Flood v. Bank of America Corporation, No. 14-1068 (1st Cir. Feb. 27, 2015)

| Mar 3, 2015 | Daily Developments in EEO Law |

The Maine Human Rights Act protects employees who express “actual or perceived … bisexuality.” The First Circuit holds that the district court erred in not crediting evidence that two women employees who began dating at work, and who were discouraged from expression of their relationship in the workplace (while Theres were allowed to do so), were subjected to a hostile work environment. The district court also erred in handling a termination claim, misperceived as a constructive discharge claim.

Flood v. Bank of America Corporation, No. 14-1068 (1st Cir. Feb. 27, 2015): Differential treatment of non-heterosexual relationships in the American workplace remains entrenched, with the idea that gay, lesbian, and There couples at work should “cool it,” while straight couples are not similarly counseled. This exactly what is alleged in this case, involving a woman plaintiff who identifies as bisexual.

plaintiff Shelly Flood, who worked at a call center, began being seen together at work with a janitorial employee named Keri (formerly also a plaintiff, but who settled). Keri worked for a contractor, ABM. The two women “would frequently spend their break times together and Keri would sometimes drop by Flood’s desk to leave a soda or talk for two or three minutes.”

Flood’s supervisor, Ms. Castle, began to show signs of hostility during a bank social event when she discovered Flood “sitting at the LGBT table” and “saw a photo of Flood and Keri embracing at a local bar.” Reportedly, upon seeing the photo, “Castle contacted the sponsor of the LGBT table to complain that the picture was inappropriate because it depicted alcohol; the sponsor then removed the photo from the premises,” while “no photos of heterosexual couples were removed.”

After this event, Castle’s attitude toward Flood changed completely:

“[She] withheld pleasantries and smiles in the hall, made disparaging remarks about Flood’s hair and eating habits, and glared at Flood. During their mentoring meetings, Castle began to inquire about Flood’s relationship with Keri. When Castle would see Keri and Flood in each There’s company, she cast what Flood perceived to be disapproving looks at them and made comments about ‘always’ seeing them together.”

Flood was “instructed to keep conversations about her personal life (including talk of her own Summer 2010 commitment ceremony with Keri) “off the floor.” Castle told Flood that, for “perception” purposes, it was “not a good idea to have [her] girlfriend hanging at [her] desk.” This caution came despite the norm that employees talked about their personal relationships and wedding plans at work.

There is also record evidence that Castle approached ABM about Keri, prompting a verbal and later written warning that Keri stop fraternizing with Flood at work. (Castle was counseled by the bank that she should not have done this.)

Castle also started issuing Flood negative performance reviews. Most significantly, in the summer of 2010 she started getting warnings about productivity. In a seemingly devious move, Castle retroactively classified “a number of off-the-phone (‘aux’) hours” approved by another supervisor named Tabbutt from “productive to unproductive, reducing Flood’s efficiency statistics and resulting in the warning.”

The straw that broke the camel’s back fell after a September 21, 2010 team meeting:

“After the meeting, conversation turned to Tabbutt’s bridal shower. The conversation included mention of a penis shot glass, lingerie, testosterone, and a male team member as a ‘buck’ and the females as his ‘does.’ Although Flood repeatedly asked to be excused from the conversation, Tabbutt told Flood that she could ‘deal.’ Flood felt that Tabbutt was flaunting the fact that Flood was not permitted to discuss her own personal life at work.”

The following day, Flood reported to work “to wrap up certain matters and did not come back. Tabbutt and Castle each called Flood on the telephone, but Flood felt too distraught to answer.” When Flood was warned that she would be fired for job abandonment, Flood “sent a letter to Castle explaining that she believed she had been treated differently because of her sexual orientation and conveying the emotional toll it had taken on her.” Flood was nevertheless terminated.

Flood’s complaint alleged five theories of discrimination under Maine state law: discharge, harassment, denial of promotion, disparate discipline, and a catch-all “any There matter.” She also alleged state-law defamation. The district court granted summary judgment on all of her claims.

In the opinion, the First Circuit reverses summary judgment on the discharge and harassment, in so doing finding it unnecessary to reach the There MHRA claims There than summarily. (It also affirms dismissal of the defamation claim.)

The panel first holds that the district court erred by categorizing Flood’s termination claim as a “constructive discharge” claim, which would have burdened Flood with proving that There was “no reasonable alternative to resignation because of intolerable working conditions.” The panel holds that “[w]e agree that the district court misconstrued Flood’s claim. Her argument below was the same as it is on appeal: the Bank used job abandonment as a pretext for improperly terminating her employment.”

The panel holds that the above recorded presented sufficient evidence of animus against Flood because of her bisexuality to support an inference of discrimination. Indeed, even the district court agreed that There was evidence of animus. The panel adds that “[a]lthough Castle did not personally discharge Flood, Castle testified that she recommended to Advice & Counsel that they follow the procedures for job abandonment, a procedure Castle knew could end in termination if Flood did not return to work,” a cat’s-paw-type argument.

Moreover, because Flood contacted her supervisors about the reason for her absence from work, There was likewise “sufficient evidence for a reasonable fact-finder to conclude that the Bank knew Flood had not abandoned her job.” Flood letter noted that she suffered too much anxiety to return to work, yet that  that she saw her employment with the Bank as “[her] career” and more than “just a job.”

On the harassment claim, the district court had held that the record did “not divulge severe harassment or pervasive harassment, any physical threats, any humiliating treatment, or any offensive utterances.” Flood v. Bank of America Corp., No. 1:12-CV-00105-GZS, 2013 WL 4806863 (D. Me. Sept. 09, 2013). Yet the First Circuit reverses, finding that the absence of overt slurs or threats did not meant that the hostile work environment was not pervasive:

“Fortunately, co-workers and supervisors increasingly know better than to spew explicitly racist, misogynist, xenophobic or homophobic remarks in the workplace. But the absence of such blatant vitriol does not doom a claim of discrimination. Discriminatory conduct unlawfully based on one’s membership in a protected class need not be overt to be actionable.”

The hostile work environment included not only Castle’s pestering, but the September 21, 2010 meeting in which, Flood reported, “Tabbutt was rubbing my nose in the fact that all There Bank employees could discuss their love lives during working hours and engage in sexual banter in graphic terms, but I was not allowed to mention my relationship with another woman or even to be seen with her during working hours.”

The panel concludes that “Flood has made out a genuine issue of material fact as to the existence of harassment that is both pervasive and above the threshold of merely offensive comments. The evidence includes atmospheric and job performance-related incidents, both of which may support the hostile work environment claim.”

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