As the second half of the Major League Baseball season begins tonight (with thanks to Zach Britton, Matt Wieters, and the rest of the Orioles All-Stars for helping to win World Series home-field advantage for the AL), the First Circuit offered another reminder that baseball doesn’t always mix well with the workplace. Burns v. Johnson, No. 15-1982 (1st Cir. July 11, 2016).
Kathleen Burns began working for the Transportation Security Administration (TSA) in Boston shortly after 9/11. Burns, the only female employee in the Operations unit, was primarily responsible for scheduling international flights for Federal Air Marshals (“FAMs”) and was, by all accounts, an “excellent employee.”
On May 7, 2012, David Johnson joined the Boston field office as the Supervisory Air Marshal in Charge (“SAC”), a position that made him Burns’ third-level supervisor. A former Division I college baseball player, Johnson brought with him a full-sized Louisville Slugger baseball bat emblazoned with the TSA office logo that his Virginia office staff gave to him prior to his move. Rather than keeping the bat as a desk ornament or on his office wall, however, Johnson frequently walked around the office wielding the bat in a swinging position.
Shortly after his arrival, Johnson greeted Burns by asking, “Who are you?” and “What do you do for me?” in a manner that witnesses described as condescending. During a meeting about who should be responsible for flight scheduling, Johnson questioned “why she” (referring to Burns) was in charge. Less than three weeks later, Johnson approached Burns (again carrying the bat) and commented to her, “so you do still work here?” He also commented to co-workers that an internal system Burns had helped design was “stupid,” and told Burns that he had “concerns” about Burns’ longstanding alternative work schedule.
By May 31, Johnson had decided to reassign Burns’ international flight scheduling responsibilities to her male co-workers, giving Burns clerical tasks such as data entry and answering phones. Johnson then approached Burns in early June after this reassignment and commented, while tapping bat in hand, about “how much better things were going to be[.]”
Burns notified supervisory staff on June 14, 2012 that she would be retiring, effective August 1. Burns then formally complained about Johnson’s behavior with her supervisor, filed an EEOC charge complaining of discrimination and a hostile work environment based on her sex, and lodged a complaint with the TSA Office of Inspection. Following a two-and-a-half month investigation, TSA substantiated the allegations that Johnson had, among other things, used “abusive, offensive, disrespectful, inflammatory or similarly inappropriate language, gesture or conduct,” and engaged in “[f]ighting, threatening, intimidating, attempting to inflict or inflict[ing] bodily harm on another” and “violent, reckless, or disorderly act, language, gesture, or conduct.” TSA then demoted and transferred Johnson.
Burns filed a lawsuit raising the same gender discrimination and sex harassment claims. DHS moved for summary judgment, which the district court granted. The court concluded that Burns’ gender discrimination claim failed because she could not show that Johnson’s conduct was motivated by her sex, and her hostile work environment claim lacked sufficient “severe and pervasive conduct.”
On appeal, the First Circuit called foul. Observing that the reassignment of tasks was sufficient adverse employment action, the appellate court concluded that a reasonable jury could conclude Johnson’s actions were motivated by Burns’ being female. Significantly, the court noted, sex discrimination is not limited to “only [] blatantly sexist acts and remarks”; rather, “stereotyping, cognitive bias, and certain other ‘more subtle cognitive phenomena which can skew perceptions and judgments’” are also forms of discriminatory conduct.
The Court explained that Johnson’s actions could be found to be based on his stereotype that men are better suited for leadership positions than women, including in tasks concerning national security or defense. Though Johnson often walked around the bat, the Court relied on evidence that Johnson used the bat in intimidating fashion around Burns (such as banging it directly on her desk, patting it menacingly in his hand, and gripping it tightly) compared to when he interacted with men. Johnson also made demeaning comments to Burns (“Who are you?” and “[W]hat do you do for me?”, as well as “so you do still work here”) that he did not make to her male co-workers. Combined with the fact that Johnson’s critiques of Burns’ alternative work schedule were not merited by performance issues, the Court ruled that Burns had won the right to go to trial.
Burns also scored a victory on her sex harassment claim. It was irrelevant, the Court observed, that Johnson’s conduct was not based on sexual desire. The pervasiveness of Johnson’s bat wielding, combined with its physically threatening nature, was more than enough to proceed.
The case emphasizes the need for employers not to take their eye off the ball with regarding to maintaining a safe and peaceful work environment. As a general rule, the proper place for a baseball bat is on the softball league field or the batting cages, rather than office hallways and meeting rooms.