Table of Contents

Table of Authorities.................................................................................... ii

Statement of Interest................................................................................... 1

Statement of the Issues............................................................................... 1

Statement of the Case................................................................................. 2

A. Statement of Facts............................................................................ 2

B. District Court Opinion.................................................................... 10

Summary of Argument............................................................................. 13

Argument................................................................................................. 14

A. The district court erroneously attributed some parts of Roy’s hostile

work environment to conduct based on sex and other parts to conduct

based on her whistleblowing, ignoring the possibility that sex may

have been a “but for” cause for all of it........................................... 14

B. The district court erred by applying state law, rather than federal law, to Roy’s Title VII retaliation claim................................................. 20

Conclusion............................................................................................... 22

Certificate of Compliance

Certificate of Service

Table of Authorities

Cases

Alwine v. Buzas, 89 F. App’x 196 (10th Cir. 2004)................................... 17

Berry v. Frank’s Auto Body Carstar, Inc., 495 F. App’x 623 (6th Cir. 2012)................................................................................................................. 16

Burrage v. United States, 571 U.S. 204 (2014)......................................... 14

Crowley v. L.L. Bean, Inc., 303 F.3d 387 (1st Cir. 2002).......................... 15

EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244

(11th Cir. 1997)........................................................................................ 17

Fantini v. Salem State Coll., 557 F.3d 22 (1st Cir. 2009).......................... 20

Forrest v. Brinker Int’l Payroll Co., 511 F.3d 225 (1st Cir. 2007)............ 16

Franchina v. City of Providence, 881 F.3d 32 (1st Cir. 2018)....... 10, 14, 15

Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006)......................................... 21

Haugerud v. Amery Sch. Dist., 259 F.3d 678 (7th Cir. 2001).................... 17

Hawkins v. Holloway, 316 F.3d 777 (8th Cir. 2003)................................. 17

Jennings v. Univ. of N.C., 482 F.3d 686 (4th Cir. 2007) (en banc)............ 17

Kaytor v. Elec. Boat Corp., 609 F.3d 537 (2d Cir. 2010).................... 18, 19

Malone v. Lockheed Martin Corp., 610 F.3d 16 (1st Cir. 2010)................ 18

McGullam v. Cedar Graphics, Inc., 609 F.3d 70 (2d Cir. 2010)............... 17

Medina-Rivera v. MVM, Inc., 713 F.3d 132 (1st Cir. 2013)...................... 21

Myers v. Central Fla. Invs., Inc., 592 F.3d 1201 (11th Cir. 2010)............. 17

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002)................... 18

O’Rourke v. City of Providence, 235 F.3d 713 (1st Cir. 2001).................. 17

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).................................. 14

Shanoff v. Ill. Dep’t of Human Servs., 258 F.3d 696 (7th Cir. 2001)......... 18

White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008).............. 19

Statute

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq......... 1

§ 2000e-2(a)................................................................................... 14

Rules and Regulations

29 C.F.R. § 1604.11(e)............................................................................. 21

Fed. R. App. P. 29(a).................................................................................. 1

Other Authority

EEOC Enforcement Guidance on Retaliation and Related Issues,

2016 WL 4688886 (Aug. 25, 2016).......................................................... 20

Statement of Interest

The Equal Employment Opportunity Commission (“EEOC”) is charged by Congress with interpreting, administering, and enforcing federal laws against employment discrimination, including Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e et seq. This appeal presents an important issue regarding the proper analysis of harassment claims on summary judgment when harassers may have more than one motive for their conduct. It also addresses the standard for protected activity under Title VII’s anti-retaliation provision. Because the EEOC has a strong interest in seeing that both of these issues are resolved correctly, the Commission offers its views to the Court. See Fed. R. App. P. 29(a).

Statement of the Issues[1]

1. In granting summary judgment on Roy’s Title VII hostile work environment claim against defendant Correct Care Solutions, LLC (“CCS”), did the district court err by characterizing some incidents of harassment as based on Roy’s sex and others as based on her whistleblowing, ignoring the possibility that sex may have been a “but for” cause for all of it?

2. Did the district court err by applying state law, rather than federal law, to Roy’s Title VII retaliation claim against CCS?

Statement of the Case

This is an appeal from an award of summary judgment to the defendants on all of Roy’s claims, including her claim against CCS that she endured a hostile work environment because of her sex in violation of Title VII. Roy, a nurse who worked in the Maine State Prison, complained that male corrections officers engaged in numerous instances of harassment, both because of her sex and because she engaged in whistleblowing activities. The district court categorized some instances of harassment as sex-based and other instances as based solely on whistleblowing, and held that the conduct of particular officers sometimes fell into one category and sometimes into the other. The court then held that the sex-based harassment was not severe or pervasive enough, standing alone, to create an actionable hostile work environment under Title VII.

A. Statement of Facts[2]

Roy began working for CCS as a licensed practical nurse in the Maine State Prison in August 2012. (R.35-1, Roy Dep. at 53, PageID #182.) MDOC, which employed the corrections officers, assigned two officers to the medical facility to ensure safety and security. (Id. at 66, 135, PageID #185, 202.) Other corrections officers also had contact with Roy when they brought inmates to the medical facility or spoke with her about medical issues. (See, e.g., id. at 85-86, 154, PageID #190, 207.)

Roy testified that in late 2012 and early 2013, Officer Davis Snow, one of the corrections officers assigned to the medical facility, “constantly” made sexual jokes and degrading comments to her. (R.36-10, Answer to Interrog. #15 at 15, PageID #474.) Among these comments were, “[D]on’t worry, it’s because you are blonde[, y]ou wouldn’t understand,” and “I wouldn’t expect someone like you to understand how things are done.” (Id.) Snow once squeezed and twisted Roy’s wrist until she dropped to her knees screaming in pain, and once bent her over a chair and spanked her, causing her to scream in pain. (Id. at 15-16, PageID #474-75.) In February 2013, Roy reported Snow’s conduct to her supervisors. MDOC moved Snow out of the clinic in response to Roy’s complaints. (R.93, SJ Order at 2, PageID #2289.) After that, Roy testified, her problems with Snow were “in the past.” (R.35-1, Roy Dep. at 164, PageID #210.)

Beginning in April or May 2014, Officer Donny Turner, who was often assigned to the medical facility, “constantly” made derogatory jokes and comments about females and blondes. (R.36-10, Answer to Interrog. #15 at 16, PageID #475.) He told Roy, for instance, “Why do we have men[?] [B]ecause females can’t do anything,” and a woman’s “job is to be at home.” (Id.; R.93, SJ Order at 2, PageID #2289.) Roy told Turner that she was offended by these comments, but he continued to make them. (R.93, SJ Order at 2-3, PageID #2289-90.)

The record reflects that other corrections officers also made comments to Roy that she found offensive. In August 2014, Officer Ernest Parrow, with whom Roy had had a brief sexual relationship, sent her text messages following their break-up seeking to get together with her. In one of these messages, he told her, “There is still a thing or two [I] didn’t get to do to ya. . . . If you want me to bend you over, let me know.” (R.36-4, Text Msgs. at 3, PageID #397.) After she rebuffed him, he called her a “bitch” twice and screamed at her on the phone while he was surrounded by inmates. (R.36-10, Answer to Interrog. #15 at 19, PageID #478.) Roy filed an incident report about Parrow’s conduct with CCS, and her supervisors forwarded the report to MDOC. (Id. at 18, PageID #477; R.93, SJ Op. at 3, PageID #2290.) The deputy warden told Roy’s supervisors that he did not have time to deal with Roy’s complaint, and to bring it to him another time. (R.35-1, Roy Dep. at 253, PageID #232; R.36-10, Answer to Interrog. #14-15 at 14, 19, PageID #473, 478.) Roy was never told about any corrective action. (R.35-1, Roy Dep. at 253, PageID #232; R.36-10, Answer to Interrog. #15 at 18, PageID #477.)

In early September, Officer Paul Garrido falsely told Roy that Officer Curtiss Doyle, with whom Roy had a good relationship, had said the prison needed another emergency medical call “to get Tara off her fat, lazy ass.” (R.36-10, Answer to Interrog. #15 at 19, PageID #478.) After speaking with Doyle and determining that Garrido’s statement was untrue, Roy filed an incident report, which CCS forwarded to MDOC. (R.35-19, Incident Rpt., PageID #342.) There is no evidence that MDOC followed up.

Roy’s incident reports did not only relate to sexual harassment. She also complained that various corrections officers—particularly Turner—were engaged in safety violations such as leaving her alone with inmates in the clinic, and/or were improperly asking her to share confidential medical information. (R.35-1, Roy Dep. at 130, 180, PageID #201, 214; R.36-10, Answer to Interrog. #15 at 15, 20, PageID #475, 479.) She testified that as a result of these reports, many officers talked to her disrespectfully and several stopped speaking to her. (R.35-1, Roy Dep. at 183-84, 224, PageID #214-15, 225.) “[W]ith the officers,” she testified, “when one is upset with somebody, they all are.” (Id. at 164, PageID #210.) Turner retaliated for Roy’s reports by ignoring her requests to bring sick-call inmates to the clinic, working slowly, and being uncooperative. Roy complained about this conduct as well. (R.36-10, Answer to Interrog. #15 at 16, PageID #475; R.93, SJ Op. at 3, PageID #2290.)

Between July and September 2014, five corrections officers filed incident reports of their own against Roy, complaining about unprofessional conduct. (R.36-10, Answer to Interrog. #15 at 19, PageID #478; R.35-1, Roy Dep. at 76, PageID #189.) Roy testified that all of their reports were “false or overblown.” (R.36-10, Answer to Interrog. #15 at 19, PageID #478.) As a result of these reports, MDOC opened several investigations regarding Roy. (R.35-1, Roy Dep. at 163, PageID #209.)

In mid-September, Roy asked CCS to transfer her to a different location “d[ue] to the fact that I currently feel that my work site is [bordering] on a hostile work environment.” (R.36-3, Transfer Request, PageID #392.) She explained, “I have had some issues with MDOC officers ... [and] I feel that I am being unfairly targeted due to my gender, as a young, single woman working in a mostly male environment.” She also explained that she had had a brief personal relationship with a corrections officer who was now harassing her at work. (Id.) CCS did not transfer her. (R.35-1, Roy Dep. at 170, PageID #211.)

Days after Roy submitted her transfer request, Officer William Deguisto asked her via Facebook for her phone number. When she refused to provide it, he told her that she needed to smile at him and be friendly at work. (R.35-20, Facebook Tr. at 3-4, PageID #345-46.) Several days later, he told her via Facebook, “Another report written against you today!!! And you still act like you mad at my window, See you, I UN FRIEND YOU Tired of attitude.” (Id. at 4, PageID #346.) Deguisto also told Roy that Officer Paul Dever was spreading false rumors that she “had fucked everyone in the prison,” and that Dever was trying to get her terminated in retaliation for her complaints about Turner. (Id. at 2, PageID #344.)

Roy filed an incident report about Deguisto’s Facebook comments. (R.35-20, Incident Rpt., PageID #343.) CCS forwarded the report to MDOC, which did nothing. The deputy warden testified that he did not interpret Deguisto’s comments as sexual harassment, explaining, “The Facebook stuff, that’s off-duty stuff. We don’t do much with that.” (R.39-15, Ross Dep. at 67, 70, PageID #740-41.) The warden concurred, stating, “[W]e made the determination that because this was something that was going on in their own private lives that we were going to leave it.” (R.39-16, Bouffard Dep. at 44, PageID #768.)

Following this last incident report, one of Roy’s supervisors told her the deputy warden was upset that she was writing so many reports, and instructed her to stop. (R.35-1, Roy Dep. at 109-10, 265, 267-68, PageID #196, 235-36; R.36-10, Answer to Interrog. #14 at 14, PageID #473.) There is no evidence that the officers were likewise told to stop writing reports about Roy. Nor is there evidence that MDOC questioned their motives for complaining about her, even though four of the five officers who filed the reports—Snow, Parrow, Garrido, and Dever—were subjects of Roy’s sexual harassment complaints. (R.36-10, Answer to Interrog. #15 at 19, PageID #478; R.35-1, Roy Dep. at 76, PageID #189.)

In late September, shortly after being instructed not to file any more incident reports, Roy was in the medical clinic with Nurse Vanessa Reed-Chapman when the prison issued an emergency medical alert. Roy and Reed-Chapman called Officer Snodgrass, who was assigned to the medical facility, three times to come to the clinic, but he appeared to be sleeping and was barely responsive to their calls. Surveillance footage shows that another corrections officer arrived in his place within thirty seconds of the alert, and Snodgrass arrived six minutes later. (R.93, SJ Op. at 4-5, PageID #2291-92.)

Roy verbally reported to the prison captain that it took Snodgrass fifteen minutes to arrive at the clinic. (Id.; R.35-1, Roy Dep. at 111, PageID #196; R.39-16, Bouffard Dep. at 13-14, 17, PageID #761-62.) The captain told Roy to file an incident report, but she refused, stating that her supervisor had told her the deputy warden did not want her to write any more reports. (R.35-1, Roy Dep. at 109, 111, 265, PageID #196, 235.) Reed-Chapman filed an incident report stating that there was no officer present in the clinic for roughly fifteen minutes. (R.93, SJ Op. at 5, PageID #2292.)

Later that day, the warden and deputy warden met with one of Roy’s supervisors as well as the prison captain and an MDOC human resources representative. (R.36-18, Cross-Snell Dep. at 37-38, PageID #505.) The conversation focused on Roy’s report about Deguisto’s Facebook comments. (Id.) The deputy warden considered it inappropriate for Roy to complain about off-duty conduct (R.39-15, Ross Dep. at 72, PageID #741), and he expressed frustration that Roy was involved in so many investigations. (Id. at 83-84, PageID #744; R.93, SJ Op. at 6, PageID #2293.) The deputy warden said that he wanted to revoke her security clearance, and later testified that he wanted to do this based in part on “any [reports] that she may have been involved in.... All that stuff would have been taken into consideration.” (R.39-15, Ross Dep. at 83-84, PageID #744.)

One week later, the warden emailed CCS that MDOC was revoking Roy’s security clearance because she had misrepresented the truth about Snodgrass’s response time and failed to follow the prison captain’s directive to file an incident report. (R.35-23, Bouffard Email, PageID #349.) The warden later testified that he had also revoked Roy’s security clearance because “I feel like she was taking things from home and bringing them to work.” (R.39-16, Bouffard Dep. at 16-17, PageID #761-62.) He clarified that what she was “taking from home” was her complaint about Deguisto’s Facebook comments. (Id. at 35-36, PageID #766.) MDOC did not revoke Reed-Chapman’s security clearance even though she, too, had reported that the clinic was left unsupervised for fifteen minutes. (R.39-16, Bouffard Dep. at 15-16, PageID #761.) Based on Roy’s inability to enter the prison without a security clearance, CCS terminated her. (R.35-23, Termination Notice, PageID #350.)

Roy filed suit against CCS, MDOC, the warden, and the deputy warden under Title VII, 42 U.S.C. § 1983, the Maine Human Rights Act, and the Maine Whistleblowers’ Protection Act. (R.1, Compl., PageID #1.) The district court granted summary judgment to the defendants. (R.93, SJ Order, PageID #2288.)

B. District Court Opinion

The district court first rejected CCS’s argument that Roy had not exhausted her administrative remedies with respect to her sexual harassment claim. (Id. at 11-12, PageID #2298-99.) The factual statements in her administrative charge, the court held, were sufficient to alert the agency to the possibility of sexual harassment. Moreover, the court observed, in responding to the charge, MDOC had characterized it as alleging sexual harassment. (Id.)

On the merits, the court agreed with CCS that Snow’s 2013 conduct “must not be considered” in evaluating Roy’s hostile work environment claim because it occurred outside the statutory charge-filing period. (Id. at 14, PageID #2301.) The court recognized that all incidents of harassment are actionable “ʻso long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period.’” (Id. (quoting Franchina v. City of Providence, 881 F.3d 32, 47 (1st Cir. 2018)) (emphasis omitted).) However, the court held, Roy had not shown that Snow’s 2013 conduct, which ceased with his transfer, was “substantially related” to his conduct eighteen months later of filing one allegedly false and overblown incident report about her. (Id. at 14-15, PageID #2301-02.)

The only timely conduct Roy alleged, the court held, was: (1) Turner’s derogatory jokes and comments about women, (2) several officers’ general hostility towards her—including name-calling, yelling at her, and purposely impeding her ability to do her work—in retaliation for her refusal to disclose confidential medical information, (3) Parrow’s “romantic advances” after their relationship ended and his angry treatment of her, including calling her a “bitch,” (4) multiple officers filing false or overblown reports about her in retaliation for her complaints about sexual harassment and about officers seeking confidential medical information, (5) an officer’s comment that they needed to “get [Roy] off her ass and moving,” (6) Deguisto’s Facebook request for Roy’s phone number and his subsequent “unfriendly Facebook messages to her” when she declined to give it, and (7) Dever’s false rumor that she “was sleeping with everyone in the prison,” as well as his efforts to get her terminated in retaliation for her complaints about Turner. (Id. at 15-16, PageID #2302-03.)

The court analyzed each allegation separately, stating that Title VII required Roy to show “the offensive conduct would not have occurred but for her sex.” (Id. at 16, PageID #2303.) Holding that many of Roy’s allegations were unrelated to her sex, the court said that her Title VII hostile work environment claim therefore could not include any retaliation based on her refusal to disclose confidential medical information, Garrido’s false statement that Doyle had said the prison needed another emergency medical call “to get Tara off her fat, lazy ass and moving,” or Parrow’s statements calling Roy a “bitch.” (Id. at 16, PageID #2303.) The court excluded the “bitch” comments because Roy testified that she believed Parrow had called her a “bitch” not because of her sex, but because of his anger over their break-up. (Id.)

The remaining conduct, the court held, consisted only of Turner’s derogatory jokes and comments about women, Deguisto’s harassing Facebook messages when Roy refused to provide her phone number, the false sexual rumors Dever spread about her, and the false and overblown incident reports that several officers filed against her for reporting sexual harassment and other misconduct. (Id. at 17, PageID #2304.) This conduct, the court concluded, was neither severe nor pervasive within the meaning of Title VII. (Id. at 17-18, PageID #2304-05.) Accordingly, the court held, Roy could not establish an actionable hostile work environment. (Id. at 18, PageID #2305.)

The district court also rejected Roy’s retaliation claim. (Id. at 18, PageID #2306.) The court held that Roy could not establish a prima facie case because, notwithstanding her complaints about sexual harassment, she could not show that she had engaged in protected conduct. (Id.) The court analyzed “protected activity” only under state law, noting that “[f]or a report to be protected by the [Maine Human Rights Act], it is ‘require[d] that the report must address violations, conditions, or practices that the employer has the ability and authority to correct, and those violations, conditions, or practices complained of must bear a direct relationship to the employee’s current employer.’” (Id. (quoting Hickson v. Vescom Corp., 87 A.3d 704, 711 (Me. 2014).)

Summary of Argument

The district court erred by assuming that the corrections officers who harassed Roy necessarily did so in some instances solely because of her sex and in other instances solely because of her whistleblowing activities. “But for” causation under Title VII is not synonymous with sole cause. Based on the publicly available record, a reasonable jury could conclude that sex played a role in all of the alleged harassment, including that which the district court attributed exclusively to whistleblowing. Thus, the court should not have granted summary judgment on Roy’s hostile work environment claim.

Additionally, the court erred in granting summary judgment on Roy’s Title VII retaliation claim. The court mistakenly applied state law, not federal law, in assessing whether Roy had engaged in protected activity. State law differs considerably from federal law, and, under Title VII, Roy engaged in protected activity by complaining of sexual harassment.

Argument

A. The district court erroneously attributed some parts of Roy’s hostile work environment to conduct based on sex and other parts to conduct based on her whistleblowing, ignoring the possibility that sex may have been a “but for” cause for all of it.

In assessing the existence of a hostile work environment, the district court erroneously drew a line between harassment based on sex and harassment based on whistleblowing, and it refused to consider anything that it did not deem sex-based. It is unclear whether the court believed, as a legal matter, that Title VII required it to identify a single cause for each act of harassment, whether it believed factually that each alleged act of harassment happened to have a sole cause, or both. Regardless, the court committed reversible error, either by misunderstanding the applicable legal standard or by wrongly assuming the role of a trier of fact, which was unwarranted on summary judgment.

Title VII requires Roy to show that she was harassed because of her sex, 42 U.S.C. § 2000e-2(a); Franchina, 881 F.3d at 46, but it does not require her to show that sex was the only reason for her hostile work environment. See Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989) (plurality op.) (observing that Congress considered and rejected placing the word “solely” before “because of ... sex” when enacting Title VII). To the contrary, but-for causation requires only that sex be “the straw that broke the camel’s back.” Burrage v. United States, 571 U.S. 204, 211 (2014).

Here, some portion of the hostility Roy experienced was indisputably based on her sex. The totality of her work environment in 2014 included Turner’s “constant” derogatory comments about women and blondes (R.36-10, Answer to Interrog. #15 at 16, PageID #475), Dever’s false sexual rumors about her (R.35-20, Facebook Tr. at 2, PageID #344), Deguisto’s harassing Facebook messages when she refused to provide her phone number (Id. at 2-3, PageID #344-46), Parrow’s graphic sexual proposition (R.36-4, Text Msgs. at 3, PageID #397), and Parrow’s calling her a “bitch” when she rejected his advances. (R.36-10, Answer to Interrog. #15 at 19, PageID #478.)

Although Deguisto’s Facebook comments occurred outside work—as did Parrow’s text messages, for that matter—this Court does not require non-workplace harassment to have “direct, formal workplace consequences” to be relevant to a hostile work environment claim. Franchina, 881 F.3d at 49. To the contrary, “non-workplace incidents are admissible if they cast light on the motivations, pervasiveness, and/or severity of the harassment.” Id.; see also Crowley v. L.L. Bean, Inc., 303 F.3d 387, 409-10 (1st Cir. 2002) (harasser’s intimidating conduct outside the workplace helped show why complainant feared him and why his presence around her at work created a hostile work environment). Here, Deguisto’s Facebook messages not only cast light on his own interactions with Roy; they also revealed that Dever was spreading workplace rumors that Roy had “fucked everyone in the prison.” (R.35-20, Facebook Tr. at 2, PageID #344.) Their relevance to Roy’s work environment is therefore self-evident.

Nor does it matter whether Parrow called Roy a “bitch” because he was angry about their break-up. As this Court has observed, distinguishing between conduct motivated by sex and conduct motivated by animosity over a failed relationship “establishes a false dichotomy.” Forrest v. Brinker Int’l Payroll Co., 511 F.3d 225, 229 (1st Cir. 2007). “Presumably the prior relationship would never have occurred if the victim were not a member of the sex preferred by the harasser, and thus the victim’s sex is inextricably linked to the harasser’s decision to harass.” Id. Even if targeting the victim based on the prior relationship may not itself be enough to establish that the harassment is because of sex, see id. at 229 n.4, this Title VII requirement is satisfied when a former partner engages in gender-based conduct. Id. at 229. Parrow’s use of the term “bitch” was a gender-laden choice. “[T]he use of sexually degrading, gender-specific epithets, such as ... “bitch”... has been consistently held to constitute harassment based upon sex.” Id.

The district court did not consider Garrido’s comment about Roy’s “fat, lazy ass” to be gender-based (R.93, SJ Op. at 16, PageID #2303), but a reasonable jury, viewing that comment in context, could disagree. An alarming number of cases reveal harassers using similar language to demean women. See, e.g., Berry v. Frank’s Auto Body Carstar, Inc., 495 F. App’x 623, 625 (6th Cir. 2012) (“fat ass bitch”); McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 73 (2d Cir. 2010) (Calabresi, J., concurring) (“big fat ass”); Myers v. Central Fla. Invs., Inc., 592 F.3d 1201, 1207 (11th Cir. 2010) (“your ass is getting fat”); Jennings v. Univ. of N.C., 482 F.3d 686, 711 (4th Cir. 2007) (en banc) (Niemeyer, J., dissenting) (“fat ass”); Alwine v. Buzas, 89 F. App’x 196, 202 (10th Cir. 2004) (“fat ass”); Hawkins v. Holloway, 316 F.3d 777, 783 (8th Cir. 2003) (“fat ass”); Haugerud v. Amery Sch. Dist., 259 F.3d 678, 688 (7th Cir. 2001) (“fat-ass bitch”); EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1247 n.2 (11th Cir. 1997) (“fat ass”).

The court failed to consider that Roy’s sex may also have played a role in conduct that it attributed solely to her whistleblowing activity. (See R.93, SJ Op. at 4, PageID #2291 (“Roy does not identify which of the alleged retaliatory reports were sexual harassment, and which were not.”).) This Court has warned against “disaggregating” sexually oriented harassment from other forms of unequal treatment and then failing to consider the latter. O’Rourke v. City of Providence, 235 F.3d 713, 730 (1st Cir. 2001). “[S]uch an approach not only ignores the reality that incidents of nonsexual conduct—such as work sabotage, exclusion, denial of support, and humiliation—can in context contribute to a hostile work environment, it also nullifies the harassing nature of that conduct.” Id.

Sex discrimination may have caused Turner to leave Roy alone with inmates in the first place, thereby prompting some of her whistleblowing reports. (See R.93, SJ Order at 2, PageID #2289 (“[A woman’s] job is to be at home.”).) Moreover, even though the district court considered the incident reports against Roy to be solely in retaliation for her whistleblowing (R.93, SJ Op. at 15, PageID #2302), four of the five officers who filed those reports also made offensive comments to or about her, many of which were expressly based on sex.[3] (R.36-10, Answer to Interrog. #15 at 19, PageID #478; R.35-1, Roy Dep. at 76, PageID #189.) Dever, for instance, filed multiple reports about her while also spreading a rumor that she had “fucked everyone in the prison.” (R.35-20, Facebook Tr. at 2, PageID #344.) When the same individual engages in multiple acts of harassment, some of which are overtly discriminatory and some of which are facially neutral, a reasonable factfinder could conclude that the facially neutral conduct is part of the same pattern of discrimination. Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547-48 (2d Cir. 2010); Shanoff v. Ill. Dep’t of Human Servs., 258 F.3d 696, 705 (7th Cir. 2001).

Thus, a reasonable jury could agree with the district court that corrections officers were upset with Roy because of her whistleblowing, but could also find that her sex amplified their anger. Roy testified that, “with the officers, when one is upset with somebody, they all are.” (R.35-1, Roy Dep. at 164, PageID #210.) Given this solidarity, even the hostility that other officers demonstrated toward Roy may have been infused with gender-based animus.

At summary judgment, it is impossible to tease out how much of the officers’ conduct was based solely on Roy’s whistleblowing and how much was also infected with sex discrimination. “As ‘[i]nquiries regarding what actually motivated an employer’s decision are very fact intensive,’ such issues ‘will generally be difficult to determine at the summary judgment stage’ and thus will typically require sending the case to the jury.” White v. Baxter Healthcare Corp., 533 F.3d 381, 402 (6th Cir. 2008) (citation omitted); see also Kaytor, 609 F.3d at 548 (summary judgment should be used sparingly when state of mind is at issue). This is true even though Roy testified that she believed much of the challenged conduct stemmed exclusively from her whistleblowing. Roy could not know what was in the officers’ minds when they treated her badly, and there appears to be enough evidence here to raise a genuine question about whether sex played a part. Because much of the record is sealed, the EEOC does not take a position on whether a jury could actually so find. However, based on the publicly available evidence, it appears that the district court’s failure to consider this possibility is reversible error.

B. The district court erred by applying state law, rather than federal law, to Roy’s Title VII retaliation claim.

Roy brought two different retaliation claims against CCS: a federal retaliation claim under Title VII and a state-law retaliation claim under the Maine Human Rights Act. (R.1, Complaint at 10-11, PageID #10-11.) The district court treated these two claims as a single retaliation claim subject to a single, state-law legal standard, and rejected them both for failing to meet that standard. In so doing, at least with respect to Roy’s Title VII claim, the court erred as a matter of law.

Under Title VII, an employee engages in protected activity if she has a reasonable, good-faith belief that she is reporting conduct prohibited by the statute. Fantini v. Salem State Coll., 557 F.3d 22, 32 (1st Cir. 2009) (citing 42 U.S.C. § 2000e-3); EEOC Enforcement Guidance on Retaliation and Related Issues, 2016 WL 4688886, at *6 (Aug. 25, 2016) (same). This is a far lighter burden than the governing standard for retaliation claims under the MHRA, which requires a plaintiff to “address violations, conditions, or practices that the employer has the ability and authority to correct, and [that] bear a direct relationship to the employee’s current employer.’” (R.93, SJ Op. at 19, PageID #2306 (quoting Hickson, 87 A.3d at 711).)

Roy’s multiple reports of sexual harassment were good-faith efforts to report conduct prohibited by Title VII, and were therefore protected activity under federal law. This is true even though CCS did not employ the corrections officers about whom Roy complained. As this Court has recognized, Title VII holds employers responsible for protecting their employees from the discriminatory actions of others, whether or not they can directly control the individuals engaged in discrimination. See, e.g., Medina-Rivera v. MVM, Inc., 713 F.3d 132, 137 (1st Cir. 2013) (“[B]ecause . . . employers must provide their personnel with a harassment-free workplace, they may be on the hook for a nonemployee’s sexually-harassing behavior under certain conditions—one of which being that they knew or should have known about the harassment and yet failed to take prompt steps to stop it.”); 29 C.F.R. § 1604.11(e) (“An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer … knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”);see also Freitag v. Ayers, 468 F.3d 528, 538 (9th Cir. 2006) (collecting cases). Thus, it is irrelevant that CCS could not itself discipline the harassers, because a jury could find that it knew of the harassing conduct and failed to take immediate corrective action, such as transferring Roy out of the Maine State Prison.

Conclusion

The district court erroneously assumed that Roy’s hostile work environment could be neatly divided into conduct based on sex and conduct based on whistleblowing. The truth is more complex, and the court should have allowed a jury to sort it out. Additionally, the district court wrongly dismissed Roy’s Title VII retaliation claim based on inapplicable state law.

For the foregoing reasons, the EEOC respectfully urges this Court to reverse and remand for further proceedings.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/ Gail S. Coleman

Attorney

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, NE, Room 5SW24L

Washington, DC 20507

(202) 663-4055

gail.coleman@eeoc.gov

[1] The EEOC takes no position on any other issue in this case, including any of Roy’s claims against any defendant other than CCS.

[2]The parties filed a substantial portion of the record in this case under seal. Accordingly, the following facts are taken from the publicly available portions of the record and, in some cases, from the district court’s opinion.

[3] Even if Snow’s 2013 conduct is not part of the same hostile work environment that occurred within the 2014 charge-filing period, his conduct remains relevant background evidence for Roy’s timely claims. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); Malone v. Lockheed Martin Corp., 610 F.3d 16, 22 (1st Cir. 2010).