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. 
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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 fullsized 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 nonmoving 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 mixedmotives 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]ixedmotive 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 decisionmaker, 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 
- 21 - 

[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. FloresRivera, 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 
- 22 - 

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. 
- 23 - 

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). 
- 24 - 

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 
- 25 - 

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 
- 26 - 

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 
- 27 - 

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 
- 28 - 

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 
- 29 - 

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 
- 30 - 

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 
- 31 - 

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 
- 32 - 

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 
- 33 - 

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. 
- 34 - 

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, 
- 35 - 

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 
- 36 - 

(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.