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.
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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
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'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
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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
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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).
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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.
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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.
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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
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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
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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-
Billings v. Town of Grafton
Court: Court of Appeals for the First Circuit
Date filed: 2008-02-07
Citations: 515 F.3d 39
Copy Citations