Caraballo$-$Caraballo v$.$ Corr. Admin.,$829$ F$\mathrm{.}3$d $53(1$st Cir. $2018)$Corrections Officer Vilmarie Caraballo$-$Caraballo filed thisTitle VII gender discrimination action against her employer, the Corrections Department of the Commonwealth of Puerto Rico, after she was transferred and replaced by one male employee and then, after the transfer of that employee, by a second male employee. C$.$O$.$ Caraballo had a high school diploma and had worked in the Radio Communications Area for six years before being transferred to the Inmate Commissary. Her replacement had an associate's degree in computer programming and a license from a radio communications association. Caraballo's supervisor requested her return to the Radio Area but was denied with no explanation.Caraballo filed a charge of gender discrimination with the EEOC and subsequently initiated this action in May $2012.$ Her complaint alleged that the Department's decision to transfer her and to replace her with Cordero and then Anaya was motivated by gender discrimination. The district court granted summary judgment to the Department on each claim... This appeal followed.

In challenging the district court's entry of summary judgment on her disparate treatment claim, Caraballo contends that the Department's initial decision to replace her with Cordero and its subsequent decision to select Anaya$-$instead of her$-$as Cordero's replacement were both based on her gender. Disparate treatment claims under Title VIl are ordinarily subject to the familiar McDonnell Douglas burden$-$shifting framework. The district court described Caraballo's prima facie case as requiring her to show that, $"(1)$ she is a member of a protected class; $(2)$ she was qualified $[$for the position$]$; $(3)$ she suffered an adverse employment action; and $(4)$ someone else holding similar qualifications was chosen or selected for the same position." In the ensuing discussion, we refer to the second element as the "job qualifications" element, the fourth element as the "similar qualifications" element, and the two elements collectively as the"qualifications elements." $[...]$

After reciting the elements of Caraballo's prima facie case, the court found that she had satisfied the first three elements, but failed to meet the similar qualifications element. The court compared Caraballo's credentials to Cordero's, and found Caraballo's credentials wanting... The court limited its analysis to this comparison of Caraballo's and Cordero's educational credentials. Relying on our decisionin Johnson, $714$ F$\mathrm{.}3$d at $54,$ it reasoned that $"[$t$]$he qualifications $[$Caraballo$]$ obtained through experience, good work, and reputation may not be used to prove her to be similarly situated to Cordero." This application of Johnson was incorrect.

Johnson thus stands for the straightforward proposition that where an employer requires minimum qualifications for an open position that are "reasonable on $[$their $]$ face and $...$ plainly legitimate," a plaintiff ordinarily cannot rely on her experience and reputation to show that she was qualified for the position if she does not possess the qualifications specified by the employer. That holding is inapposite to the similar qualifications element of the prima facie showing in Caraballo's discriminatory transfercase.

Under the McDonnell Douglas framework, the requirements of a plaintiff's prima facie case "can vary depending on the context and were 'never intended to be rigid, mechanized, or ritualistic.$\text{'}[...!"$

In failure to hire or promote cases, the plaintiff is ordinarily vying for an open position, for which the employer has established certain minimum qualifications. Courts thus assess the plaintiff's qualifications in light of the employer's stated job requirements. If the plaintiff does not possess the requisite qualifications, she ordinarily cannot raise an inference that her protected characteristic, rather than her lack of qualifications, accounted for the employer's failure to hire or promote her. Likewise, the plaintiff in such cases ordinarily cannot create an inference of discrimination by arguing that, on the basis of experience and reputation, she was similarly qualified as a successful applicant who did possess the qualifications specified by the employer. In discharge or transfer cases, however, the employer "has already expressed a belief that $[$the plaintiff$]$ is minimally qualified," by previously "hiring the employee." Gregory v$.$ Daly, $243$ F$\mathrm{.}3$d $687,696(2$d Cir. $2001).$ Accordingly, in such cases, courts will rarely need to compare the plaintiff's credentials with the employer's stated job requirements. Instead, the plaintiff's ability to satisfy the job qualifications element will ordinarily depend on whether she was successfully performing her job at the time of her discharge or transter, such that she did not disqualify herself by performing poorly. Likewise, the fact that the employer has already deemed the plaintiff minimally qualified undermines any basis for preventing the plaintiff from relying on her experience and reputation in establishing the similar qualifications element. As described above, we have only applied that rule to the similar qualifications element in cases such as Johnson where the plaintiff is not minimally qualified but her comparator is $|....]$

Instead of preventing Caraballo from relying on her work experience, the district court should have compared Caraballo to Cordero $"$in all relevant respects." Conward v$.$ Cambridge Sch$.$Comm., $171$ F$\mathrm{.}3$d $12,20(1$st Cir. $1999).$ The court must decide "whether a prudent person, looking objectively" at the plaintiff and her comparator "would think them roughly equivalent," and similarly qualified for the position. Velez, $585$ F$\mathrm{.}3$d at $451($quoting Perkins v$.$ Brigham & Women's Hosp., $78$ F$\mathrm{.}3$d $747,752(1$st Cir. $1996))$I$..]$

By the time of her transfer, Caraballo had six years of experience working in the Radio Communications Area. Her performance during that time was so successful that her immediate supervisor, Sep$$lveda$,$ wanted her returned to the position after she was transferred. This successful tenure in the Radio Communications Area would allow a reasonable person to conclude that Caraballo's qualifications were similar$-$if not superior$-$to Cordero's, despite his better educational credentials.

Turning to Caraballo's second replacement, the district court failed to assess whether Caraballo and Anaya were similarly qualified. The record indicates that the Department transferred Anaya to the Radio Communications Area shortly after it transferred Cordero to that unit. When the Department reassigned Cordero a couple of months later, Sep$$lveda asked that Caraballo be returned to her former position. Instead, the Department selected Anaya for the position. At that time, Anaya's qualifications consisted of a couple of months' experience working in the Radio Communications Area. This qualification pales in comparison to Caraballo's six years of experience in her prior position$|....]$

Caraballo thus satisfied the similar qualifications element of her prima facie case by showing that she was similarly qualified to both Anaya and Cordero. The district court's conclusion to the contrary rested on an erroneous extension of our decision in Johnson, and on its neglect of a relevant comparator, Anayal....$]$

Caraballo has thus established a prima facie case of gender discrimination. She was successfully performing her position, was adversely transferred, and was twice replaced by someone whom a reasonable person could consider similarly $($or less$)$ qualified. Caraballo's satisfaction of the prima facie step of the McDonnell Douglas framework creates an inference of discrimination, requiring the Corrections Department to produce a legitimate, nondiscriminatory justification for its action.However, the Department's briefing before the district court did not even attempt to offer such a justification. Because Caraballo established a prima facie case of gender discrimination that her employer failed to rebut, the district court erred by granting summary judgment in the Department's favor. We thus vacate the district court's grant of summary judgment as to Caraballo's disparate treatment claim, and remand for further proceedings consistent with this opinion.

Case Questions

$1.$ What is the distinction the court is making between what the district court did in comparing Caraballo's education credentials with Cordero's versus comparing their existing experience after employment?

$2.$ How could a performance appraisal play a role in changing the outcome of this disparate treatment discrimination case?