Decisionmaker’s Interview Remark About Female Suitability Can Defeat Summary Judgment; Strategic Waiver Limits Babb Protection for Federal ADEA Claims — Commentary on Warner v. DeJoy (1st Cir. 2025)

Introduction

In this mixed outcome appeal from a summary judgment, the First Circuit simultaneously delivers two salient messages for federal employment litigation. First, even though federal-sector age claims under the ADEA are governed by the lenient “taint” standard of Babb v. Wilkie, a plaintiff’s strategic decision to litigate under the more demanding McDonnell Douglas framework can amount to waiver, constraining appellate review. Second, a decisionmaker’s contemporaneous interview comment questioning “how” the appointment of a woman would “work” where no woman had held the role before can, when combined with other circumstantial proof, create a triable issue of sex discrimination sufficient to defeat summary judgment.

Elizabeth Warner, a long-serving USPS postmaster, alleged she was denied two Level 20 postmaster promotions (Durham and Somersworth, New Hampshire) due to age and sex. The district court granted summary judgment to USPS on all claims, deeming the employer’s proffered reasons non-pretextual. On appeal, the First Circuit:

• Affirmed dismissal of the ADEA claims (age discrimination) based on the plaintiff’s strategic waiver of the governing federal-sector standard and insufficient proof of pretext even under McDonnell Douglas.
• Affirmed dismissal of the Title VII claim as to the Durham promotion (insufficient nexus and proof).
• Reversed as to the Somersworth promotion, holding that the interview remark about never having had a female postmaster and “wondering how that would work” could allow a jury to find sex-based pretext when assessed with the totality of evidence.

Summary of the Judgment

The First Circuit reviewed the summary judgment de novo, viewing the record in Warner’s favor. It recognized that federal-sector ADEA claims are governed by Babb v. Wilkie’s “taint” standard (no but-for causation required), not McDonnell Douglas. The district court applied McDonnell Douglas at the parties’ joint urging. Although that was legal error, Warner had strategically chosen not to invoke Babb below, which the First Circuit treated as a waiver of the correct standard for her age claims. Proceeding under McDonnell Douglas, the court held that:

• Age discrimination (both promotions): No reasonable jury could find the stated reasons (city delivery experience, leadership, organization, interview performance) were a pretext for age bias; “energy” comments do not necessarily connote age; gaps in the decisionmaker’s recollection did not materially impugn the reasons; and comparative qualifications were not “so stark” as to signal pretext.
• Sex discrimination—Somersworth: A triable dispute exists. The decisionmaker’s interview comment that Somersworth had never had a female postmaster and she “wondered how that would work,” when combined with other circumstantial evidence, could allow a jury to infer sex-based motive and pretext. Summary judgment reversed on this claim.
• Sex discrimination—Durham: Insufficient evidence. The Somersworth-specific remark did not reasonably bear on the earlier Durham decision; absent that nexus, the remaining evidence could not create a triable issue. Summary judgment affirmed.

Analysis

Precedents Cited and Their Influence

• Babb v. Wilkie, 589 U.S. 399 (2020): Federal-sector ADEA requires personnel actions be “free from any discrimination based on age.” No but-for causation; any taint suffices. The court acknowledged the district court erred by not applying Babb but enforced Warner’s strategic waiver, analyzing under McDonnell Douglas instead.
• McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): Burden-shifting framework for indirect discrimination proof. The court used it for both the age claims (by waiver) and the Title VII sex claims (by party agreement), assessing pretext and discriminatory motive.
• Joseph v. Lincare, Inc., 989 F.3d 147 (1st Cir. 2021): Reliance on a material assertion the employer knew to be false can evidence pretext. Warner’s inconsistencies did not approach a knowingly false, material assertion, distinguishing Joseph.
• Mesnick v. General Electric, 950 F.2d 816 (1st Cir. 1991) and Medina-Muñoz v. R.J. Reynolds, 896 F.2d 5 (1st Cir. 1990): Impugning credibility alone is insufficient; plaintiff must show sham reasons intended to mask discriminatory motive. Guided the rejection of Warner’s age claims and the Durham sex claim.
• Torrech-Hernández v. General Electric, 519 F.3d 41 (1st Cir. 2008): “Energy” does not necessarily connote youth. This precedent undercut the age inference from Hayes’s “energy” comments.
• Rathbun v. AutoZone, 361 F.3d 62 (1st Cir. 2004): Qualifications disparity must be “so stark” to support pretext. The court found no such stark disparity here.
• McMillan v. MSPCA, 140 F.3d 288 (1st Cir. 1998): “Stray remarks” are probative only in combination and when sufficiently connected in time and context. Undermined weight of remote “smoking hot OICs” comment.
• Ahmed v. Johnson, 752 F.3d 490 (1st Cir. 2014) and Holland v. Gee, 677 F.3d 1047 (11th Cir. 2012): Endorsed the “mosaic of circumstantial evidence” approach. Supported letting a jury weigh Hayes’s interview remark alongside other evidence for Somersworth.
• Huff v. Buttigieg, 42 F.4th 638 (7th Cir. 2022): Held Babb applies to Title VII’s federal-sector provision; the First Circuit noted but did not decide this question, leaving it open in the circuit.
• United States v. Olano, 507 U.S. 725 (1993); TI Fed. Credit Union v. DelBonis, 72 F.3d 921 (1st Cir. 1995); Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) and Wadsworth v. Nguyen, 129 F.4th 38 (1st Cir. 2025): Address waiver and the court’s discretion regarding parties’ legal positions. The court enforced Warner’s strategic waiver of the Babb standard.
• Patten v. Wal–Mart, 300 F.3d 21 (1st Cir. 2002) and Zampierollo-Rheinfeldt v. Ingersoll-Rand, 999 F.3d 37 (1st Cir. 2021): Clarify what counts as direct evidence. The court rejected the claim that “energy” comments were direct age-bias evidence.
• O’Horo v. Boston Medical Center, 131 F.4th 1 (1st Cir. 2025): Reinforces that a Title VII plaintiff must show both pretext and discriminatory motive. Applied to reject the Durham sex claim.
• Standards of review and summary judgment: Mullane v. DOJ, 113 F.4th 123 (1st Cir. 2024); Sutherland v. Peterson’s Oil, 126 F.4th 728 (1st Cir. 2025); Rodríguez-Cardi v. MMM, 936 F.3d 40 (1st Cir. 2019).
• United States v. Zannino, 895 F.2d 1 (1st Cir. 1990): Undeveloped arguments are waived. Used in footnote to deem certain interview-related discrepancies waived.

Legal Reasoning

1) Age discrimination (ADEA, federal sector)

Statutory framework: 29 U.S.C. § 633a(a) requires that federal-sector personnel actions be made “free from any discrimination based on age,” unlike the private-sector “because of” phrasing in § 623(a)(1). Under Babb, federal employees need only show age tainted the process, not that age was the but-for cause of the outcome.

Procedure: Although the district court erred by using McDonnell Douglas instead of Babb, the plaintiff strategically chose not to invoke Babb below; the First Circuit treated this as waiver and proceeded under McDonnell Douglas.

Merits under McDonnell Douglas: USPS offered legitimate, nondiscriminatory reasons: city-delivery expertise, leadership, organization, and interview performance for both selectees (Minigan for Durham; Adams for Somersworth). Warner’s counterproof failed:

• Age disparity alone (younger selectees) is insufficient.
• “Energy” remarks are not inherently age-coded (Torrech-Hernández), and the context did not compel an age inference.
• Qualifications: Warner’s background did not eclipse Minigan’s or Adams’s city-delivery credentials to a “so stark” degree (Rathbun).
• Inconsistencies: The identified gaps (e.g., missing notes, hazy recollections) were not materially tied to the decisional reasons and did not resemble the “knowingly false, material assertion” pretext evidence in Joseph.

Result: No triable issue of pretext or age bias; summary judgment affirmed on age claims.

2) Sex discrimination (Title VII, federal sector)

Framework: The court applied McDonnell Douglas by the parties’ agreement and expressly did not decide whether Babb’s causation standard governs Title VII’s federal-sector provision (noting the Seventh Circuit’s contrary view in Huff).

Somersworth promotion

The critical piece was the decisionmaker’s interview remark: that Somersworth had never had a female postmaster and “she wondered how that would work.” The court reasoned that a jury could interpret this as doubt about a woman’s suitability for the role, particularly because:

• The remark was contemporaneous with the interview for the exact job at issue and made by the decisionmaker.
• When combined with other (individually weak) evidence—some demographic data, a later “smoking hot OICs” comment, and the general pretext record—the remark could contribute to a “mosaic of circumstantial evidence” from which a jury could infer sex-based motive.

While USPS suggested the remark could reflect “wondering aloud” or a neutral observation, that ambiguity itself created a material fact question about motive, inappropriate for resolution on summary judgment.

Holding: Reversal of summary judgment on the Somersworth sex-discrimination claim; remand for trial or further proceedings.

Durham promotion

By contrast, the Somersworth-specific remark did not plausibly bear on the earlier Durham decision (no evidence of all-male leadership tradition there). Without that nexus, the other evidence (comparative qualifications, general inconsistencies, remote remarks) did not suffice to create a triable issue of pretext plus discriminatory motive (O’Horo).

Holding: Summary judgment affirmed for USPS on the Durham sex-discrimination claim.

Impact and Practical Significance

A. Procedure and preservation

• Strategic waiver can foreclose favorable standards. Federal employees should expressly invoke Babb for ADEA claims—and consider arguing its application to Title VII’s federal-sector claims—to avoid being confined to McDonnell Douglas.
• Develop materiality and falsity in pretext evidence. To mirror Joseph, plaintiffs should pinpoint specific, demonstrably false, material assertions relied upon in the decision, not merely memory lapses or missing notes.
• Raise all discrepancies timely. The court’s footnote shows that even potentially significant inconsistencies (e.g., whether an interview occurred) can be waived if not argued with developed analysis (Zannino).

B. Substantive employment law

• Interview remarks by decisionmakers matter. A contemporaneous remark questioning the suitability of a woman for a historically male-held role can tip the scales against summary judgment when combined with other circumstantial evidence. Employers should train interviewers to avoid commentary that can be construed as gender stereotyping.
• “Energy” is not inherently ageist. Without more, comments about “energy” will rarely supply direct or circumstantial age bias inferences (Torrech-Hernández), though context can sometimes change that analysis.
• Demographics need context. Raw promotion counts (men vs. women) have limited probative value without applicant-pool and qualification data tailored to the relevant positions and time frame.
• Qualifications comparisons have a high bar. To show pretext, the plaintiff’s qualifications must be markedly superior (“so stark”) relative to those of the selectee (Rathbun).
• Open question in the First Circuit: Whether Babb’s “taint” standard applies to Title VII’s federal-sector claims remains unresolved, with Huff (7th Cir.) offering persuasive authority for extension.

Complex Concepts Simplified

• Summary judgment: Case is decided without a trial if no genuine dispute of material fact exists and one party is entitled to judgment as a matter of law.
• McDonnell Douglas framework: A three-step proof method when no direct evidence exists: (1) plaintiff makes a prima facie case; (2) employer articulates a legitimate reason; (3) plaintiff shows the reason is pretext masking discrimination.
• Pretext: The employer’s stated reason is not the true reason; it is a cover for unlawful discrimination.
• But-for causation vs. taint: But-for means the adverse outcome would not have happened absent the protected trait. Taint (under Babb) means the process was influenced by the trait, even if the same outcome might have occurred.
• Direct evidence: Evidence that, if believed, requires no inference to conclude discriminatory motive (e.g., “We’re not hiring you because you’re a woman”).
• Stray remarks: Comments remote in time, context, or decisionmaker status, which have limited value unless linked to the decision at issue.
• Waiver vs. forfeiture: Waiver is intentional relinquishment of a known right (often binding); forfeiture is inadvertent failure to raise an issue (sometimes reviewable for plain error). Warner’s was waiver.
• Mosaic of circumstantial evidence: A body of interrelated pieces of proof that, taken together, may allow a jury to infer discrimination even if no single piece is conclusive.

Conclusion

Warner delivers dual guidance. On procedure, it is a cautionary tale: federal employees alleging age discrimination must preserve and press the Babb “taint” standard; strategic choices to proceed under McDonnell Douglas can bind the case and doom potentially viable claims. On the merits, it underscores the probative force of a decisionmaker’s interview-time remark implying skepticism about a woman’s suitability for a historically male-held role. That kind of contemporaneous, role-specific statement—especially when viewed within a mosaic of circumstantial evidence—can sustain a jury question on sex discrimination and pretext.

The First Circuit affirmed summary judgment on Warner’s age claims and the Durham sex claim, but revived her Somersworth sex claim. Unresolved in the circuit is whether Babb’s causation standard extends to Title VII’s federal-sector claims. For litigants and employers alike, the opinion offers practical direction: preserve the correct legal standards, ground pretext showings in materially false decision reasons where possible, avoid stray or stereotype-laden interview remarks, and contextualize statistical evidence with applicant-pool data. In short, Warner refines the lines between harmless “stray” comments and actionable, contemporaneous signals of bias—and between mere credibility attacks and evidence of discriminatory motive.