United States Court of Appeals For the First Circuit
No. 18-1229
BRENDA K. TAITE,
Plaintiff, Appellant,
v.
BRIDGEWATER STATE UNIVERSITY, BOARD OF TRUSTEES; BRIDGEWATER
STATE UNIVERSITY OFFICE OF EQUAL OPPORTUNITY,
Defendants, Appellees,
ERIN DEBOBES, official and individual capacity,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Thompson, and Barron, Circuit Judges.
Yotam Barkai, with whom Christopher D. Belelieu and Boies Schiller Flexner LLP were on brief, for appellant. Joseph P. Lucia, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellees. June 2, 2021
- 2 - THOMPSON, Circuit Judge. This is a case about what makes
people tick. Brenda K. Taite, who is Black, brought action against
Bridgewater State University's Board of Trustees and Office of
Equal Opportunity (collectively, "BSU" or "University") and a
University administrator, alleging she was not hired for a position
at the University because of her race, in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.1 BSU
shot back saying they hired the best candidate for the job. The
United States District Court for the District of Massachusetts
granted the University's motion for summary judgment and Taite
appealed. Because we find genuine issues of material fact
precluded summary judgment, we vacate and remand.
I. BACKGROUND2
A. How It All Started
BSU is a public university owned and operated by the
Commonwealth of Massachusetts. In early 2015, BSU created the
position of Staff Associate, Equal Opportunity/Title IX
1 Taite had brought claims for age discrimination, race discrimination, violations of equal protection under the Fourteenth Amendment and the Massachusetts Civil Rights Act, and violations of 42 U.S.C. §§ 1981 and 1983. After various procedural twists and turns below not pertinent here, only Taite's Title VII claim remains. She has not appealed any of those other procedural rulings.
2 Because Taite's case is before us on her appeal from a grant of summary judgment for BSU, we recite the facts in the light most favorable to her. See Bhatti v. Trustees of Bos. Univ., 659 F.3d 64, 67 (1st Cir. 2011).
- 3 - Investigator (the "Position"), which reported directly to
defendant Erin DeBobes, BSU's Director of Equal Opportunity, Title
IX Coordinator, and Title II Section 504 Coordinator.3 BSU posted
the Position in late February 2015. As advertised -- and pertinent
to this appeal -- the required minimum qualifications for the
Position were:
• Master's degree, OR Bachelor's degree in relevant discipline . . . . Degrees in psychology, counseling, social work or criminal justice are viewed favorably. • A minimum of 3 years [of] demonstrated experience in complaint, incident, and/or grievance investigation and resolution. • Experience and training regarding conducting sensitive and confidential investigations alleging discrimination and harassment. • Knowledge of and ability to interpret federal and state laws regarding discrimination, harassment and equal opportunity.
The preferred qualifications advertised, in relevant
part, were:
• Juris Doctorate or Advanced Degree preferred[.]
3 Title IX of the Education Amendments of 1972 is a federal statute prohibiting discrimination on the basis of sex in "any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). Similarly, Section 504 of the Rehabilitation Act of 1973 prohibits disability discrimination "under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). Title II of the Americans with Disabilities Act ("ADA") of 1990 applies Section 504 to state and local governments, regardless of whether the state or local program or activity receives federal funds. See 42 U.S.C. § 12131 et seq.
- 4 - • Over 3 years' experience in complaint and/or grievance investigation and resolution. • Experience in a higher education setting preferred, public higher education highly preferred. • Experience with affirmative action. • Experience conducting mediations. • Experience handling reasonable accommodation requests. • Experience with Title IX, Title VI, the ADA [Americans with Disabilities Act], the Rehabilitation Act . . . . • Background in human resources, student affairs, or diversity programming viewed favorably.
A three-person search committee (the "Search
Committee"), which included DeBobes, received eighty-five
applications and selected the top sixteen applicants for an initial
phone interview, then invited the top five applicants to interview
on campus. The Search Committee solicited five BSU administrators
(the "evaluators") to observe and evaluate the finalists. The
interview consisted of: (1) a 15-minute presentation "on race and
national origin/discrimination and discriminatory harassment"; (2)
a 20-minute "mock investigation" involving a potential Title IX
complaint fact pattern in which a female "student" (played by a
BSU staff member) complained her male "professor" (played by
another BSU staff member) used harassing names in class and made
her feel uncomfortable; and (3) an interview with the Search
Committee members.
- 5 - Among the criteria the finalists would be evaluated on
during the mock investigation were familiarity with Title IX
procedures ("such as indicating that retaliation is prohibited,
discussing available interim measures[,] and addressing
confidentiality concerns") and treating the "student" and
"professor" with "neutrality, sensitivity, and fairness." The
Search Committee would "weigh heavily" each finalist's performance
during the presentation and mock investigation.
Each candidate's interview performance was to be
assessed with the same evaluation form. The form first asked the
evaluators to score each candidate in the following categories:
"Preparation and Organization," "Presentation and Delivery,"
"Quality of Audiovisual Materials (if applicable)," and "Ability
to Answer Questions." The scores ranged from 1 (poor) to 5
(exceptional). Then, the forms asked the evaluators to list
positive feedback about each candidate's presentation and to
discuss the candidate's overall performance.
On or about March 30, 2015, Taite applied for the
Position at BSU by submitting an application, cover letter, and
résumé. Taite self-identified as Black in her affirmative action
application materials. According to her résumé, she had an
Associate Degree in Arts, Secondary Education, and History, a
Bachelor of Arts Degree in History, a Master of Science Degree in
Health Care Administration, and a Juris Doctor Degree, as well as
- 6 - work experience investigating complaints related to Title IX and
equal employment opportunity. She had approximately 5 1/2 years of
collective, full-time experience investigating student and
employee grievances first as Associate Director for Equal
Opportunity/Affirmative Action Programs and ADA Coordinator at
Dartmouth College and then as Equal Employment Compliance Officer
at a private company, Global Investigation & Security, Inc.
Taite's résumé highlights some of her responsibilities at
Dartmouth College: reviewing recruitment and hiring of
administrative employees for compliance with equal opportunity and
affirmative action procedures; identifying recruitment initiatives
to increase the diversity of applicant pools; investigating and
mediating discrimination and harassment complaints; investigating,
analyzing, and coordinating responses to employee grievances and
allegations of discrimination; writing findings and outcomes of
investigations for allegations by students and employees of sexual
harassment, sexual discrimination, race discrimination, and age
discrimination; familiarity with equal employment opportunity,
ADA/Rehabilitation Act Section 504, Title VII, and Title IX; and
responding to requests for ADA accommodations from current and
prospective employees. Her responsibilities at Global included:
investigating, analyzing, and coordinating responses to employee
grievances; responding to requests for ADA accommodations from
current and prospective employees; mediating employee disputes;
- 7 - and working with human resources and other departments to develop
an effective compliance training program. Overall, Taite's
collective experience corresponded with some of the Position's
secondary responsibilities4 as well as nearly all of the preferred
qualifications advertised for the Position.5
The Search Committee selected Taite for an initial phone
interview on or about April 7, 2015, and a few days later, invited
her, among five finalists, to a May 7, 2015, on-campus interview.
Four of the finalists, including Taite, were Black.6 The fifth
finalist, Jocelyn Frawley, was white, and her on-campus interview
was held on April 28, 2015. All members of the Search Committee,
as well as the evaluators, were white.
At the time of her interview, Frawley had a Bachelor's
Degree in Psychology and Public Management and Policy and was
4To wit: "[a]ssist the Director of Equal Opportunity/Title IX Coordinator in the development and implementation of training programs for faculty, staff, and students on equal opportunity, nondiscrimination, Title IX and other related topics"; "[e]valuate employee requests for reasonable accommodations"; and "[p]articipate in employee recruiting process to ensure equity in hiring."
5 To wit: "[e]xperience in a higher education setting preferred, public higher education highly preferred"; "[e]xperience with affirmative action . . . , conducting mediations . . . , reasonable accommodation requests . . . , Title IX . . . , [and] the ADA"; and "[b]ackground in human resources, student affairs, or diversity programming."
6Specifically, the three other Black finalists were a Black woman, a Black man, and a Cape Verdean woman.
- 8 - working towards a Master's Degree in Psychology (with her Master's
thesis on the difference between men and women in consent
communication in the Title IX context), which would be completed
the following month (May 2015). Frawley's degrees favorably align
with one of the job description's minimum qualifications. By way
of work history, her résumé shows she worked as "Student Employee"
at the University of Arizona Police Department from Spring 2012 to
February 2015 assisting detectives with preliminary criminal
rather than civil investigations on campus, including sexual
assault and harassment cases. During that timeframe, Frawley was
an undergraduate student at the University of Arizona for two of
the three years she worked with the detectives and a graduate
student there her third year. Then in February 2015, while still
a graduate student, Frawley began working as Coordinator of Student
Accountability at the University of Arizona's Dean of Students
Office, where she investigated and adjudicated alleged university
code of conduct violations. Frawley's employment references,
while mostly positive, noted her "youth" as an "area[] of growth"
and lack of "an extensive amount of experience."
As seen on her BSU interview evaluation forms, Frawley
received mostly 5s, some 4s, and a couple of 3s. She was lauded
for her presentation and received mostly positive feedback on her
overall performance. In contrast, Taite received mostly 3s and
4s, some 2s, and some 5s. Taite's evaluators gave her some
- 9 - positive feedback, but also raised some areas of concern.7 We'll
detail additional facts about the application process and
interview performances later in the opinion. For now, we'll fast
forward to the end of the application process.
After completing all the on-campus interviews, the
Search Committee deliberated to select one finalist to hire.
Frawley was the first choice of each Search Committee member and
on May 19, 2015, BSU offered her the Position, which she accepted
one week later. On June 12, 2015, DeBobes, via e-mail, informed
Taite she was not selected for the Position, stating, "[a]lthough
your credentials are commendable, we have selected another
applicant whose qualifications were more appropriate for our
present needs."
B. The Travel of the Case
Taite believed BSU failed to hire her for the Position
because of her race and, proceeding pro se, brought a single claim
of race discrimination that survived defendants' motion to
dismiss. After BSU answered the amended complaint, the parties
proceeded to discovery.
In due course, BSU filed a motion for summary judgment.
In it, BSU articulated that the record evidence supported only one
7The record does not contain information about the qualifications, experience, and interview performances of the remaining Black finalists.
- 10 - reasonable conclusion: BSU hired Frawley over Taite because she
was the better qualified candidate. In BSU's own words, Frawley
"performed the best" during the presentation and mock
investigation and "also had more current relevant work
experience," whereas Taite's "lack of recent experience in higher
education and in Title IX established that she was not a good fit
for the position at BSU." Taite opposed BSU's summary judgment
motion contending just the opposite: what the record evidence
demonstrated was a genuine dispute as to whether BSU's articulated
reason for not choosing her was pretextual and racially motivated,
and whether Frawley was more qualified than her.
On March 1, 2018, the magistrate judge (to whom the
motion had been referred) issued a report and recommendation to
allow BSU's motion for summary judgment. In sum, the magistrate
judge found BSU had articulated a legitimate, nondiscriminatory
reason for hiring Frawley over Taite and Taite had failed to prove
BSU's articulated reason was pretextual and motivated by racial
animus. The magistrate judge concluded: "[N]o reasonable fact-
finder on this record could conclude that race was a motivating
factor in BSU's decision to select Frawley."
- 11 - Taite timely objected to the report,8 protesting the
magistrate judge's failure to view the record in the light most
favorable to her, as was required, and failure to consider Taite's
statement of disputed facts (which was part of her opposition to
BSU's motion for summary judgment) and her affidavit (appended as
an exhibit in support of said opposition). On March 14, 2018, in
a handwritten margin order, the district judge ruled: "After a
review of the objections and the record, I adopt the report and
recommendation and allow [BSU's] motion for summary judgment."
Final judgment for BSU entered the following day. Taite timely
appealed and here we are.9
II. STANDARD OF REVIEW
We give a de novo look to the district court's grant of
summary judgment, assessing the record ourselves in the light most
favorable to the non-movant (Taite) and drawing all reasonable
inferences in her favor. See Gerald v. Univ. of P.R., 707 F.3d 7,
16 (1st Cir. 2013). We affirm only if the record reveals "no
8Taite also raised objections to a couple of other procedural skirmishes that arose before the magistrate judge, but we do not address these objections as they are not relevant to this appeal.
9 One final detour as we near the end of the road this case has traveled: Taite began this appeal pro se and filed a pro se opening brief in which she raised numerous arguments. Once she found counsel to represent her, counsel filed a supplemental brief that effectively superseded Taite's pro se brief and narrowed the issue before us: whether the district court erred in granting summary judgment to BSU on Taite's claim of race discrimination.
- 12 - genuine dispute as to any material fact and the movant [BSU] is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
A dispute is "genuine" if the evidence "is such that a reasonable
jury could resolve the point in the favor of the non-moving party
[Taite]," Ellis v. Fid. Mgmt. Tr. Co., 883 F.3d 1, 7 (1st Cir.
2018) (citation omitted), and a fact is "material" if it "has the
potential of affecting the outcome of the case," Pérez-Cordero v.
Wal-Mart P.R., Inc., 656 F.3d 19, 25 (1st Cir. 2011) (citation
omitted). When determining if a genuine dispute of material fact
exists, "we look to all of the record materials on file, including
the pleadings, depositions, and affidavits" without evaluating
"the credibility of witnesses []or weigh[ing] the evidence." Ahmed
v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). We proceed with
caution and restraint when considering summary judgment motions
where, as here, issues of pretext, motive, and intent are in play.
See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 167 (1st Cir.
1998).
III. DISCUSSION
Contending here as she did below, Taite argues that BSU
did not offer her the Position on account of her race in violation
of Title VII, which prohibits employers from failing or refusing
to hire or otherwise discriminating against any individual "with
respect to . . . compensation, terms, conditions, or privileges of
employment, because of such individual's race." 42 U.S.C. §2000e-
- 13 - 2(a)(1). According to Taite, BSU's articulated reason for not
hiring her was pretextual and racially motivated. On that front,
she asserts there are genuine issues of material fact in dispute
precluding summary judgment for BSU and she thus asks us to reverse
the district court's grant of summary judgment and remand for
trial. Countering that the district court committed no error, BSU
asks us to affirm.
A. The McDonnell Douglas Framework
Because Taite does not allege there is evidence of direct
discrimination, we, like the district court, apply the familiar
three-step, burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), for allegations of
circumstantial evidence of discrimination.
i. Step One
At Step One, Taite has the burden to establish by a
preponderance of the evidence a prima facie case of racial
discrimination by showing: (i) she's a member of a protected
class; (ii) she was qualified for the Position; (iii) she applied
to the Position and wasn't hired; and (iv) the Position was filled
by someone with similar or inferior qualifications. See Cruz v.
Mattis, 861 F.3d 22, 25 (1st Cir. 2017) (applying the McDonnell
Douglas framework in a claim of discriminatory hiring under Title
VII). Once established, she is entitled to an inference of
- 14 - discrimination. See Caraballo-Caraballo v. Corr. Admin., 892 F.3d
53, 57 (1st Cir. 2018).
ii. Step Two
Once a prima facie case is made then, at Step Two, the
burden of production shifts to BSU to articulate a legitimate,
nondiscriminatory reason for hiring Frawley instead of Taite. See
Cruz, 861 F.3d at 25. BSU's articulated reason "must be one which,
on its face, would justify a conclusion that" Taite was not hired
"for a nondiscriminatory motive." Brader v. Biogen Inc., 983 F.3d
39, 55 (1st Cir. 2020) (internal quotation marks and citation
omitted). If BSU articulates such a reason, "the McDonnell Douglas
framework disappears and the sole remaining issue is
discrimination vel non." Id. (internal quotation marks and
citation omitted).
iii. Step Three
At Step Three, the burden of production shifts back to
Taite10 to show by a preponderance of the evidence, see Soto-
Feliciano v. Villa Cofresí Hotels, Inc., 779 F.3d 19, 23 (1st Cir.
2015), that BSU's articulated reason for not hiring her is
pretextual and that the actual reason is discriminatory, see
Bonilla-Ramirez v. MVM, Inc., 904 F.3d 88, 94 (1st Cir. 2018). A
10 A quick pause to emphasize it is only the burden of production that shifts; the burden of persuasion remains with Taite the entire time. See Caraballo-Caraballo, 892 F.3d at 57 n.4 (citation omitted).
- 15 - plaintiff can "establish pretext by showing weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons such
that a factfinder could" rationally find them unworthy of credence
and hence "infer that the employer did not act for the asserted
[nondiscriminatory reasons]." Santiago-Ramos v. Centennial P.R.
Wireless Corp., 217 F.3d 46, 56 (1st Cir. 2000) (internal quotation
marks and citation omitted). Moreover, to establish pretext,
"[t]here are many veins of circumstantial evidence that may be
mined" as "courts will look at evidence of discrimination not in
splendid isolation, but as part of an aggregate package of proof
offered by the plaintiff." Mesnick v. Gen. Elec., 950 F.2d 816,
824 (1st Cir. 1991) (citation omitted). Ultimately, to survive
summary judgment, Taite does not need to prove her case, see
Adamson v. Walgreens Co., 750 F.3d 73, 79 (1st Cir. 2014), but
instead, viewing the aggregate package of proof she offered, she
"need only show that [her] ability to meet [her] burden turns on
a genuine issue of material fact," Soto-Feliciano, 779 F.3d at 23.
"For purposes of the summary judgment analysis, then, the question
becomes whether a reasonable jury could find that . . . [BSU's]
proffered reason is pretextual and that [Taite] was in fact . . .
[not hired] because of [her] . . . race." Ahmed, 752 F.3d at 497;
see also id. ("Stated otherwise, we must determine if there is a
convincing mosaic of circumstantial evidence that would allow a
- 16 - jury to infer intentional discrimination.") (internal quotation
marks and citation omitted).
Taite argues that there are genuine material facts in
dispute as to whether BSU's articulated reason for not hiring her
was pretextual and whether racial discrimination was the real
motivator. We now turn to address those issues, providing
additional background facts as needed to supplement our
discussion.
B. The McDonnell Douglas Analysis
Below and before us, BSU conceded for purposes of summary
judgment that Taite established a prima facie case of racial
discrimination at Step One. Like the district court, we proceed
to Step Two.
Taite claims BSU fails to meet its Step Two burden. She
contends that the record evidence, when viewed in a light most
favorably to Taite and discounting BSU's conclusory and self-
serving statements, compels a finding that BSU has not articulated
a legitimate, nondiscriminatory reason for hiring Frawley. Taite
calls BSU's articulated reason for hiring Frawley -- because "they
believed [she] was more qualified and better suited to the
[P]osition" -- mere pretext for discrimination because, amongst
other reasons, Frawley objectively failed to meet both the required
and preferred qualifications for the job. Rather than decide who
has the better Step Two argument, we assume for purposes of
- 17 - analysis that BSU has articulated a neutral, nondiscriminatory
reason for selecting Frawley and proceed to the Step Three question
of whether Taite's evidence of pretext and animus are adequate.
We do so because in the end, we agree Taite has raised trial-
worthy issues which preclude the grant of summary judgment in BSU's
favor.
i. Pretext
Differences in Application of Interview Criteria & Consequent Differences in Evaluation
At Step Three, Taite says ample evidence exists which
would allow a reasonable jury to conclude BSU failed to hire her
for a racially discriminatory reason. In support of her claim,
Taite highlights several pieces of evidence of BSU's disparate
treatment,11 one of which we find compelling: the marked difference
in the way BSU evaluated the applicants' oral presentations and
mock investigation demonstrations during the campus interview.
Remember, the evaluators had been given the same evaluation form
to assess all of the finalists. But Taite says BSU deviated from
its own review process when it judged her. In defending its hiring
decision, BSU asserts that, unlike Frawley, Taite was unfamiliar
with certain Title IX procedures because she did not discuss
11For instance, Taite argues Frawley was not qualified so BSU could not have selected her because of her professional background. As Taite sees it, Frawley's experiences did not match the required or preferred competencies sought by the school in its job posting. But given our holding, we need not address this argument.
- 18 - retaliation, which Title IX prohibits, during the mock
investigation. According to DeBobes' affidavit, submitted in
support of BSU's motion for summary judgment: "[I]t was evident
from her mock interview that [Taite] was not familiar with some
Title IX requirements. She failed to mention to either the student
or the professor that retaliation is prohibited."
The record shows, and Taite concedes, she did not discuss
retaliation. The record also shows Taite was specifically
instructed that she did not need to do so. Three days before her
interview, Taite received an e-mail from Samantha Campbell,
Administrative Assistant for BSU's Office of Equal Opportunity --
the same office run by DeBobes. Campbell, who is white, was also
one of the evaluators invited to observe the on-campus interviews.
Campbell's e-mail to Taite included an attachment with
instructions for the presentation portion of the interview.
According to Campbell's instructions to Taite: (1) the assigned
presentation topic was "[a]n introduction to discrimination and
discriminatory harassment on the basis of race and national
origin"; (2) Taite did "not need to cover retaliation"; (3) Taite
did "not need to tie [her presentation] into [BSU]'s policies,
procedures, or definitions" because BSU "will tell the audience
that the presentation is not tied into the [U]niversity's
policies"; and (4) Taite "may use presentation software (such as
[PowerPoint], Prezi, etc.) or not, as [she] prefer[red]." There
- 19 - is no evidence in the record that Campbell similarly instructed
Frawley. In Taite's affidavit submitted in opposition to BSU's
motion for summary judgment, Taite reiterated the instructions she
received from Campbell, pointing to them as the reasons she
structured her presentation as she did. Moreover, according to
Taite's affidavit, no one read aloud the instructions she had been
given, particularly, "no one told the audience members at the
beginning of my PowerPoint presentation . . . that it was not tied
to any Bridgewater State University policies, procedures or
definitions as stated in the email from Samantha Campbell."12
After following Campbell's instructions, Taite
subsequently received lower scores on her evaluation forms. One
evaluator who gave Taite 2s, 3s, and 4s in the category
"Presentation and Delivery"13 noted that Taite "[d]idn't speak
about retaliation." Another evaluator who also gave Taite 2s, 3s,
and 4s in the same category on the evaluation form noted that
12Taite says Campbell was not present for her campus interview; DeBobes says she was.
The "Presentation and Delivery" category consisted of the 13
following questions:
Did the presenter speak clearly and at the right pace? Was the speaker enthusiastic? Was eye contact maintained? Did the speaker use notes excessively? Did the speaker seem to know what he/she was talking about? Did the speaker have any disturbing distractions or mannerisms? Did you find the speaker interesting? Did you understand everything that the speaker presented?
- 20 - Taite's presentation was "missing a few protected class[es]" and
that Taite "specified just federal law."14
In contrast, Frawley scored almost all 5s in the same
category of "Presentation and Delivery." Frawley's presentation
drew praise from the evaluators for the same reasons Taite's
presentation drew concerns from those same evaluators. Frawley
received praise for discussing retaliation: "Excellent interview
- Retaliation - interim measures - confidentiality protocol,"
"Noted the retaliation policy," and "Retaliation policy,
'promised' to protect." Frawley also received praise for her
knowledge of the material: "Knowledgeable" and "Well researched
material." Frawley received additional kudos for making her
presentation applicable to BSU: "Referenced BSU + Massachusetts
information." DeBobes' affidavit stated that Frawley "made the
presentation applicable to BSU" and her "presentation was the best
of the entire group." The record shows two of Frawley's evaluation
forms had no names. One of the unnamed forms was by far the most
positive form Frawley received. A reasonable jury could infer
Campbell prepared this glowing evaluation form for Frawley.
14We point out that Massachusetts law largely follows federal law. See generally Theidon v. Harvard Univ., 948 F.3d 477, 505 (1st Cir. 2020) (stating "Massachusetts law also makes use of the McDonnell Douglas burden-shifting framework" but noting Massachusetts' more permissive summary judgment standard in discrimination cases). Effectively, that would mean Taite's presentation discussing federal law would cover Massachusetts law too.
- 21 - Because Frawley discussed the same topics Taite was
instructed she did not need to discuss, a reasonable jury could
conclude BSU did not give Frawley the same instructions as Taite.
On a related note, because the evaluators praised Frawley for the
very reasons they criticized Taite, a reasonable jury could also
conclude BSU did not tell the evaluators that Taite and Frawley
received different sets of instructions. Moreover, a reasonable
jury could conclude that since Campbell worked for DeBobes in the
Office of Equal Opportunity and none of the evaluators (other than
Campbell) knew about the different set of pre-interview
instructions, the hiring process was arguably rigged by the Office
of Equal Opportunity in favor of Frawley.
As Taite points out, BSU weighed the presentations and
mock investigations "heavily" in its hiring decision, so having a
fair across-the-board process mattered. To that point, we have
said before that "[e]vidence that [the employer] 'deviated from
its standard procedure or policies in taking an adverse employment
action against [a plaintiff] may be relevant to the pretext
inquiry.'" Theidon v. Harvard Univ., 948 F.3d 477, 499 (1st Cir.
2020) (quoting Rodríguez-Cardi v. MMM Holdings, Inc., 936 F.3d 40,
50 (1st Cir. 2019)). "'The rationale is that if an employer has
a policy or procedure that governs a specific situation but fails
to adhere to the same in taking an adverse employment action
. . . , then it might be inferred that the reason articulated for
- 22 - taking the adverse employment action against the employee was not
true.'" Id. (ellipsis in original) (quoting Rodríguez-Cardi, 936
F.3d at 50). Taite points to evidence demonstrating she was
penalized for not discussing retaliation or tailoring her
presentation to BSU as so instructed by Campbell, whereas Frawley
was rewarded for doing just the opposite. Had BSU followed its
own procedure, Taite argues the differences in her interview
performance compared to Frawley's were not so drastic as to make
Frawley the only clear choice.
With that, Taite has pointed to irregularities in the
interview process. Viewing the evidence in the light most
favorable to Taite and drawing reasonable inferences in her favor
as we must, see Gerald, 707 F.3d at 16, we find that a reasonable
jury could conclude BSU's reason for choosing Frawley over Taite
was pretextual. This is especially so because, again, BSU weighed
the presentations and mock investigations "heavily" in its hiring
decision.
ii. Animus
Because a reasonable jury would also need to conclude
BSU's actual reason for not hiring Taite was discriminatory, see
Bonilla-Ramirez, 904 F.3d at 94, we now turn to discuss
discriminatory animus. We keep our discussion brief because "[t]he
same evidence used to show pretext can support a finding of
discriminatory animus if it enables a factfinder 'reasonably to
- 23 - infer that unlawful discrimination was a determinative factor in
the adverse employment action.'" Feliciano de la Cruz v. El
Conquistador Resort and Country Club, 218 F.3d 1, 6 (1st Cir. 2000)
(quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 57 (1st Cir.
1999)).
On this record, there is sufficient evidence from which
a reasonable jury could infer discriminatory animus. As discussed,
BSU gave Taite (who is Black) a distinct set of instructions from
Frawley (who is white). Then, when Taite followed them, BSU
penalized her. Moreover, BSU invited four Black finalists but
hired the only white finalist, who, in turn, arguably had less
experience than at least one Black finalist (Taite).
After reviewing the evidence in the light most favorable
to Taite, see Gerald, 707 F.3d at 16, for the reasons we've
explained above there is adequate evidence for a reasonable jury
to find Taite has carried her burden at Step Three, see Ahmed, 752
F.3d at 503 ("[S]ufficient evidence to support a finding of
pretext, in combination with the plaintiff's prima facie showing,
can suffice at times to raise an inference of discrimination that
will defeat summary judgment."); see also LeBlanc v. Great American
Ins. Co., 6 F.3d 836, 843 (1st Cir. 1993) (noting evidence of
pretext, "coupled with the elements of the employee's prima facie
case . . . may . . . lead the factfinder to infer that the employer
has engaged in intentional discrimination") (citation omitted).
- 24 - To be clear, our conclusion is constrained by our standard of
review; we refrain from making credibility determinations because
that is the province of the jury. See Ahmed, 752 F.3d at 495. At
this summary judgment stage, however, Taite's aggregate package of
proof suffices to survive BSU's motion for summary judgment. See
Gerald, 707 F.3d at 16 ("Summary judgment is not appropriate where
the evidence on record is sufficiently open-ended to permit a
rational fact finder to resolve the issue in favor of either
side.") (internal quotation marks and citation omitted).
IV. CONCLUSION
We vacate the district court's grant of summary judgment
and remand for further proceedings consistent with this opinion.
Costs to Appellant.
- 25 -