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.,

(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,

, 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,

. 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,

(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,

.

The familiar McDonnell Douglas burden-shifting framework

applies to the appellant's disparate treatment claims.5 See

McDonnell Douglas Corp. v. Green,

(1973); see

also Boykin,

. Under that framework, the plaintiff

in a discrimination case first must make a prima facie showing of

discrimination. See Boykin,

. 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,

(R.I. 2004).

- 8 - rise to an inference of discrimination. See Rinsky v. Cushman &

Wakefield, Inc.,

(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,

(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.,

(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,

. 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

"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.,

(2000) (alteration in original) (quoting

Burdine,

).

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.,

(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.,

(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

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,

. 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.,

(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,

.

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,

. The district court concluded that the appellant had

failed to carry her burden at this stage of the inquiry. See

Ripoli,

, 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.

1

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,

, at *5.

Although the district court did not demand any "smoking gun"

evidence of discriminatory intent,

(quoting Thomas v. Eastman

Kodak Co.,

(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,"

- 15 - (quoting Theidon v. Harvard Univ.,

(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.,

, 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,

. 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,

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,

. 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,

(quoting Reeves,

).

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,

). 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,

. 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,

(1st Cir. 2021) (quoting Che v. Mass. Bay Transp. Auth.,

(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.'"

(quoting Feliciano de la

Cruz v. El Conquistador Resort & Country Club,

(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,

(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.,

(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,

(1st Cir.

- 20 - 2014), and Weston-Smith v. Cooley Dickinson Hospital,

(1st Cir. 2002), are sufficiently different such that our holdings

in favor of the employers in those cases are inapropos. See Dunn,

; Weston-Smith,

. 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

. In Weston-Smith, we once

again dealt with a reorganization of a larger team. See

. 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.

. 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,"

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.,

(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,

(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.,

(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."

. "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,

(1st Cir. 2023) (quoting

Conward,

). "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.,

(1st Cir. 1989)). In the last analysis, "[e]xact

correlation is neither likely nor necessary, but the cases must be

fair congeners."

(quoting Dartmouth Rev.,

).

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.,

, 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,

, 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

4

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,

(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.,

(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.,

(1999), inasmuch

as the district court has not yet ruled on that defense, see, e.g.,

Town of Barnstable v. O'Connor,

(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,

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 -