United States Court of Appeals For the First Circuit
No. 23-1970
KIMBERLY A. RIPOLI,
Plaintiff, Appellant,
v.
STATE OF RHODE ISLAND DEPARTMENT OF HUMAN SERVICES, OFFICE OF VETERANS SERVICES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Rikelman, Selya, and Lynch, Circuit Judges.
Chip Muller, with whom Muller Law, LLC was on brief, for appellant. Paul Meosky, Special Assistant Attorney General, with whom Katherine Connolly Sadeck, Assistant Attorney General, was on brief, for appellee.
December 16, 2024 SELYA, Circuit Judge. Plaintiff-appellant Kimberly A.
Ripoli claims that she experienced gender-based discrimination
when she was terminated from her job as the Associate Director of
the Rhode Island Office of Veterans Affairs (OVA). To right this
perceived wrong, she sued the State of Rhode Island, Department of
Human Services, Office of Veterans Affairs (the State) under Title
VII of the Civil Rights Act of 1964 and various Rhode Island
statutes. The district court granted summary judgment in favor of
the State on all of the appellant's claims. After careful
consideration, we vacate the district court's order on the
appellant's disparate treatment claims. Inasmuch as the appellant
does not address the district court's adverse rulings on her
retaliation or hostile work environment claims, we leave intact
the district court's order granting summary judgment on those
claims.
I
We rehearse the facts in the light most favorable to the
appellant, drawing all reasonable inferences to her behoof. See
Rathbun v. Autozone, Inc., 361 F.3d 62, 64 (1st Cir. 2004).
The appellant is a decorated veteran of the United States
Navy, having served in combat roles throughout several
deployments. Her career also includes, among other extensive
experience, serving as the medical department head at the Naval
Operational Support Center and serving as a senior chief action
- 2 - officer reporting directly to a Deputy Assistant Secretary of the
Navy. After twenty-six years in the Navy, the appellant retired
from her service in February of 2014.
The appellant became the Associate Director of the OVA
in August of 2012. In this role, she oversaw a staff of
approximately 260 employees and had responsibility for a budget of
approximately $29,000,000. Neither party disputes that the
appellant performed well in her role. See Ripoli v. Dep't of Hum.
Servs., Off. of Veterans Affs., No. 17-225, 2023 WL 7920473, at *1
(D.R.I. Nov. 16, 2023). The appellant's supervisors and co-workers
at the OVA knew that she was a female and lesbian.
The role of Director of the OVA was vacant between the
time of its creation by statute in 2011 until the then-governor of
Rhode Island appointed Kasim Yarn to the role in February of 2016.
In that interim, the appellant supervised the OVA in her capacity
as Associate Director.
A press release announcing Yarn's appointment stated
that his mission at the OVA was to "build additional capacity to
support veterans and military families." Upon his installation as
Director, Yarn completed a needs assessment of the OVA. There is
a dispute over whether this assessment was a specific type of
analysis, known as a "Lean analysis" (which relies on robust
supporting details to identify inefficiencies and waste in an
organization).
- 3 - As a result of his assessment, Yarn came to believe that
the Associate Director role had certain duties duplicative of his
role. In June of 2016, Yarn emailed senior leadership and State
decisionmakers, stating that the OVA "must address a
reorganization strategy that answers" the challenge of Rhode
Island's aging veteran population. He included his Lean analysis,
which indicated that the Associate Director job requirements and
description were the same as those for the Director role. In
Yarn's view, such redundancy had negative impacts on both budget
and productivity. Yarn suggested a realignment of the OVA in order
to heighten efficiency and effectiveness. This realignment would
result, according to Yarn's email, in three structural changes:
adding an Implementation Aide position, updating the Executive
Nurse job description, and eliminating the appellant's position.
Yarn appended two attachments of note to his email: the
first was a then-current organizational chart, indicating that —
as Associate Director — the appellant served directly below Yarn.
The second was a "Re-Organizational Chart." This latter chart did
not include either the appellant or her role. Nor did it include
a Strategic Planning, Policy, and Communications Administrator
(SPPCA) role (more on that later). According to this chart, Yarn's
suggested reorganization would result in six positions at an equal
level of seniority, all of which would report directly to Yarn.
At the time of Yarn's email, three of the positions were held by
- 4 - heterosexual men and three were vacant. The chart also
contemplated one subordinate leadership role. That position, too,
was held by a heterosexual man. The appellant presented evidence
that this email indicated to at least one official that Yarn was
not anticipating additional changes to staffing in the near future;
indeed, Yarn himself stated as much in a July 13, 2016 email.
Yarn testified that the only documents that aided him in
his Lean analysis and his decision to eliminate the appellant's
position were the job descriptions of the roles of Director and
Associate Director. Yarn relied heavily on his assessment that
the Associate Director job description was nearly identical to the
Director's job description. Yarn did not ever discuss the
appellant's accomplishments as Associate Director with her; he
never reviewed her resume; and he was not aware of various aspects
of her extensive experience.
In a later email from the Deputy Personnel Administrator
regarding Yarn's proposed reorganization, the Deputy Personnel
Administrator stated that there were no identified budget cuts
requiring layoffs in the OVA's staff at the relevant time. Rather,
the Deputy Personnel Administrator deferred to the Secretary
regarding budgetary implications.
The appellant's termination was approved, and her last
day of work was July 27, 2016. Withal, there is evidence that the
- 5 - role of Associate Director was never formally eliminated and has
remained vacant since July of 2016.
Michael Jolin is a heterosexual male who at the times of
Yarn's arrival and the appellant's departure, served on the OVA's
executive team as the Chief of Family Services. Unlike the
appellant — who had supervised the OVA for nearly four years —
Jolin had no management experience. At some point in 2016, Yarn
initiated a process that culminated in the creation of a new
position (the SPPCA). Jolin drafted a job description for the
SPPCA position and sent it to Yarn on July 29, 2016 (two days after
the appellant's final day of employment at the OVA).1
According to the draft, the SPPCA was to work directly
under Yarn. Specifically, the SPPCA would "serve in a highly
responsible legal, policy, and communications capacity to the
Director in the overall planning and administration of all
departmental activities." This role would work "under the
administrative direction of the Director with considerable
latitude for the exercise of independent judgment and initiative."
On August 12, 2016, Yarn emailed State decisionmakers, attaching
"updated job descriptions and paygrades" for Jolin and others.
1 Jolin's initial July 29 draft job description titled this role, "Administrator for Strategic Communications, Policy, & Legal Services." By the time that Jolin was promoted into this role, it was titled the SPPCA. For ease in exposition, and because neither party raises an issue with this difference in formal nomenclature, we refer to this role at all times as the SPPCA.
- 6 - This email included the SPPCA job description. Jolin was later
hired into this position. There is evidence that the process by
which Jolin was hired was not the normal process followed by the
OVA: Jolin was parachuted into the position pursuant to a special
purpose agreement.2 According to an organizational chart dated
September of 2017, Jolin served directly under Yarn as SPPCA. The
appellant was not given the opportunity to be considered for this
position.
The appellant sued the State in May of 2017. She alleged
discrimination based on sexual orientation and gender under Title
VII of the Civil Rights Act of 1964.3 She also alleged violations
of the Rhode Island Fair Employment Practices Act and the Rhode
Island Civil Rights Act of 1990. See R.I. Gen. Laws Ann. §§ 28-
5-1, 42-112-1.
Following discovery, the State moved for summary
judgment on all claims. The district court granted the motion.
This timely appeal followed.4
A special purpose agreement is a vehicle by which various 2
employment-related changes can be made, and it is a procedure not described in the OVA personnel rules. 3 The appellant has since withdrawn her allegation of age
discrimination. Moreover, she has not pursued her disability discrimination claim under the Rhode Island Civil Rights of People with Disabilities Act, R.I. Gen. Laws Ann. § 42-87-1, in this appeal. 4 In this court, the appellant does not pursue either her
retaliation or her hostile work environment claims. Consequently, we omit any further mention of those claims.
- 7 - II
We review a district court's entry of summary judgment
de novo. See Rathbun, 361 F.3d at 66. To prevail on summary
judgment, the moving party must show that there is no genuine
dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a); Boykin v.
Genzyme Therapeutic Prods., LP, 93 F.4th 56, 60 (1st Cir. 2024).
"Once the moving party avers the absence of genuine issues of
material fact," the burden shifts to the non-moving party to show
that a genuine issue of material fact exists. Rathbun, 361 F.3d
at 66.
The familiar McDonnell Douglas burden-shifting framework
applies to the appellant's disparate treatment claims.5 See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); see
also Boykin, 93 F.4th at 60. Under that framework, the plaintiff
in a discrimination case first must make a prima facie showing of
discrimination. See Boykin, 93 F.4th at 60. A prima facie case
of discrimination requires the plaintiff to establish that she was
a member of a protected class, that she was qualified for the job,
that she suffered an adverse employment action, and that the
adverse employment action transpired under circumstances giving
5 The same framework also applies to the appellant's counterpart state law claims. See Casey v. Town of Portsmouth, 861 A.2d 1032, 1036 (R.I. 2004).
- 8 - rise to an inference of discrimination. See Rinsky v. Cushman &
Wakefield, Inc., 918 F.3d 8, 29 (1st Cir. 2019). "The burden of
establishing a prima facie case of disparate treatment is not
onerous." Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253
(1981). "All that is needed is the production of admissible
evidence which, if uncontradicted, would justify a legal
conclusion of discrimination." Sanchez v. P.R. Oil Co., 37 F.3d
712, 719 (1st Cir. 1994).
Once the plaintiff carries her burden of showing a prima
facie case, the burden of production shifts to the defendant, who
must provide a legitimate, non-discriminatory reason for the
adverse employment action. See Boykin, 93 F.4th at 60. As long
as the defendant is able to put forth such an explanation, the
burden then reverts to the plaintiff to show that the defendant's
stated reason for the adverse action was a pretext for
discrimination. See id. "Although intermediate evidentiary
burdens shift back and forth under this framework, '[t]he ultimate
burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all
times with the plaintiff.'" Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143 (2000) (alteration in original) (quoting
Burdine, 450 U.S. at 253).
Whether summary judgment is appropriate in any given
instance depends on multiple factors, including the strength of
- 9 - the plaintiff's prima facie case, the probative value of the proof
of pretext, and any other appropriately considered evidence. See
id. at 148-49. Generally — though by no means always — "a
plaintiff's prima facie case, combined with sufficient evidence to
find that the employer's asserted justification is false, may
permit the trier of fact to conclude that the employer unlawfully
discriminated." Id. at 148. And in that event, a plaintiff need
not necessarily "introduce additional, independent evidence of
discrimination." Id. at 149.
A
Our inquiry begins with the appellant's prima facie
case. Nobody seriously disputes that the appellant established
the first three elements of her prima facie case: she is both
female and lesbian, she was amply qualified for her role as
Associate Director of the OVA, and she was terminated from that
position. As to the fourth element of her prima facie case, she
insists that a litany of factors, when viewed together, raise a
genuine issue regarding whether she was discharged under
circumstances giving rise to an inference of discrimination. For
instance, the appellant was the only female and only gay employee
on the OVA's executive team, and she was the only employee who was
fired; there was no compelling impetus, budgetary or otherwise, to
send her packing; the State had a continuing need for her work and
skills; she was arguably replaced by a less-qualified heterosexual
- 10 - male; and the State kept her in the dark about the availability of
the SPPCA role.
Notwithstanding that the district court assumed that the
appellant had established her prima facie case, the State insists
that the appellant produced no evidence of discriminatory intent.
It takes issue with characterizing the appellant and her former
role as being "replaced" by Jolin, rather than as collateral damage
arising out of the reorganization of the OVA and the elimination
of her position. In support, the State declares that it did not
appoint an Associate Director after the appellant was dismissed
and argues that the Associate Director and the SPPCA role are
sufficiently distinct that it cannot be said that Jolin replaced
the appellant. Finally, the State disputes that the appellant was
the only female member of the executive team.
Viewing the facts in the light most flattering to the
appellant and drawing all reasonable inferences in her favor, we
conclude that she has carried her burden of adducing facts from
which a reasonable factfinder could conclude that she was
discharged under circumstances supporting an inference of
discrimination. To begin, there is a dispute regarding whether
the appellant was the only female on the OVA's executive team.
Yarn testified that during the time of his appointment through the
end of July of 2016, he considered his executive committee to
consist of the appellant, Jolin, a woman named Lynn Lavallee, and
- 11 - three other men. Other evidence, though — such as organizational
charts indicating that Lavallee was not on the executive team —
supports a finding that the termination of the appellant's
employment left the OVA with an all-male executive team. A
reasonable factfinder could infer discrimination from the facts,
taken most favorably to the appellant, indicating that the State
retained an executive team comprised exclusively of heterosexual
males and dismissed only the appellant during its reorganization
of the OVA. See Resare v. Raytheon Co., 981 F.2d 32, 43 (1st Cir.
1992).
Discrimination may also be inferred from the evidence
presented that Yarn and the OVA had a continuing need for the
appellant's services. Mere days after she was terminated, Yarn
announced the creation of a new role that — the appellant contends
— provided assistance to the Director in much the same way that
the Associate Director had. See Rodriguez-Torres v. Caribbean
Forms Mfr., Inc., 399 F.3d 52, 59 (1st Cir. 2005) (explaining that
replacement need not be specially designated as such to establish
final element of prima facie case). Yarn appointed Jolin to fill
this role (the SPPCA position). The evidence that the appellant's
services were supplanted by services rendered by Jolin, a
heterosexual male who was arguably less qualified than her to carry
out the duties of this management role, also tends to support an
inference of discrimination. See id. And the appellant presented
- 12 - evidence that she was discharged without the opportunity to be
considered for the SPPCA role. The bottom line is that a
reasonable factfinder could infer that — though the State may have
had a need for the appellant's services in the SPPCA role — the
State was motivated by discrimination against the appellant
because it discharged her instead. Mindful of the appellant's
relatively light burden at this stage, we conclude that she
established her prima facie case of discrimination, thereby
raising an initial inference of discrimination.
B
Once the appellant made out her prima facie case, the
burden of production shifted to the State to articulate a
legitimate, non-discriminatory reason for terminating her
employment. See Boykin, 93 F.4th at 60. To this end, the State
argues that the district court hit the nail on the head when it
concluded that the State had articulated such a reason: it
ostensibly terminated the appellant's employment as part of a
larger, legitimate reorganization. The appellant rejoins that the
State's "vague" reason is not adequately supported and, thus, that
the State did not carry its burden.
The State has the better of this argument. Yarn claimed
that he found the appellant's Associate Director role to be
redundant with his own role. He further claimed that he decided
to eliminate the former role because of its negative impacts on
- 13 - both budget and productivity. These are legitimate, non-
discriminatory reasons for abolishing the appellant's position and
ending her employment. See Smith v. F.W. Morse & Co., Inc., 76
F.3d 413, 422 (1st Cir. 1996). By producing evidence of these
facially legitimate reasons, the State has satisfied its initial
burden at this stage of the analysis. See Burdine, 450 U.S. at
256-57.
C
Against this backdrop, the burden reverts to the
appellant to produce evidence sufficient to show that the State's
articulated reason for cashiering her was not its real reason but,
rather, was merely a pretext for discrimination. See Boykin, 93
F.4th at 60. The district court concluded that the appellant had
failed to carry her burden at this stage of the inquiry. See
Ripoli, 2023 WL 7920473, at *8-11. We are not so sanguine.
The appellant first asserts that the district court
erred when it required that she prove not just that the State's
articulated reasons for terminating her employment were pretextual
but also that the State's motive was discriminatory. Relatedly,
the appellant asserts that the district court committed an error
of law when it held that the appellant could not rely on the same
evidence to show both pretext and proof of discrimination.
Building on this foundation, the appellant argues that she carried
her burden of showing that there are genuine issues as to whether
- 14 - the State's reasons for dismissing her were pretextual. In this
regard, she questions the process by which the State eliminated
her position, created an analogous position, and kept her in the
dark as to the new opportunity. To bolster this argument, she
asks us to draw inferences favorable to her both from the State's
justifications for eliminating her role and from the differences
between how she was treated and how similarly situated men were
treated. The State responds that although discrimination may
sometimes be inferred from pretext evidence, the district court
did not err in finding that the evidence in this case fell short
of supporting such an inference.
In examining these competing views, we start by
addressing the appellant's burden. The district court cast this
burden as a need to show "that there is a genuine dispute over
whether (1) the articulated reason is pretextual . . . and (2) the
true reason is discriminatory." Ripoli, 2023 WL 7920473, at *5.
Although the district court did not demand any "smoking gun"
evidence of discriminatory intent, id. (quoting Thomas v. Eastman
Kodak Co., 183 F.3d 38, 58, 64 (1st Cir. 1999)), it explained that
the appellant needed to present facts sufficient to allow a jury
to find that the State's reason for terminating the appellant's
employment was "not only a sham, but a sham intended to cover up
the [State's] real and unlawful motive of discrimination," id.
- 15 - (quoting Theidon v. Harvard Univ., 948 F.3d 477, 497 (1st Cir.
2020)); see id. at *12 (assuming that appellant had shown evidence
of pretext, but granting summary judgment for State because of
perceived lack of evidence connecting termination to protected
classes).
To be sure, an ousted employee's "burden at this stage
is often seen as comprising two separate tasks." Domínguez-Cruz
v. Suttle Caribe, Inc., 202 F.3d 424, 430 n.5 (1st Cir. 2000).
Sometimes, though — depending on the specific facts of a given
case — showing a dispute over whether the employer's true reason
is discriminatory can be accomplished by showing a dispute over
whether the employer's reason for taking the challenged action is
pretextual. See Reeves, 530 U.S. at 147. Thus, the argument that
a plaintiff who has shown pretext "must also provide additional
evidence of discrimination beyond the prima face case" in order to
defeat summary judgment "is simply wrong." Domínguez-Cruz, 202
F.3d at 430 n.5. It follows that the district court committed
legal error when it held as much. "Proof that the defendant's
explanation is unworthy of credence is simply one form of
circumstantial evidence that is probative of intentional
discrimination, and it can be quite persuasive." Reeves, 530 U.S.
at 148-49. The upshot, then, is that "[a] jury may infer unlawful
discrimination where there is (1) a prima facie case of
discrimination and (2) 'sufficient evidence to find that the
- 16 - employer's asserted justification is false.'" Rinsky, 918 F.3d at
28 (quoting Reeves, 530 U.S. at 148).
Of course, this conclusion "does not mean 'that such a
showing by the plaintiff will always be adequate to sustain a
jury's finding of liability.'" Id. at 28-29 (emphasis in original)
(quoting Reeves, 530 U.S. at 148). Whether summary judgment
is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for [summary] judgment.
Reeves, 530 U.S. at 148-49. Consequently, the question before us
is whether the appellant has identified enough evidence to enable
a rational factfinder to infer that unlawful discrimination was a
determinative factor in the State's termination of her employment.
We recognize that "there is no 'mechanical formula' for
establishing pretext." Alston v. Town of Brookline, 997 F.3d 23,
45 (1st Cir. 2021) (quoting Che v. Mass. Bay Transp. Auth., 342
F.3d 31, 39 (1st Cir. 2003)). "One size does not fit all, and the
inquiry into pretext is the kind of inquiry in which 'everything
depends on the individual facts.'" Id. (quoting Feliciano de la
Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 7 (1st
Cir. 2000)). Our next step, then, is to examine the record through
that lens.
- 17 - 2
The State has proffered evidence that Yarn predicated
his decision to terminate the appellant's employment on both
budgetary and efficiency concerns. But the appellant has presented
evidence that raises questions as to whether these asserted
justifications were — separately or in combination — the motivating
factors for this phase of the reorganization. Given this state of
the record and the fact that the district court was ruling on a
summary judgment motion, it is grist for the factfinder's mill to
determine whether or not the asserted justifications are
pretextual.
As to the budgetary justification, State leaders
conceded that there were no budgetary imperatives that required
eliminating the appellant's position. A reasonable factfinder,
relying on evidence such as the fact that Yarn eliminated the
appellant's position at a time when the OVA was "confronting a
growing challenge as a result of a rapidly aging veteran
population," could find that the State's stated reason for firing
her was pretextual. See Smith, 76 F.3d at 422 (reasoning that
employers who "selectively clean[] house cannot hide behind
convenient euphemisms such as 'downsizing' or 'streamlining'");
Zampierollo-Rheinfeldt v. Ingersoll-Rand de P.R., Inc., 999 F.3d
37, 57-58 (1st Cir. 2021) (explaining that while employers may
reduce expenses through reductions in force,
- 18 - reorganization/improved-efficiency rationales may also be
pretext).
As to the efficiency rationale, Yarn attempted to
justify the elimination of the appellant's position by branding it
as duplicative of his. Consequently, retaining both positions
would impede efficiency. But the appellant has produced evidence
of the two job descriptions, which — when compared — create a
genuine issue regarding whether the two roles were as similar as
Yarn would have it.
According to its job description, the Associate Director
assisted the Director in performing certain duties, but was not
independently responsible for performing the same duties.
Providing assistance to a superior so that the superior can carry
out a duty does not necessarily impose upon the subordinate that
same duty. Here, moreover, the Associate Director had her own
responsibilities separate and apart from simply assisting the
Director. These included representing the State and the OVA in
matters involving the National Association of State Veterans'
Homes and helping to shape public relations involving veterans'
service organizations and the Department of Human Services (DHS).
Further undermining the State's assertion that the roles were
redundant is the fact that Yarn reassigned some of the duties of
Associate Director to other roles that were not eliminated.
- 19 - A comparison of the OVA and DHS is instructive in another
way as well. The record contains evidence that DHS employed
approximately seventeen individuals in associate or assistant
director roles. This evidence — that another state department saw
fit to employ individuals in roles similar to the appellant's
Associate Director role — casts further doubt on the State's
efficiency justification for eliminating the appellant's role.
So, too, the appellant's evidence that Yarn formally
created the new SPPCA role two days after the appellant's departure
from the OVA raises an inference of pretext regarding the State's
"efficiency" rationale. There is evidence of some significant
overlap between the Associate Director's role and the SPPCA role.
For instance, the SPPCA was responsible for providing planning and
policy assistance to Yarn in carrying out Yarn's responsibilities
as Director. That same work was part and parcel of the Associate
Director's role.
On this record, a reasonable factfinder could infer that
the State's creation of the SPPCA position simply recreated the
essence of the Associate Director position in a different guise.
Such a finding, in turn, could lead a reasonable factfinder to
conclude that the State's elimination of the Associate Director
position due to efficiency concerns was pretextual.
Contrary to the State's averment, the facts at play in
both Dunn v. Trustees of Boston University, 761 F.3d 63 (1st Cir.
- 20 - 2014), and Weston-Smith v. Cooley Dickinson Hospital, 282 F.3d 60
(1st Cir. 2002), are sufficiently different such that our holdings
in favor of the employers in those cases are inapropos. See Dunn,
761 F.3d at 75; Weston-Smith, 282 F.3d at 70. In Dunn — as part
of a larger reorganization of the plaintiff's working group — the
employer consolidated the plaintiff's role with another employee's
role, gave the combined role to the other employee, and laid off
the plaintiff. See 761 F.3d at 66-67. In Weston-Smith, we once
again dealt with a reorganization of a larger team. See 282 F.3d
at 68. We reasoned that evidence that the "reorganized jobs
encompassed functions of [the plaintiff's] former job[]" was not
alone indicative of pretext, because an employer's reshuffling of
functions can lead to greater efficiency in the context of
reorganizing an entire team. Id. at 69. Here, however — unlike
in Dunn and Weston-Smith — the appellant introduced evidence to
show that the Associate Director role was discharged in name only
to clear the way for her ouster. Indeed, a reasonable factfinder
could find that the appellant's role was simply recreated as the
SPPCA role. Put another way, a reasonable factfinder could find
that the State's shuffling of duties from the Associate Director
role to the newly created SPPCA role was not only "[]surprising,"
id., but also pretextual.
To make the cheese more binding, the process of creating
the SPPCA position may itself be viewed as evidence of pretext.
- 21 - Yarn's initial email announcing his plan to eliminate the
appellant's position indicated to at least one State official that
Yarn did not anticipate further changes to staffing at the OVA.
And Yarn himself stated — as late as July 13, 2016 — that he
foresaw no additional staffing changes. But two days after the
appellant's departure, Jolin sent Yarn a draft job description for
a new role. Of course, creating a new role could qualify as a
staffing change of the sort that Yarn claimed to be unanticipated
— but such a rationale seems dubious since the appellant was not
given an opportunity to apply for this role. Instead, Jolin was
eventually hired into the SPPCA role through a special purpose
agreement, an atypical procedure not described in the OVA personnel
rules. A reasonable factfinder could view these facts as Yarn
manipulating the State's hiring process to the appellant's
detriment and, therefore, as pretext. See Collazo v. Bristol-
Myers Squibb Mfg., Inc., 617 F.3d 39, 52 (1st Cir. 2010).
The fact that the appellant's ouster resulted in an all-
male executive team is additional evidence supporting a finding of
pretext. See Resare, 981 F.2d at 43 (finding pretext when —
despite justifying female employee's discharge on budgetary and
policy grounds — decisionmaker admitted to not researching the
cost-saving potential of discharging other, allegedly less
qualified male employees). The State's professed desire to flatten
the OVA's reporting structure cuts in the same direction. After
- 22 - all, the SPPCA position sits in roughly the same organizational
position as the Associate Director position and, thus, does not
flatten the OVA's reporting structure. This additional evidence
supports the appellant's claim of pretext.
We add, moreover, that the appellant has raised a genuine
issue of material fact regarding Yarn's alleged Lean analysis
(which purportedly inspired the State's elimination of the
Associate Director position). The appellant adduced evidence that
while Lean analyses are structured to rely on substantial
information regarding an entire business, the only documents that
Yarn used in his Lean analysis were the written job descriptions
for his position and for the appellant's position. And regardless
of whether Yarn's analysis technically qualified as a Lean analysis
— a matter on which the parties do not agree — the appellant has
presented evidence that Yarn's analysis was severely deficient.
For example, Yarn did not meet with the appellant regarding her
accomplishments as Associate Director, and he was totally unaware
of various aspects of her extensive experience.
On this record, a reasonable factfinder could find both
that Yarn's assessment was cursory and that his effort to complete
a thorough Lean analysis was at best half-hearted. Based on those
findings, the factfinder could conclude that Yarn's justifications
for eliminating the appellant's position were pretextual.
- 23 - 3
If more were needed — and we doubt that it is — the
appellant has offered evidence sufficient to create a genuine issue
of material fact as to whether Jolin, an employee arguably
"similarly situated to [her] in all relevant respects[, was]
treated differently" than the appellant. Conward v. Cambridge
Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999). The State counters
that Jolin is not a valid comparator because he and the appellant
had sufficiently different jobs, education, and skillsets, such
that any differential treatment cannot serve as evidence of
pretext.
The State's isthmian view of comparability is at odds
with our precedent. In the context of offering comparator evidence
to raise an inference of discrimination in a disparate treatment
case, "similarity, rather than identicality, provides the
essential requirement for an analogy." Id. at 22. "When
evaluating such comparators, '[r]easonableness is the touchstone:
while the plaintiff's case and the comparison cases that [she]
advances need not be perfect replicas, they must closely resemble
one another in respect to relevant facts and circumstances." Diaz
v. City of Somerville, 59 F.4th 24, 32 (1st Cir. 2023) (quoting
Conward, 171 F.3d at 20). "The test is whether a prudent person,
looking objectively at the incidents, would think them roughly
equivalent and the protagonists similarly situated." Conward, 171
- 24 - F.3d at 20 (quoting Dartmouth Rev. v. Dartmouth Coll., 889 F.2d
13, 19 (1st Cir. 1989)). In the last analysis, "[e]xact
correlation is neither likely nor necessary, but the cases must be
fair congeners." Id. (quoting Dartmouth Rev., 889 F.2d at 19).
The question here is whether a reasonable factfinder
could find that the appellant and Jolin were similarly situated in
their roles such that they can appropriately be compared for
purposes of the appellant's disparate treatment claim. We think
that this question demands an affirmative answer.
Reviewing the record with care, we conclude that the
appellant has offered evidence that presents a question of fact as
to whether she and Jolin were "similarly situated . . . in all
relevant respects." Id.; see Cocuzzo v. Trader Joe's E. Inc., 121
F.4th 924, 933 n.8 (1st Cir. 2024) (concluding "aptness" of
proposed comparators is question of fact for factfinder in this
context). To start, the appellant and Jolin both worked on Yarn's
small executive team and — at all relevant times — they both
reported directly to Yarn. Both of them were impacted by Yarn's
reorganization of the OVA. And although their roles were different
in certain respects, the court below identified evidence that
members of Yarn's executive team performed tasks beyond the duties
stated in their job descriptions. See Ripoli, 2023 WL 7920473, at
*7. As a result, the State's argument that the appellant and Jolin
- 25 - are not valid comparators because their roles were not identical
does not carry the day. See id. at *7-8.
Here, moreover, the appellant presented evidence from
which a reasonable factfinder could conclude that Jolin was treated
more favorably than the appellant. Around the same time that Yarn
eliminated the appellant's position, he oversaw the creation of a
new role that overlapped at least in part with the appellant's
former position. Without telling the appellant of this new role
or providing her with an opportunity to apply for it, Yarn promoted
Jolin into the role. From this sequence of events, a reasonable
factfinder could conclude that the State treated the appellant
differently than Jolin, a heterosexual male, throughout its
reorganization, especially with respect to the SPPCA position.
And this differential treatment was to the appellant's detriment.
Consequently, the evidence chronicling the differential treatment
of the appellant as compared to Jolin's raises a genuine issue of
material fact with respect to whether the State's asserted
justifications for dismissing the appellant were pretextual.6
To be sure, there is no smoking gun. No one piece of
evidence, taken in isolation, suffices to prove disparate
6 The appellant also contends that another OVA employee, Johnathan Rascoe, is a valid comparator. Because the evidence discussed above is sufficient to thwart the swing of the summary judgment ax, we take no view of this contention.
- 26 - treatment. We have recognized, however, that in the evaluation of
evidentiary presentations, the whole is sometimes greater than the
sum of the parts. See, e.g., Harrington v. Aggregate Indus. Ne.
Region, 668 F.3d 25, 34 (1st Cir. 2012). This is such a case.
The appellant has provided sufficient evidence from which a
rational factfinder could infer that unlawful discrimination was
a determinative factor in her ouster. She has therefore sustained
her burden at the final stage of the McDonnell Douglas framework,
and the State is not entitled to summary judgment on her disparate
treatment claims.
III
We need go no further. At each stage of Yarn's
reorganization and the ensuing creation of the SPPCA role, the
appellant was either kept in the dark, outright disadvantaged, or
both. Although a factfinder could find that the outcome for the
appellant was merely collateral damage resulting from appropriate
State action, such a finding is not compelled by the evidence. A
factfinder could just as easily conclude that the appellant's
discharge was the product of discrimination. This is the classic
situation, then, in which a factfinder — and not a judge acting at
summary judgment — should weigh the evidence and make a final
determination. See Rossy v. Roche Prods., Inc., 880 F.2d 621, 626
(1st Cir. 1989). For the reasons elucidated above, we vacate the
district court's judgment in part; that is, insofar as that
- 27 - judgment relates to the appellant's disparate treatment
discrimination claims (state and federal). We leave undisturbed,
however, the summary judgment in favor of the State on the
appellant's retaliation and hostile work environment claims. See
supra note 1. Finally, we take no view as to the State's Eleventh
Amendment defense, see Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999), inasmuch
as the district court has not yet ruled on that defense, see, e.g.,
Town of Barnstable v. O'Connor, 786 F.3d 130, 143-44 (1st Cir.
2015). Here, moreover, the outcome of the State's defense will
turn in part on the Rhode Island Supreme Court's answer to the
question recently certified to it in Parente v. Lefebvre, ___ F.4th
___ (1st Cir. 2024) [No. 24-1098], of "whether discrimination
claims under RICRA are covered by" the State Tort Claims Act's
sovereign immunity waiver, id. at ___ [No. 24-1098, slip op. at
13-14]. We remand for the entry of a revised judgment and for
further proceedings consistent with this opinion. Costs shall be
taxed in favor of the appellant.
So Ordered.
- 28 -