Billings v. Town of Grafton

United States Court of Appeals
For the First Circuit

No. 06-2145

NANCY M. BILLINGS,

Plaintiff, Appellant,

v.

TOWN OF GRAFTON; RUSSELL J. CONNOR, JR.; PETER ADAMS,
Selectman for the Town of Grafton; ROGER HAMMOND;
CHRISTOPHER R. LEMAY, Selectman for the Town of Grafton,
SUSAN M. MILLS, Selectman for the Town of Grafton;
BROOK A. PADGETT, Selectman for the Town of Grafton,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Lynch, Circuit Judge,

Cyr, Senior Circuit Judge,

and Howard, Circuit Judge.

Richard A. Mulhearn, with whom Law Offices of Richard A.
Mulhearn, P.C. was on brief, for appellant.
Richard C. Van Nostrand, with whom David K. McCay and Mirick,
O'Connell, DeMallie & Lougee, LLP were on brief, for appellee.

February 7, 2008
 HOWARD, Circuit Judge. Nancy M. Billings, the former

secretary to the Town Administrator for Grafton, Massachusetts,

appeals from the entry of summary judgment in favor of the

Administrator, the Town, and its Board of Selectmen on her claims

of a hostile work environment and retaliation in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1),

2000e-3(a) (2003), and its state law analog, Mass. Gen. Laws Ann.

ch. 151B, §§ 4(1), 4(4A) (2004). The district court ruled, as a

matter of law, that (1) the Town Administrator's alleged staring at

Billings's breasts did not make her workplace atmosphere hostile,

(2) her transfer to another secretarial position within the Town,

among other things, after she complained of the Administrator's

behavior did not amount to a materially adverse employment action,

and (3) those actions were not motivated by retaliatory animus. We

find error in these rulings, and vacate the decision in large part

and remand for further proceedings.

I.

We review the district court's entry of summary judgment

de novo. See, e.g., Colt Def. LLC v. Bushmaster Firearms, Inc.,

486 F.3d 701, 705 (1st Cir. 2007). "In so doing, we take as true

the facts documented in the record below, resolving any factual

conflicts or disparities in favor of the nonmovant." Id. We state

the following background facts in accordance with that standard.

-2-
 Billings began working as the secretary to the Grafton

Town Administrator, Russell J. Connor, Jr., in September 1999. A

few months into the job, Billings began to notice that Connor was

looking at her chest during their conversations. According to

Billings, Connor would "make eye contact, and then his eyes would

shift down to [her] chest. It was always the same." Connor would

then stare for approximately five seconds, or what "seem[ed] like

a long time" to Billings.

In response, Billings avoided being alone with Connor,

and held a piece of paper in front of her chest while walking

through the office. Connor once stared at Billings so many times

in the first half-hour of her workday that she went home to change

out of the sweater she was wearing before returning. On that same

day, Billings formally complained about the incident to the Town's

sexual harassment officer, Nancy Hazen, who worked with both

Billings and Connor in the Office of the Grafton Board of

Selectmen, as the Board's secretary. Hazen had previously heard

accounts of similar behavior on Connor's part: in a conversation

with Hazen in the winter of 2000, Billings and a clerk to the

Grafton assessor had mentioned that Connor looked at their breasts

while talking to them, and, while out to dinner with Hazen that

fall, Billings, the assessor, her clerk, and a clerk to the tax

collector all had said that Connor had stared at their breasts.

-3-
 Billings's formal complaint reached the Board of

Selectmen, which instructed her to contact an attorney at the

Town's law firm. Billings, along with the two clerks who had

previously mentioned Connor's staring to Hazen, told the attorney

that Connor "was leering at [their] chests, and that it was

occurring frequently and that it wasn't stopping, and [they] wanted

it to stop." Hazen, for her part, started keeping a written record

of Billings's reports of Connor's staring at her chest. Hazen

noted four separate incidents in one two-week span in the early

spring of 2001, including one where Billings "stormed out of

[Connor's] office slamming papers saying 'He did it again.'" On a

separate occasion, Connor told the tax collector's clerk that

Billings was "under the desk" where Connor was sitting when he was

asked her whereabouts. Connor, who quickly added that he was

"kidding," later acknowledged that his comment could have been

taken to suggest that Billings was under the desk performing oral

sex, though he denied having meant it that way. But Billings, who

soon learned of Connor's remark from the clerk, found it offensive.

Billings noticed that Connor's staring became less

frequent after the Town's attorney reported to the Board of

Selectmen regarding her inquiry into Billings's complaint,1

decreasing from a number of times each day to "a couple of times a

1
In her report, the attorney did not state any conclusions as to
the accuracy of the women's complaints, but simply expressed the
hope that letting Connor know of them would "resolve the matter."

-4-
week." But the staring returned to its former frequency after a

few weeks. That August, after calling Billings into his office and

closing the door, Connor accused her of trying to embarrass and

humiliate him by asking questions at a Board of Selectmen meeting

about his appointment of a new public works director, Roger

Hammond. Billings came to see this as retaliation for making the

sexual harassment complaint; one of the Selectmen had recently

disclosed to Connor that Billings was the complainant. After this

disclosure, Billings noticed that Connor began avoiding her around

the office and using written notes and "grunts" to communicate.

Billings reported a number of additional instances of

Connor's staring at her chest in the late fall of 2001. In

November, she informed the Board of Selectmen "that the conduct has

not stopped" and asked the Board for a "formal investigation." The

Board instructed the Town's labor lawyer to look into this claim,

but Billings refused to participate in the investigation out of a

concern that the lawyer's representation of the Town would bias the

lawyer in its favor. The lawyer thus did not interview Billings,

and also did not interview any of the other women who had

previously said Connor had stared at their chests. Based on

interviews with Connor and two members of the Board of Selectmen,

the lawyer found that Connor had not stared at Billings's chest,

but that he simply "does not maintain eye contact when conversing

with others." The lawyer concluded, in a report prepared for the

-5-
Board, that "Billings' allegations of sexual harassment cannot be

sustained."

Just before the report was submitted, Billings pressed

her allegations by filing a charge of discrimination against Connor

and the Town with both the Equal Employment Opportunity Commission

and the Massachusetts Commission Against Discrimination ("MCAD").

About six months later, Connor appointed Hammond "Acting Town

Administrator" for the purpose of investigating an incident where

Billings had opened a letter to Connor from his attorney, marked

"personal and confidential," that concerned the pending

discrimination charge.2 As part of her job, Billings opened all

the mail coming into the Selectmen's Office, which often included

correspondence from the Town's law firm marked "confidential." She

explained that she had opened the letter in question without

realizing it was from Connor's personal attorney (she says she did

not even know that he had one) and that, when she realized its

nature, she returned it to the envelope and put it in Connor's

inbox.

Hammond's probe found that Billings, "[i]n light of [her]

pending litigation" against Connor, "should have been more diligent

in [her] efforts not to open any mail addressed to him, which may

2
Connor recused himself from the investigation.

-6-
have been sent by his counsel or concerned [her] litigation."3

Concluding that Billings had been "negligent," Hammond wrote her a

letter constituting "a verbal [sic] reprimand." The letter

cautioned that "further infractions may result in further, more

serious discipline." Connor later said that, in the absence of the

discrimination charge, he would have handled the incident

differently, testifying, "Had not my own secretary filed false

allegations of sexual harassment against me, of course I would have

gone and said, 'What happened here? Why did you open this up?'"

By the end of 2002, the MCAD had issued Billings a notice

of her right to sue, and Billings had filed a complaint against

Connor and the Town in U.S. District Court. Billings later

informed the Board of Selectmen via letter "that the behavior of

Mr. Connor leering at my chest has not ceased and has continued to

date," alleging eleven separate examples of such conduct between

January 3, 2003, and March 19, 2003. This time, the Board hired an

outside attorney, Judith Loitherstein, to investigate the incidents

referenced in Billings's most recent letter. Less than two weeks

after learning of that letter, Connor provided Billings with two

typed memoranda criticizing her failure to follow particular

3
Hammond also found that, prior to the incident, the chairman of
the Board of Selectmen had told Hazen "that all mail marked
'personal and confidential' that came into the . . . Office was to
be opened by the addressee, only," and that Hazen had informed
Billings of this "directive." Hazen later testified, however, that
she had not received this instruction until after the incident.

-7-
instructions he had given her. Connor later told Loitherstein that

he memorialized his criticism in this fashion because Billings had

"ratcheted up the litigation" and had been "documenting anything

that could be construed to help her case."

While interviewing Connor as part of her investigation,

Loitherstein "noticed that his eyes frequently darted down and then

back up again," but that she "did not get the impression that he

was staring at [her] chest"--he looked in some other direction

"just as frequently." This led Loitherstein to wonder "whether his

eye movement is the result of a physical condition, a nervous

condition, or some other reason" besides "sexual intent." After

learning of these musings, Connor visited an ophthalmologist, who

diagnosed him with "alternating intermittent exotropia"--"a

condition in which one eye or the other will lose fixation and

drift outward as one looks at him."

Loitherstein also asked Billings, as part of her

interview, to demonstrate Connor's behavior by mimicking his eye

motions while having a "conversation" with a drawing of a woman.

Loitherstein observed that Billings "started out looking at the

drawing's face," but that soon "her eyes would dart down at the

chest area of the drawing for 2-3 seconds, and then look back up at

the face," and that she repeated this "2-3 times" in a span of

approximately 15 seconds. Based on Loitherstein's self-described

"opinion" that this conduct did not amount to "a 'stare' or a

-8-
'leer,'" as well as her observations of Connor during his

interview, she reported to the Board of Selectmen that "the

allegations . . . that Mr. Connor 'leered' at Ms. Billings's chest

on the 11 named dates are not supported." Loitherstein added,

however, that she believed that Connor "did look in the direction

of [Billings's] chest on those occasions." Loitherstein did not

interview any of the other women who had previously said Connor had

stared at their chests.

Connor suffered a heart attack in October 2003,

necessitating a hospital stay and a prolonged absence from the

office. During this period, Billings was charged with personal

time for attending both her deposition and a court-ordered

mediation session in her lawsuit against the Town and Connor. But

a number of Town employees who also missed work for their

depositions, including Connor, were not charged personal time; the

Town later explained that they "were on official Town business when

they were required by Ms. Billings' attorney to appear as

deposition witnesses in this case. Their appearances were not

related to a personal legal matter." Around this time, Billings,

at her physician's recommendation, began regularly seeing a

psychologist to help her cope with the anger she felt at Connor's

behavior and the Town's response to it.

When Connor returned to work, he asked the Town to

accommodate his heart condition by reducing his stress level. He

-9-
supported this request with a letter from his physician explaining

that "there have been some stressful situations at work and I think

in anyway that they could be avoided that would certainly be best

for [his] health." Connor also presented a letter from Jeffrey

Scherz, a psychologist who was treating him for "Acute Stress

Disorder related to attempts by his secretary and others to

discredit his reputation by filing charges of sexual harassment

against him" when "three independent investigations conducted by

the Town ha[d] revealed no evidence to show any basis for the

charges." As a result, Scherz explained, "Mr. Connor has had to

endure facing Mrs. Billings each day falsely accused." Observing

that Billings's "continued hostility and harassment . . . has [sic]

clearly taken its [sic] toll both physically and emotionally" on

Connor, Scherz expressed his "clinical opinion that were Mr. Connor

to return to his position as Town Administrator while Mrs. Billings

is still employed by the Town as Secretary of the Town

Administrator, it would likely result in significant jeopardy to

his health and his need to cease his employment status."

Based on these letters, the Board of Selectmen decided to

transfer Billings to a job as secretary in the Town's recreation

department, effective December 22, 2003. The Town had offered the

same position to Billings about a month earlier, but she had

declined. In notifying her of the transfer, Hammond explained that

Connor "ha[d] been on leave for a serious medical condition, which

-10-
may be related to stress," adding that Billings had "made charges

against" him of which he "ha[d] been cleared by the investigators."

Citing to Scherz's opinion, Hammond explained that, as "an

accommodation to permit him to return to work," Connor "needs to

have a different personal secretary in order to permit him to

perform the essential functions of his Office."

There is conflicting evidence surrounding the decision to

transfer Billings. One of the Selectmen attested that the Town had

"considered various possible alternative responses" to Connor's

request, but ultimately elected to move Billings because

"equivalent positions existed into which [she] could be

transferred" while Connor could not be given a different job

because "there was no position equivalent to the Town

Administrator's position." Yet Hammond testified that the Board

did not discuss any alternatives to transferring Billings. Hammond

also testified, inconsistently, both that he made the decision to

transfer Billings as a "day-to-day operational" matter and that the

Board made the decision and he simply carried it out.

There is also some disagreement over whether Billings's

job as a secretary in the recreation department is in fact

"equivalent" to her former position as secretary to the Town

Administrator. Prior to the transfer, recreation secretary was a

part-time, staff-level position accorded the lowest pay grade under

the Town's classification system, while Billings previously

-11-
occupied a full-time, management-level position with a considerably

higher pay grade. Billings nevertheless continued to work the same

hours and receive the same wages, health insurance, and retirement

benefits in her new job that she would have in her old one, and, in

July 2005, the Board of Selectmen voted to "grandfather" Billings

at her management-level classification and pay grade as of the

transfer.

Because the Town has treated Billings's new job as a

unionized position, however, the Board acted "subject to collective

bargaining," leaving her classification open to future negotiations

between the union and the Town.4 In addition, shortly after the

transfer, Connor directed that Billings start recording her hours

by punching a time clock, like all of the Town's other union

employees. Billings also began paying union dues of roughly eight

dollars each week in early 2005. As secretary to the Town

Administrator, Billings had been a non-union employee.

Billings also believes that her current job offers less

in the way of prestige and responsibility than her previous one.

She no longer reports directly to the Town Administrator, but to

the recreation department coordinator, who in turn reports to the

4
Though Billings received the same annual raises in 2004 and 2005
that she would have absent the transfer, reclassifying her as a
staff- or clerical-level employee would effectively freeze her
salary at its current level, because she already earns more than
the maximum permitted for those classifications.

-12-
Administrator. Moreover, according to a description of Billings's

former job that Connor submitted to the Board of Selectmen in 2001,

she needed to act as "a liaison between [the] public and town

officials," to "[a]ssume administrative authority" in the case of

Connor's absence, to "provide guidance" on his "operating policy"

to the heads of the various local departments, and to research

insurance, funding, and other issues that might confront the Town,

in addition to performing a range of clerical duties. The position

also demanded at least three years of experience and skills

commensurate with two years of a college education. The official

duties of recreation secretary, however, consist exclusively of

clerical tasks, and its prerequisites are less stringent--a high

school diploma and one year of relevant experience. But the Town

maintains that, official job descriptions aside, Billings actually

spent her days as secretary to the Town Administrator "filing,

typing and opening the mail," just as she now does for the

recreation department.

Right after the transfer, Connor complained to Hammond

that Billings was regularly coming into the Selectmen's Office to

socialize with Hazen, send faxes, or go into the files, though

Billings did not interact with Connor during these visits. Hammond

responded by telling the recreation coordinator that Billings could

no longer enter the Selectmen's Office "for any reason" and that

"it was up to [the coordinator] to keep [Billings] out." Though

-13-
Hammond acknowledged that he did not know of any other Town

employee who had ever been barred from the office, he explained

that "[t]he accommodation made for Mr. Connor and the fact that

there was still ongoing litigation" necessitated the ban. In

accordance with the ban, Billings skipped a training session on

using the Town's website because it took place in the Selectmen's

Office, even though every other Town employee was there and her

supervisor, the recreation coordinator, wanted her to attend.

After Connor retired as Town Administrator in February

2006, Billings promptly asked for her old job back, reminding the

Town that it had transferred her "as an alleged accommodation for

Mr. Connor." The Town refused on the ground that "the position is

not vacant but is presently filled by a permanent employee," who

had been hired in connection with Billings's move to the recreation

department. Hammond later explained that, because both Billings

and her replacement at the Town Administrator's office were

"performing well," transferring them both would disserve the Town.

In the meantime, the Town and Connor moved for summary

judgment on Billings's complaint, which included claims of a

hostile work environment and retaliation in violation of Title VII

and Chapter 151B against both defendants, and a common law claim of

intentional infliction of emotional distress against Connor.

Billings opposed the motion and cross-moved to amend her complaint

to make additional allegations in support of her retaliation claim

-14-
and to name Hammond and certain present and former members of the

Board of Selectmen as defendants to that claim.

The district court granted summary judgment for the Town

and Connor on the hostile environment and intentional infliction of

emotional distress claims, ruling that "the alleged harassing

conduct here is insufficient as a matter of law to create an

objectively hostile work environment because it is not sufficiently

severe or pervasive." The court took the evidence, when viewed in

the light most favorable to Billings, to show that "[o]ver the

course of three years, Connor often stared at her breasts." Noting

that Connor had not directed "sexual advances" or "overtly sexual

comments" to Billings or "touched her inappropriately," the court

reasoned that "Connor's conduct, though somewhat frequent, was not

severe, physically threatening, or humiliating" (footnote omitted).

Thus, while recognizing that it "may constitute 'sexual harassment'

in the colloquial sense" when "a male supervisor . . . stare[s]

repeatedly at a female subordinate's breasts," the district court

ruled that "it does not, at least under the circumstances of this

case, rise to the level of a 'hostile work environment' within the

meaning of Title VII."

Treating Billings's motion to amend as a motion to

supplement, see Fed. R. Civ. P. 15(d), the district court allowed

her to augment her retaliation claim and, consequently, deferred

ruling on the defendants' motion for summary judgment on that claim

-15-
pending the completion of further discovery. In due course, the

defendants renewed their summary judgment motion, arguing that

Billings could show neither an adverse employment action nor the

link between any such action and her protected activity necessary

to prevail on her retaliation theory.

The district court accepted both of these contentions.

First, it concluded that neither transferring Billings to the

recreation department nor refusing to move her back to the Town

Administrator's office constituted retaliation because the transfer

"was not in substance a demotion and did not otherwise involve

material changes in her work environment." 441 F. Supp. 2d 227,

244 (D. Mass. 2006). Second, the court ruled that Billings had

failed to rebut the defendants' proffered "non-retaliatory"

justification for the transfer as "an accommodation to the health-

related concern raised by Connor's physicians." Id. at 242.

Though the district court acknowledged that Billings's complaints

of harassment had in fact precipitated the transfer, by leading

Connor to ask for the accommodation in the first place, the court

reasoned that this theory of "but-for causation," while sufficient

to make out a prima facie case of retaliation, could not withstand

summary judgment. Id.

Finally, the district court ruled that the other alleged

instances of retaliation--Connor's reaction to Billings's question

at the Board of Selectmen meeting, the investigation of her opening

-16-
the letter from his lawyer, his decision to memorialize his

dissatisfaction with certain aspects of her performance, the

perceived change in his behavior around the office since he learned

that Billings was his accuser, charging her personal time to attend

her deposition, and banning her from the Selectmen's Office--did

not amount to adverse employment actions and, even if they did, "in

each instance there is uncontroverted evidence of a non-retaliatory

reason and an absence of evidence as to pretext." Id. at 244. The

district court therefore granted summary judgment for the

defendants on the retaliation claim in its entirety.

II.

Billings challenges the entry of summary judgment against

her on her claims of a hostile work environment and retaliation.5

Summary judgment can be granted only "if there is no genuine issue

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

judgment as a matter of law." Fed. R. Civ. P. 56(c). Billings

argues that, in light of the evidence surrounding her treatment by

Connor and the other defendants, the district court could not have

ruled as a matter of law that she experienced neither sexual

harassment nor retaliation in violation of Title VII and Chapter

151B. We consider her claims in turn.

5
Because Billings has not appealed the entry of summary judgment
on her intentional infliction of emotional distress claim, that
claim is waived. See, e.g., Stanton v. Metro Corp., 438 F.3d 119,
124 (1st Cir. 2006).

-17-
 A.

Title VII's ban on employment practices that

"discriminate against any individual with respect to his . . .

terms, conditions, or privileges of employment, because of such

individual's . . . sex," 42 U.S.C. § 2000e-2(a)(1), extends to sex-

based discrimination that creates a hostile or abusive work

environment.6 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66

(1986); Forrest v. Brinker Int'l Payroll Co., ___ F.3d ___, 2007 WL

4415497, at *2 (1st Cir. Dec. 19, 2007). This sort of

discrimination is generally referred to as "sexual harassment," but

"not all workplace conduct that may be described as 'harassment'

affects a 'term, condition, or privilege' of employment within the

meaning of Title VII . . . ; [f]or sexual harassment to be

actionable, it must be sufficiently severe or pervasive 'to alter

the conditions of [the victim's] employment and create an abusive

working environment'." Meritor, 477 U.S. at 67 (quoting Henson v.

City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)); see also

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

6
Chapter 151B, Title VII's Massachusetts counterpart, contains a
like prohibition, see, e.g., Coll.-Town, Div. of Interco, Inc. v.
Mass. Comm'n Against Discrimination, 508 N.E.2d 587, 590 & n.3
(Mass. 1987), and neither side has pointed out any differences
between state and federal sexual harassment law that might bear on
the outcome here. Accordingly, we do not separately discuss the
Chapter 151 claim, the fate of which rests on the fate of the Title
VII claim for the purposes of this appeal.

-18-
 To give rise to a sexual harassment claim, "a sexually

objectionable environment must be both objectively and subjectively

offensive, one that a reasonable person would find hostile or

abusive, and one that the victim in fact did perceive to be so."

Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998). The

district court ruled that, though Billings "subjectively

experienced" Connor's staring as abusive, it nevertheless did not

create a hostile environment in the objective sense--in essence,

that a reasonable person in Billings's position would disagree with

her subjective assessment. We do not think that the summary

judgment record permits that conclusion as a matter of law.7

The point at which a work environment becomes hostile or

abusive does not depend on any "mathematically precise test."

Harris, 510 U.S. at 22. Instead, "the objective severity of

harassment should be judged from the perspective of a reasonable

person in the plaintiff's position, considering 'all the

circumstances.'" Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75, 81 (1998) (quoting Harris, 510 U.S. at 23). These

7
The defendants argue that "whether the plaintiff was subjected to
an objectively hostile work environment is not a question of fact
for the jury; it is a question of law for the Court to determine
based on the undisputed facts." That is incorrect. The existence
of a hostile environment is determined by the finder of fact, see,
e.g., O'Rourke v. City of Providence, 235 F.3d 713, 728-29 (1st
Cir. 2001) (citing Meritor, 477 U.S. at 69), though, as we discuss
infra, that does not prevent a court from ruling that a particular
set of facts cannot establish a hostile environment as a matter of
law in an appropriate case.

-19-
circumstances "may include the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee's work performance," but

are by no means limited to them, and "no single factor is

required." Harris, 510 U.S. at 23; see also, e.g., Conto v.

Concord Hosp., Inc., 265 F.3d 79, 81 (1st Cir. 2001) (noting that

a hostile environment claim "necessarily entail[s] a fact-specific

assessment of all the attendant circumstances").

While the district court properly articulated this

standard, we think it applied the standard in too rigid a manner.

In particular, we think the court's analysis placed undue weight on

the fact--undisputed though it was--that Connor's alleged behavior

did not include touching, sexual advances, or "overtly sexual

comments to or about her." As we have just explained, the

hostility vel non of a workplace does not depend on any particular

kind of conduct; indeed, "[a] worker need not be propositioned,

touched offensively, or harassed by sexual innuendo in order to

have been sexually harassed." Quick v. Donaldson Co., 90 F.3d

1372, 1379 (8th Cir. 1996) (internal quotation marks omitted); see

also Smith v. First Union Nat'l Bank, 202 F.3d 234, 242 (4th Cir.

2000) (reversing summary judgment for defendant on hostile

environment claim, despite absence of touching, propositioning, or

-20-
ogling, because "a woman's work environment can be hostile even if

she is not subjected to sexual advances or propositions").

Of course, behavior like fondling, come-ons, and lewd

remarks is often the stuff of hostile environment claims, including

several previously upheld by this Court. See, e.g., Marrero v.

Goya of P.R., Inc., 304 F.3d 7, 19-20 (1st Cir. 2002) ("sexual

remarks and innuendos," including "a sexual invitation," as well as

"unwelcome physical touching"); Crowley v. L.L. Bean, Inc., 303

F.3d 387, 397-98 (1st Cir. 2002) (unwanted touching, complimenting,

and following around, culminating in the harasser's breaking into

the plaintiff's home and accosting her); Hernandez-Loring v.

Universidad Metropolitana, 233 F.3d 49, 55-56 (1st Cir. 2000)

(repeated requests for dates and use of suggestive language); White

v. N.H. Dep't of Corr., 221 F.3d 254, 260-61 (1st Cir. 2000)

(commonplace "sexual conversations and jokes," including at the

plaintiff's expense, coupled with disparate treatment). In ruling

that Billings could not succeed on such a claim as a matter of law,

the district court relied on these cases, reasoning that "the

record is devoid of the types of behavior that marked the presence

of a hostile work environment" in those cases. But, as we have

said, no particular "types of behavior" are essential to a hostile

environment claim.

Each of these cases simply held that, based on the

evidence presented, a reasonable jury could have found the

-21-
harassment sufficiently severe or pervasive to constitute a hostile

environment as a matter of law. Marrero, 304 F.3d at 20; Crowley,

303 F.3d at 400-01; Hernandez-Loring, 233 F.3d at 56; White, 221

F.3d at 261.8 Thus, while they serve as instructive examples of

actionable sexual harassment, they do not suggest that harassing

conduct of a different kind or lesser degree will necessarily fall

short of that standard. Cf. Harris, 510 U.S. at 22 (explaining

that "especially egregious examples of harassment" discussed in

Meritor "do not mark the boundary of what is actionable"). As

another court has cautioned about the use of its own precedent in

this area, "[p]rior cases in which we have concluded that a

reasonable juror could find that the work environment was

objectively hostile do not establish a baseline that subsequent

plaintiffs must reach in order to prevail." Schiano v. Quality

Payroll Sys., Inc., 445 F.3d 597, 606 (2d Cir. 2006) (internal

quotation marks omitted).

The highly fact-specific nature of a hostile environment

claim tends to make it difficult to draw meaningful contrasts

between one case and another for purposes of distinguishing between

8
The district court also relied on O'Rourke, a case in which we
did not consider whether the plaintiff had adequately proven her
hostile environment claim, but rather when the nature of the
allegedly hostile acts sufficed to put her on notice of the claim
for statute of limitations purposes, and whether the evidence of
her damages supported the jury's monetary award. 235 F.3d at 731-
34. O'Rourke therefore does not provide an apt model for the
resolution of Billings's hostile environment claim.

-22-
sufficiently and insufficiently abusive behavior. Conduct that

amounts to sexual harassment under one set of circumstances may, in

a different context, equate with the sort of "'merely offensive'"

behavior that lies beyond the purview of Title VII, and vice versa.

See Marrero, 304 F.3d at 18-19 (quoting Harris, 510 U.S. at 21).

Again, we agree with the Second Circuit that "the fact that . . .

actions did not constitute a hostile work environment in [one]

case, when considered as part of all the circumstances there, does

not establish a rule that similar actions in another context would

not, as a matter of law, amount to one." Schiano, 445 F.3d at 607.

By like token, we disagree with the district court's

reasoning that Connor's alleged behavior did not constitute sexual

harassment as a matter of law because it was "similar in terms of

degree" to the conduct we considered in Lee-Crespo v. Schering-

Plough Del Caribe Inc., 354 F.3d 34 (1st Cir. 2003), where we

upheld summary judgment for the employer because the employee

failed to prove she was subjected to a hostile work environment

that was severe or pervasive. In Lee-Crespo, the plaintiff's

supervisor "bothered [her] with meddlesome and prying questions

about her personal life and made comments about her appearance and

behavior," id. at 38, manifesting "a disregard for professional

courtesy and a penchant for inquiring about the personal affairs of

other workers (both male and female)." Id. at 46. We held that

this conduct--which we characterized as "a supervisor's

-23-
unprofessional managerial approach and accompanying efforts to

assert her authority"--was simply "not the focus of the

discrimination laws." Id. at 47.

Connor's complained-of behavior, however, does not lend

itself to the same characterization. As the district court

recognized, "for a male supervisor to stare repeatedly at a female

subordinate's breasts . . . is inappropriate and offensive," not

merely "unprofessional." Thus Connor's alleged staring is

fundamentally different from the intrusive questions and comments

at issue in Lee-Crespo. Furthermore, to the extent that actions so

different in kind lend themselves to any comparison "in terms of

degree," we believe that the degree of harassment allegedly

experienced by Billings in this case exceeds that allegedly

experienced by the plaintiff in Lee-Crespo. There, applying the

Harris factors, we reasoned that "the complained of conduct was

episodic, but not so frequent as to become pervasive; was never

severe; was never physically threatening (though occasionally

discomforting or mildly humiliating); and significantly, was never

. . . an impediment to [the plaintiff's] work performance." 354

F.3d at 46. We cannot make the same determinations about Connor's

behavior here, particularly where the record permits competing

conclusions about the frequency and intensity of Connor's alleged

conduct.

-24-
 Billings, for example, describes her interactions with

Connor as "stares" about five seconds long, while Loitherstein

concluded, based on her interviews with both Billings and Connor,

that his eyes simply "darted" downward (as well as in other

directions) for no more than two or three seconds at a time. As

the district court noted, "[t]he evidence regarding the frequency

of Connor's alleged staring is somewhat incomplete," but Billings

testified "that '[i]t happened a lot.'".9 When we resolve these

and the other factual disputes in the record in favor of Billings,

we cannot definitively say, as the district court did, that

Connor's conduct was not sufficiently severe or pervasive to allow

a jury to find in favor of Billings on her hostile environment

claim. As we have observed, the hostile environment "question is

commonly one of degree--both as to severity and pervasiveness--to

be resolved by the trier of fact on the basis of inferences drawn

'from a broad array of circumstantial and often conflicting

evidence.'" Gorski v. N.H. Dep't of Corr., 290 F.3d 466, 474 (1st

Cir. 2002) (quoting Lipsett v. Univ. of Puerto Rico, 864 F.2d 881,

895 (1st Cir. 1998)). We see this case as no exception.

We do not mean, of course, that hostile environment cases

inevitably raise issues that cannot be resolved by summary

9
Billings reported that the frequency of the staring decreased
after her initial complaint was reported to the Board of Selectmen
in early 2001, from a number of times each day to "a couple of
times a week." A few weeks later, she reported, the staring
returned to its former frequency.

-25-
judgment, which remains "an appropriate vehicle for policing the

baseline for hostile environment claims." Pomales v. Celulares

Telefonica, Inc., 447 F.3d 79, 83 (1st Cir. 2006) (internal

quotation marks and bracketing omitted). And we accept, as a

general proposition, that not every such claim premised on staring

or leering in the workplace automatically presents a question for

the jury. We hold simply that the record in this case does not

permit the ruling, as a matter of law, that the circumstances of

Billings's employment did not add up to a hostile environment.

Taken in the light most favorable to Billings, the

evidence depicts a supervisor who regularly stared at her breasts

for much of the two and a half years they worked together. Thus,

the alleged harassment did not consist merely of the sort of

"isolated incidents" that ordinarily "will not amount to

discriminatory changes in the terms and conditions of employment."

Faragher, 524 U.S. at 788 (internal quotation marks omitted).10

10
Relying on Faragher's point that, like "isolated incidents,"
"simple teasing" and "offhand comments" usually will not amount to
actionable sexual harassment, 524 U.S. at 788, the defendants
downplay Connor's remark to another employee that Billings was
"under the desk." While we have little doubt that, taken in
isolation, the remark does not suffice to establish a hostile
environment, see, e.g., Pomales, 447 F.3d at 83-84, it did not
occur in isolation, but in the context of Connor's allegedly
staring at Billings's chest, and must be assessed as such. See
O'Rourke, 235 F.3d at 730 ("Courts should avoid disaggregating a
hostile work environment claim"). Ultimately, the significance of
Connor's remark to Billings's larger hostile environment claim is
a question for the finder of fact.

-26-
Other women who worked for the Town also said Connor had subjected

them to similar behavior, which they, too, found objectionable.

See Hernandez-Loring, 233 F.3d at 55 n.4 ("Evidence of the

harassment of third parties can help to prove a legally cognizable

claim of a hostile environment."). Furthermore, Billings did not

stand silent in the face of her alleged treatment, but repeatedly

complained to both Hazen and the Board of Selectmen. See id. at

55-56 (citing fact "that on various occasions [the plaintiff] had

complained about [the harasser's] conduct" in reversing dismissal

of hostile environment claim).

Based on these and other aspects of Billings's response

to Connor's alleged staring, we disagree with the defendants that

no reasonable jury could conclude that the staring unreasonably

interfered with her work performance or altered the terms and

conditions of her employment as a matter of law. As the defendants

emphasize, Billings did testify that she was able to continue

performing her duties notwithstanding the complained-of behavior:

as she put it, "I mean, I could sit and type a letter, yes." She

added, however, that "every time I needed to talk to him, I had to

make sure I was carrying something in front of me so that he

wouldn't look at me. I just had to be careful with what I wore in

the morning, be careful with what I said." The fact that Billings

managed to get her work done despite these measures is by no means

fatal to her hostile environment claim. See Dey v. Colt Constr. &

-27-
Dev. Co., 28 F.3d 1446, 1454 (7th Cir. 1994) ("[T]he mention in

Harris of an unreasonable interference with work performance was

not intended to penalize the employee who possesses the dedication

and fortitude to complete her assigned tasks even in the face of

offensive and abusive sexual [harassment] from one of her

superiors.").

The defendants also maintain that, whatever the effect of

Connor's behavior on Billings in the subjective sense or on her

workplace in the objective sense, it did not amount to "sexual

harassment" under Title VII because it was not "of a sexual

nature." We cannot reasonably accept, however, that a man's

repeated staring at a woman's breasts is to be ordinarily

understood as anything other than sexual. In arguing to the

contrary in this case, the defendants rely on Connor's eye

condition, coupled with the fact that others who worked with him

"did not sense any sexual intent underlying" his "failure to

maintain eye contact." While this might have some bearing on

whether Connor's staring created an objectively hostile work

environment, it does not mean that the staring cannot support such

a claim as a matter of law, because "harassing conduct need not be

motivated by sexual desire to support an inference of

discrimination on the basis of sex." Oncale, 523 U.S. at 80. In

any event, the defendants' innocent explanation for Connor's

behavior is certainly not the only reasonable view of the

-28-
evidence.11 Because that evidence, in its entirety, does not

foreclose a finding that Billings experienced a hostile work

environment, the district court should not have entered summary

judgment against her on that claim.

B.

The district court also granted summary judgment for the

defendants on Billings's retaliation claim. Title VII, in relevant

part, makes it illegal "for an employer to discriminate against any

of his employees . . . because he has opposed any practice made

unlawful . . . or because he has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing" under that law.12 42 U.S.C. § 2000e-3(a).

As recently explicated by the Supreme Court, this "anti-retaliation

provision protects an individual not from all retaliation, but from

retaliation that produces an injury or harm." Burlington N. &

Santa Fe Ry. v. White, 126 S. Ct. 2405, 2414 (2006) ("Burlington

Northern"). Instead, to prevail on a claim of retaliation in

11
Billings points out, for example, that Connor's diagnosed eye
condition is characterized by one eye or the other drifting
outward, not both eyes drifting downward, as she has described.
12
Massachusetts law contains a similar prohibition, Mass. Gen. Laws
ch. 151B, § 4(4A), and, as with the hostile environment claim,
neither side argues that the standards of liability for a
retaliation claim under federal and state law differ in any respect
material to the outcome here. Accordingly, we do not separately
consider the state-law retaliation claim which, like the state-law
hostile environment claim, rises or falls on the federal claim for
purposes of this appeal.

-29-
violation of Title VII, "a plaintiff must show that a reasonable

employee would have found the challenged action materially adverse,

which in this context means it well might have dissuaded a

reasonable worker from making or supporting a charge of

discrimination." Id. at 2415 (internal quotation marks omitted).

Accord Dixon v. Int'l Bhd. of Police Officers, 504 F.3d 73, 81 (1st

Cir. 2007).

Reciting the Burlington Northern test, the district court

ruled that Billings had not suffered a "materially adverse"

employment action, either in the form of her transfer or any of the

defendants' other alleged attempts at retaliation. We have not

previously reviewed a district court's application of the

Burlington Northern standard. Doing so for the first time here, we

disagree with the district court's conclusion that, under

Burlington Northern, Billings cannot succeed on her retaliation

claim as a matter of law.

The plaintiff in Burlington Northern worked as a track

laborer for a railroad, but, because she had been assigned to

operate a forklift soon after her hiring, had a "less arduous and

cleaner job" than other employees of the same rank. 126 S. Ct. at

2409. After complaining about some sexist remarks by her

supervisor, however, the plaintiff was reassigned to standard track

laborer tasks. Id. When she claimed that this had been done in

retaliation for her previous complaint, the plaintiff was suspended

-30-
without pay--though she ultimately received those wages when the

railroad reversed the suspension 37 days later. Id. The plaintiff

then brought an employment discrimination claim, alleging that both

the reassignment and the suspension amounted to retaliation under

Title VII. Id. at 2410. A jury agreed, and both the district

court and the court of appeals upheld the verdict. Id.

In line with the prevailing law in certain of the courts

of appeals at the time, the railroad argued that the challenged

actions could not constitute retaliation because they had not

"affect[ed] the employee's compensation, terms, conditions, or

privileges of employment"--what those courts referred to as

"ultimate employment decisions." Id. at 2410-11 (internal

quotation marks and bracketing omitted). The Supreme Court

rejected this view, holding that "[t]he scope of the anti-

retaliation provision extends beyond workplace-related or

employment-related retaliatory acts and harm." Id. at 2414. As we

have noted, however, the Court also held that "the provision covers

those (and only those) actions that would have been materially

adverse to a reasonable employee . . . . [T]he employer's actions

must be harmful to the point that they could well dissuade a

reasonable worker from making or supporting a charge of job

discrimination." Id. at 2409.

The Court went on to conclude that, viewed against this

standard, the evidence of the railroad's actions adequately

-31-
supported the jury's findings of retaliation. Id. at 2416. The

Court disagreed with the railroad that it could not have retaliated

by reassigning the plaintiff because "the former and present duties

fall within the same job description," reasoning that "[c]ommon

sense suggests that one good way to discourage an employee . . .

from bringing discrimination charges would be to insist that she

spend more time performing the more arduous duties and less time

performing those that are easier or more agreeable." Id. The

Court cautioned, however, that "reassignment of job duties is not

automatically actionable. Whether a particular reassignment is

materially adverse depends upon the circumstances of the particular

case, and 'should be judged from the perspective of a reasonable

person in the plaintiff's position, considering 'all the

circumstances'.'" Id. at 2417 (quoting Oncale, 523 U.S. at 81

(quoting Harris, 510 U.S. at 23)).

Noting "considerable evidence that the track laborer

duties were by all accounts more arduous and dirtier; that the

forklift operator position required more qualifications, which is

an indication of prestige; and that the forklift operator position

was objectively considered a better job and the male employees

resented [the plaintiff] for occupying it," the Court ruled that a

jury could have reasonably found the reassignment "materially

adverse to a reasonable employee." Id. (internal quotation marks

omitted). The Court also ruled that the jury could have reasonably

-32-
found that the plaintiff's suspension was materially adverse,

despite her reinstatement with back pay 37 days later. Id. In

support of this conclusion, the Court observed that "[m]any

employees would find a month without a paycheck to be a serious

hardship" and cited the plaintiff's testimony that she, in fact,

did. Id. Thus, the Court reasoned, "an indefinite suspension

without pay could well act as a deterrent" to filing an employment

discrimination claim, "even if the suspended employee eventually

received back pay." Id. at 2417.

We cannot reconcile the Court's decision in Burlington

Northern with a determination that Billings's transfer did not

constitute a materially adverse employment action as a matter of

law. The district court observed that, under Burlington Northern,

"[a]n objectively reasonable loss of prestige is one factor

suggesting that a change of duties may constitute a materially

adverse action," but reasoned that, in the case of the move to the

recreation department, "the difference in prestige is objectively

slight, and Billings's complaints arise largely out of her own

subjective feelings of disappointment." 441 F. Supp. 2d at 240.

It is true that an employee's displeasure at a personnel action

cannot, standing alone, render it materially adverse. See, e.g.,

Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996). In our view,

though, Billings also came forward with enough objective evidence

-33-
contrasting her former and current jobs to allow the jury to find

a materially adverse employment action.

A jury could find that, as a result of the transfer,

Billings occupied an objectively less prestigious job, reporting to

a lower ranked supervisor, enjoying much less contact with the

Board, the Town, and members of the public, and requiring less

experience and fewer qualifications. See Burlington Northern, 126

S. Ct. at 2417. Unlike the district court, we see these facts as

evidence of reduced prestige in the objective sense, not merely in

Billings's subjective opinion. Cf. Alvarado v. Tex. Rangers, 492

F.3d 605, 613 n.7 (5th Cir. 2007) (drawing distinction between

"loss of subjective prestige," which cannot itself show an adverse

employment action, and "loss of objective prestige," which can)

(internal quotation marks omitted). In addition to these

consequences, a jury could also find that the recreation department

position likely requires Billings to pay union dues and subjects

her to union-associated mechanisms like grievance procedures,

collective bargaining (which threatens to cap her earning

capacity), and punching a time card. Under these circumstances, we

cannot say, as a matter of law, that the transfer to the recreation

department could not "well dissuade a reasonable worker from making

or supporting a charge of discrimination." Burlington Northern,

126 S. Ct. at 2409.

-34-
 The district court also ruled that, aside from the

transfer to the recreation department and the Board of Selectmen's

subsequent refusal to give Billings her old job back after Connor

retired, the other actions she cited in support of her retaliation

claim were also not materially adverse. We agree that some of

Connor's behavior--upbraiding Billings for her question at the

Board of Selectmen meeting, criticizing her by written memoranda,

and allegedly becoming aloof toward her--amounts to the kind of

"petty slights or minor annoyances that often take place at work

and that all employees experience" and that, consequently, fall

outside the scope of the anti-discrimination laws.13 Burlington

Northern, 126 S. Ct. at 2415; see also Marrero, 304 F.3d at 25

(ruling that supervisors' "extreme supervision" and "snubb[ing]" of

plaintiff was not adverse) (internal quotation marks omitted);

Hernandez-Torres v. Intercont. Trading, Inc., 158 F.3d 43, 47 (1st

Cir. 1998) (ruling that increased criticism was not adverse).

13
Of course, retaliatory actions that are not materially adverse
when considered individually may collectively amount to a
retaliatory hostile work environment. See Noviello v. City of
Boston, 398 F.3d 76, 88-90 (1st Cir. 2005). Because Billings has
not presented an argument about the collective effect, however, we
have considered the alleged acts of retaliation independently, and
found that some of them, when taken on that basis, are not
materially adverse as a matter of law. We do not mean to suggest,
by way of this conclusion, that evidence of those acts would not be
admissible in support of Billings's remaining retaliation or
hostile environment claims; we leave that determination for the
district court in the first instance.

-35-
 But we cannot say the same for the other incidents,

namely, investigating and reprimanding Billings for opening the

letter from Connor's attorney, charging her with personal time for

attending her deposition in this case, and barring her from the

Selectmen's Office. While these measures might not have made a

dramatic impact on Billings's job, conduct need not relate to the

terms or conditions of employment to give rise to a retaliation

claim. Burlington Northern, 126 S. Ct. at 2416. Indeed, we think

that these actions, by their nature, "could well dissuade a

reasonable [employee] from making or supporting a charge of

discrimination." Id. at 2409. An employee who knows that, by

doing so, she risks a formal investigation and reprimand--including

a threat of "further, more serious discipline"--for being

insufficiently careful "[i]n light of [her] pending litigation," as

well as the prospect of having to take personal time to respond to

a notice of deposition issued by her employer in that litigation,

might well choose not to proceed with the litigation in the first

place.14 See id. at 2417-18.

Similarly, the ban from the Selectmen's Office might,

under some circumstances, seem "a nonactionable petty slight," id.

14
We do not mean to suggest any general rule that an employer must
give an employee paid time off to deal with the incidents of her
discrimination suit against the company. We hold more narrowly
that, in the circumstances of this case, a jury could supportably
find that the contrary decision was an adverse employment action.

-36-
at 2415, but here, it prevented Billings from attending an

important instructional session attended by all of her colleagues.

Like "excluding an employee from a weekly training lunch that

contributes significantly to the employee's professional

advancement," then, keeping Billings out of the Selectmen's Office,

in context, "might well deter a reasonable worker from complaining

about discrimination." Id. at 2415-16. Again, though we

acknowledge that a jury could reasonably reach the opposite

conclusion, we cannot do so as a matter of law.

Finally, the district court ruled that, even if the

complained-of actions could be considered materially adverse,

Billings had failed to show the requisite causal connection between

them and her protected activity, i.e., the lodging of her internal

complaints, charge of discrimination, and eventually this lawsuit,

over Connor's alleged harassment. Applying the McDonnell Douglas

burden-shifting approach, McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802-04 (1973), the district court concluded that, while

Billings had made out a prima facie case of retaliation, she had

not come forward with any evidence rebutting the defendants'

legitimate, non-discriminatory justifications for their actions.

The district court ruled that, in particular, Billings had not

shown that the defendants' stated reason for transferring her--to

accommodate Connor's medical condition--amounted to pretext.

-37-
 Under the McDonnell Douglas approach, an employee who

carries her burden of coming forward with evidence establishing a

prima facie case of retaliation creates a presumption of

discrimination, shifting the burden to the employer to articulate

a legitimate, non-discriminatory reason for the challenged actions.

See, e.g., Mariani-Colón v. Dep't of Homeland Sec., __ F.3d ___,

2007 WL 4403526, at *5 (1st Cir. Dec. 18, 2007); Colburn v. Parker

Hannifin/Nichols Portland Div., 429 F.3d 325, 336 (1st Cir. 2005).

"If the employer's evidence creates a genuine issue of fact, the

presumption of discrimination drops from the case, and the

plaintiff retains the ultimate burden of showing that the

employer's stated reason for [the challenged actions] was in fact

a pretext for retaliating . . . ." Colburn, 429 F.3d at 336

(quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 161 (1st

Cir. 1998) (internal quotation marks omitted).

Just as there is no mechanical formula for identifying a

hostile work environment, "there is no 'mechanical formula' for

finding pretext." Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 39

(1st Cir. 2003) (quoting Feliciano de la Cruz v. El Conquistador

Resort & Country Club, 218 F.3d 1, 6 (1st Cir. 2000)). One way to

show pretext is through "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

-38-
[with or without the additional evidence and inferences properly

drawn therefrom] infer that the employer did not act for the

asserted non-discriminatory reasons." Hodgens, 144 F.3d at 168

(alteration in original) (quoting Morgan v. Hilti, Inc., 108 F.3d

1319, 1323 (10th Cir. 1997) (internal quotation marks omitted).

The record has sufficient evidence to preclude the judgment, as a

matter of law, that the defendants transferred Billings as an

accommodation for Connor's heart condition rather than as

retaliation for her complaints of sexual harassment.

First, as we have noted, the defendants have provided

conflicting accounts about who made the decision to transfer

Billings and, more importantly, how it was made. An employer's

"different and arguably inconsistent explanations" for its

challenged employment action can serve as evidence of pretext.

Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir.

2000). Second, in one of these accounts, the Board of Selectmen

did not consider any response to Connor's request for an

accommodation other than moving Billings to the recreation

department--which was offered to her on a voluntary basis before

Connor had made the request. This chronology casts some doubt on

whether the accommodation was the real reason for the transfer.

Cf. McDonough v. City of Quincy, 452 F.3d 8, 18 (1st Cir. 2006)

(finding sufficient evidence that claimed restructuring was pretext

for retaliatory transfer where, inter alia, restructuring had not

-39-
been previously discussed). Third, in explaining the transfer to

Billings, Hammond asserted that the Town's investigations had

"cleared" Connor of the harassment allegations when, in fact,

Loitherstein had concluded that Connor looked at Billings's chest

during the eleven incidents at issue, but that, in Loitherstein's

opinion, Connor had not "leered" or "stared." Indeed, a jury could

find, based on Billings's complaints and the corroborating accounts

from other women, that Connor had not in fact been "cleared." On

those facts, a jury could conclude that the investigations were

inadequate or had predestined outcomes.

We do not rule out the possibility that a jury, properly

focused on the defendants' perception, could reasonably find that

they thought Connor's medical condition necessitated the transfer,

and that, consequently, this explanation was not a pretext for

retaliation. Cf. Azimi v. Jordan's Meats, Inc., 456 F.3d 228, 246

(1st Cir. 2006), cert. denied, 127 S. Ct. 1831 (2007). But we

think that, under the circumstances of this case, it is the jury

that must make this decision, one way or the other. As we have

advised, "where a plaintiff in a discrimination case makes out a

prima facie case and the issue becomes whether the employer's

stated nondiscriminatory reason is a pretext for discrimination,

courts must be 'particularly cautious' about granting the

employer's motion for summary judgment." Hodgens, 144 F.3d at 167

(quoting Stepanischen v. Merch. Despatch Transp. Corp., 722 F.2d

-40-
922, 928 (1st Cir. 1983)). Such caution is appropriate here, given

the factual disputes swirling around the transfer decision.

Finally, we disagree with the district court's ruling

that there was no discriminatory intent behind the remaining

actions that Billings describes as retaliatory, i.e., the letter-

opening contretemps, the ban from the Selectmen's Office, the

charging of personal time for her deposition, and the refusal to

reassign her to her old job after Connor retired. Connor admitted

that he would not have called for a formal investigation into the

handling of the letter had Billings not accused him of sexual

harassment, and Hammond reprimanded her for her lack of care "[i]n

light of [her] pending litigation." See, e.g., Hodgens, 144 F.3d

at 168-69 (endorsing consideration of decisionmaker's statements in

deciding retaliatory motive). Hammond offered a similar

explanation for barring Billings from the Selectmen's Office--

citing "the fact that there was still ongoing litigation"--and also

acknowledged that, so far as he was aware, no other Town employee

had ever been barred from the Selectmen's Office. See, e.g.,

Azzaro v. County of Allegheny, 110 F.3d 968, 974 (3d Cir. 1997)

(finding that handling of termination supported inference of

retaliatory motive where "no one else in the recent history of the

[employer]" had been terminated that way). Relatedly, though

Billings had to take a personal day to attend her deposition in

this case, other employees did not, and the selectmen refused to

-41-
retransfer Billings to her former position after Connor's

departure, even though his stress at working with her was the

purported reason for her transfer out of that job. While the

defendants have attempted to justify these decisions on a non-

retaliatory basis, we cannot say, as a matter of law, that these

justifications carry the day. There is sufficient evidence to

permit the conclusion that they were pretextual.

III.

For the foregoing reasons, we vacate the district court's

entry of summary judgment for the defendants on Billings's hostile

environment claims, and remand them for further consideration

consistent with this opinion. We also vacate summary judgment for

the defendants on Billings's retaliation claims and remand them

insofar as they arise out of the transfer, the investigation and

reprimand over the letter-opening, the charging of personal time to

attend her deposition, the ban from the Selectmen's Office, and the

refusal to reassign her. We otherwise affirm the district court's

decision on the retaliation claims. Costs are awarded to Appellant

Nancy M. Billings.

So ordered.

-42-