Sex harassment is often conflated with sexual misconduct, yet belittlement of and failure to cooperate with women at work - no less than sexual comments or physical grabbing - violates their rights as well. The First Circuit sends such a case back for trial, also addressing when a non-employer may be liable for retaliation.
Roy v. Correct Care Solutions, LLC, No. 18-1313 (1st Cir. Jan. 28, 2019): Plaintiff Roy, a licensed practical nurse who was assigned by her employer Correct Care Services to a state prison (MDOC), alleged that she was subjected to harassment and retaliation by prison guards. The guards were supposedly assigned for her safety, but (it is alleged) were instead dispensing cruelty and danger. She also had her security clearance revoked, also supposedly in retaliation for her complaints.
Some of the alleged harassment was common, garden-variety sexism, sometimes even rising to assault. One alleged harasser, a guard named Snow, made constant remarks like "don't worry, it's because you are blonde. You wouldn't understand," and, "I wouldn't expect someone like you to understand how things are done." He also allegedly, "once squeezed and twisted Roy's wrist until she dropped to her knees in pain. And he once bent her over a chair and spanked her." Another guard named Turner "constantly" made derogatory jokes and comments about women, such as "why do we have females when . . . men do everything," and that a woman's "job is to be at home." Another guard sent sexually-explicit texts.
Other alleged harassment came in the form of withholding assistance and criticizing Roy's performance. "Turner sometimes ignored her, left her alone in exam rooms with inmates, and did not respond to her requests to bring sick or injured inmates to the clinic." When Roy reminded another guard (Parrow) about "the proper procedure for bringing sick inmates to the clinic, Parrow told Roy to 'stop being a bitch.'" Parrow also said that Roy was "being a s**t" after Roy "refused to share with him medical information that he wanted about an inmate," confidential information that the guard was not entitled to have. One guard (DeGuisto) when to the length of sending Roy private messages over Facebook criticizing her work and asking for her phone number.
Roy filed incident reports with her employer Correct Care Solutions (CCS) and MDOC about the guards' conduct, which led to escalated harassment. For instance, "Turner often left Roy alone with inmates, was frequently absent from his post in the clinic, talked down to Roy, and worked slowly or ignored Roy when she needed something." Emails complaining of the absences were met with no response. The guards, in turn, filed incident reports complaining about Roy's alleged lack of cooperation. Things got bad enough that Roy asked for a transfer to another prison "d[ue] to the fact that I currently feel that my work site is bord[er]ing on a hostile work environment."
Matters culminated in a dispute on September 26, 2014 about whether a guard (Snodgrass) failed to cover the clinic for fifteen minutes while Roy and another nurse (Reed-Chapman) were on duty. The captain in charge found their complaint false and MDOC revoked Roy's (but not Reed-Chapman's) security clearance, which effectively removed her from duty. Then, rather than investigate other possible placements for Roy, CCS fired her.
Plaintiff brought harassment and retaliation claims under Title VII, the Maine Human Rights Act (MHRA), and Equal Protection/§ 1983. While the district court found the above contact neither severe nor pervasive, the First Circuit reverses. The panel made the following holdings:
1. A plaintiff need not show that sex is the "but-for" cause of harassment; it is sufficient that it is one motive. Roy presented sufficient evidence to show that sex was one factor in the hostile work environment: "Turner made constant derogatory comments about women; DeGuisto pestered her for her phone number in Facebook messages and conveyed that [another guard] Dever was spreading rumors that she had 'f[****]d' everyone in the prison; and Parrow sent her graphically sexual text messages." Moreover, "Turner, Parrow, and Dever sexualize[ed] Roy and officers like Snow emphasizing aspects of her appearance, such as her blonde hair."
2. The retaliatory behavior might also have been motivated by sex. "A jury could find on one of several theories that officers put Roy at risk, treated her rudely, ignored her, demeaned her, and filed reports complaining about her not only because of her whistleblowing but also because of her sex." Moreover, the constant harping and lack of cooperation was part of the hostile work environment: "Responding disrespectfully or dismissively to women's requests, complaining about women's performance, and ignoring or ostracizing women are paradigmatic ways to communicate to women that they are less worthy than or less welcome than men in a workplace."
3. Although CCS argued that DeGuisto's Facebook messages should be disregarded because they occurred outside of work, the panel holds that "it is not clear at all that Facebook messages should be considered non-workplace conduct where, as here, they were about workplace conduct, including Dever's reports and rumors, and were sent over social media by an officer who worked in Roy's workplace."
4. A jury could find the hostile work environment both severe and pervasive. "On severity, a jury could find Turner's practice of abandoning his post so that Roy was left alone with inmates severe enough, on its own, to alter the terms and conditions of her employment .... Conduct that places a plaintiff in this sort of peril is severe for purposes of a hostile work environment claim." Further, "[o]n pervasiveness, there is evidence that Roy was subjected to Turner's persistent derision and to several officers' 'daily' retaliatory treatment, escalating from July to September of 2014. This environment was punctuated with the potentially humiliating episodes involving Dever and Parrow." The court also notes that the failure to respond to a request for a transfer from a hostile work environment might itself contribute to the harassment.
5. In a decision of first impression, the panel holds that § 4633 of the MHRA - the anti-retaliation and -interference section - applies to "persons" rather than just "employers," and so encompassed MDOC where Roy worked. It also holds that both the escalated hostile work environment and the revocation of Roy's security clearance were actionable as retaliatory acts.
6. Considering the "unique nature of Roy's workplace, where workers employed by multiple entities shared a worksite that did not belong to Roy's employer and where the organizational relationships afforded non-employers influence over employment conditions and decisions," Title VII would recognize possible liability against CCS for harassment by MDOC employees. As the panel underscores:
"In our view, the duty to try to protect employees from sexual harassment exists in other environments, even in environments that are, like MDOC's prison, 'inherently dangerous' and difficult to control .... CCS had an obligation to try to protect Roy from a hostile work environment, and the reasonableness rule consistently applied in third-party harassment claims is adequate to account for the complexities of her workplace."
The panel holds in this case that there is a genuine dispute about whether CCS had power to control the work environment, in particular the harassing guards. "CCS had formal and informal mechanisms for raising Roy's complaints and for pressing for remedies," but allegedly failed to do so. "Apart from what CCS did or could have done to influence MDOC is the issue of what CCS could have done on its own. A jury could see as unreasonable CCS's changing story about and seeming failure to consider an obvious mitigating measure, and one requested by Roy - a transfer."
7. The panel holds that there is a genuine dispute about whether the reason for terminating Roy - revocation of her MDOC security clearance - was a pretext for retaliation. "If CCS could have transferred Roy to one of its other facilities in Maine, as Roy says, then a jury could find that retaliatory animus was a but-for cause of CCS's decision to fire her rather than transfer her .... Alternatively, a jury could conclude that MDOC's retaliatory animus caused the revocation of the security clearance and, in turn, caused Roy's termination." The panel also reverses summary judgment on a state-law whistleblowing claim on the same basis.
Finally, the panel affirms qualified immunity for two individual MDOC officers, because they had reason to believe that their alleged failure to investigate Roy's complaints and revocation of her security clearance would not violate the Constitution.