By Dave Strausfeld, J.D. An employee of the Federal Air Marshals Service raised triable issues on her claim that a new manager discriminated against her based on her gender by materially reducing her job responsibilities, held the First Circuit in reversing a grant of summary judgment. During a meeting about transferring her most important job duty to others, he allegedly referred to her only as "she," emphasizing the pronoun and using a condescending tone, according to her direct supervisor’s recollection. And, among other things, he allegedly held a baseball bat in an intimidating manner whenever he interacted with her. Her hostile work environment claim could move forward to trial as well (Burns v. Johnson, July 11, 2016, Lynch, S.). Job responsibilities materially reduced. Before the new manager arrived on the scene, the employee had been responsible for scheduling international flights for Transportation Security Administration air marshals, using a scheduling system she had partly designed and that was recognized as a "best practice" for other field offices. But within weeks of the new manager’s arrival, he decided to transfer her flight assignment duties to a group of male supervisors, leaving her with essentially clerical duties that she considered "degrading," requiring "no intelligence" whatsoever. The manager justified this rearrangement of responsibilities on grounds of creating consistency with other field offices and fostering leadership by the supervisors. But the employee believed it was based on her gender. As evidence, she pointed to the allegedly hostile way the new manager interacted with her upon his arrival, speaking to her curtly in a tone that an overhearing coworker described as "demeaning." Also, he allegedly criticized her flight scheduling system as "stupid" and, in a meeting about transferring her duties, referred to her only as "she," emphasizing the pronoun, and using a condescending tone. Moreover, in almost every one of his brief interactions with her, he allegedly held a baseball bat in what she described as "a swinging position." She took early retirement within weeks after having her responsibilities reduced. When the district court dismissed her Title VII claims on summary judgment, she appealed. Condescending tone. In reversing summary judgment on her discrimination claim, the appeals court highlighted the evidence in the record about the manager’s tone of voice when speaking to or about her. During a meeting about who should be in charge of flight scheduling, he referred to her only as "she," emphasizing the pronoun and using a condescending tone, according to her direct supervisor who was present at the meeting. As the appeals court noted, comments made by a decisionmaker close in time to an alleged adverse action can be probative evidence. The district court had given this tone-of-voice evidence little weight, stating that the "use of the feminine pronoun when referring to a woman . . . hardly suffices to demonstrate gender bias." But the appeals court disagreed under the facts in the record here, because a "speaker’s meaning may depend on various factors including context, inflection, tone of voice," as the Supreme Court said in Ash v. Tyson Foods, Inc., a race discrimination claim. A reasonable jury could infer from the manager’s "emphasis and condescending tone" that he reassigned her flight scheduling duties not for the reasons he contended but "because he disliked that a woman was responsible for the task." Stereotyping, cognitive bias. The Department of Homeland Security (DHS), of which the Federal Air Marshals Service is part, countered that there was no evidence the manager "used sexist or gender-based slurs." But that was beside the point because discrimination consists of more than blatantly sexist acts and remarks, the appeals court replied. Sex discrimination under Title VII also encompasses "stereotyping, cognitive bias," and certain other "more subtle cognitive phenomena which can skew perceptions and judgments." "One such stereotype," the appeals court observed, "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." The employee also had other evidence that reassigning her duties was based on bias, including "the positive evaluations and numerous accolades" she had garnered for her work before the new manager arrived. Baseball bat. Of course, she also averred that the manager (a former college baseball player) carried a baseball bat. DHS argued that even if the bat was used as a tool of intimidation, the manager "intimidated men and women alike." But a jury could find, the appeals court concluded, that the manager used the bat with her "in a manner that was different from how he used the bat with men." In sum, she had presented enough evidence of bias to get to a jury on her Title VII discrimination claim. HWE claim. Much the same evidence raised a jury issue on the alleged hostile work environment. The district court, in rejecting her HWE claim, had required the harassment to be both severe and pervasive. "That is incorrect," the appeals court declared, because under Supreme Court precedent, harassment under Title VII is actionable if it is either severe or pervasive. Given the facts already described—especially the use of the baseball bat—a reasonable jury could conclude that the manager’s conduct was severe or pervasive enough to constitute harassment.
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