Burns v. Johnson

United States Court of Appeals
For the First Circuit

No. 15-1982

KATHLEEN BURNS,

Plaintiff, Appellant,

v.

JEH JOHNSON, Secretary, United States Department of Homeland
Security, Transportation Security Administration,

Defendant, Appellee,

DAVID JOHNSON, Supervisory Air Marshal, in his individual and
official capacities,

Defendant.

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

[Hon. Denise J. Casper, U.S. District Judge]

Before

Lynch, Thompson, and Kayatta,
Circuit Judges.

Timothy M. Burke, with whom Jared S. Burke, Sheila E. McCravy,
and Law Offices of Timothy M. Burke were on brief, for appellant.
Christine J. Wichers, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
Monica R. Shah and Zalkind Duncan & Bernstein LLP on brief
for Massachusetts Employment Lawyers Association, amicus curiae in
support of appellant.
July 11, 2016

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 LYNCH, Circuit Judge. This case arises from plaintiff

Kathleen Burns's claims of sex discrimination and sex harassment.

Burns worked for over ten years as a Transportation Security

Administration ("TSA") employee in the Boston Field Office of the

Federal Air Marshals Service ("FAMS"), where her primary role was

scheduling international flights for the Federal Air Marshals

("FAMs"). She was considered an "excellent employee," and the

scheduling system she in part designed was recognized as a "best

practice" for other field offices to follow.

In May 2012, David Johnson assumed the role of

Supervisory Air Marshal in Charge ("SAC") at the Boston Field

Office and within weeks transferred Burns's flight assignment

duties to a group of male employees. Johnson also spoke to and

interacted with Burns in a way that Burns asserts was hostile and

unlike his treatment of male employees. This included Johnson

holding a baseball bat in what Burns described as "a swinging

position" in almost every interaction with her.

In late June, Burns took early retirement. She then

filed this suit against Johnson and the Department of Homeland

Security ("DHS"),1 alleging, inter alia, violations of Title VII

of the Civil Rights Act of 1964. The district court dismissed

1 Burns names as a defendant Jeh Johnson, Secretary,
Department of Homeland Security, because TSA is an agency within
DHS. We refer to Jeh Johnson's institutional affiliation, DHS, so
as to avoid confusion with defendant David Johnson.

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Johnson from the suit and later allowed summary judgment in favor

of DHS. On appeal, Burns argues that the district court erred by

requiring her to present direct evidence to establish sex

discrimination under the mixed-motives theory. We agree with

Burns. The district court also erred by requiring her to show

that Johnson's conduct was severe and pervasive to establish sex

harassment. Furthermore, we conclude that under the correct legal

frameworks, there is sufficient circumstantial evidence from which

a reasonable jury could find in Burns's favor on both claims. We

reverse the entry of summary judgment and remand for further

proceedings.2

I.

On review of an order granting summary judgment, we

recite the facts in the light most favorable to the non-moving

party. See Tang v. Citizens Bank, N.A., 821 F.3d 206, 211 (1st

Cir. 2016). Many of the facts are not in dispute, and we draw

from them accordingly.

Shortly after September 11, 2001, Kathleen Burns began

working as a TSA employee in the Boston Field Office of FAMS.

Burns was the only female employee in the Operations unit and one

of only five non–law enforcement employees in the office. In

2 The Massachusetts Employment Lawyers Association
("MELA") has submitted a brief as amicus curiae in support of the
appellant in this case. We acknowledge MELA's assistance.

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addition to the FAMs, there were supervisory FAMs ("SFAMs"), two

Assistant Supervisory Air Marshals in Charge ("ASACs"), and one

SAC, who was in charge of the entire office. Burns was a Program

Assistant in Operations and the employee primarily responsible for

international flight scheduling. FAM ABC3 was her "back-up." SFAM

James Ouellette was her direct supervisor, and ASAC Timothy

O'Connor was her second-line supervisor.

The international scheduling system used in the office

was in part Burns's creation. SFAM Ouellette was also involved in

the system's creation. ASAC O'Connor stated in an affidavit that

inspection teams had on two occasions "noted that international

planning and scheduling within [the] office was a 'best practice'

for other field offices to follow." SFAM Darin Devine, who was

involved with Operations, testified in a deposition to the same.

Burns also regularly received high performance evaluations.

Burns spent about seventy-five percent of her time

scheduling flights. She worked Thursday, Friday, Saturday, and

Sunday from 12:30 p.m. to 9:00 p.m., for a total of thirty-two

hours per week. ASAC O'Connor stated in an affidavit that Burns

"worked the night shift and filled a lot of holes that others did

3 TSA deemed this case to involve Sensitive Security
Information ("SSI"), including the name of the FAM who provided
back-up to Burns. We refer to him as "FAM ABC" throughout and
omit all other SSI information, none of which is necessary to our
decision.

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not want to work." Burns preferred this alternative work schedule

so that she could care for her five children. Before his arrival,

Johnson knew about Burns's role in international flight

scheduling, her alternative work schedule, and the reason for it.

On May 7, 2012, Johnson assumed the role of SAC at the

Boston Field Office. While in that role, Johnson sometimes carried

a Louisville Slugger baseball bat.4 According to Burns, every time

she saw Johnson in the office, he was carrying the bat. Johnson

sometimes held an unlit cigar in his mouth.

Two pertinent incidents transpired between Johnson and

Burns near the time of Johnson's arrival. During the first,

Johnson approached Burns in the Operations office and asked "Who

are you?" and "What do you do for me?" After Burns answered,

Johnson turned around and walked out of the office. FAM ABC, who

witnessed this, described Johnson's tone as "demeaning" and "[n]ot

like you would have a typical casual conversation." FAM ABC also

testified in a deposition that "[Johnson] never asked [him] that

question." The second incident occurred on May 24, 2012, when

Johnson approached Burns and commented "so you do still work here."

He was carrying the bat. Later that day, again holding the bat,

4 At some point prior to arriving at the Boston Field
Office, Johnson was the SAC for a TSA office in Virginia. Johnson
is a former Division I college baseball player. When he left the
field office in Virginia, his staff gave him as a gift a full-
sized baseball bat emblazoned with the office logo.

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Johnson approached Burns and said "he had done his homework" at

Headquarters on Burns and that although everyone there "spoke very

highly of" her and there were no complaints, he had "some concerns"

because someone told him that she was sometimes "hard to reach."

Burns replied that if a problem arose on her days off, she handled

the issue either by e-mail or telephone. Johnson said that he was

"not paying [Burns] to work from home." Burns replied that "she

never sought compensation for any additional overtime or work she

completed outside of her regularly scheduled shifts." After this

meeting, Burns told her direct supervisor, SFAM Ouellette, that

"she felt uncomfortable" because of "the way [Johnson] spoke with

her" and "looked at her," and that she believed Johnson used the

bat against her "as a method of intimidation." The parties dispute

whether Johnson was aware of Burns's complaints prior to the May

31, 2012, decision to change the international flight scheduling

system.

On or before May 31, 2012, Johnson decided to reassign

international flight scheduling from Burns to the SFAMs, who were

all men. DHS argues that Johnson made this decision for two

reasons: first, he wanted to create consistency with other FAMS

field offices and, second, he wanted to foster leadership by the

SFAMs. On June 13, 2012, during a weekly meeting, Johnson

discussed the new scheduling system. Burns was not present. SFAM

Ouellette defended the system Burns had in part developed, and

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Johnson referred to it as "stupid." At some point Johnson "put

his hand up to Ouellette's face as if motioning [him] to stop and

stated 'I've done it. I get it.' Johnson then got up and left

the room. He returned approximately one minute later and was

carrying the baseball bat." He then "turned to face SFAM Ouellette

and began to tap the baseball bat between his legs while staring

down at SFAM Ouellette." When someone at the meeting asked,

"What's the bat for?" Johnson replied, "Things were getting a bit

heated in here."

Burns learned about the international flight scheduling

change from SFAM Ouellette on May 31, 2012. Burns testified in a

deposition that she understood that under the new system she "would

be doing the data entry of the [flight scheduling] grid," into

which the SFAMs would fill the information themselves. She felt

this job would be "degrading" and that "no intelligence [was]

needed whatsoever."

After the changes had been announced, in early June,

Johnson approached Burns when she was alone in the Operations

office. While holding the bat in a swinging position and often

tapping it in his hand, Johnson told Burns "how much better things

were going to be," including that he would get new carpet for the

office. When Burns began to voice a concern about the flight

scheduling change, Johnson left the room.

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 At some point in June, Burns spoke with an Administrative

Officer ("AO") about an early retirement program that was being

offered. Burns may have also inquired about the availability of

early retirement the year before. On June 14, 2012, Burns emailed

SFAM Devine that she was retiring, that June 22 would be her last

day in the office, and that her retirement would be effective

August 1. She made a formal complaint about Johnson to her

supervisor, SFAM Ouellette, on June 22; he reported those concerns

to Burns's second-line supervisor, ASAC O'Connor; and ASAC

O'Connor reported them to Johnson on June 25.

On July 10, 2012, Burns made a complaint to the Equal

Employment Opportunity Commission ("EEOC") alleging that "she was

discriminated against and subjected to [sic] hostile work

environment based on sex (female) and retaliation." She also filed

a complaint with the TSA Office of Inspection, leading to an

investigation into allegations against Johnson for use of

"abusive, offensive, disrespectful, inflammatory or similarly

inappropriate language, gesture, or conduct to or about other

employees or members of the public"; "[f]ighting, threatening,

intimidating, attempting to inflict or inflict[ing] bodily harm on

another; harassing or provoking quarrel; engaging in horseplay;

any violent, reckless, or disorderly act, language, gesture, or

conduct"; and "[l]ack of candor." After a two-and-a-half-month

investigation, on November 26, 2012, TSA circulated a report

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"substantiat[ing] the above stated allegations" and finding that

it was inappropriate for Johnson to carry a baseball bat in the

office. TSA did not announce the decision to demote and transfer

Johnson to another field office until January 2013 and did not put

the transfer into effect until about six weeks after that.5

On August 29, 2013, Burns filed a multi-count complaint

in federal court, alleging, inter alia, gender discrimination

(Count I) and sexual harassment based on a hostile work environment

(Count VI). She sought compensatory damages, including for

emotional distress, multiple and/or punitive damages, costs and

attorney's fees, and equitable relief. The defendants filed a

partial motion to dismiss all but Count I, which the court allowed

except as to Count VI, on May 8, 2014.6 See Burns v. Johnson, 18

F. Supp. 3d 67, 76–77 (D. Mass. 2014). After some discovery, DHS

moved for summary judgment on all counts on December 5, 2014. On

June 18, 2015, the court allowed the motion. Burns v. Johnson,

5 Neither party has challenged the admissibility of the
TSA report excerpts or EEOC investigative materials in the record.
See Fed. R. Evid. 803(8)(A)(iii); Smith v. Mass. Inst. of Tech.,
877 F.2d 1106, 1113 (1st Cir. 1989) (recognizing that "the question
of admissibility is one for the discretion of the district court");
see also Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170 (1988).
For the purposes of summary judgment, we accept this concession
and cite the contents of the TSA report and the EEOC investigative
materials accordingly.
6 The district court also granted dismissal of all
Title VII claims against Johnson. Burns v. Johnson, 18 F. Supp.
3d 67, 72 (D. Mass. 2014). Johnson is not a party to this appeal.

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No. 13-CV-12155, 2015 WL 3952748, at *1 (D. Mass. June 29, 2015).

This appeal concerns only the sex discrimination and sex harassment

claims.7

II.

We review a district court's decision to grant summary

judgment de novo, crediting the evidence favorable to the non-

moving party, in this case Burns, and drawing all reasonable

inferences in her favor. García-González v. Puig-Morales, 761

F.3d 81, 86–87 (1st Cir. 2014). Summary judgment is proper when

"there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(a). At summary judgment, "the judge's function is not himself

[or herself] to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for

trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

Title VII of the Civil Rights Act of 1964 forbids a

covered employer from "discriminat[ing] against any individual

with respect to [his or her] compensation terms, conditions, or

privileges of employment, because of such individual's . . . sex."

42 U.S.C. § 2000e-2(a)(1). A plaintiff may demonstrate a sex

discrimination claim with circumstantial evidence through the

7 This appeal does not include Burns's claim of
constructive discharge, which was brought under Count II, a
retaliation claim that Burns does not appeal.

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burden-shifting scheme set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), and/or by presenting evidence of

discrimination on the basis of a prohibited bias under the mixed-

motives theory of discrimination. See Johnson v. Univ. of P.R.,

714 F.3d 48, 53 (1st Cir. 2013); Burton v. Town of Littleton, 426

F.3d 9, 19 (1st Cir. 2005). A plaintiff may also establish a

violation of Title VII by showing sex harassment based upon a

hostile work environment. Tang, 821 F.3d at 215; see also Harris

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

Burns challenges the district court's entry of summary

judgment against her on her claims of sex discrimination and sex

harassment. We address each claim in turn.

III.

The district court concluded that Burns's sex

discrimination claim failed under the classic McDonnell Douglas

framework8 because she could not show Johnson's conduct was

8 Under the McDonnell Douglas framework, "[a]n employee
alleging sex discrimination must first establish a prima facie
case by showing that: (1) she belonged to a protected class, (2)
she performed her job satisfactorily, (3) her employer took an
adverse employment decision against her, and (4) her employer
continued to have her duties performed by a comparably qualified
person." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217
F.3d 46, 54 (1st Cir. 2000). The burden of production then "shifts
to the employer to state a legitimate, nondiscriminatory reason
for the adverse employment action." Id. If that showing is made,
at the final stage, the plaintiff bears the ultimate burden to
show that the employer intentionally discriminated against her
because of her sex. See id.; see also St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 510–11 (1993).

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motivated by her sex, Burns, 2015 WL 3952748, at *5, and under the

mixed-motives theory9 because she lacked evidence "with a high

degree of assurance" of discrimination, id. at *7 (quoting

Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580 (1st

Cir. 1999), abrogated by Desert Palace, Inc. v. Costa, 539 U.S.

90, 93–95 (2003)). DHS argues that Burns also cannot show that

she has suffered an adverse employment action and so cannot succeed

under either McDonnell Douglas or the mixed-motives framework.

We disagree. As a threshold matter, it was error for

the district court to expect that under the mixed-motives theory

Burns had to present direct evidence of discrimination, a standard

9 The mixed-motives theory -- which applies to cases where
multiple motives lie behind an adverse employment action -- was
first announced in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
(plurality opinion), and was subsequently codified by the Civil
Rights Act of 1991 at 42 U.S.C. § 2000e-2(m). See Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2526 (2013) (describing
§ 2000e-2(m) as "a lessened causation standard" for establishing
discrimination because of sex); Desert Palace, Inc. v. Costa, 539
U.S. 90, 93–95 (2003). Under the statute, a plaintiff may
establish an "unlawful employment practice" by demonstrating that
sex "was a motivating factor for any employment practice, even
though other factors also motivated the practice." 42 U.S.C.
§ 2000e-2(m). Once a plaintiff shows the existence of an
impermissible motivating factor, "the employer has a limited
affirmative defense that does not absolve it of liability, but
restricts the remedies available to a plaintiff." Desert Palace,
539 U.S. at 94; see 42 U.S.C. § 2000e-5(g)(2)(B) (If "a respondent
demonstrates that [it] would have taken the same action in the
absence of the impermissible motivating factor, the court -- (i)
may grant declaratory relief, injunctive relief . . . , and
attorney's fees and costs . . . and (ii) shall not award damages
or issue an order requiring any admission, reinstatement, hiring,
promotion, or payment, described in subparagraph (A).").

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that it invoked by reference to a since-abrogated portion of our

decision in Fernandes. Id. (quoting Fernandes, 199 F.3d at 580).

"A plaintiff is entitled to prove discrimination by circumstantial

evidence alone." Chadwick v. WellPoint, Inc., 561 F.3d 38, 46

(1st Cir. 2009); see also Desert Palace, 539 U.S. at 101–02

(holding that direct evidence of discrimination is not required to

obtain a mixed-motives jury instruction). As such, we must

consider the circumstantial evidence that Burns has presented

under both McDonnell Douglas and the mixed-motives theory. Upon

review of the record, we conclude that there is sufficient

circumstantial evidence from which a reasonable jury could

conclude, first, that Burns suffered an adverse employment action

and, second, that the action "was more probably than not caused by

discrimination." Chadwick, 561 F.3d at 48.

A. Adverse Employment Action

DHS argues that Burns cannot show that she suffered an

adverse employment action. "An 'adverse employment action' is one

that 'affect[s] employment or alter[s] the conditions of the

workplace.'" See Morales-Vallellanes v. Potter, 605 F.3d 27, 35

(1st Cir. 2010) (alterations in original) (quoting Burlington N.

& Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006)). The test

for whether an employment action is adverse is whether it

"materially change[s] the conditions of plaintiffs' employ." Gu

v. Bos. Police Dep't, 312 F.3d 6, 14 (1st Cir. 2002). The change

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"must be more disruptive than a mere inconvenience or an alteration

of job responsibilities." Morales-Vallellanes, 605 F.3d at 35

(quoting Marrero v. Goya of P.R., Inc., 304 F.3d 7, 23 (1st Cir.

2002)). "[R]eassignment with significantly different

responsibilities" may be actionable. Id. (quoting Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).

Burns asserts that the change to international flight

scheduling "left [her] with nothing but 'menial tasks' and

'clerical duties.'" We gauge whether such a change is materially

adverse "by an objective standard." Id. FAM ABC testified in a

deposition that the international flight scheduling for which

Burns was responsible was "if not the most important, [the] second

most important, in my opinion, aspect of the operations unit."

Burns was one of the architects of the system; she had ten years

of experience in the office; and she was recognized both inside

and outside the Boston Field Office for her work. The reduction

transferred seventy-five percent of her responsibilities to others

and replaced a system she had in part designed. In these

circumstances, a reduction from duties of such importance as those

outlined here to performing clerical work is material. Indeed,

such changes are more dramatic than those that were accepted as an

adverse action in Rodriguez v. Board of Education, 620 F.2d 362

(2d Cir. 1980). There, the Second Circuit found a transfer of an

art teacher from a junior high school to an elementary school to

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be an adverse action despite no change in salary, workload, or

general subject taught, where the plaintiff previously spent many

years teaching junior high school students and had graduate degrees

in adolescent art education programs. See id. at 364–65; see also

id. at 366 (noting the district court's description of the change

as a "severe professional . . . trauma").

DHS does not seriously contest the conclusion that if

such a reduction had happened to Burns, it would qualify as an

adverse employment action. Rather, DHS argues as a factual matter

that the new flight scheduling system was only a "future change in

her job duties which she did not stay long enough to experience."

Burns does not contend that a future adverse employment action is

discrimination within the statute's purview. See 42 U.S.C.

§ 2000e-2(a)(1). Rather, Burns argues that there is sufficient

evidence from which a reasonable jury could infer that her job

responsibilities decreased significantly before she retired.

We agree with Burns. The record contains deposition

testimony from ASAC O'Connor affirming his prior statement in an

affidavit that "Burns was basically reduced to clerical duties,"

and that "[s]he went from having a great deal of responsibility to

answering telephone calls from FAMS." SFAM Devine, who was

involved with Operations, testified in a deposition that "[Burns]

was assigned to menial tasks because all the other planning and

whatnot was assigned to other people." From the context in which

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those questions were asked, and given the use of the past tense,

a jury could reasonably interpret ASAC O'Connor's and SFAM Devine's

testimony to show that Burns experienced a reduction in duties

shortly following the announcement regarding the transfer of

flight scheduling made in late May 2012. Indeed, despite

ultimately bypassing the adverse employment action question, the

district court specifically credited this testimony as

"support[ing] [Burns's] contention that her job responsibilities

had decreased significantly." Burns, 2015 WL 3952748, at *4.

Burns's own deposition testimony further supports the conclusion

that material changes occurred prior to June 22, as does a June 7,

2012, e-mail from SFAM Ouellette to everyone in Operations stating

that the SFAMs would return their scheduling grids by July 6, 2012.

DHS points to Burns's admission that "[t]he new assignment system

was going to be implemented in July 2012, starting with roster

#135," and that "[u]p until her last day in the office, June 22,

Plaintiff continued to work on international scheduling for

rosters #133 and #134." But those admissions are consistent with

Burns's duties being significantly reduced before June 22 and

announced even earlier. "There is no question . . . that we must

resolve all factual disputes in favor of the non-moving party on

summary judgment." Tang, 821 F.3d at 218. A reasonable jury could

find that Burns's duties were significantly reduced in June prior

to her retirement.

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 DHS argues nonetheless that Burns should have waited to

"see how her job duties would shake out starting in July 2012."

DHS has offered no evidence about what duties it intended to offer

Burns had she stayed. And there is no evidence that after the May

31 decision to transfer Burns's responsibilities elsewhere that

DHS ever indicated to Burns what her new responsibilities, if any,

would be after the new system went fully into effect in July. The

record suggests that things would get worse, not better, especially

given that there was no plan for what Burns would do in the long

term and Johnson continued to exhibit arguably hostile behavior

toward Burns. A reasonable jury could find that Burns had every

reason to believe that she would never again reclaim the job

directing international flight scheduling and would simply be

given menial duties so long as Johnson was her supervisor.

Given these circumstances, a jury could easily find

facts sufficient to support the determination that Burns

experienced an adverse employment action.

B. Motivation Because of Sex

Burns asserts that a jury could reasonably find that

Johnson's decision to change the international flight scheduling

system was made "because of" Burns's sex, under both McDonnell

Douglas and the mixed-motives theory.10 42 U.S.C. § 2000e-2(a)(1);

10 After Desert Palace, this circuit has not required a
plaintiff to use McDonnell Douglas with the mixed-motives theory.

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see id. § 2000e-2(m). "Our decision here, however, is not

dependent on analyzing [her] claim under each of these theories."

Chadwick, 561 F.3d at 45. "[U]nder both approaches, 'plaintiffs

must present enough evidence to permit a finding that there was

differential treatment in an employment action and that the adverse

employment decision was caused at least in part by a forbidden

type of bias.'" Id. (quoting Hillstrom v. Best W. TLC Hotel, 354

F.3d 27, 31 (1st Cir. 2003)); see Quigg v. Thomas Cty. Sch. Dist.,

814 F.3d 1227, 1235 n.4 (11th Cir. 2016) (noting that "[m]ixed-

motive and single-motive discrimination are different theories of

discrimination, as opposed to distinct causes of action.").11 We

determine only whether Burns has put forth sufficient evidence

from which a jury could decide that the change to international

See Chadwick, 561 F.3d at 45; see also Quigg v. Thomas Cty. Sch.
Dist., 814 F.3d 1227, 1238-39, 1239 n.8 (11th Cir. 2016) (surveying
other circuits' views and noting that our approach is in accord
with the approaches of at least four other circuits). To resolve
this case, we need not decide whether McDonnell Douglas is
available to a plaintiff arguing the mixed-motives theory.
11 The quoted language in Chadwick did not lessen a
plaintiff's burden at the third stage of McDonnell Douglas. See
Chadwick, 561 F.3d at 47-48 (analyzing evidence of motive,
including pretext); Johnson, 714 F.3d at 54 (stating that at the
third stage, "the plaintiff has to show by a preponderance of the
evidence that the employer's proffered reason is pretextual and
that the actual reason for the adverse employment action is
discriminatory"). The Chadwick court permitted both of the
plaintiff's theories to survive summary judgment because she had
"put forth sufficient evidence of discrimination that a reasonable
jury could conclude that the promotion denial was more probably
than not caused by discrimination," Chadwick, 561 F.3d at 48. We
employ the same approach here.

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flight scheduling "was more probably than not caused by

discrimination." Chadwick, 561 F.3d at 48.

Burns has presented evidence that during a meeting about

who should be responsible for flight scheduling, the decision-

maker, Johnson, questioned why Burns should be in charge of the

task and referred to Burns not by name but by the pronoun "she,"

emphasizing the pronoun, and using a condescending tone. Comments

made by the decision-maker close in time to the alleged adverse

action can be probative evidence. See Santiago-Ramos v. Centennial

P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000). Johnson's

comments were made in the context of a meeting discussing who

should be in charge of the flight scheduling. The district court

concluded that "[t]he use of the feminine pronoun when referring

to a woman, however, hardly suffices to demonstrate gender bias."

Burns, 2015 WL 3952748, at *7. But "[t]he speaker's meaning may

depend on various factors including context, inflection, tone of

voice, local custom, and historical usage." Ash v. Tyson Foods,

Inc., 546 U.S. 454, 456 (2006) (per curiam) (rejecting an appeals

court's requirement that "boy" be modified by a racial

classification in order to evince racial bias). Here, a meeting

attendee, SFAM Ouellette, stated in an affidavit that Johnson "made

frequent references to the way 'she' was doing things. He

emphasized the word 'she.'" SFAM Ouellette opined that he "felt

it was a condescending way to speak about her and picked up on

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[Johnson's] disdain for her and for [Ouellette] when [he] defended

her." SFAM Ouellette's observations about Johnson's tone are based

on his perception as a seasoned manager on what he had just

observed, not mere speculation. See United States v. Flores-

Rivera, 787 F.3d 1, 28 (1st Cir. 2015) ("Personal knowledge can

include inferences and opinions, so long as they are grounded in

personal observations and experiences." (quoting United States v.

Rodriguez, 162 F.3d 135, 144 (1st Cir. 1998))); see also Fed. R.

Evid. 602. On summary judgment we credit the plaintiff's version

of the facts. See Ahmed v. Johnson, 752 F.3d 490, 502 (1st Cir.

2014) ("Determining which view more accurately reflects reality

requires factfinding and credibility judgments that are properly

the task of a jury."); Straughn v. Delta Air Lines, Inc., 250 F.3d

23, 35 (1st Cir. 2001) (crediting plaintiff's description of

employer's use of "an offensive 'southern black' accent at

meetings" where she was present, despite employer's denial). In

these circumstances, a reasonable jury could infer from Johnson's

emphasis and condescending tone that he was not motivated by either

of his stated reasons, a desire to achieve conformity with the

other field offices or to give the SFAMs leadership, but because

he disliked that a woman was responsible for the task.12

12 Several of Burns's co-workers and supervisors have
testified to the same. The district court did not credit their
opinions on the grounds that they were speculative and would likely
be inadmissible as evidence. Burns, 2015 WL 3952748, at *6. As

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 DHS counters that there is no evidence "that [Johnson]

used sexist or gender-based slurs against Ms. Burns or any other

woman." The idea that discrimination consists only of blatantly

sexist acts and remarks was long ago rejected by the Supreme Court.

See Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51 (1989)

(plurality opinion), superseded in part by statute, Civil Rights

Act of 1991, Pub. L. No. 102–166, 105 Stat. 1071. As this circuit

has repeatedly held, stereotyping, cognitive bias, and certain

other "more subtle cognitive phenomena which can skew perceptions

and judgments" also fall within the ambit of Title VII's

prohibition on sex discrimination. Thomas v. Eastman Kodak Co.,

183 F.3d 38, 61 (1st Cir. 1999); see Chadwick, 561 F.3d at 43–44.

"The ultimate question is whether the employee has been treated

disparately 'because of [sex],'" and "[t]his is so regardless of

whether the employer consciously intended to base the [adverse

employment action] on [sex], or simply did so because of unthinking

stereotypes or bias." Thomas, 183 F.3d at 58. As we recently

our decision does not hinge on these opinions, we need not resolve
the issue. We also decline DHS's invitation to adopt a broad rule
barring all of the witnesses' opinion testimony. This circuit
does not categorically bar lay opinion testimony on an ultimate
issue. See Fed. R. Evid. 701, 704; Alexis v. McDonald's Rests. of
Mass., Inc., 67 F.3d 341, 347 (1st Cir. 1995) (affirming under
abuse of discretion review a trial judge's decision to exclude lay
opinion testimony regarding an employer's alleged animus where
"the depositions disclosed no evidentiary foundation for an
inference of racial animus"). On remand, it would be up to the
district court to make an evidentiary determination on a statement
by statement basis.

- 22 -
said in Ahmed, "unlawful discrimination can stem from stereotypes

and other types of cognitive biases, as well as from conscious

animus." 752 F.3d at 503 (quoting Thomas, 183 F.3d at 59).

One such stereotype is the idea that men are better

suited than women for positions of importance or leadership in the

workplace, particularly where the task concerns national security

or defense.13 Johnson testified in a deposition that he intended

the change in Burns's duties to give more "leadership" to the SFAMs

in the scheduling process. A reasonable jury could find that a

sex-based stereotype was behind Johnson's questioning of why "she"

was in that role as well as his belief that "leadership" should

instead be given to the group of male SFAMs, and that these biased

beliefs precipitated the decision to give Burns's duties to a group

of men. See Chadwick, 561 F.3d at 47 (concluding that a reasonable

13 See Mary F. Radford, Sex Stereotyping and the Promotion
of Women to Positions of Power, 41 Hastings L.J. 471, 492 (1990)
("For women attempting to move into positions of power in the
workforce, this basic concept of 'women's work' includes the notion
that leadership positions per se are inappropriate for women.");
Joan C. Williams & Nancy Segal, Beyond the Maternal Wall: Relief
for Family Caregivers Who Are Discriminated Against on the Job, 26
Harv. Women's L.J. 77, 93 (2003) (noting studies demonstrating
"glass ceiling problems, namely, that given the close association
of 'managers' and 'leaders' with masculinity, subjects tend to
dislike women whom they rate highly as managers and leaders because
of 'role incongruity' -- the sense that it is incongruous for women
to successfully perform masculine roles as opposed to feminine
roles"); Kimberly A. Yuracko, Sameness, Subordination, and
Perfectionism: Toward A More Complete Theory of Employment
Discrimination Law, 43 San Diego L. Rev. 857, 889–90 (2006)
(describing research finding that female leaders are evaluated
more negatively than men in the same role).

- 23 -
jury could infer from a comment exhibiting sex-stereotyping that

the employer took an adverse employment action based on the belief

that the "[plaintiff] would not give her all to her job" because

she was "a woman with four young children"); Bray v. Marriott

Hotels, 110 F.3d 986, 993 (3d Cir. 1997) (suggesting that Title

VII should "not be applied in a manner that ignores the sad reality

that [discriminatory] animus can all too easily warp an

individual's perspective to the point that he or she never

considers the member of a protected class the 'best' candidate

regardless of that person's credentials"); cf. Lindahl v. Air

France, 930 F.2d 1434, 1439 (9th Cir. 1991) ("His comments could

suggest that [he] made his decision [to promote] on the basis of

stereotypical images of men and women, specifically that women do

not make good leaders because they are too 'emotional.'").

Burns's claim that Johnson's decision was motivated by

an impermissible bias, and not by his purported reasons, is

supported by several additional facts. First, Burns has presented

evidence of "incidents and situations which suggest that [Johnson]

had a general disregard for [Burns's] professional abilities and

status," Thomas, 183 F.3d at 64, despite the complete absence of

any factual basis for that disregard. DHS concedes that Johnson

"sometimes made comments that were, frankly, tone deaf" and asked

questions that were "awkwardly phrased." DHS then argues that

despite those remarks, "[t]here is no evidence that Johnson

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harbored discriminatory animus against any woman," pointing to

Johnson's deposition testimony that he "never doubted [Burns's]

performance ever."

The record shows otherwise. FAM ABC's deposition

testimony was that when Johnson first met Burns, he approached and

asked her "Who are you?" and "[W]hat do you do for me?" in a tone

described by FAM ABC as "demeaning." Johnson did not make the

same inquiry of or use the same tone with FAM ABC, the male FAM

who provided Burns with back-up and who was present when Johnson

questioned Burns. A reasonable jury could infer that Johnson

questioned Burns and not her male colleague because she was a

woman, and that his comment a few weeks later, "so you do still

work here," further demonstrated his low regard for Burns as an

employee, despite the complete absence of a factual basis for that

low regard.

That the comments exhibit a general demeaning of Burns's

professional abilities is further supported by the fact that

Johnson knew that Burns was the employee primarily in charge of

international flight scheduling, and yet there is no evidence that

Johnson solicited input or feedback from Burns about his proposed

changes to the system. To the contrary, during their conversation

in June when Johnson told Burns "how much better things were going

to be," when Burns began to voice a concern about the change to

international scheduling, Johnson turned and abruptly left the

- 25 -
room. It is undisputed that he also called the system Burns in

part designed "stupid."

And contrary to DHS's assertion that Johnson had no

issues with Burns's job performance, there is evidence that Johnson

challenged several aspects of her performance. Johnson admitted

that, even before he arrived, he knew about Burns's alternative

work schedule, the reason for it, and that he had some "misgivings"

about it. A few weeks later, he said he had "done his homework"

on Burns and despite hearing several reports that she performed

very well, he nonetheless had "concerns." There is no evidence

that Johnson asked about any other employee's alternative work

schedule.

Johnson's negative assessment of Burns's performance is

all the more stark when set against the positive evaluations and

numerous accolades Burns garnered for her work. It is undisputed

that "[o]ver the course of her employment, [Burns] was categorized

as an 'excellent employee' and 'extraordinary' [sic] who received

exemplary performance evaluations. . . . [Burns] received numerous

letters of commendation from her former SAC at the Boston Field

Office." SFAM Ouellette, her direct supervisor, testified in a

deposition, "[s]he was probably[] one of the best employees that

I've ever worked with." And beyond this, the flight scheduling

system itself, which Burns in part created, was considered a "'best

practice' for other field offices to follow." A reasonable jury

- 26 -
could find it highly suspect that despite these indicia of high

job performance, Johnson persisted in challenging Burns's

alternative schedule. See Chadwick, 561 F.3d at 44 ("[T]he

assumption that a woman will perform her job less well due to her

presumed family obligations is a form of sex-stereotyping and . . .

adverse job actions on that basis constitute sex

discrimination."). While "[i]t is undoubtedly true that if the

work performance of a woman (or a man, for that matter) actually

suffers due to childcare responsibilities (or due to any other

personal obligation or interest), an employer is free to respond

accordingly . . . . [A]n employer is not free to assume that a

woman, because she is a woman, will necessarily be a poor worker

because of family responsibilities." Id. at 45.

The evidence Burns has presented regarding Johnson's

comments and conduct toward her also supports a finding that

Johnson "was at times inappropriately upset or angry with [Burns],

to the point of behaving unprofessionally." Thomas, 183 F.3d at

64. In Thomas, as here, a long-time employee, Thomas, had received

"excellent" performance reviews for many years. Id. at 43. She

was the only African-American in her division. Id. at 64. A new

white manager, Flannery, gave Thomas significantly lower

performance reviews than Thomas had received before and in

comparison to her white co-workers, resulting in Thomas being

fired. Id. at 45–46. We found it significant to the question of

- 27 -
whether the manager's evaluations were motivated by race that the

manager sometimes became "inappropriately upset or angry with

Thomas," and we concluded that such evidence "suggests that she

did not respond neutrally to Thomas," such that "[a] jury might

reasonably infer from Thomas's description of these incidents that

Thomas's race was an issue for Flannery and that Flannery's

evaluations of Thomas were affected by some form of conscious

animus or less conscious bias." Id. at 64. Similarly, here there

is sufficient evidence for a jury to conclude that Johnson did not

respond "neutrally" to Burns and that Johnson's decisions

regarding international scheduling "were affected by some form of

conscious animus or less conscious bias." Id.

That conclusion is also supported by evidence that

Johnson used a baseball bat around Burns in an intimidating manner.

DHS argues that even if the bat was used as a tool of intimidation,

Johnson "intimidated men and women alike" and "Burns has not

alleged that Johnson treated her as severely as he treated SFAM

Ouellette in the June 13, 2012 meeting." But a jury could find

the evidence more nuanced than that. At the June 13, 2012,

meeting, Johnson left to get his bat only after SFAM Ouellette had

defended the scheduling system created in part by Burns and had

objected to Johnson's plans. It was at that point, upon returning

to the meeting room, that Johnson "turned to face SFAM Ouellette

and began to tap the baseball bat between his legs while staring

- 28 -
down at SFAM Ouellette." When someone at the meeting asked,

"What's the bat for?", Johnson replied, "Things were getting a bit

heated in here." A reasonable jury could find that Johnson's

disregard for Burns triggered Johnson's conduct. Likewise, a jury

could find that Johnson used the bat as a tool of intimidation in

the meeting and infer that he used the bat in that manner at other

times with Burns.

A reasonable jury would not be required to draw the

inference in DHS's favor that Johnson used the bat in an equally

intimidating way against men as he did against Burns. Contrary

to DHS's position, there is evidence that Johnson used the bat

with Burns in every interaction after he officially took over, but

not constantly with men, and that Johnson used the bat in a manner

with Burns that was different from how he used it with men. Burns

testified in a deposition that during one encounter, "[Johnson]

banged it on [her] desk in front of [her]. He held it in a very

menacing tight grip. It went from being here, to here, to here,

the entire time he spoke with [her]." Apart from the incident

involving SFAM Ouellette, addressed above, DHS has not presented

evidence showing that Johnson used the bat in a similar manner and

frequency around men as he did with Burns. Nor has DHS disputed

Burns's testimony that during another incident, in which Burns was

meeting with an AO to discuss early retirement based on her issues

with Johnson, that Johnson "popped out of his office with his

- 29 -
baseball bat" and "proceeded to walk up and down the hallway with

his bat in a swinging position."

On this record, a jury could find that "a convincing

mosaic of circumstantial evidence" shows that discrimination has

occurred. Ahmed, 752 F.3d at 497 (quoting Holland v. Gee, 677

F.3d 1047, 1056 (11th Cir. 2012)). That is, a reasonable jury

could conclude that the change to international flight scheduling

"was more probably than not caused by discrimination." Chadwick,

561 F.3d at 48. We stress "that we are judging merely the claim's

viability under summary judgment, rather than as to ultimate

liability," id. at 45, and we emphasize that "[w]e only conclude

that [Burns] has presented sufficient evidence of sex-based

[discrimination] to have her day in court," id. at 48. Our holding

rests on the cumulative weight of the points we have made and the

evidence presented about Johnson's conduct, comments, and tone

toward and regarding Burns, all without any basis in her

performance or behavior.

IV.

The district court found that Burns's sex harassment

claim failed because the evidence Burns pointed to did not support

an inference that Johnson's behavior was "severe and pervasive."

Burns, 2015 WL 3952748, at *8 (emphasis added). DHS argues that

we can affirm because Johnson's conduct was not sex-based or by

accepting the district court's rationale. Alternatively, DHS says

- 30 -
summary judgment should be affirmed because "the Faragher/Ellerth

defense precludes the Secretary from being held vicariously liable

for the alleged harassment." We address each issue in turn.

A. Sex-Based Harassment

DHS argues that there is insufficient evidence that

Johnson's behavior toward Burns was based on her sex. Certain

comments by DHS in its brief and at oral argument, where DHS

emphasized that in one incident there was no evidence of "anything

that would really target her as a woman, that he looked her up and

down, or anything like that," lead us to reiterate an important

controlling principle. "[H]arassing conduct need not be motivated

by sexual desire to support an inference of discrimination on the

basis of sex." Oncale v. Sundowner Offshore Servs., Inc., 523

U.S. 75, 80 (1998); see O'Rourke v. City of Providence, 235 F.3d

713, 729 (1st Cir. 2001) ("[S]ex-based harassment that is not

overtly sexual is nonetheless actionable under Title VII.").

"Courts should avoid disaggregating a hostile work environment

claim, dividing conduct into instances of sexually oriented

conduct and instances of unequal treatment, then discounting the

latter category of conduct." O'Rourke, 235 F.3d at 730. "[S]uch

an approach not only ignores the reality that incidents of

nonsexual conduct -- such as work sabotage, exclusion, denial of

support, and humiliation -- can in context contribute to a hostile

- 31 -
work environment, it also nullifies the harassing nature of that

conduct." Id.

We have already explained in the preceding section how

Johnson's comments, conduct, and tone about and toward Burns

support a reasonable inference that Johnson discriminated against

Burns because of her sex. This evidence, which includes Johnson's

decision to transfer Burns's duties to a group of male employees,

likewise supports the inference that Johnson engaged in "unequal

treatment" and "incidents of nonsexual conduct" that a reasonable

jury could find to be of a "harassing nature" based on Burns's

sex. Id.

DHS focuses on Johnson's frequent carrying of a baseball

bat, which DHS points out Johnson did around men and women.

However, Johnson's use of the bat in a manner that intimidated men

does not preclude the inference that Johnson used the bat in a

gender-specific way around Burns. As described previously, Burns

has put forth evidence that Johnson used the bat with her in every

interaction after he officially took over, but not constantly with

men. Burns has testified that Johnson used the bat in a manner

that was different from how he used the bat with men. The incident

to which DHS points, Johnson's use of the bat around Ouellette,

does not suggest otherwise, as a reasonable jury could find that

it was Johnson's disregard for Burns based on her sex that

triggered his reaction to SFAM Ouellette. Cf. Tang, 821 F.3d at

- 32 -
217 (crediting evidence that a supervisor's yelling at an employee

was sex-based where a reasonable jury could conclude it was

motivated by a past sex-based interaction).

Moreover, we consider Johnson's use of the bat in the

context of the other evidence regarding Johnson's comments,

conduct, and tone. In Tang, we explained that "Title VII requires

no magic words to convert a verbal exchange into the stuff of

sexual harassment." Id. at 216. We noted that "context" matters.

Id. There, we found that while Tang's supervisor's "innocuous

comment that [he] hired two Thai au pairs, without more, is

unlikely to qualify as sexual harassment," "[w]hen viewed in the

context of Tang's allegations that [her supervisor] also discussed

the purported obedience of Asian women and whether the au pairs'

swimwear choices were sufficiently revealing . . . [the

supervisor's] statements take on a sexually suggestive tone." Id.

In this case, Johnson's bat carrying must be viewed in the context

of his other actions and comments toward and about Burns. So

viewed, a reasonable jury could find that Johnson used the bat in

a way that was different around Burns than other male employees

and infer that the difference was sex-based. Given that inference

and the other evidence of unequal sex-based treatment, a reasonable

jury could find that Johnson's allegedly harassing conduct toward

Burns was based on her sex.

- 33 -
B. Severe or Pervasive

The district court erroneously stated that Burns had to

show that the harassment she alleges was both severe and pervasive.

Burns, 2015 WL 3952748, at *8 (emphasis added). That is incorrect.

"[T]he conduct must be so severe or pervasive that it 'amount[s]

to a change in the terms and conditions of employment.'" Tang,

821 F.3d at 217 (second alteration in original) (quoting Ponte v.

Steelcase Inc., 741 F.3d 310, 321 (1st Cir. 2014)). "In addition,

the '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.'" Id. (quoting Billings v. Town of Grafton,

515 F.3d 39, 47 (1st Cir. 2008)). In assessing whether conduct

meets these requirements, we consider "the severity of the conduct,

its frequency, whether it is physically threatening or not, and

whether it interfered with the victim's work performance." Id.

(quoting Ponte, 741 F.3d at 320).

DHS argues that Johnson's and Burns's schedules did not

greatly overlap and that they only had a few conversations over

the course of Burns's employment, which, DHS suggests, means that

Johnson's conduct cannot be either severe or pervasive. However,

in Tang, we found that even though the supervisor "did not work in

the same office as Tang, and Tang's deposition testimony is unclear

as to how frequently the[] exchanges took place," id. at 217–18,

- 34 -
because the supervisor "frequented [the plaintiff's] office and

acted as the manager of [her group], giving [her] projects and

delivering her performance reviews," id. at 218, "we cannot

definitively say . . . that [the supervisor's] conduct was not

sufficiently severe or pervasive to allow a jury to find in favor

of [the plaintiff]," id. (quoting Billings, 515 F.3d at 50). The

evidence available in Burns's case is even stronger than the

evidence in Tang because every time Burns saw Johnson after he

officially took over, he had the bat. Given the facts already

described, a reasonable jury could conclude that Johnson's conduct

was so severe or pervasive as to constitute harassment.

C. Faragher/Ellerth Defense

Because a reasonable jury could conclude that Burns's

supervisor engaged in harassing conduct, there is a basis for

employer liability. See Gerald v. Univ. of P.R., 707 F.3d 7, 19-

20 (1st Cir. 2013) ("When it is a supervisor that creates an

actionable hostile work environment, the employer is vicariously

liable."). DHS asserts, nonetheless, that it has met the

requirements for the affirmative defense under Faragher/Ellerth.

Under that defense, an employer must demonstrate (1) "that its own

actions to prevent and correct harassment were reasonable"; and

(2) "that the employee's actions in seeking to avoid harm were not

reasonable." Chaloult v. Interstate Brands Corp., 540 F.3d 64, 66

- 35 -
(1st Cir. 2008) (citing Faragher v. City of Boca Raton, 524 U.S.

775, 807 (1998); Ellerth, 524 U.S. at 765).

DHS argues that it has met the first prong by having

reporting procedures. However, DHS has not shown that it is

entitled to judgment as a matter of law on the second prong of

this defense. DHS argues that Burns's alleged delay in notifying

it of her problems with Johnson was unreasonable because Burns

knew about the reporting policy and her explanation for not filing

a complaint earlier was illegitimate and unsubstantiated. DHS

also argues that her fear was nebulous. But there is evidence in

the record that Burns feared retaliation, which is bolstered by

the fact that others expressed fear of retaliation for mere

participation in the TSA investigation into Johnson. There is

also evidence that Burns had earlier reported her concerns,

including to her direct supervisor, SFAM Ouellette. It is not our

role at summary judgment to assess witness credibility, and we

cannot make the inferences in its favor that DHS desires. See

Ahmed, 752 F.3d at 502. DHS has not proven that it is entitled to

a finding in its favor on this issue.

V.

We reverse the district court's grant of summary

judgment on both claims and remand for further proceedings.

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