Pippin v. Boulevard Motel Corp. , 835 F.3d 180 ( 2016 )

United States Court of Appeals
For the First Circuit
Nos. 15-2011, 15-2012
BRENDA PIPPIN, GRACE PARKER,
Plaintiffs, Appellants,
v.
BOULEVARD MOTEL CORP., d/b/a Comfort Inn South Portland Hotel,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Torruella and Barron, Circuit Judges,
and Lisi,* District Judge.
James A. Clifford, with whom Andrew P. Cotter and Clifford &
Clifford, LLC, were on brief, for appellants.
Barbara Archer Hirsch for Maine Human Rights Commission,
amicus curiae.
Katharine I. Rand, with whom James R. Erwin, Michelle Y. Bush,
and Pierce Atwood LLP were on brief, for appellee.
Anne Noel Occhialino, Attorney, Equal Employment
Opportunity Commission, P. David Lopez, General Counsel, Jennifer
S. Goldstein, Associate General Counsel, and Lorraine C. Davis,
Assistant General Counsel, on brief for Equal Employment
Opportunity Commission, amicus curiae.
August 31, 2016
* Of the District of Rhode Island, sitting by designation.
BARRON, Circuit Judge. Plaintiffs Brenda Pippin and
Grace Parker are former employees of the Boulevard Motel
Corporation ("Boulevard"). They filed complaints that alleged
that Boulevard fired them in violation of the Maine Whistleblowers'
Protection Act ("MWPA") and the Maine Human Rights Act ("MHRA").
The District Court granted summary judgment for Boulevard, relying
on a purported "job duties exception" to both statutes. On appeal,
the parties agree that our intervening decision in Harrison v.
Granite Bay Care, Inc., 811 F.3d 36 (1st Cir. 2016), made clear
that no "job duties exception" exists under either the MWPA or, by
implication, the MHRA. But Boulevard argues that we nonetheless
can affirm the District Court's ruling because it is supportable
on other grounds. Because we disagree that other grounds support
the order granting summary judgment, we reverse.
I.
"On review of an order granting summary judgment, we
recite the facts in the light most favorable to the nonmoving
part[ies]." Walsh v. TelTech Sys., Inc., 821 F.3d 155, 157–58
(1st Cir. 2016). Thus, we present the facts in the light most
favorable to the plaintiffs.
This case concerns an incident of sexual harassment that
occurred at the Comfort Inn Hotel in South Portland, Maine. The
hotel is owned by the defendant, Boulevard. The plaintiffs are
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Pippin, the hotel's former executive housekeeper, and Parker, the
hotel's former assistant executive housekeeper.
The incident involved a maintenance worker at the hotel
making graphic, sexual comments to a female housekeeper about her
body. The victim -- along with Pippin and Parker -- made the
initial report of the incident to the defendant. The three women
made that report to the hotel's general manager, Beth Landergren.
At that initial meeting on April 27, 2010, Pippin told Landergren:
"[the victim] needs to talk to you. . . . she has gone through
some incidents with [the maintenance worker] . . . and it's not
pleasant." The victim then proceeded to describe the incident to
Landergren.
In the course of the defendant's resulting investigation
of the incident, the plaintiffs each also made oral and written
statements about it to Ignacio Mello, the defendant's human
resources manager.1 On May 11, 2010, after the investigation had
come to a close, the defendant sent a written reprimand to the
1
Parker also helped the victim, who struggled to write in
English, to write a statement to submit to Mello in connection
with his investigation. At the end of the letter Parker wrote on
behalf of the victim, Parker wrote: "This is written by Grace
Parker because [the victim] can not spell and write English very
well." Parker then included a postscript in which she recounted
the victim's description of the impact of the incident on her.
Parker concluded the postscript by writing: "[The victim] also
mentioned that this entire incident was embarrassing and very hard
to talk about. I told her she has done nothing wrong."
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maintenance worker. No further disciplinary action was taken
against him.
More than three weeks later, on June 2, 2010, each
plaintiff sent another written statement to Mello. Parker's
statement described a conversation with a co-worker, Veronica
Connolly, in which Connolly had reported feeling pressured by
Landergren to protect the accused harasser during the
investigation. Pippin's statement recounted a meeting that she
had with the victim and Landergren the day before, during which
the victim had accused Landergren of, among other things, only
caring about "saving [the accused harasser]."
In 2011, both plaintiffs were terminated from their
employment by the defendant. On March 21, 2014, each plaintiff
brought suit, in two separate complaints, in Maine Superior Court.
Each plaintiff alleged that her termination violated both the MWPA,
which protects an employee who, in good faith, "reports orally or
in writing to [her] employer or a public body what the employee
has reasonable cause to believe is a violation of [] law" by her
employer, Me. Rev. Stat. tit. 26, § 833; Costain v. Sunbury Primary
Care, P.A., 954 A.2d 1051, 1054 (Me. 2008), and the antiretaliation
provision of the MHRA, which prohibits "discriminat[ion] against
any individual because that individual has opposed any act or
practice that is unlawful under [the MHRA]," see Me. Rev. Stat.
tit. 5, § 4633.
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Boulevard removed the two cases to federal court on
April 22, 2014. On February 27, 2015, Boulevard filed a motion
for summary judgment in each case, contending that neither
plaintiff had engaged in activity protected by either statute. In
its ruling on the motions, the District Court concluded that a
"job duties exception" applied under both the MWPA and the MHRA,
that Pippin and Parker were carrying out their job duties in making
the initial report of harassment, and that the letters the
plaintiffs sent after the defendant ended the investigation were
not made in opposition to any unlawful activity by the employer.
Based on those conclusions, the District Court granted Boulevard's
motion as to both plaintiffs. At the end of its opinion, however,
the District Court stated that it had "misgivings" about the
application of the job duties exception to each statute and that
it was "concerned that the job duties exception ha[d] denied Ms.
Pippin and Ms. Parker their day in court."
The plaintiffs separately appealed, and we consolidated
the two appeals. On January 8, 2016, the plaintiffs filed their
initial brief. Five days later, we issued a decision in Harrison
v. Granite Bay Care, Inc., 811 F.3d 36, 49 (1st Cir. 2016), in
which we made clear that no "broad-based job duties exception"
applied under the MWPA. We explained that "although a particular
employee's job duties may be relevant in discerning his or her
actual motivation in reporting information, those duties are not
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dispositive of" whether the employee engaged in protected activity
under the statute. Id. at 51. In light of Harrison, we asked the
plaintiffs to file a new brief and adjusted the briefing schedule
accordingly. A full round of briefing,2 along with oral argument,
followed.
II.
Before turning directly to our review of the District
Court's order, we need to provide some background regarding both
the applicable law and the arguments that the parties are making
on appeal. We start with the claims arising under the MWPA and
then turn to those arising under the MHRA.
To obtain relief under the MWPA, a plaintiff must show
that "(1) she engaged in activity protected by the [M]WPA; (2) she
experienced an adverse employment action; and (3) a causal
connection existed between the protected activity and the adverse
employment action." Walsh v. Town of Millinocket, 28 A.3d 610,
616 (Me. 2011). The parties agree that only the first of these
three elements is at issue on appeal, as the defendant did not
move for summary judgment on any other ground.
The parties are less than clear as to which of the
plaintiffs' actions constitutes the potentially qualifying
2 We thank amici curiae Equal Employment Opportunity
Commission and Maine Human Rights Commission for their briefs in
support of reversal.
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"report[]" under the MWPA. See Me. Rev. Stat. tit. 26,
§ 833(1)(A). But the plaintiffs do not argue that their post-
investigation letters to Mello standing alone would constitute
such a report. The plaintiffs thus appear to be contending that
their initial report is the one that qualifies, at least when
considered in light of their later conduct. The defendant, for
its part, does not appear to contest that we may evaluate the
plaintiffs' course of conduct as a whole in determining whether
that initial report qualifies as protected activity. Nor does the
defendant challenge the plaintiffs' assertion that the initial
report concerning the maintenance worker's harassment constitutes
a potentially qualifying report of unlawful conduct committed by
the plaintiffs' employer.
Of course, the District Court concluded that the
plaintiffs' initial report was not protected activity under the
MWPA based on its conclusion that pre-Harrison precedent set forth
a "job duties exception" to the MWPA. But Harrison made clear
that "the critical point when analyzing whether a plaintiff has
made out the first element of a [MWPA] claim -- engaging in
activity protected by the Act -- is an employee's motivation in
making a particular report or complaint." 811 F.3d at 51. Thus,
as we explained in Harrison, a plaintiff may be deemed to have
engaged in activity protected by the MWPA even if the report of
unlawful activity she makes is one her employer required her to
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make as part of her job duties. The employee need only show that
her "report was made to shed light on and 'in opposition to' [the
defendant]'s potential illegal acts." Id.
Turning to the plaintiffs' claims under § 4633 of the
MHRA,3 the statute prohibits discrimination against any individual
who "has opposed an[] act or practice that is unlawful under [the
MHRA]," Me. Rev. Stat. tit. 5, § 4633. The only element of the
plaintiffs' claims under this statute that is in dispute on appeal
is, once again, whether the plaintiffs engaged in protected
activity under the statute. And although the District Court relied
on a job duties exception in ruling that the plaintiffs did not,
the defendant concedes that -- at least after Harrison -- the
plaintiffs can show that they engaged in protected activity so
long as they can show that their initial report was made in
opposition to the maintenance worker's harassment, which the
parties agree was conduct that is unlawful under the MHRA.
Against this background, our task is clear. Because
neither party has asked us to remand to allow the District Court
to further consider the motions for summary judgment on the
underlying claims in light of Harrison, and because we may affirm
the District Court on any ground made manifest in the record,
3Other provisions of the MHRA constitute the source of an
employee's right of action for a violation of the MWPA. See Me.
Rev. Stat. Ann. tit. 5, §§ 4572, 4621; Harrison, 811 F.3d at 46
n.12.
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Walsh, 821 F.3d at 161, we must now decide what the evidence shows
regarding whether the plaintiffs' initial report to their employer
was made "in opposition to" the harassment being reported. See
Miranda-Rivera v. Toledo-Dávila, 813 F.3d 64, 69 (1st Cir. 2016)
(explaining that, for purposes of summary judgment, "[a] 'genuine'
dispute exists when a jury can reasonably interpret the evidence
in the non-movant's favor"). Only if the record shows "that there
is 'no genuine dispute as to any material fact" regarding whether
that report was made with the requisite oppositional motivation
would the District Court's orders granting summary judgment be
proper. Massachusetts Delivery Ass'n v. Healey, 821 F.3d 187, 191
(1st Cir. 2016) (quoting Fed. R. Civ. P. 56(a)). Our review is de
novo, and we must "view[] the facts in the light most favorable to
the non-moving part[ies]," the plaintiffs. Id.
III.
The defendant contends that, even under Harrison, the
evidence supporting the plaintiffs' claims that they engaged in
protected activity under the MWPA and under § 4633 of the MWPA is
insufficient to permit the plaintiffs' claims to survive summary
judgment. Specifically, the defendant argues that the evidence
reveals that the plaintiffs "merely ensured that [the victim]'s
complaint . . . was passed up the chain" and provided what
"information they had in the context of written statements and
interviews." And the defendant further contends that the evidence
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shows that the plaintiffs never expressed "any personal opinion
about [the accused harasser]'s actions or concern about
[d]efendant's response to [the victim]'s harassment complaint."
For that reason, the defendant contends that the record is devoid
of evidence that the plaintiffs acted with the requisite
oppositional intent.
But, as we have explained in an analogous context,
opposition to unlawful activity may take forms other than express
statements of opposition. Rather, "employees may communicate
their views to their employers through 'purposive conduct.'"
Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 47 (1st
Cir. 2010) (addressing a claim under Title VII of the 1964 Civil
Rights Act) (quoting Crawford v. Metro. Gov't of Nashville &
Davidson Cty., Tenn., 555 U.S. 271, 281 (2009) (Alito, J.,
concurring)); accord DeMasters v. Carilion Clinic, 796 F.3d 409,
417 (4th Cir. 2015) (recognizing that courts have taken "an
expansive view of what constitutes oppositional conduct" under
Title VII).4 And, here, the plaintiffs contend that the record as
a whole shows that they did just that. See DeMasters, 796 F.3d at
4
Maine courts have made clear that, in adopting the MHRA,
"the Maine legislature by adopting provisions that generally track
the federal antidiscrimination statutes intended the courts to
look to the federal case law to 'provide significant guidance in
the construction of [the Maine] statute.'" Maine Human Rights
Comm'n v. City of Auburn, 408 A.2d 1253, 1261 (Me. 1979) (quoting
Maine Human Rights Comm'n v. Local 1361, Me., 383 A.2d 369, 375
(Me. 1978)).
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418 ("[W]e must examine the course of a plaintiff's conduct through
a panoramic lens, viewing the individual scenes in their broader
context and judging the picture as a whole.")
In particular, the plaintiffs point not only to their
role in initially reporting the harassment to a supervisor but
also to the evidence of their unsolicited, post-investigation
letters to Mello concerning how the allegation of harassment had
been handled by the defendant. They contend that this
evidence -- considered as a whole -- supports a reasonable
inference that, in initially reporting the harassment, they were
motivated not only by their interest in fulfilling their job duties
but also by their opposition to the employer's unlawful conduct.
The defendant, by contrast, contends that even viewing the
plaintiffs' course of conduct as a whole, there is no evidence
that any of the plaintiffs' conduct was taken with the requisite
motivation. We disagree.
The record shows that Pippin and Parker did more than
simply facilitate the victim's lodging of her complaint and then
cooperate with the ensuing investigation. Rather, the record
reveals that three weeks after that investigation into the
complaint of harassment had come to an end, Pippin had a meeting
with the victim and Landergren at which the victim told Landergren
that she was unhappy with the defendant's resolution of her
complaint. The record then shows that, the next day, Pippin and
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Parker, apparently on their own initiative, each sent handwritten
letters to Mello recounting ongoing concerns that their co-
workers, including the victim, had about the integrity of the
investigation.
In her letter, Pippin wrote that the victim stated during
that meeting that Landergren only cared about "saving [the accused
harasser]" and that the victim did not trust Landergren. Pippin
also wrote that the victim told Landergren that a co-worker,
Connolly, had apologized to the victim for lying during the
investigation and that Connolly had said she would have been fired
if she had not lied. Parker's separate letter to Mello described
a conversation that she had with Connolly in which Connolly stated
that she had felt pressured by Landergren to "go along with [her]
about the [harassment] situation" and that she felt she would have
been fired if she had not.
Thus, the record, read in the light most favorable to
the plaintiffs, shows that the plaintiffs were fired after
continuing to raise concerns about the handling of an investigation
into a complaint of sexual harassment that they, along with the
victim, had first reported to the employer. And the record further
supports the plaintiffs' claims that they continued to press these
concerns even after the employer's investigation had ended and
even though they were apparently under no obligation to their
employer to do so. See Harrison, 811 F.3d at 51 ("[A] particular
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employee's job duties may be relevant in discerning his or her
actual motivation in reporting information, [although] those
duties are not dispositive of the question.").
To be sure, this is a close case. The plaintiffs'
initial reports of harassment involved little more than Pippin's
telling Landergren that the victim needed to talk to her about
something that was "not pleasant." And perhaps Pippin and Parker
sent their post-investigation letters purely out of an interest in
ensuring the proper handling of internal investigations or in
informing the human resources department about unrest among their
co-workers.
But a reasonable jury would not be required to draw
either of those inferences. Rather, a trier of fact reasonably
could draw the common-sense inference that these employees, who
first were involved in reporting an incident of harassment to their
employer and then persisted in raising concerns to their employer
about an internal investigation of that incident following a
meeting in which the victim expressed concerns about how her
initial complaint had been handled, were motivated throughout by
their opposition to the employer's unlawful conduct. See Ballew
v. Georgia, 435 U.S. 223, 233-34 (1978) (discussing the importance
of a jury's "application of the common sense of the community to
the facts of any given case"); CSX Transp., Inc. v. McBride, 564
U.S. 685, 700 (2011) (referring to a jury's use of "experience and
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common sense"); United States v. Smith, 680 F.2d 255, 260 (1st
Cir. 1982) ("Neither juries nor judges are required to divorce
themselves of common sense . . . ."). Thus, a jury reasonably
could conclude that their initial report of harassment to their
employer "was made to shed light on and 'in opposition to' [the
defendant]'s potential illegal acts." See Harrison, 811 F.3d at
51.5 And, as the defendant concedes, if a jury reasonably could
reach that conclusion, then we must reverse the District Court's
orders granting summary judgment.
Of course, on remand it is possible that the jury will
find that the plaintiffs did not engage in protected activity under
either statute or that the plaintiffs' claims may fail for some
other reason. But those possibilities are just that. They provide
no basis for affirming the summary judgment rulings concerning
whether the plaintiffs engaged in protected activity under the
MWPA or § 4633 of the MHRA, and thereby denying the plaintiffs the
opportunity to convince a jury otherwise. See Rubinovitz v.
Rogato, 60 F.3d 906, 912 (1st Cir. 1995) (vacating a grant of
summary judgment even while recognizing that "the case might be a
difficult one for the plaintiffs," given the Court's "obligation
5For this reason, the defendant's contention that the
plaintiffs' post-investigation letters themselves constituted
direct opposition only to the allegedly biased investigation, and
not to the harassment giving rise to that investigation, is beside
the point.
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to draw all reasonable inferences in favor of the party opposing
summary judgment").
IV.
For the reasons set forth above, we reverse the order of
the District Court granting summary judgment and remand this case
for further proceedings consistent with this opinion.
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