A plaintiff alleging sex discrimination and sex harassment must present only sufficient circumstantial evidence from which a jury could find in her favor, the 1st U.S. Circuit Court of Appeals has decided.

The plaintiff employee filed suit against her former employer, the U.S. Department of Homeland Security, and her former supervisor alleging violations of Title VII for sexual discrimination and sexual harassment.

U.S. District Court Judge Denise J. Casper granted summary judgment in favor of the defendants, holding that the plaintiff failed to present direct evidence to establish sex discrimination under the mixed-motives theory and neglected to demonstrate the supervisor’s conduct was severe and pervasive to establish sex harassment.

Applying the correct legal framework, the three-judge 1st Circuit panel found that the plaintiff employee presented “a convincing mosaic” of circumstantial evidence on both claims from which a reasonable jury could find in her favor.

The court also took the opportunity to emphasize the role of circumstantial evidence in such cases.

“The idea that discrimination consists only of blatantly sexist acts and remarks was long ago rejected by the Supreme Court,” Judge Sandra L. Lynch wrote for the panel. “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.”

The 36-page decision is Burns v. Johnson, et al.

Realities of modern workplace

Timothy M. Burke of Needham, Massachusetts, represented the plaintiff. He applauded the ruling for recognizing the realities of sex discrimination and harassment claims in the modern workplace.

“In today’s environment, most employers don’t overtly express gender bias, and it has to be proven circumstantially,” he said. “This is an amazingly comprehensive decision that demonstrates circumstantial evidence is every bit as convincing as direct evidence.”

Burke said the “forward-thinking” opinion also provides useful language for plaintiffs, “taking to task many of the preconceived notions of what can qualify or what evidence can be produced to support a claim of gender discrimination or sexual harassment.”

Monica R. Shah, a Boston attorney who authored an amicus brief on behalf of the Massachusetts Employment Lawyers Association, agreed, noting that the decision “really affirms summary judgment standards, the value of circumstantial evidence, and the value of stereotype evidence.”

Shah said the court picked up on alleged assumptions made about the plaintiff based on her gender — for example, that she was not suitable for a leadership role because she was a mother of five who was working an alternative schedule.

Recognizing “evidence of subtle hints and stereotype evidence,” the 1st Circuit “put the pieces together” to see the whole picture and let the jury decide the case, she said.

Michael J. Yelnosky, dean of Roger Williams University School of Law, said the court has shown it is “very sensitive to the context and willing to declare that sexual harassment can take lots of different forms,” interpreting the evidence in a more favorable way for the plaintiff than other circuits might have.

The decision “sends a signal to plaintiffs’ lawyers that there may be more cases out there that could satisfy the summary judgment standard,” he added.

Assistant U.S. Attorney Christine J. Wichers argued the case before the 1st Circuit. The U.S. Attorney’s Office in Boston declined to comment on the ruling.

Louisville Slugger

Kathleen Burns began working in the Boston field office of the Federal Air Marshals Service as a program assistant with the Transportation Security Administration in September 2001.

The only female in the operations unit and one of only five non-law-enforcement employees in the office, Burns was primarily responsible for international flight scheduling.

Considered an “excellent employee” who regularly received high performance evaluations, she designed in part the scheduling system used in the office, which was recognized as a “best practice” for other field offices to follow.

Burns worked an alternative schedule, four days a week from 12:30 to 9 p.m., and spent about 75 percent of her time scheduling flights.

On May 7, 2012, David Johnson assumed the role of supervisory air marshal in charge of the Boston office. In his first contact with Burns, he approached her and asked, “Who are you?” and “What do you do for me?” After she answered, he turned around and walked out of the office.

In his second interaction, Johnson approached Burns and commented, “So you do still work here.” He was carrying a Louisville Slugger baseball bat, which he routinely carried around the office (along with an unlit cigar in his mouth).

Witnesses described Johnson’s tone as “demeaning” and not a “typical casual conversation.”

Burns expressed concern to her immediate supervisor about the way Johnson spoke to her, saying she felt uncomfortable and that he used the bat as a method of intimidation.

About two weeks into his tenure, Johnson announced his decision to reassign international flight scheduling from Burns to a group of male employees, calling the program Burns developed “stupid.”

After another interaction with Johnson in which he held the bat in a swinging position and tapped it repeatedly, telling Burns things were going to be “much better” in the office with his changes in place, she took an early retirement.

Burns then filed a multi-count complaint in U.S. District Court against the Department of Homeland Security and Johnson alleging gender discrimination and sexual harassment based on a hostile work environment.

The judge granted summary judgment in favor of the defendants, and Burns appealed her claims of gender discrimination and sex harassment.

Michael J. Yelnosky, dean of Rhode Island’s Roger Williams University School of Law, said the court has shown it is “very sensitive to the context and willing to declare that sexual harassment can take lots of different forms.”

Circumstantial evidence adds up

As a threshold matter, Lynch said, “it was error for the district court to expect that under the mixed-motives theory Burns had to present direct evidence of discrimination.”

Instead, she said, “we must consider the circumstantial evidence that Burns has presented.”

That evidence began with Johnson’s refusal to refer to Burns by name, only using the pronoun “she” and “emphasizing the pronoun, and using a condescending tone.”

While the District Court judge dismissed that point as “hardly suffic[ing] to demonstrate gender bias,” the 1st Circuit emphasized that a speaker’s meaning may depend on various factors such as “context, inflection, tone of voice, local custom, and historical usage,” relying on testimony that Johnson spoke about Burns in a condescending tone, signaling his disdain for her and for her direct supervisor when he defended her.

“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 … but because he disliked that a woman was responsible for the task,” Lynch wrote.

The panel also put to rest the defendants’ argument that Burns lacked evidence that Johnson used sexist or other gender-based slurs.

“The idea that discrimination consists only of blatantly sexist acts and remarks was long ago rejected by the Supreme Court,” Lynch said. “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.”

Other circumstantial evidence supported the plaintiff’s claim, the panel found: incidents and situations suggesting that Johnson had a general disregard for her professional abilities and status such as his first interaction with her; the fact that he never consulted with Burns about the change in international flight scheduling, even though she was the employee primarily in charge of it; and his questioning of her work schedule while not asking about any other employees’ alternative scheduling arrangements.

“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,” Lynch wrote.

The panel found that Johnson’s use of the baseball bat was another key piece of circumstantial evidence.

Despite the Department of Homeland Security’s position that Johnson carried the bat all the time, including when dealing with male employees, “a jury could find the evidence more nuanced than that,” Lynch said.

“[T]here 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,” Lynch said.

Johnson also broke out the bat specifically in response to a male who defended Burns, the court added.

“On this record, a jury could find that ‘a convincing mosaic of circumstantial evidence’ shows that discrimination has occurred,” and that the change to international flight scheduling was more likely than not caused by discrimination, Lynch wrote.

The panel revived the plaintiff’s sex harassment claims, reiterating that harassing conduct “need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.”

“Johnson’s comments, conduct, and tone about and toward Burns support a reasonable inference that Johnson discriminated against Burns because of her sex,” Lynch wrote. “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.”

Again, Johnson’s use of the bat came into play. Viewed in the context of his other actions and comments toward and about Burns, “a reasonable jury could find that Johnson used the bat in a way that was different about Burns than other male employees and infer that the difference was sex-based,” the ruling stated.

Finally, the panel clarified that the correct standard was evidence that the alleged harassment was severe or pervasive, not severe and pervasive. The plaintiff satisfied that standard, the court said, in part based on the fact that “every time Burns saw Johnson after he officially took over, he had the bat.”