Billings v. Town of Grafton
90 Empl. Prac. Dec. (CCH) 43,101, 2008 U.S. App. LEXIS 2699, 515 F.3d 39 (2008)
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Rule of Law:
Repeated and frequent staring at a female subordinate's breasts, even without physical touching or overtly sexual comments, can be sufficiently severe or pervasive to constitute an objectively hostile work environment under Title VII. A subsequent job transfer that results in objectively less prestige and less desirable working conditions can be a materially adverse employment action supporting a retaliation claim, even if pay and benefits remain the same.
Facts:
- Nancy M. Billings began working as a secretary for Town Administrator Russell J. Connor, Jr. in September 1999.
- A few months into her employment, Billings noticed Connor frequently stared at her chest for extended periods during conversations, which continued for over two years.
- Billings took measures to avoid the staring, such as holding papers in front of her chest, and once went home to change clothes because the staring was so persistent.
- Billings formally complained about Connor's behavior to the Town's sexual harassment officer and the Board of Selectmen on multiple occasions; other female employees also reported similar behavior by Connor.
- After Billings filed a discrimination charge, she was given a written reprimand for opening a letter from Connor's personal attorney, an action Connor admitted he would have handled differently absent her complaint.
- Following a heart attack, Connor's psychologist stated that working with Billings would jeopardize Connor's health due to the stress from her harassment allegations.
- Based on the psychologist's letter, the Town transferred Billings to a secretarial position in the recreation department, which had the same pay but less prestige, fewer responsibilities, and required her to punch a time clock.
- After the transfer, Billings was banned from entering her former office, and when Connor later retired, the Town refused her request to be transferred back to her original position.
Procedural Posture:
- Nancy Billings filed a charge of discrimination against the Town of Grafton and Russell Connor with the EEOC and the Massachusetts Commission Against Discrimination (MCAD).
- After receiving a right-to-sue notice from the MCAD, Billings filed a complaint in the U.S. District Court for the District of Massachusetts, alleging hostile work environment and retaliation.
- The defendants moved for summary judgment on all claims.
- The district court granted the defendants' motion for summary judgment, finding that the alleged conduct was not sufficiently severe or pervasive to create a hostile work environment and that the job transfer was not a materially adverse employment action.
- Billings (appellant) appealed the district court's grant of summary judgment to the U.S. Court of Appeals for the First Circuit.
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Issue:
Does a supervisor's frequent and repeated staring at a subordinate's breasts create a triable issue of fact for a hostile work environment claim, and does a subsequent job transfer with no loss in pay but with reduced prestige and responsibilities constitute a materially adverse action for a retaliation claim?
Opinions:
Majority - Howard, Circuit Judge
Yes. A supervisor's frequent staring at a subordinate's breasts can be severe and pervasive enough for a jury to find a hostile work environment, and a transfer to a less prestigious job, even without a pay cut, can be a materially adverse action supporting a retaliation claim. The district court erred in granting summary judgment because it placed undue weight on the absence of physical touching or overtly sexual comments. The 'severe or pervasive' standard requires a fact-specific assessment of all attendant circumstances, and a reasonable person could find that frequent, unwanted staring at their breasts alters the conditions of employment. Furthermore, under the Supreme Court's standard in Burlington Northern, a materially adverse action is one that might dissuade a reasonable worker from making a charge of discrimination. The transfer resulted in objectively less prestige, a lower-level supervisor, and less desirable working conditions, which a jury could find meets this standard. Finally, a jury could find the Town's proffered reason for the transfer—accommodating Connor's health—was pretext for retaliation, given inconsistencies in the decision-making process and other retaliatory acts.
Analysis:
This decision clarifies that non-physical conduct like staring, if frequent and persistent, can be sufficient to support a hostile work environment claim, rejecting a rigid test that requires touching or explicit propositions. It provides an important application of the Supreme Court's Burlington Northern standard for retaliation, affirming that a 'materially adverse action' is a broad concept not limited to financial harm. The ruling emphasizes that changes in job prestige, duties, and working conditions can constitute retaliation if they would deter a reasonable employee from reporting discrimination. The case serves as a caution to lower courts against granting summary judgment prematurely in discrimination cases where employer motive and the objective severity of conduct are central, disputed issues of fact best left for a jury.
