          United States Court of Appeals
                     For the First Circuit


No. 16-1597

                  VILMARIE CARABALLO-CARABALLO,

                      Plaintiff, Appellant,

                               v.

   CORRECTIONAL ADMINISTRATION; CORRECTIONS DEPARTMENT OF THE
  COMMONWEALTH OF PUERTO RICO; and JESUS GONZALEZ-CRUZ, in his
 official capacity as Secretary of the Department of Correction
     and Rehabilitation of the Commonwealth of Puerto Rico,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jay A. García-Gregory, U.S. District Judge]


                             Before

                       Howard, Chief Judge,
               Lipez and Thompson, Circuit Judges.


     Luis A. Rodríguez Muñoz, with whom Eduardo A. Vera Ramírez,
Eileen Landrón Guardiola, and Landrón Vera, LLC were on brief, for
appellant.
     Susana I. Peñagarícano-Brown, Assistant Solicitor General,
with whom Margarita L. Mercado-Echegaray, Solicitor General, was
on brief, for appellees.


                          June 8, 2018
                LIPEZ,    Circuit    Judge.      Plaintiff-Appellant        Vilmarie

Caraballo-Caraballo filed this Title 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.                The district court granted

summary judgment to the Corrections Department, finding in its

favor      on        Caraballo's     disparate      treatment,    hostile        work

environment, and retaliation claims.

                Although we affirm the court's judgment as to the latter

two claims, we find errors in its analysis of Caraballo's disparate

treatment claim.           In particular, the district court erroneously

interpreted our decision in Johnson v. University of Puerto Rico,

714 F.3d 48 (1st Cir. 2013), to prohibit Caraballo from relying on

evidence highly relevant to the similar qualifications element of

her prima facie case -- namely, her experience in performing the

job from which she was transferred.              Hence, we must vacate in part

the grant of summary judgment and remand for further proceedings

on that claim.

                                           I.

                In    reviewing    the   district   court's    grant   of   summary

judgment, we recite the facts in the light most favorable to

Caraballo.           See Burns v. Johnson, 829 F.3d 1, 5 (1st Cir. 2016).




                                         - 2 -
The Corrections Department1 hired Caraballo as a Correctional

Officer I in 1994.       In 2003, it assigned her to a personnel unit

that handled the Department's radio communications equipment,

called the Radio Communication Area.          During the time relevant to

this case, the unit consisted of one supervisor, Melvin Sepúlveda-

Vargas ("Sepúlveda"), and a number of subordinate employees who

represented different regions within the Department.                 Caraballo

was   in   charge   of    radio   communications   for     the    Department's

Northwest Region.        Her responsibilities included: inspecting and

replacing radio equipment at Department facilities, ensuring that

the Department complied with FCC guidelines, logging inventory,

transporting radio equipment, drafting various documents, teaching

cadets to use radio equipment, and making minor repairs.

            In   January    2009,    the    Department    assigned       a   male

employee,     Danny      Cordero-Vega      ("Cordero"),     to     the       Radio

Communications      Area.     Approximately      two     months   later,      the

Department transferred Caraballo out of the Radio Communications

Area and reassigned her to inmate purchases -- i.e., the commissary

-- at the 705 Correctional Institution at Bayamón Intake Center.


      1The district court docket listed the appellees as three
separate   parties,    as    follows:   (1)   the    "Correctional
Administration,"   (2)   the   "Corrections  Department   of   the
Commonwealth of Puerto Rico," and (3) "Jesus Gonzalez-Cruz, in his
official capacity as Secretary of the Department of Correction and
Rehabilitation of the Commonwealth of Puerto Rico." We refer to
appellees collectively as the "Corrections Department," or the
"Department."


                                    - 3 -
Caraballo and Sepúlveda asked their two commanding officers to

provide an explanation for her transfer.             However, neither officer

complied with the requests, and one of the officers instructed

Sepúlveda not to intervene on Caraballo's behalf.

             Meanwhile, without notifying Sepúlveda, the Department

assigned a second male employee, Osvaldo Anaya Cortijo ("Anaya"),

to   the    Radio   Communications        Area.      Shortly       thereafter,   a

disagreement between Sepúlveda and Cordero over the scope of the

latter's authority came to a head.                The Department sided with

Sepúlveda and transferred Cordero out of the Radio Communications

Area.       Sepúlveda    then    requested    that    the   Department     return

Caraballo to her former post, but the request was denied by a

commanding officer without explanation.               Instead, Anaya assumed

the responsibilities that had previously been carried out by

Caraballo.

             Believing     that     her       transfer      from     the    Radio

Communications Area to the commissary violated Title VII of the

Civil Rights Act of 1964, 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.2                She also alleged


        2
      The Department disputes whether Cordero was hired to replace
Caraballo. It insists that Cordero's job functions were different


                                     - 4 -
that the Department retaliated against her, and that she endured

a hostile work environment.3     The district court granted summary

judgment to the Department on each claim.   Subsequently, it denied

Caraballo's motion for reconsideration pursuant to Federal Rule of

Civil Procedure 59(e).   This appeal followed.

                                  II.

           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 VII are ordinarily subject to the

familiar   McDonnell   Douglas   burden-shifting   framework.    See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);




than Caraballo's, and included making major repairs to radio
equipment.    However, Sepúlveda testified that Cordero was
unauthorized to make major repairs, and that he routinely exceeded
the scope of his job responsibilities. According to Sepúlveda,
Cordero's duties were supposed to be consistent with Caraballo's
former responsibilities.   Viewing the record in the light most
favorable to Caraballo, as we must, we conclude that Cordero
replaced Caraballo.
     3In addition to these Title VII claims, Caraballo's complaint
included claims under the First and Fourteenth Amendments, and the
laws and Constitution of Puerto Rico. Caraballo does not appeal
the district court's grant of summary judgment to the Department
on those claims.     Her complaint also named eight individual
defendants who were dismissed after Caraballo failed to timely
effect service.    She does not appeal the court's decision to
dismiss those defendants.


                                 - 5 -
Mariani-Colón v. Dep't of Homeland Sec. ex rel. Chertoff, 511 F.3d

216, 221 (1st Cir. 2007).   At the first step of this framework, a

plaintiff has the burden to establish, by a preponderance of the

evidence, a prima facie case of discrimination.    See, e.g., Garmon

v. Nat'l R.R. Corp., 844 F.3d 307, 313 (1st Cir. 2016).         This

burden is not onerous.   See, e.g., Kosereis v. Rhode Island, 331

F.3d 207, 213 (1st Cir. 2003).         Indeed, the prima facie case

requires only a "small showing," one that is "easily made." Id.

(quoting Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st

Cir. 2001) and Gillen v. Fallon Ambulance Serv. Inc., 283 F.3d 11,

30 (1st Cir. 2002)).     By establishing a prima facie case, a

plaintiff creates an inference of discrimination.    See, e.g., Tex.

Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).4

          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



     4  Once a plaintiff establishes a prima facie case of
discrimination, the burden of production shifts to the defendant
to show that the allegedly unlawful action was taken for a
legitimate, nondiscriminatory reason. See Burns, 829 F.3d at 9
n.8. If the defendant satisfies this requirement, the burden of
production shifts back to the plaintiff to show that the
defendant's proffered explanation is mere pretext.           See
Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 175
(1st Cir. 2015).    While this framework shifts the burden of
production, the burden of persuasion "remains at all times with
the plaintiff." Mariani-Colón, 511 F.3d at 221.


                               - 6 -
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.      Caraballo had only a high school

diploma, with some training in secretarial speedwriting, while

Cordero had an associate's degree in computer programming, a

license from a radio communications association, and other radio

communications education.

             The court limited its analysis to this comparison of

Caraballo's and Cordero's educational credentials.          Relying on our

decision in Johnson, 714 F.3d 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.

             The plaintiff in Johnson was a graphics instructor at

the University of Puerto Rico who held a master's degree in

architecture.    714 F.3d at 49.    After twelve years of teaching at

the university under temporary service contracts, she applied for


                                   - 7 -
a tenure-track position. Id. at 51. The university's requirements

for tenure-track positions specified that candidates had to have

a Ph.D.   Id.   The university eventually selected three candidates

with Ph.Ds. for the tenure-track positions.     Id.   Feeling wronged,

Johnson brought a Title VII action alleging that the university

failed to promote her because of her national origin and gender.

Id. at 51-52.    The district court granted summary judgment to the

university.     Id. at 52.

           On appeal, Johnson argued that despite not having a

Ph.D., her teaching experience and stellar reputation qualified

her for the job.    Id. at 54.   We rejected this position, concluding

that the university's Ph.D. requirement "was reasonable on its

face and was plainly legitimate," and that Johnson's inability to

meet the requirement rendered her unqualified for the position,

and less qualified than her comparators.     Id. at 54 & n.7.   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.      Id. at 54.

That holding is inapposite to the similar qualifications element

of the prima facie showing in Caraballo's discriminatory transfer

case.


                                  - 8 -
           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.'"   Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512

(2002) (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577

(1978)).   Indeed, the McDonnell Douglas Court noted that the prima

facie requirements it was announcing in that race-based refusal-

to-rehire case would need to be modified to account for "differing

factual situations" in future cases.    411 U.S. at 802 n.13.   As

the Court anticipated, the McDonnell Douglas framework has since

been adapted and applied in a wide range of discrimination cases

involving different protected statuses and employment decisions.

See generally Lex K. Larson, 1 Larson on Employment Discrimination

§ 8.08 (Lexis, 2018 update) (collecting cases); Merrick T. Rossein,

1 Employment Discrimination Law and Litigation § 2:4 (Westlaw,

2017 update) (same).   We have explained that

           [t]he prima facie case requirement embodies a
           concept, not a mechanical exercise.    Though
           its contours generally follow the McDonnell
           Douglas model, a prima facie case must be
           custom-tailored to fit both the particular
           animus   (e.g.,   age   discrimination,   sex
           discrimination, race discrimination) and the
           particular   type   of  employment   decision
           involved (e.g., failure to hire, failure to
           promote, failure to retain).

Sanchez v. P.R. Oil Co., 37 F.3d 712, 719 (1st Cir. 1994).




                               - 9 -
             Given    the    variety    of   discrimination   cases      in   which

courts   apply       the    McDonnell     Douglas     framework,   a     principle

established in one case will not always translate to another.                   In

particular,      there      are   significant       distinctions   between     the

qualifications elements in failure to promote or hire cases and

those elements in discharge or transfer cases.                See 1 Larson on

Employment    Discrimination        §   8.08(4)     (identifying   distinctions

between failure to hire and discharge cases and describing how the

qualifications elements should be altered in discharge cases); see

also Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617-18 (7th Cir.

2000), overruled on other grounds by Ortiz v. Werner Enters., Inc.,

834 F.3d 760 (7th Cir. 2016) (contrasting the relevant factors for

determining      whether       employees      are     similarly    situated     in

discriminatory discipline cases versus transfer cases).

             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.              See Johnson, 714 F.3d

at 51 (requiring a Ph.D.); Cruz v. Mattis, 861 F.3d 22, 25 (1st

Cir. 2017) (requiring full-time teaching experience); Goncalves v.

Plymouth Cty. Sheriff's Dep't, 659 F.3d 101, 105-06 (1st Cir. 2011)

(requiring certain computer skills and experience).                    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


                                        - 10 -
that       her   protected   characteristic,    rather   than    her    lack   of

qualifications, accounted for the employer's failure to hire or

promote her.         See, e.g., Johnson, 714 F.3d at 54.        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. See,

e.g., Johnson, 714 F.3d at 54 n.7; Gonclaves, 659 F.3d at 105-07.5

                 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.3d 687, 696 (2d Cir. 2001); see also Cumpiano v. Banco

Santander P.R., 902 F.2d 148, 154 (1st Cir. 1990) ("Particularly

in a discharge case -- where an employee has been doing the job

satisfactorily for a substantial period of time -- the proponent's

burden      [to    demonstrate   her   qualifications]   is     not    great.").



       5
       We do not foreclose the possibility that in some exceptional
cases, a plaintiff who did not meet the employer's stated job
requirements may be able to rely on evidence of her reputation and
experience to show that she was similarly qualified as a comparator
who did meet those requirements. We also note that where both the
plaintiff and the successful applicant for a position do not meet
the employer's stated job requirements, the plaintiff may still be
able to raise an inference of discrimination. See Carter v. Three
Springs Residential Treatment, 132 F.3d 635, 643 (11th Cir. 1998)
(reasoning that a job announcement listing "clinical experience"
as a requirement could not prevent a plaintiff who lacked such
experience from establishing his prima facie case because the two
successful applicants also lacked clinical experience).


                                       - 11 -
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

transfer, such that she did not disqualify herself by performing

poorly.      See, e.g., Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696

F.3d       128,   139     (1st   Cir.    2012)     (finding    that    a    discharged

plaintiff's long history of successful employment sufficed to

establish his qualifications at the prima facie stage); Vélez v.

Thermo King de P.R., Inc., 585 F.3d 441, 448 (1st Cir. 2009)

(same).       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.                       See supra p.

11; Johnson, 714 F.3d at 54 n.7; Gonclaves, 659 F.3d at 105-07.6




       6
       We do not mean to suggest that the Johnson rule can never
apply in a discharge or transfer case. Indeed, our discussion of
the McDonnell Douglas framework's flexibility would belie any such
conclusion.   However, in typical discharge and transfer cases,
like Caraballo's, the Johnson rule will ordinarily be inapposite.


                                          - 12 -
            Here, the district court's decision did not account for

this contextual distinction between failure to hire or promote

cases and discriminatory discharge or transfer cases. As a result,

it extended the Johnson rule from the failure to hire or promote

context, in which it typically applies, to a context in which it

is largely inapt.        While Johnson involved the comparison of a

plaintiff's credentials to an employer's stated job requirements,

the record in this case does not contain any evidence of the

Corrections Department's stated job requirements.         Further, even

if the record did contain such evidence, Caraballo's experience

performing her former position may still have been highly probative

of her qualifications -- vis-à-vis Cordero's qualifications -- to

perform that very job.      See Cumpiano, 902 F.2d at 154.

            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.3d 12, 20 (1st Cir. 1999); see also Ray v. Ropes &

Gray LLP, 799 F.3d 99, 114 (1st Cir. 2015).         "Reasonableness is

the touchstone" of this inquiry.          Conward, 171 F.3d at 20; see

Cumpiano, 902 F.2d at 154 ("The issue of job qualifications must

be viewed in an objectively reasonable way.").           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.       Vélez, 585


                                 - 13 -
F.3d at 451 (quoting Perkins v. Brigham & Women's Hosp., 78 F.3d

747, 752 (1st Cir. 1996)).

             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, Sepúlveda, 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, Sepúlveda 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


                                       - 14 -
conclusion to the contrary rested on an erroneous extension of our

decision in Johnson, and on its neglect of a relevant comparator,

Anaya.

                               III.

          The Department offers an alternative basis for affirming

the district court's grant of summary judgment.         It contends that

Caraballo did not establish a prima facie case of discrimination

because her transfer from the Radio Communications Area to the

commissary was not an adverse employment action.         We disagree.

          We have recognized on several occasions that a transfer

may constitute an adverse employment action.          See, e.g., Marrero

v. Goya of P.R., Inc., 304 F.3d 7, 23 (1st Cir. 2002); Rodríguez-

García v. Miranda-Marín, 610 F.3d 756, 766 (1st Cir. 2010).

However, not all transfers will suffice.        "[A] transfer that does

not involve a demotion in form or substance," including one that

imposes "only minor changes in working conditions," is not an

adverse employment action.    Marrero, 304 F.3d at 23 (quoting

Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997)).          On

the other hand, a transfer is adverse if it materially changes the

plaintiff's conditions of employment in a manner that is "more

disruptive than a mere inconvenience or an alteration of job

responsibilities."   Burns,   829   F.3d   at    10   (quoting   Morales-

Vallellanes v. Potter, 605 F.3d 27, 35 (1st Cir. 2010)).




                              - 15 -
          The Department argues that Caraballo's transfer from the

Radio Communications Area was not adverse because it did not

involve a decrease in rank, benefits, or pay.     However, we have

squarely rejected the notion that "a transfer cannot qualify as an

'adverse employment action' unless it results in a diminution in

salary or a loss of benefits."   Marrero, 304 F.3d at 24; see also

Rodríguez-García, 610 F.3d at 766-67 (holding that plaintiff's

transfer was an adverse employment action due to her change in

duties, despite retaining the same salary and title).     Instead,

the fact that a transfer leaves an employee with "significantly

different responsibilities," may make the transfer actionable.

Burns, 829 F.3d at 10 (quoting Morales-Vallellanes, 605 F.3d at

35).

          Caraballo's transfer meets that standard.   Her six years

working in the Radio Communications Area allowed her to gain

significant experience, and develop some expertise, in the field

of radio communications.   She inspected, programmed, and replaced

radio equipment, performed repairs, maintained inventories, taught

cadets to use radio equipment, and ensured that the Department was

compliant with FCC guidelines.   That experience and knowledge were

rendered useless by her transfer to the commissary, a job that

consisted of handling inmate purchases.   This disparity in duties

distinguishes Caraballo's transfer from those that we have found

insufficient, and makes the transfer an adverse employment action.


                              - 16 -
See Ayala-Sepúlveda v. Municipality of San Germán, 671 F.3d 24, 32

(1st Cir. 2012) (rejecting employee's claim that his transfer from

one city office to another was materially adverse because there

was no evidence that his "pay, rank, or duties," had changed

(emphasis       added));    Marrero,    304    F.3d   at   24    (concluding         that

transfer was not adverse where it involved only minor, temporary,

changes in a secretary's working conditions).

                                        IV.

             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.                          See,

e.g., Kosereis, 331 F.3d at 212.                     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.          See Mesnick v. Gen. Elec. Co., 950 F.2d 816,

824 (1st Cir. 1991) ("If the plaintiff has made out his prima facie

case,     and     the      employer    has     not    offered        a     legitimate,


                                       - 17 -
nondiscriminatory reason to justify the adverse employment action,

then the inference of discrimination created by the prima case

persists, and the employer's attempt to secure summary judgment

should be rebuffed.").   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.7

The parties shall bear their own costs on appeal.

          So ordered.




     7 We see no basis for disturbing the district court's grant
of summary judgment as to Caraballo's hostile work environment and
retaliation claims.


                              - 18 -
