Burns v. Johnson
100 Empl. Prac. Dec. (CCH) 45,592
1st Cir.2016Background
- Kathleen Burns, a long‑time TSA/FAMS Program Assistant in Boston, designed part of the office's international flight‑scheduling system and received excellent evaluations.
- In May 2012 David Johnson became the Supervisory Air Marshal in Charge; soon after he reassigned Burns’s primary scheduling duties to male SFAMs and frequently carried a baseball bat in interactions with Burns.
- Burns perceived Johnson’s tone and conduct (including bat‑displaying and demeaning remarks) as hostile; she complained internally, elected early retirement in late June 2012, and filed EEOC/TSA complaints thereafter.
- TSA’s investigation later substantiated inappropriate conduct (including carrying the bat); Johnson was eventually transferred, but not immediately.
- Burns sued DHS and Johnson under Title VII for sex discrimination (disparate treatment/mixed motives) and hostile work‑environment sexual harassment; the district court granted summary judgment for DHS; Burns appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Burns suffered an adverse employment action | Reassignment materially reduced her responsibilities (from 75% scheduling duties to clerical tasks) before she retired | Change was only a future reassignment she did not remain to experience; no material change before retirement | Remanded: evidence permits a jury to find Burns’s duties were materially reduced before retirement (adverse action) |
| Whether the decision to reassign was motivated by sex (including mixed‑motives) | Johnson’s comments (emphatic use of "she"), conduct, bat intimidation, and removal of duties to male SFAMs support sex‑based motive or stereotyping | No direct sexist slurs; proffered nondiscriminatory reasons: consistency and SFAM leadership; plaintiff must show direct evidence for mixed‑motives | Remanded: circumstantial evidence (convincing mosaic) sufficient for a jury to find discrimination; district court erred in requiring direct evidence for mixed‑motive claim |
| Whether Burns’s hostile work environment claim is sex‑based | Nonsexual conduct (demeaning tone, unequal treatment, bat intimidation, removal of duties) when viewed in context is sex‑based and abusive | Conduct was not sex‑based and bat use was not targeted only at Burns; insufficient to be actionable harassment | Remanded: evidence viewed in context could allow a jury to find the conduct sex‑based and hostile; district court erred requiring both "severe and pervasive" (should be "severe or pervasive") |
| Whether DHS is entitled to Faragher/Ellerth affirmative defense (no vicarious liability) | N/A — plaintiff argues employer is liable because supervisor created actionable hostile environment and employer failed to show employee unreasonably delayed reporting | Employer says it had reporting procedures and Burns unreasonably delayed reporting; thus defense applies | Remanded: triable issues exist on employer‑defense prongs (especially whether Burns’s delay in reporting was reasonable); summary judgment inappropriate |
Key Cases Cited
- Tang v. Citizens Bank, N.A., 821 F.3d 206 (1st Cir. 2016) (standard for assessing hostile work environment and summary judgment posture)
- Chadwick v. WellPoint, Inc., 561 F.3d 38 (1st Cir. 2009) (circumstantial "convincing mosaic" approach and mixed‑motives viability)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden‑shifting framework for disparate treatment)
- Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (circumstantial evidence suffices for mixed‑motives instruction)
- Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (stereotyping and non‑explicit animus can constitute discrimination)
- Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (hostile work environment standard: objective and subjective offensiveness)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (definition of adverse employment action in Title VII contexts)
- Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (employer affirmative defense for supervisor‑created hostile work environment)
- Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) (companion to Faragher on vicarious liability and affirmative defense)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard)