Labor & Employment Law Daily Wrap Up, DISCRIMINATION—1st Cir.: Postmaster passed over for two promotions in favor of younger men gets second shot at one sex bias claim, (Sep 5, 2025)

By Kathleen Kapusta, J.D.

Despite the decisionmaker’s statement questioning the postmaster’s energy for one position, the court granted summary judgment against her age discrimination claims.

A postmaster who, at the age of 58, was denied two promotions to younger men and was told by her supervisor when she applied for the second position that the post office had never had a female postmaster and she wondered how that would work, and who also questioned whether she would have the energy to manage the office, failed to show she was denied both promotions due to her age or that she was denied the first because of her sex, the First Circuit concluded. Reversing summary judgment against her Title VII sex discrimination claim as to the second promotion, however, the appeals court found the employee’s evidence, taken together, was “just enough to warrant a jury trial” (Warner v. DeJoy, No. 24-1414 (1st Cir. Sept. 4, 2025)).

First application. The employee began working for the U.S. Postal Service in 1998, became a postmaster nine years later, and, by 2018, had risen to a Level 18 postmaster. In January 2018, at the age of 58, she applied for an open Level 20 postmaster position in Durham, New Hampshire. Her supervisor, the Post Office Operations Manager for the Northern New England District, interviewed her but then selected a 36-year-old man for the position, telling the employee he had “more experience of the sort needed for that particular job.”

Second application. Seven months later, she applied for a Level 20 postmaster position in Somersworth, New Hampshire. During the interview, her supervisor told her "that the Somersworth post office had never had a female postmaster, and she wondered how that would work." She also questioned whether the employee "had the energy" to manage that post office. Once again, the supervisor selected a different candidate, this time a 53-year-old male.

Lower court proceedings. The employee ultimately sued, alleging age discrimination in violation of the ADEA and sex discrimination in violation of Title VII. The district court granted summary judgment to the USPS on both claims.

Age discrimination. Addressing first on appeal the employee’s age discrimination claims, the court pointed out that instead of proving that age was a but-for cause of the challenged personnel decision, a federal sector employee need only establish that the decision was "tainted" by discrimination. In ruling against the employee on this claim, the district court, at the urging of both parties, applied the McDonnell Douglas burden-shifting analysis. However, the First Circuit explained, because federal-sector ADEA plaintiffs do not need to show but-for causation, the district court erred by relying on McDonnell Douglas to reject the employee’s age-discrimination claims.

But the employee, said the court, admitted she invited this error by "ma[king] a strategic choice" below not to advocate for the correct standard. And not only did she chose to bypass the federal-sector test for reasons of "strateg[y]," the court found it far from clear that she would prevail under the more forgiving standard. Under these circumstances, the court declined to overlook her waiver of any argument that the more lenient standard might save her claims.

Pretext. Turning to the employee’s assertion that the USPS’s proffered reasons for both non-selections were pretext for age discrimination, the court pointed out that the age discrepancy between the employee and the selectees did not, by itself, create an inference of bias. Nor did the supervisor’s statement about the employee’s energy, without more, permit the conclusion that the supervisor did not promote her because of her age, said the court, noting that it has held that the word energy "does not necessarily connote youth or other age-related characteristics."

As to her argument she was more qualified than the first selectee because she had 11 years of postmaster experience to his less than three years, she had significantly more trainings, she was a member of the City Inspection team, and she had “numerous years of city delivery experience,” she did not dispute that he was "considered one of the leaders in city delivery" and had "worked on many special teams as a Team Leader for City Delivery Inspections as well as instructed many trainings for City Delivery."

In addition, the second selectee was previously postmaster of an office that was "100% city delivery" and had previously supervised the largest post office in the supervisor’s group. Accordingly, the court found the employee’s city-delivery qualifications were not sufficient to support an inference of pretext.

While the employee also pointed to purported gaps and inconsistencies in the supervisor’s statements and testimony, those inconsistencies, the court observed, had little bearing on the promotion decisions. Based on all these reasons, the court affirmed summary judgment to the USPS on the employee’s age discrimination claims.

Sex discrimination—second application. Regarding the employee’s sex discrimination claim, the court, noting that much of her evidence related to the second non-selection, began there. According to the employee, the district court overlooked evidence of pretext, including USPS data that the supervisor promoted nearly twice as many men as women during her career; testimony that in a 2020 meeting, the supervisor referred to a group of six young, male employees as her "smoking hot [Officers in Charge]"; and the supervisor’s statement that she "was not sure that they'd ever had a woman in Somersworth before, and she wondered how that would work out."

The court, however, found no probative value in the demographic data, standing alone, as the employee did not identify how many men versus similarly situated women applied for the positions in question. Nor could the supervisor’s “smoking hot” remark, delivered more than a year later and in a context removed from either promotion decision, support an inference of discriminatory motive.

Doubt. But the supervisor’s comments about the feasibility of a female postmaster in Somersworth, said the court, raised more serious questions. While the USPS argued that her statement they had never "had a woman [p]ostmaster in Somersworth" was a "neutral, factual statement devoid of any evidence of gender-based animus,” her follow-up, wondering "how that would work," implied she doubted that a woman could do that job. Moreover, the statement was delivered during the interview itself by the acknowledged decisionmaker and, when combined with the other otherwise insufficient evidence, could support a jury conclusion that the supervisor elected not to promote the employee because of her sex. Thus, the court reversed summary judgment against this claim.

Sex discrimination—first non-selection. Finally, as to the employee’s claim related to the first non-selection, the court found her evidence “considerably thinner.” The supervisor’s comment during the interview for the second opening referred specifically to a history of all-male leadership in that post office and, at most, reflected her perception of employee’s suitability for that post office. Without the inference of discriminatory motive from that comment, the employee’s other evidence of pretext was not enough to create a triable issue of fact, the court explained, affirming summary judgment against this claim.

The case is No. 24-1414.

Judge: Kayatta, W., Jr.

Attorneys: Mark M. Whitney (Whitney Law Group) for Elizabeth R. Warner. Michael McCormack, Assistant U.S. Attorney, for Louis DeJoy.

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