United States Court of Appeals
For the First Circuit
No. 25-1519
GINA RUSSO,
Plaintiff, Appellant,
v.
NEW HAMPSHIRE NEUROSPINE INSTITUTE, P.A.; and
URI M. AHN,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Aframe, Howard, and Dunlap,
Circuit Judges.
Robert S. Mantell, with whom Law Office of Robert S. Mantell,
Kamee Verdrager, and KVB Law were on brief, for appellant.
David J. Betancourt, with whom Dona Feeney and Feeney Friedman
Getman PLLC were on brief, for appellee Ahn.
Amanda E. Quinlan, with whom Adam M. Hamel and McLane
Middleton, Professional Association were on brief, for appellee
New Hampshire Neurospine Institute, P.A.
August 25, 2026
AFRAME, Circuit Judge. Gina Russo worked for eleven
years as a physician's assistant ("PA") at New Hampshire
Neurospine Institute, P.A. (the "Institute"). During her tenure,
Russo had several negative interactions with Dr. Uri Ahn, an
orthopedic surgeon with the Institute. Based on these
interactions, Ahn accused Russo of disrespecting him, which
resulted in the Institute terminating Russo's employment at Ahn's
insistence. Nevertheless, the Institute allowed Russo to continue
working while she negotiated a severance agreement. When Russo
complained that the Institute terminated her employment because
of sex discrimination, the Institute stopped negotiating and
immediately ended Russo's employment.
Russo sued the Institute and Ahn (collectively, the
"Defendants") alleging, inter alia, discrimination and
retaliation under state and federal law. The district court
granted summary judgment for the Defendants. Russo timely
appealed. We conclude that summary judgment was appropriate on
the sex discrimination claim but not on the retaliation claim.
Accordingly, we affirm in part, reverse in part, and remand for
further proceedings.
I.
A. Factual Background
On review of a grant of summary judgment, we describe
the underlying facts in the light most favorable to Russo, the
- 2 -non-moving party. See Walsh v. HNTB Corp., 169 F.4th 330, 336
(1st Cir. 2026).
The Institute is a professional association of medical
doctors located in Bedford, New Hampshire. Some of the Institute's
doctors are partners, meaning they hold ownership interests and
voting rights, while others are regular employees. Ahn, an
orthopedic spine surgeon, is a partner who served as the
Institute's vice-president. The Institute has never employed a
female doctor.
Russo began working for the Institute in March 2008 as
a PA. At the time, the Institute had two main specialties,
neurosurgery and orthopedic surgery, each of which "maintained
largely separate operations." Russo primarily worked in
neurosurgery. In August 2016, the Institute merged its
neurosurgery and orthopedic surgery practices.
1. The October 15, 2016 Incident
On October 15, 2016, a few months after the merger, Russo
and Ahn had their first negative interaction. Russo was on call
and performing rounds at Elliot Hospital in Manchester, New
Hampshire, where the patient of another Institute doctor, Paul
Wang, "suddenly coded" because of an apparent "massive heart
attack." Wang instructed Russo to remain with his patient. At
the time, Dr. N. Ross Jenkins was serving as the on-call
- 3 -neurosurgeon for the Institute and was conducting rounds at Concord
Hospital in Concord, New Hampshire.
Ahn also was on-call. He, however, was traveling out of
state with his family to attend his son's hockey game. Ahn called
Russo to ask her to see a patient at St. Joseph's Hospital in
Nashua, New Hampshire. Ahn described the patient in Nashua as an
"urgent" case and asked Russo to see the patient "at that moment"
because the patient had a lumbar epidural abscess, which can cause
paralysis. Russo told Ahn that she did not believe she could go
see his patient because "there was an emergent situation that had
developed at the Elliot Hospital." Ahn "did not sound happy" with
Russo's response so Russo said that she would call Jenkins and
Wang.
Reporting back to Ahn, Russo explained that both Jenkins
and Wang wanted her to remain at Elliot Hospital and asked Ahn if
he "could get [to St. Joseph's] first." Ahn then "got angry" and
said he would not go to St. Joseph's. He later described Russo's
tone as "disrespectful," "hateful," and "resentful" and believed
that Russo did not want to follow his instructions.1 Russo
ultimately went to St. Joseph's to attend to Ahn's emergent
patient.
1 Ahn's wife, Kerri Ahn, was in the car with him when he
spoke to Russo and overheard the telephone conversation. Ahn's
wife also described Russo's tone as "rude and hostile and
unprofessional[.]"
- 4 -Later, Ahn called Jenkins and Wang to determine if Russo
had been lying about the coding patient at Elliot Hospital. During
his call with Wang, Ahn complained that Russo had been "very rude,"
"very insubordinate," and "abrasive." Wang confirmed that Russo
had "followed [his] directions," and Jenkins later noted that she
"did the correct thing."
Ahn later reported the interaction with Russo to Anne
Talbot-Kleeman, the Institute's executive director, expecting that
Talbot-Kleeman would discipline Russo. Talbot-Kleeman urged Russo
to "clear the air" with Ahn but did not otherwise discipline her.
Russo stated she never had any follow-up discussion with Ahn about
the October 15, 2016 incident.
2. The Summer 2017 Incident
In the summer of 2017, Russo was assigned to obtain
consent for surgery from one of Ahn's patients. Following one of
the Institute's templates, Russo informed the patient that one
risk from the proposed surgery was an additional, future surgery,
and the patient asked how to minimize that risk. Russo discussed
an alternative to the surgery but also told the patient that she
did not "know whether that's something [Ahn] would do or want to
do." She then went to look for Ahn, who was unavailable. Because
Russo could not find Ahn, she asked Dr. Neal Luther, another doctor
at the Institute, about the surgical alternative. Based on
Luther's response, Russo told the patient that though she did not
- 5 -"know what Dr. Ahn's feeling would be on" the alternative option,
it "was something that [Luther] said could be entertained." Russo
did not tell Ahn about her interaction with the patient.
After the consent visit, Ahn received "an angry call"
from the patient's wife expressing "doubts about the surgical
plan[.]" Ahn felt that Russo had handled the consent process
"inappropriate[ly]" and "severely damaged the trust the patient
had in [his] judgment[.]" Ahn called Russo "[y]elling and
screaming." He was "quite upset" with her and told her that it
was "not [her] job to discuss anything[] other than bleeding and
infection."
Around June 28, 2017, shortly after his call with Russo,
Ahn requested Russo's removal from his surgical cases. Russo came
to realize that she was not being scheduled with Ahn and did not
ask to work with him; she would also tell the Institute staff when
she was inadvertently scheduled to work with Ahn, and they would
modify the schedule so that Ahn and Russo would remain apart.
Ahn had also requested that he not be scheduled for
surgery with another female PA, Georgia Plamondon, and testified
that he had asked not to operate with male PAs Mike Smith and
Russell Denysyk. Russo acknowledged that Ahn did work with some
female PAs, and that at one point, male PA Tim Miller was also not
on Ahn's schedule.
- 6 -3. The March 9, 2019 Incident
On March 9, 2019, Russo was working at the Catholic
Medical Center when she received a call from Ahn, who was at Elliot
Hospital. Ahn sought Russo's help discharging a patient, to which
Russo asked if Ahn "need[ed] [her] to talk [him] through how to
discharge the patient" or if he wanted her to discharge the patient
when she went home. Ahn then yelled that Russo was "[fuck]ing
passive-aggressive and disrespectful." In response, Russo "raised
[her] voice" and replied, "I'm just trying to tell you. I'm just
trying to find out how I can help you." Ahn felt Russo was
"yelling" in a manner "that was unacceptable." Ahn told Russo to
discharge the patient when she went home, which she did.
Ahn called Talbot-Kleeman to tell her about Russo's
behavior, which he called "insubordinate and unprofessional." Ahn
testified that, during the call, he "probably asked for [Russo's]
termination"; Ahn also told Talbot-Kleeman and others that he
"would not stay with the practice" so long as Russo was working
there. A few weeks later, Ahn also sent an email to Talbot-Kleeman
describing the interaction and noting "[i]t is clear that [Russo's]
priority is to avoid work with [o]rthopedic [s]urgery" and that
she had "crossed a line of respect to an employer."
On the same day that Ahn called Russo about the patient
discharge, Russo emailed Talbot-Kleeman to document the call.
Approximately one week later, Russo and Talbot-Kleeman met in
- 7 -person to discuss the incident, and Russo expressed her view that
Ahn was lazy and spent too little time with patients.
4. Ahn's Interactions with Others
Ahn also had confrontations with other Institute
employees. During her deposition, Talbot-Kleeman noted that Ahn
had a "history of difficulty getting along with" others in the
practice, including herself, Smith, Denysyk, and two female
employees, Cate Brewster and Maureen Sage. Another female PA,
Laura Humen, told Russo that Ahn had left three voicemails
"yelling" at her about incomplete work. Furthermore, several x-ray
techs at Catholic Medical Center, both male and female, expressed
concerns about Ahn, including that he was "very hard to work with."
Ahn testified that he once was talking with male PA
Travis Palmer about Palmer's name when Palmer "mocked" Ahn's name.
Ahn felt it "was a little disrespectful," but the two men later
"talked about it and resolved it[,]" and Ahn did not have further
issues with Palmer. Russo also testified that Ahn "yell[ed]" at
and was "disrespectful" toward male PA Tim Miller in the operating
room, but Ahn took Miller aside after the incident. Following the
confrontation, Ahn and Miller "were able to fix the problem."
5. The March 25, 2019 Board Meeting
On March 25, 2019, a few weeks after the
patient-discharge incident, the Institute partners held a board
meeting about Russo's possible termination. At the meeting, Ahn
- 8 -stated that he could no longer work with Russo because she was
"disrespectful, insubordinate, [and] difficult to work with" and
further described her as "rude, abrasive, [and] unhelpful." Ahn
expressed that he was unwilling to remain at the Institute if Russo
continued to work there in what was described as a "her-or-me
comment." He explained that he was "not going to stay at a practice
as a partner being verbally abused," stating: "I won't tolerate
that. I have enough self-esteem not to accept that."
The other partners also expressed their views of the
situation. For example, Wang thought Russo was a "good PA" and he
"had no complaints about her professionalism," although she could
be "brash and opinionated." Jenkins also "said [he] had no
problems" with Russo. Talbot-Kleeman reported Russo's statements
regarding Ahn's laziness and that Russo said she would "never
apologize."
After additional discussion, the partners unanimously
voted to terminate Russo. This decision was based on the
conclusion that "there was no other alternative," and it was
impossible to "insulate" Ahn from Russo so "one of them ha[d] to
go."
6. Post-Termination Decision Negotiations
The day after the board meeting, Talbot-Kleeman informed
Russo that the partners had voted to terminate her employment.
Talbot-Kleeman proposed "work[ing] out a transition schedule," and
- 9 -Russo agreed. Per Talbot-Kleeman, the transition period would be
"mutually beneficial" because Russo could continue working at the
Institute while searching for other employment, and the practice
could avoid being short-staffed. Talbot-Kleeman and Russo had
further conversations about a potential transition plan on March
29, 2019, during which Russo expressed concerns about experiencing
gender bias at the Institute.
On April 2, 2019, Talbot-Kleeman sent Russo a proposed
separation and general release agreement that provided terms for
Russo's transition. The agreement stated that Russo would work at
the Institute through June 28, 2019, and would receive a $15,000
severance payment. The Institute also contemplated allowing Russo
to work at the Hillsborough County Nursing Home (the "Nursing
Home") as an independent contractor with Dr. Zubin Batlivala,
another Institute physician.
Two days later, on April 4, 2019, Russo made a
counter-proposal that she would work until April 19 and then take
her accrued paid time off until July 9, 2019. Russo also proposed
that she would work at the Nursing Home during her vacation period
and then after July 9, 2019. Talbot-Kleeman offered to revise the
separation agreement accordingly and, in the meantime, the two
"addressed [Russo's] work schedule and duties so that it met with
[their mutual] approval." As a result, on April 11, 2019,
Talbot-Kleeman sent a modified separation agreement that included
- 10 -Russo's paid-time-off proposal, contained an independent
contractor agreement, and reduced her severance to $2,500.
Russo did not agree to the revised agreement, and on
April 29, 2019, her counsel sent Talbot-Kleeman a letter (the
"Demand Letter") reiterating the gender bias complaint that Russo
had first raised a month earlier. The Demand Letter stated Russo's
counsel could not "advise [Russo] to consider the proposed
Independent Contractor Agreement," but also that Russo "remain[ed]
willing" to (1) "provide . . . services as either an employee or
as an Independent Contractor" and (2) "reach an amicable and
private resolution to the employment matter." To that end, Russo
proposed a severance payment of $100,000. The Demand Letter
concluded by noting, "[i]n the meantime, Ms.
Russo . . . expect[ed] to be able to work in an environment that
is free of workplace harassment, discrimination[,] and
retaliation . . . ."
On April 30, 2019, the day after Russo sent her Demand
Letter, Talbot-Kleeman wrote to another Institute employee that
she was "still working out the details but . . . plan[ned] to have
[Russo] done this week." On May 2, 2019, the Institute ended
Russo's employment, and Talbot-Kleeman explained in a May 3, 2019
email to Russo that her immediate termination was "in light of the
situation." Also on May 3, Talbot-Kleeman sent an instant message
to Batlivala stating "[s]orry but I've had to tell [Russo] she is
- 11 -done. She is making allegations that are unacceptable and
demanding a large sum of money. A fair offer was made to her as
well as a counter offer of her choosing, which she is now
rejecting."
Russo asked Batlivala, Jenkins, and two other Institute
doctors to provide recommendation letters, and all four men agreed
to do so. On May 30, 2019, Talbot-Kleeman sent an instant message
to several Institute doctors stating:
As you all know [Russo] has made threats of
wrongful firing. I have not heard from her or
her attorney recently[,] but she has reached
out to some people for a reference. Given the
situation I am advising her and her attorney
that those requests must go thr[ough] our
legal counsel. Her threat of legal action
requires we follow this process.
Prior to Russo's termination, Jenkins could not recall ever being
instructed to refrain from writing a letter of recommendation.
7. The Bailey Report
Russo obtained a new job shortly thereafter in early
June 2019. The following month, the Institute hired independent
investigator Elizabeth Bailey to determine if Russo had
experienced sex discrimination. Bailey interviewed Russo, Ahn,
and other Institute employees before drafting findings of fact and
a report. As relevant here, Bailey reported that Ahn had expressed
to her that he could not continue to work with Russo because he
was afraid she would disrespect him again, and that "he couldn't
- 12 -look himself in the mirror as a husband and father to small
children if he allowed himself to be treated with such disrespect."
B. Procedural Background
On August 22, 2021, after exhausting administrative
remedies, Russo sued the Defendants in federal court. As pertinent
here, Russo brought claims of (1) sex discrimination against the
Institute under Title VII and N.H. Rev. Stat. Chapter 354-A,
(2) workplace retaliation against the Institute and Ahn under
Title VII and N.H. Rev. Stat. Chapter 354, and (3) sex
discrimination against Ahn under the New Hampshire law provision
prohibiting aiding, abetting, and/or inciting discrimination.
On November 22, 2024, the district court granted summary
judgment on the claims against Ahn. It reasoned that Russo could
not establish Ahn aided and abetted the Institute in sex
discrimination because (1) "Russo [did] not show[] that Dr. Ahn's
reaction was 'over-the-top' or would otherwise support an
inference that he reacted badly because of her gender"; (2) Russo
had not made a "minimal showing" supporting the elements of a prima
facie case; and (3) in any event, Russo did not show that the
reasons for her termination were pretext for sex discrimination.2
2 It also dismissed the retaliation claim against Ahn
because "Talbot-Kleeman, not Ahn, terminated Russo's employment on
May 2." Russo does not challenge that decision on appeal.
- 13 -Later, at the district court's prompting, the Institute
filed a motion for summary judgment arguing that it was also
entitled to judgment based on the court's resolution of Ahn's
motion. The court agreed and granted summary judgment for the
Institute.
As to the Institute, the district court concluded that
Russo could not establish discrimination because the practice
terminated her employment due to Ahn's ultimatum and not from any
information, true or otherwise, presented by Ahn about Russo. The
court further determined that Russo could not demonstrate pretext
for sex discrimination by either Ahn or the Institute. Regarding
Russo's retaliation claim, the court concluded that while the
Demand Letter constituted protected conduct, Russo had not
experienced a materially adverse action because she ultimately
received positive employment references, and she, not the
Institute, ended the transition period. Russo timely appealed
both summary judgment decisions.
II.
A. Standard of Review
We review the grant of summary judgment de novo. Walsh,
169 F.4th at 338. Summary judgment is appropriate only where the
"undisputed material facts, taken 'in the light most favorable'"
to Russo, demonstrate that the Defendants are entitled to judgment
as a matter of law. Id. (quoting Escribano-Reyes v. Pro. Hepa
- 14 -Certificate Corp., 817 F.3d 380, 386 (1st Cir. 2016)). Because
Russo opposes summary judgment, she "bears the burden of producing
specific facts sufficient to defeat summary judgment."
Serrano-Colon v. U.S. Dep't of Homeland Sec., 121 F.4th 259, 269
(1st Cir. 2024) (citation modified).
B. Sex Discrimination
Title VII of the Civil Rights Act of 1964 prohibits
"discriminat[ion] against any individual with respect
to . . . compensation, terms, conditions, or privileges of
employment, because of such individual's . . . sex." 42 U.S.C.
§ 2000e-2(a)(1). The parties agree that we should apply the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-05 (1973), to Russo's Title VII sex discrimination
claims, which rely on circumstantial evidence. And, "[w]e apply
the same standard to [Russo's] discrimination claim[s] under New
Hampshire law because 'the New Hampshire Supreme Court relies on
Title VII cases to analyze claims under RSA 354-A.'" Farid v.
Trs. of Dartmouth Coll., 181 F.4th 193, 203 n.4 (1st Cir. 2026)
(quoting Hudson v. Dr. Michael J. O'Connell's Pain Care Ctr., Inc.,
822 F. Supp. 2d 84, 92 (D.N.H. 2011)).
Under McDonnell Douglas, we first consider whether Russo
adduced sufficient evidence to establish a prima facie case of sex
discrimination. See Walsh, 169 F.4th at 338-39. To do so, Russo
"must identify evidence 'that: (1) she belonged to a protected
- 15 -class, (2) she performed her job satisfactorily, (3) her employer
took an adverse employment decision against her, and (4) her
employer continued to have her duties performed by a comparably
qualified person.'"3 Serrano-Colon, 121 F.4th at 270 (quoting Paul
v. Murphy, 948 F.3d 42, 49 (1st Cir. 2020)).
Once Russo makes a prima facie showing, the burden shifts
to the Defendants, who must "state a legitimate, nondiscriminatory
reason for the adverse employment actions." Serrano-Colon, 121
F.4th at 270 (citation modified). If the Defendants do so, they
are entitled to summary judgment unless Russo "raises a genuine
issue of material fact that the reasons offered by the [D]efendants
were a pretext for discrimination." Id. (citation modified).
We may assume without deciding that Russo can establish
a prima facie case and move directly to McDonnell Douglas's second
step. See Serrano-Colon, 121 F.4th at 270. The Defendants assert
that the Institute terminated Russo because she disrespected Ahn,
who felt that he could no longer work at the Institute if she
continued to be employed there. In support of this argument, the
Defendants contend: (1) Ahn believed Russo had been rude and
3 The parties dispute the proper formulation of the prima
facie case for a sex discrimination case that involves the
termination of an employee. We note that "the precise requirements
of a prima facie case can vary depending on context and were never
intended to be rigid, mechanized, or ritualistic." Ames v. Ohio
Dep't of Youth Servs., 605 U.S. 303, 311 (2025). Regardless, we
need not decide the appropriate formulation here because we assume
in Russo's favor that she can establish a prima facie case.
- 16 -hostile to him; (2) Russo criticized Ahn to Talbot-Kleeman and
stated she would not apologize to him; and (3) the Institute
partners believed Ahn and Russo could no longer work together and
it was impossible to employ them both. As such, the Defendants
have articulated a non-discriminatory reason for terminating
Russo's employment, thereby satisfying step two. See id. at 270-71.
Accordingly, we turn to the third McDonnell Douglas
step. A plaintiff may succeed at this stage either (1) "directly
by persuading the court that a discriminatory reason more likely
motivated the employer" or (2) "indirectly by showing that the
employer's proffered explanation is unworthy of credence." Ames
v. Ohio Dep't of Youth Servs., 605 U.S. 303, 309 (2025) (quoting
Tex. Dep't. of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981)).
Because there is "substantial overlap between [the] evidence of
pretext and of discriminatory animus," we assess whether Russo has
made a sufficient showing from which a rational factfinder could
reasonably infer "that unlawful discrimination was a determinative
factor in the adverse employment action." Kelley v. Corr. Med.
Servs., Inc., 707 F.3d 108, 116 (1st Cir. 2013) (citation
modified). Russo points to several considerations that she
believes warrant such a conclusion. After examining these
considerations, we conclude that no reasonable factfinder could
find sufficient evidence of sex discrimination to warrant a trial.
- 17 -1. Stereotyping
Russo first asserts that she experienced sex
discrimination because she was subjected to stereotyping based on
her gender. As we have explained before, "stereotyping, cognitive
bias, and certain other 'more subtle cognitive phenomena which can
skew perceptions and judgments'" can substantiate a discrimination
claim under Title VII. Burns v. Johnson, 829 F.3d 1, 13 (1st Cir.
2016) (quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 61 (1st
Cir. 1999)). Such a claim "arises when an individual suffers an
adverse employment action because she either conforms or fails to
conform to some stereotype or stereotypes attributable to her
gender." Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224-25 (1st
Cir. 2012). A plaintiff asserting stereotyping as a basis for a
discrimination claim "must show that the employer actually relied
on her gender in making its decision," as remarks based on
stereotypes alone "do not inevitably prove that gender played a
part in a particular employment decision." Price Waterhouse v.
Hopkins, 490 U.S. 228, 250-51 (1989) (involving improper "belief
that a woman cannot be aggressive, or that she must not be").
Russo centers her stereotype claim on Ahn's statement
that he could not "look himself in the mirror as a husband and
father to small children if he allowed himself to be treated with
such disrespect." Russo asserts that this allegedly gendercharged statement shows that Ahn felt his masculinity was
- 18 -threatened because of her assertiveness and that his negative
perception of this quality was anchored in stereotype. Yet Ahn's
sentiment clearly could "apply equally to persons of either
gender." Morales-Cruz, 676 F.3d at 225. In other words, Ahn's
feelings about his status in his family could be similarly affected
by his perception that a man had disrespected him. Russo points
to no utterance by Ahn that implicates women either directly or
indirectly, and we have previously said that "terms . . .
convey[ing] only gender-neutral meanings are insufficient to
anchor a gender-stereotyping claim." Id.
Russo also contends that Ahn targeted her because she
was insufficiently warm and welcoming to him. This argument, too,
cannot sustain a stereotyping claim in the absence of other indicia
that Ahn's statements about Russo's demeanor relied on broader,
stereotyped notions about women's expected behavior compared to
men. See id. (citing Weinstock v. Columbia Univ., 224 F.3d 33, 44
(2d Cir. 2000), for its conclusion that describing a woman as
"nice" and "nurturing" was insufficient to establish
stereotyping); see also Burns, 829 F.3d at 13-14 (assessing claim
in light of general stereotype regarding women's capacity for
leadership and citing additional cases). To put a finer point on
it, there is no proof here from which a reasonable factfinder could
draw an inference that Ahn thought women at large must be warmer
- 19 -and friendlier than men and disliked Russo because she did not
comport with that stereotype.
To be clear, there need not be an "explicit reference"
to a plaintiff's sex in a stereotyping case because that "would
make it exceedingly difficult to prove most sex discrimination
cases today." Chadwick v. WellPoint, Inc., 561 F.3d 38, 46 (1st
Cir. 2009); cf. Morales-Cruz, 676 F.3d at 226 (finding calling
plaintiff "that girl," without further context, did not establish
sex stereotyping). Rather, we consider whether "a jury could
reasonably determine that a sex-based stereotype" motivated the
employer's decision to take an adverse action against the employee.
Chadwick, 561 F.3d at 46-47. There is no dispute here that Russo
raised her voice at Ahn, at times did not follow his instructions
(whether for good reasons or not), and failed to timely contact
him about potentially important, patient-related matters. This is
thus not a situation where Ahn's concerns about Russo appear to be
grounded in notions that she failed to exhibit certain qualities
that Ahn expected from women. Because no jury could reasonably
conclude that a purported stereotype grounded Ahn's motivation to
terminate Russo's employment, Russo cannot demonstrate pretext on
this basis.
2. Animus
Russo also contends that Ahn's anger at her was an
overreaction and therefore signaled pretext for sex
- 20 -discrimination. In support of her argument, Russo quotes Burns
for the proposition that being "inappropriately upset or
angry . . . to the point of behaving unprofessionally" can be a
marker of sex discrimination. 829 F.3d at 15 (quoting Thomas, 183
F.3d at 64).
Here, Ahn was angry at Russo. Drawing all reasonable
inferences in Russo's favor, the record shows a jury might conclude
that Ahn yelled at Russo on multiple occasions because he felt
that she was disrespecting him. And while "such behavior is (or
at least should be) out of line in the work arena," there is a
consistent reason why Ahn "might have yelled and screamed at
[Russo] . . . that ha[s] no nexus to her gender," i.e., he believed
that she treated him poorly. Rivera-Rivera v. Medina & Medina,
Inc., 898 F.3d 77, 94 (1st Cir. 2018) (affirming summary judgment
for employer on hostile work environment claim).
We acknowledge that in some cases, becoming
inappropriately angry or emotional can suggest a non-neutral
response to a plaintiff because of a protected characteristic,
permitting an inference of "conscious animus or less conscious
bias." Thomas, 183 F.3d at 64. However, in those cases, an
excessive emotional response was additional evidence that
supplemented other reasons suggesting discrimination. See Burns,
829 F.3d at 15-16 (discussing such additional factors); Thomas,
183 F.3d at 62-65. But there is no other circumstantial evidence
- 21 -here that permits an inference of discrimination. And because Ahn
had a history of explosive emotional reactions to many other
colleagues, both male and female, the record indicates that he
engaged in undesirable workplace conduct toward Institute
employees regardless of gender.
3. Comparators
Russo next alleges pretext based on evidence showing
that Ahn treated women with more hostility than he treated men.
For such comparator evidence to help Russo's cause, she must show
that "others similarly situated to [her] in all relevant respects
were treated differently by the employer." Ray v. Ropes & Gray
LLP, 799 F.3d 99, 114 (1st Cir. 2015) (citation modified).4 We
evaluate whether a comparator is appropriate through the lens of
reasonableness, noting that the plaintiff and the comparators
"must closely resemble one another in respect to relevant facts
and circumstances." Diaz v. City of Somerville, 59 F.4th 24, 32
(1st Cir. 2023) (quoting Conward v. Cambridge Sch. Comm., 171 F.3d
12, 20 (1st Cir. 1999)). That is to say: "apples should be compared
with apples." Id. (quoting Dartmouth Rev. v. Dartmouth Coll., 889
F.2d 13, 19 (1st Cir. 1989)).
4 Russo asserts that the proper formulation of the
standard is whether a comparator is "similarly situated in material respects." (quoting Vélez v. Thermo King de P.R., Inc., 585 F.3d
441, 451 (1st Cir. 2009)). Because our analysis does not hinge on
the precise formulation of the comparator standard, we decline to
adopt one over the other here.
- 22 -We first address Russo's assertion that Ahn was
"domineering" and "impatient" with women. Undoubtedly, Ahn was
abrasive to many of the women who worked at the Institute. But
Russo herself testified that Ahn yelled at and was disrespectful
to Miller, a man, and there is plenty of record evidence that Ahn
was unpleasant to men and women alike. See Jerram v. Cornwall
Cent. Sch. Dist., 464 F. App'x 13, 15 (2d Cir. 2012) (unpublished)
(finding no disparate treatment where there was "little evidence"
that a supervisor, who was "abrasive[] and sometimes
disrespectful[,] . . . . treated women any worse than he treated
men"). Because Title VII "does not set forth 'a general civility
code for the American workplace,'" Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006) (quoting Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80 (1998)), we cannot say that
Russo sustains a disparate treatment claim by showing Ahn's
aggressiveness toward or impatience with her when he showed such
intemperate behavior to employees regardless of gender.
Russo also maintains that Ahn would work through
conflict calmly with men but not women. She cites Ahn's
interactions with Palmer and Miller as illustrative. However,
neither man is an appropriate comparator.5 We require comparators
5 Russo's third proposed comparator, male PA Drue Lorenz,
is even more inapt. She has adduced no evidence that Lorenz
disrespected Ahn or had any kind of personal conflict with Ahn;
- 23 -to have "engaged in the same conduct without such differentiating
or mitigating circumstances that would distinguish their conduct
or the employer's treatment of them for it." Perkins v. Brigham
& Women's Hosp., 78 F.3d 747, 751 (1st Cir. 1996) (quoting Mitchell
v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). We cannot
say that the comparators Russo identifies engaged in sufficiently
similar conduct to hers. Both Palmer and Miller were willing to
speak with Ahn about their conflict, enabling repair of the
professional working relationship. By contrast, Russo did not
talk to Ahn after their first negative interaction even when
Talbot-Kleeman counseled her to "clear the air" with him. It is
also undisputed that Russo raised her voice to Ahn, told
Talbot-Kleeman that she would never apologize to Ahn, and called
Ahn lazy. The interactions involving the male PAs do not approach
the level of mutual hostility that existed between Ahn and Russo.
The Institute's partners terminated Russo because they
felt that she and Ahn could no longer "work together . . . in a
productive manner[,]" so it is material that Miller and Palmer
were willing to hash out their differences with Ahn when Russo was
not. As a result, we do not think a "prudent person, looking
objectively at the incidents, would think them roughly equivalent
rather, Lorenz was counseled by Ahn after the PA had interpersonal
difficulties with other people.
- 24 -and the protagonists similarly situated." Id. (quoting Dartmouth
Rev., 889 F.2d at 19).
4. Inconsistencies
Russo also contends that the Institute's reasons for
terminating her were pretextual because the explanations for
various adverse actions changed over time. One way to show pretext
is to establish that the employer's stated reason for an adverse
action is so riddled with "weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions . . . that a
reasonable factfinder" would be unable to find that reason worthy
of belief. Cocuzzo v. Trader Joe's E. Inc., 121 F.4th 924, 935
(1st Cir. 2024). Evidence that the employer has "wavered from the
core explanation for its action" can support such a claim. Id.
Where, however, an employer identifies rationales that "are
grounded on and follow obviously from" the core reason for the
termination, we do not consider those rationales to be the kind of
weaknesses or contradictions that suggest pretext. Id.
Here, Russo argues that Ahn made three inconsistent
assertions that demonstrate pretext. First, Russo claims that Ahn
was inconsistent regarding the timing of when he sought her
termination. This argument is rooted in Ahn's deposition testimony
that he and Talbot-Kleeman believed that Russo should be terminated
when Russo called him lazy sometime after March 21, 2019. Russo
instead asserts that Ahn decided to seek her termination on
- 25 -March 9, the same day as their acrimonious phone conversation about
discharging a patient. However, Russo selectively reads Ahn's
deposition testimony. He conceded during the deposition that he
did not "know exactly, time-wise," when Russo called him lazy and
he and Talbot-Kleeman discussed her termination, and characterized
the March 9 incident as "the final straw." And the record supports
that Ahn messaged Talbot-Kleeman on March 9 to inquire about
Russo's termination.
None of these inconsistencies about the timing of when
Ahn sought Russo's termination matter to a substantial degree
because Ahn's core reason for discharging her was that she
disrespected him and the March 9 incident tipped him over the edge.
And to the extent there are minor inconsistencies about timing, we
note that "thin evidence of pretext by itself [cannot] defeat
summary judgment." Quintana-Dieppa v. Dep't of Army, 130 F.4th 1,
16 (1st Cir. 2025) (citation modified).
Next, Russo alleges that Ahn provided different reasons
for excluding her from his operating room. But Russo does not
assert on appeal that exclusion from the operating room was an
adverse employment action. Thus, any reason given by Ahn about
Russo's exclusion is not a "reason for the adverse employment
action." Serrano-Colon, 121 F.4th at 270 (emphasis added and
citation modified). In other words, any inconsistency in what Ahn
- 26 -might have said about why he refused to operate with Russo is not
probative for why he sought her termination.
Finally, Russo asserts that the Defendants offer varying
descriptions of the events of March 9 and that these variances
suggest pretext. But Russo never raised this argument to the
district court, and we therefore do not consider it for the first
time here. See Henderson v. Mass. Bay Transp. Auth., 977 F.3d 20,
33 (1st Cir. 2020). In any event, even if we considered this
contention, it would not tip the balance in this case. That is
because the purported changes in explanations are ancillary and do
not go to the heart of the reason for Russo's termination.
Cocuzzo, 121 F.4th at 935.
5. Discriminatory Atmosphere
Russo finally claims that an atmosphere of sex
discrimination pervaded the Institute. Specifically, she
highlights the Institute's all-male physician roster and its
difficulty retaining various female PAs as evidence of a
discriminatory culture. Such "circumstantial evidence of a
discriminatory atmosphere . . . is relevant to the question of
motive in considering a discrimination claim." Conway v. Electro
Switch Corp., 825 F.2d 593, 597 (1st Cir. 1987). Although it is
not on its own proof of discrimination, id. at 598, such evidence
can assist a plaintiff in meeting her burden of showing pretext.
Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 55
- 27 -(1st Cir. 2000). But, as described above, Russo has presented no
other competent evidence that the Defendants discriminated against
her based on her gender. Thus, evidence about the gender breakdown
of employees at the Institute is not, alone, sufficient to salvage
her claim. See Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243,
249 & n.10 (1st Cir. 1997).
We emphasize that we have considered each of Russo's
arguments "not in splendid isolation, but as part of an aggregate
package of proof offered by the plaintiff." Taite v. Bridgewater
State Univ., Bd. of Trs., 999 F.3d 86, 94 (1st Cir. 2021) (quoting
Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir. 1991)).
After assessing Russo's evidence in totality, we nonetheless
conclude that she has not raised a genuine issue of fact that her
termination was motivated by sex discrimination.
That is because, read as a whole, the record demonstrates
the following. Ahn was often difficult to Institute employees of
both genders. Russo and Ahn had multiple fraught interactions
over several years. Ahn viewed these interactions as precluding
him from working any longer for an organization that employed
Russo. Ahn's ultimatum that he would quit if the Institute
retained Russo was the basis for the Institute's decision to
terminate Russo's employment. While Ahn's negative views about
Russo caused the decision to fire her, there is no evidence that
Ahn's views were rooted in gender bias rather than personal
- 28 -antipathy. Accordingly, we conclude that the district court
correctly granted the Defendants summary judgment on Russo's sex
discrimination claims.
C. Retaliation
We are left with Russo's retaliation claim against the
Institute. Title VII bars "retaliation against an individual who
has complained about discriminatory employment practices." Kinzer
v. Whole Foods Mkt., Inc., 99 F.4th 105, 114-15 (1st Cir. 2024)
(quoting Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 72 (1st Cir.
2011)). A plaintiff may prevail on a retaliation claim even when
the conditions she complains of do not amount to a Title VII
violation. Id. at 115. To establish a case of retaliation, Russo
must demonstrate that "(1) she engaged in protected conduct;
(2) she was subjected to an adverse employment action; and (3) the
adverse employment action is causally linked to the protected
conduct." Serrano-Colon, 121 F.4th at 273 (quoting Rivera-Rivera,
898 F.3d at 94).
On appeal, Russo asserts burden shifting is not required
as she has offered direct evidence of retaliation. We agree
because we think here that the employer has "le[ft] behind direct
evidence of their discriminatory animus, such as express
declarations of their retaliatory intentions." Simas v. First
Citizens' Fed. Credit Union, 170 F.3d 37, 48 (1st Cir. 1999). In
such a case, "the McDonnell Douglas test is inapplicable." Trans
- 29 -World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). Russo
adduced evidence that Talbot-Kleeman wanted her "done" because
"[s]he [was] making allegations that are unacceptable," and the
only allegations Russo made were her claims of sex discrimination.
That was direct evidence of retaliatory animus. Cf. Moore v.
Indus. Demolition LLC, 138 F.4th 17, 38 (1st Cir. 2025) (finding
instruction to "[h]it the gate" after requesting accommodation to
be "akin to direct evidence" (alteration in original)). Thus, we
turn to the remaining contested questions: whether the Institute
(1) subjected Russo to adverse actions and (2) took those actions
because of her gender bias complaint in the Demand Letter.6
1. Adverse Actions
We address first whether Russo was subjected to adverse
employment actions when the Institute (1) accelerated her
termination during the transition period and (2) denied her a role
as an independent contractor at the Nursing Home.7 Title VII's
6 The parties do not dispute that the Demand Letter constituted protected conduct.
7 On appeal, Russo does not argue that withholding of
recommendation letters was an adverse action but instead argues it
is "evidence of retaliatory motive." It may be that the denial of
reference letters or giving negative references can constitute an
adverse action in certain circumstances. See Duckworth v. Pratt
& Whitney, Inc., 152 F.3d 1, 6 (1st Cir. 1998); cf. Ray, 799 F.3d
at 107 (referencing a retaliation claim that survived summary
judgment and went to trial). However, Russo has waived this
argument by not raising it on appeal. See Vargas-Colón v.
Fundación Damas, Inc., 864 F.3d 14, 24 (1st Cir. 2017) (deeming
waived arguments that a party fails to develop on appeal).
- 30 -"antiretaliation provision, unlike the substantive provision, is
not limited to discriminatory actions that affect the terms and
conditions of employment." Burlington, 548 U.S. at 64.
Accordingly, it covers "materially adverse" actions that "could
well dissuade a reasonable worker from making or supporting a
charge of discrimination." Stratton v. Bentley Univ., 113 F.4th
25, 42 (1st Cir. 2024) (quoting Burlington, 548 U.S. at 57).
We begin with the accelerated termination. Every
retaliation case "must be decided on its own facts," Stratton, 113
F.4th at 44, and the facts in Alvarez v. Royal Atlantic Developers,
Inc., 610 F.3d 1253 (11th Cir. 2010), are particularly analogous
here. In Alvarez, the defendants planned to fire the eponymous
plaintiff once they found a replacement for her. Id. at 1260.
After Alvarez complained of discrimination in a letter, her
employers changed course and terminated her the next morning. Id.
at 1261-62. The Eleventh Circuit held that, because Alvarez was
fired "sooner than she otherwise would have been" after submitting
her letter, she "establish[ed] the adverse action element of her
retaliation claim." Id. at 1268.
Here, although the Institute decided to terminate Russo
on March 25, 2019, the parties contemplated and nominally agreed
Similarly, Russo does not argue that the failure to receive a
severance payment was an adverse action, and we consider this
argument also waived.
- 31 -that Russo would work through a transition period such that she
would be employed at the Institute for at least several more
months. Just a few days after receiving the Demand Letter,
however, the Institute dropped that plan and accelerated Russo's
termination such that her employment ended on May 2, 2019.
The Institute argues that the "only adverse employment
action" occurred on March 25, 2019, when the partners voted to
terminate Russo. We reject that view. Just because the partners
agreed that Russo would be fired later does not insulate the
Institute from any retaliatory actions taken in the interstitial
period, having decided not to effectuate the termination decision
immediately. We have previously said that employers may not
"accelerate their disciplinary course due to an employee's
protected conduct." Kinzer, 99 F.4th at 119. That is certainly
true where, as here, moving up a termination would deprive an
employee of an expected salary -- a "serious hardship" that could
likely dissuade a "reasonable employee" from "filing a
discrimination complaint." Burlington, 548 U.S. at 72-73. The
loss of several months' guaranteed wages and benefits for sending
a demand letter would discourage reporting discrimination. Thus,
we view the Institute's decision to accelerate Russo's termination
- 32 -period as a materially adverse action under the Burlington Northern
standard.8
We consider next Russo's assertion that prohibiting her
from working as an independent contractor at the Nursing Home was
also an adverse action. The Institute argues that their ending
voluntary negotiations over the independent contractor position
cannot be adverse because Russo's Demand Letter rejected its offer
for her to contract at the Nursing Home. This argument is better
analyzed as related to causation (i.e., whether the Institute
terminated negotiations because Russo engaged in protected conduct
or because she rejected the practice's severance offer), so we
will revisit it shortly in that context. See Paquin v. Fed. Nat.
Mortg. Ass'n, 119 F.3d 23, 31-32 (D.C. Cir. 1997) (suggesting that
rejecting an employee's unreasonable demand goes to causation).
At this stage, however, "the appropriate question" is whether
withdrawing the independent contractor opportunity would
discourage a reasonable employee from complaining about
discrimination. Stratton, 113 F.4th at 44.
We conclude that it would. "An employer's withdrawal of
a voluntary benefit . . . may constitute adverse action," even
8 We leave open whether accelerated termination is an
adverse action when the employee is paid in full and receives
benefits through the original termination date, as that did not
happen here. See Connell v. Bank of Bos., 924 F.2d 1169, 1179
(1st Cir. 1991) (holding, pre-Burlington Northern, that there was
no adverse action in such circumstances).
- 33 -when the employer "had no obligation to provide" that benefit.
Paquin, 119 F.3d at 32; see also Passer v. Am. Chem. Soc., 935
F.2d 322, 331 (D.C. Cir. 1991) (holding "cancellation of a major
public symposium in an employee's honor" was an adverse action).
That is because such a withdrawal, "occurring at a time when the
departing employee is most vulnerable, undoubtedly would make
other employees think twice before filing a discriminatory
termination charge." Flannery v. Recording Indus. Ass'n of Am.,
354 F.3d 632, 643 (7th Cir. 2004) (involving a retaliatory
withholding of a post-termination independent contracting
agreement). Russo presented sufficient evidence to defeat suumary
judgment that the withdrawal of the independent contractor
opportunity constituted an adverse action.
2. Causal Connection
Turning to causation, retaliation claims under Title VII
"require proof that the protected activity was a but-for cause of
the alleged adverse action by the employer." Stratton, 113 F.4th
at 44 (citation modified). A plaintiff pressing such a claim "must
show that their employer would not have taken the adverse action
but for a desire to retaliate." Id.
At bottom, the question of causation rests on whether a
jury could conclude whether the Institute caused the accelerated
termination and withdrawal of the independent contractor
opportunity because Russo sent the Demand Letter. Although the
- 34 -Institute makes multiple arguments that there is no causal
connection, we conclude that Russo could establish that the Demand
Letter complaint about gender bias was the but-for cause of the
adverse actions taken against her.
First, and as we alluded to earlier, the Institute claims
that the record establishes beyond dispute that Russo ended the
severance agreement discussions and that was why it "declined to
engage further in negotiating," resulting in the accelerated
termination and withdrawal of the independent contractor
opportunity. Determining why severance negotiations fall apart is
a question of causality. See Paquin, 119 F.3d at 32 (finding no
causal connection when plaintiff failed to establish whether
employer took back a severance offer because it expired or because
of his protected activity).
In support of its position that Russo's termination of
negotiations was the cause of the adverse actions, the Institute
cites an unpublished Fourth Circuit disposition, David v.
Winchester Medical Center, 759 F. App'x 166 (4th Cir. 2019).
Assuming David is correct, it still does not help the Institute
here. That case makes clear that a plaintiff who declines a
severance offer "in explicit terms" presents a categorically
different case from a situation where an employer
"revoke[s] . . . the offer upon [a plaintiff's] mere mention of
her legal rights." Id. at 169 (noting letter "clearly state[d]
- 35 -that [the plaintiff] 'rejects the proposed severance agreement'").
Here, Russo's Demand Letter expressed that she was willing to work
at the Institute as either an employee or a contractor and that
she was open to continued negotiation, as demonstrated by her
severance counteroffer. That is far from an explicit rejection of
the separation agreement; indeed, it suggests that "negotiations
were still ongoing between the parties when the axe fell." Trainor
v. HEI Hosp., LLC, 699 F.3d 19, 28 (1st Cir. 2012).
Moreover, Russo has adduced evidence that TalbotKleeman, the Institute's executive director, wanted to accelerate
her termination and withdraw the independent contractor
opportunity because of the content of the Demand Letter as it
relates to sex discrimination. Chief among this evidence is
Talbot-Kleeman's message to Batlivala making clear that Russo was
"done" because "[s]he [was] making allegations that are
unacceptable . . . ." Talbot-Kleeman also expressed to Russo that
her termination was "in light of the situation." And
Talbot-Kleeman instructed the Institute doctors that references
could not be directly provided due to Russo's "threat of legal
action."9 Together, these statements suffice to permit Russo's
9 This final comment about how to handle references for an
employee suing an employer by itself could be insufficient as there may be non-retaliatory reasons for taking such an approach. But
here the comment about the references, combined with TalbotKleeman's other, more direct statements suggesting retaliatory
- 36 -retaliation claim to proceed to trial. See David, 759 F. App'x at
169 (suggesting a plaintiff could sustain a retaliation claim if
the employer "revoked the offer upon [the employee's] mere mention
of her legal rights").
The Institute also contends that there was no causal
connection because Russo's firing predated any protected conduct,
since the partners voted to terminate her on March 25, 2019, and
she sent the Demand Letter approximately one month later. It is
true that "[c]ausation moves forward, not backwards, and no
protected conduct after an adverse employment action can serve as
the predicate for a retaliation claim." Pearson v. Mass. Bay.
Transp. Auth., 723 F.3d 36, 42 (1st Cir. 2013); see also Trainor,
699 F.3d at 27 ("There is a common-sense aspect to causation[.]").
But, as explained already, accelerating Russo's termination and
withdrawing the independent contractor opportunity were separate
adverse actions that postdate her Demand Letter. Thus, her
protected conduct could have caused the adverse actions that
followed.
Finally, the Institute avers that because it sought to
help Russo transition from the practice even after her first
mention of gender bias on March 29, 2019, no retaliation occurred
animus, place a cast on the remark about references that may give
it evidentiary value in determining the Institute's reasons for
taking the adverse actions at issue.
- 37 -when it later imposed the adverse actions. This argument, too, is
unavailing. We have said that "federal anti-retaliation
provisions generally prohibit conduct taken in retaliation for any
protected activity, not just a plaintiff's initial protected
action." Alvarado v. Donahoe, 687 F.3d 453, 463 (1st Cir. 2012)
(emphasis added). In short, it is no excuse for the Institute to
have offered Russo certain benefits after her first protected
complaint only to take adverse actions against her later when she
persisted in those complaints.
Accordingly, Russo has adduced sufficient evidence for
a reasonable factfinder to conclude that the Institute retaliated
against her because of her complaint in the Demand Letter about
sex discrimination when it accelerated her termination and denied
her the independent contractor opportunity.
III.
For these reasons, we affirm in part and reverse in part.
We remand for further proceedings consistent with this opinion.
Each party shall bear their own costs.
So ordered.
- 38 -