of three or 

four months have been held insufficient to establish the necessary 

causal connection). 
- 65 -

analysis, we instead focus our energy on causation. The district 

court did not find sufficient evidence that retaliation played a 

substantial or a motivating factor in Harvard's denial of tenure. 

In so doing, the district court acknowledged that six years ago, 

the Supreme Court in Nassar held that "a plaintiff making a 

retaliation claim under [Title VII] must establish that his or her 

protected activity was a but-for cause of the alleged adverse 

action by the employer." Nassar, 570 U.S. at 362. Neither the 

Supreme Court nor our court has resolved the question of whether 

Nassar's holding on causation extends to Title IX retaliation 

claims given the import of Title VII to the adjudication of such 

claims. See Frazier, 276 F.3d at 67 (acknowledging the 

"jurisprudence of Title VII supplies an applicable legal framework 

[for Title IX claims]"). We need not resolve that issue today 

because, as the district court concluded below, Theidon has not 

established a causal link between her protected activity and the 

denial of tenure under either a "but for" or a "substantial or 

motivating" factor standard of causation. 

As an initial matter, there is no evidence in the record 

from which a jury could reasonably conclude that the voting members 

of the ad hoc committee were aware of Theidon's protected 

activities during their deliberation. Singer's notes regarding 

the ad hoc committee's reasoning are devoid of any reference to 
- 66 -

Theidon's comments on the Crimson article, advice to a former 

graduate student who accused a professor of sexual misconduct, or 

other purported blogging, lecturing, and tweeting activities. 

Additionally, a voting member of the ad hoc committee stated during 

her deposition that she had no clue Theidon was speaking out about 

sexual assault on campus or supporting graduate students in 

connection with claims of sexual harassment. Nor did anything of 

the sort come up during their deliberation, according to the voting 

ad hoc committee member's deposition testimony. Plus, as stated 

earlier, there is no evidence on the record that President Faust, 

the individual with final say on Theidon's tenure case, knew of 

any alleged protected activity and nothing in Theidon's tenure 

file would have put her on notice of this conduct.41 

 41 Theidon also argues a jury could infer retaliatory animus 

from a comment Singer purportedly made to Theidon during a meeting 

between the two regarding her tenure denial on June 10, 2013, i.e., 

after President Faust rendered her final decision on Theidon's 

case. According to Theidon's notes from the meeting with Singer, 

which she transcribed and emailed to a fellow academic from 

American University, Singer insisted that the ad hoc committee's 

deliberation was fair and that the committee ultimately concluded 

Theidon's "unusual career" did not align with the work being done 

within Harvard's Faculty of Arts and Sciences. Relevant to her 

retaliation claims, Theidon asserts that Singer described her 

"activities" as the "sort of activities scholars postpone until 

they have tenure, and that tenure is designed precisely to protect 

them for [sic] these sorts of activities." Even assuming favorably 

to Theidon that this comment about unspecified "activities" 

implies a causal connection between the protected activities 

Theidon alleges here and Harvard's tenure decision, this argument 

still fails. The record concerning the ad hoc committee's 

deliberation, including Singer's detailed notes and testimony as 
- 67 -

In lieu of such evidence, Theidon pounces upon the "cat's 

paw" theory of liability pursuant to which she argues the 

retaliatory animus of an employee (in this case Urton) may be 

imputed to a decisionmaker's (i.e., President Faust's and, by 

extension, Harvard's) ultimate decision denying Theidon tenure. 

See Ameen v. Amphenol Printed Circuits, Inc., 777 F.3d 63, 68 (1st 

Cir. 2015) (explaining that "[t]he 'cat's paw theory' is employed 

when one 'seeks to hold his employer liable for the animus of a 

supervisor who was not charged with making the ultimate employment 

decision'" (quoting Staub v. Procter Hosp., 562 U.S. 411, 415 

(2011)). 

Theidon contends that Urton, who served on her tenure 

review committee and recommended her for tenure along with other 

senior faculty in the Anthropology Department, provided 

increasingly negative feedback on Theidon's tenure case in close 

proximity to her protected activity. For example, Theidon points 

to Urton's confidential faculty letter, which was submitted after 

the Anthropology Department vote and which postdated Theidon's 

 

to the same, lack any evidence to support an inference of 

retaliation that Theidon suggests a jury could draw from statements 

Singer may have made during the meeting at issue. Therefore, 

Theidon's interpretation of Singer's post-tenure denial commentary 

(as described here only by Theidon) amounts to, at most, a 

"conclusory allegation[] . . . or rank speculation" that cannot 

prevent summary judgment. Ahern, 629 F.3d at 54. 
- 68 -

comments on the Crimson article by three days. There, Urton stated 

that he "remain[ed] positive" on her case with a few reservations, 

including his concern that Entre prójimos and Intimate Enemies 

"deal in all respects . . . with the same project" and that 

Theidon's "work has not made a significant and meaningful impact 

in the general fields of Latin American or Andean anthropological 

studies." However, no fact on the record (disputed or otherwise) 

indicates that Urton was aware of the Crimson article or Theidon's 

comments on the online version of the same. Moreover, any 

inferences that can be derived from the temporal proximity of these 

events are incapacitated by the fact that Urton's letter merely 

echoed concerns added to Theidon's file well before the protected 

activity, including views expressed by external reviewers, a 

tenured member of the Anthropology Department who abstained from 

the departmental vote, Professor 2, and by Urton himself in October 

2012 and February 2013, when he criticized Theidon's books for 

amounting to "the same research project and substantially to the 

same body of field work." 

Theidon's reliance on Urton's presentation before the ad 

hoc committee, which occurred over a month after Theidon advised 

a former Harvard graduate student who complained about a male 

professor, is also unpersuasive. Even if Urton's presentation to 

the ad hoc committee was more negative than his confidential 
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faculty letter and such increased negativity was motivated by 

retaliatory animus, Urton was not a voting member of the ad hoc 

committee, which included three tenured professors of anthropology 

from other institutions and two Harvard professors from other 

departments.42 Nor was Urton the sole presenter at the ad hoc 

meeting who expressed reservations about Theidon, and there is no 

indication that he unilaterally and directly shared his views with 

President Faust or that she gave him any special consideration at 

any point in the process.43 In fact, Theidon points to no instance 

in the record from her tenure review process where President Faust 

even mentions Urton (let alone his opinion of Theidon). 

Cat's paw liability requires at a minimum that the act 

motivated by retaliation be the "proximate cause of the ultimate 

 42 Theidon cherry-picked excerpts from Provost Garber's 

deposition testimony as evidence that Urton's role as Chair of the 

Anthropology Department meant that his opinions carried more 

weight with the voting members of the ad hoc committee. As an 

initial matter, Provost Garber described Urton's testimony as 

"fairly balanced" and positive overall. To Theidon's point, 

however, we assume Urton's presentation was taken seriously, but 

nothing in the record suggests the committee's three medical and 

social anthropologists, in particular, chose not to rely on their 

own opinions about Theidon's contributions to their subfields, 

and, instead, were swayed by Urton, who is an archaeologist by 

trade. 

43 When asked during a deposition how Urton's presentation 

before the ad hoc factored into her decision, President Faust 

stated: "[I]f he had not become ambivalent, my decision would not 

have changed. This was not the determining factor in the nature 

of the ad hoc." 
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employment action." Staub, 562 U.S. at 422. Here, by contrast, 

Urton was one of many voices in a chorus cautioning President Faust 

against promoting Theidon to tenured faculty.44 Thus, on this 

record, it cannot be plausibly inferred that the final decision to 

deny Theidon tenure was tainted by retaliatory animus. Since 

Theidon cannot establish (directly or via the cat's paw) a causal 

link between her protected activity and the adverse employment 

decision, her Title IX retaliation claim must fail. 

State Law Retaliation

We affirm the district court's grant of summary judgment 

as to Theidon's state law retaliation claim under 151B for the 

same reasons. See Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky 

& Popeo, P.C., 50 N.E.3d 778, 793 (Mass. 2016) (employing the 

McDonnell Douglas burden-shifting framework and analysis in 

evaluating a prima facie case of retaliation under 151B, § 4). 

 44 We also reject Theidon's argument that Urton's emails to 

members of the Anthropology Department following Theidon's tenure 

denial, including his offer to assist any faculty members who 

wanted to protest President Faust's decision, support an inference 

of discriminatory purpose or retaliation. Even assuming dubitante 

that Urton's emails were inconsistent with either his confidential 

faculty letter or presentation to the ad hoc committee, such emails 

do not represent the position of a tenure decisionmaker. President 

Faust, not Urton, had the final say on Theidon's tenure case. 
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Rule 59(e) 

With the antidiscrimination claims wrapped up, we now 

turn to the district court's denial of Theidon's Rule 59(e) motion 

for an altered or amended judgment. As a reminder, "[a] trial 

court's disposition of a Rule 59(e) motion engenders review for 

abuse of discretion." Negrón-Almeda v. Santiago, 528 F.3d 15, 25 

(1st Cir. 2008). Motions under Rule 59(e) "must either establish 

a clear error of law or point to newly discovered evidence of 

sufficient consequence to make a difference." Guadalupe-Báez, 819 

F.3d at 518. We discern no abuse of discretion in the district 

court's denial of Theidon's motion. 

Here, Theidon contends that sexual misconduct 

allegations against her former mentor, Domínguez, constituted new 

evidence requiring the reopening of discovery. Theidon admits 

that, prior to publication of the article describing Domínguez's 

sexual misconduct over four decades, she was aware of an allegation 

against Domínguez from 1983. Theidon nevertheless suggests that 

Domínguez's proclivity for sexual harassment prior to and around 

the time of her tenure review (as described in greater detail in 

The Chronicle article) may have motivated him to retaliate as 

backlash against Theidon's support of work bringing light to sexual 

misconduct on Harvard's campus. Replacing Urton with Domínguez, 

however, falls short of breathing new life into Theidon's specter 
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of a cat's paw theory of retaliation. If anything, with Domínguez 

at the helm, the causal connection between Theidon's protected 

activity and the adverse employment decision at issue becomes more 

tenuous and less tethered to a reasonable inference of retaliation. 

This is because Domínguez played virtually no role in Theidon's 

tenure review process. To the contrary, Theidon admits that 

Domínguez did not want to be involved. 

Theidon directs the court to an email pursuant to which 

Singer reaches out to Domínguez prior to the ad hoc committee's 

review and asks him to describe Theidon's service on various 

Harvard committees. Domínguez replies that Theidon was not a 

"significant contributor," but that she had provided considerable 

service outside Harvard and was a powerful contributor to teaching 

about Latin America to undergraduates. Theidon does not challenge 

the veracity of Domínguez's statements nor has she identified a 

shred of evidence that Singer shared Domínguez's observations 

(accurate or not) with anyone. At bottom, Theidon has not 

identified a single undisputed fact suggesting that Domínguez 

influenced either the ad hoc committee's recommendation or 

President Faust's decision-making process.45 The light shone on 

 45 Domínguez is connected to one of the external professors 

who served on Theidon's ad hoc committee. Theidon did not present 

this fact below (or here) as evidence in support of her claims. 

And, even if she did, nothing in the record suggests the 
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Domínguez's deplorable behavior has no bearing on the case before 

us. Theidon has not, therefore, "point[ed] to newly discovered 

evidence of sufficient consequence to make a difference" in her 

case. Franchina, 881 F.3d at 56. Accordingly, we see no reason 

to disturb the district court's order denying Theidon's Rule 59(e) 

motion. 

WRAP UP 

Having worked our way through the issues, we affirm the 

district court's grant of summary judgment and denial of the Rule 

59(e) motion to alter or amend the same. 

Each side to bear their own costs. 

 

relationship played a role (positive or negative) in her tenure 

review process.