Flood, et al v. Bank of America Corporation, et al

Filing

OPINION issued by Jeffrey R. Howard, Appellate Judge; Bruce M. Selya, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [14-1068]

Case: 14-1068

Document: 00116804277

Page: 1

Date Filed: 02/27/2015

Entry ID: 5889187

United States Court of Appeals
For the First Circuit
No. 14-1068
SHELLY L. FLOOD,
Plaintiff, Appellant,
KERI FLOOD,
Plaintiff,
v.
BANK OF AMERICA CORPORATION; FIA CARD SERVICES, N.A.,
Defendants, Appellees,
ABM JANITORIAL SERVICES NORTHEAST, INC.,
Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]

Before
Howard, Selya, and Lipez,
Circuit Judges.

Marshall J. Tinkle, with whom Hirshon Law Group, PC was
on brief, for appellant.
Caroline F. Turcotte, with whom Alice A. Kokodis and
Edwards Wildman Palmer LLP were on brief, for appellees.

February 27, 2015

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LIPEZ, Circuit Judge.

Date Filed: 02/27/2015

Entry ID: 5889187

Shelly Flood ("Flood") alleges

that her former employers, Bank of America Corporation and FIA Card
Services, N.A. (collectively, the "Bank"), subjected her to a
special set of rules and standards, and otherwise discriminated
against her, because of her bisexuality.

When Flood could no

longer endure the disparate treatment at the Bank, she stopped
reporting to work and the Bank terminated her for job abandonment.
She

brought

this

action

against

the

Bank

for

employment

discrimination under the Maine Human Rights Act ("MHRA") and for
two species of defamation under Maine common law.

Adopting the

magistrate judge's recommendation, the district court granted
summary judgment to the Bank on all counts and Flood appealed.

We

now vacate summary judgment as to the wrongful termination and
hostile work environment portions of Flood's discrimination claim
and affirm as to Flood's other claims.
I.
The facts are presented in the light most favorable to
the non-moving party, Flood, drawing all reasonable inferences in
her favor.

Martinez-Burgos v. Guayama Corp., 656 F.3d 7, 11 (1st

Cir. 2011)
Flood was a customer service employee at the Bank's 24hour call center in Belfast, Maine from July 24, 2006 to October 1,
2010.

In March 2009, she took on a new role at the call center

that required her to handle a larger call volume. That same month,

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Flood met Keri Flood ("Keri"), an employee of ABM Janitorial
Services Northeast ("ABM") who cleaned at the call center where
Flood worked.

Flood and Keri began dating in October 2009.

They

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.
The alleged antagonist in this suit is Diana Castle, a
senior official at the Belfast branch who oversaw 200 associates,
including Flood, and Flood's immediate supervisors, Jeremy Treneer
and Michelle Tabbutt. Castle was also Flood's mentor in the Bank's
mentoring program for female employees.
The precipitating event occurred in April 2010, when
Castle and Flood were at a bank social event where Flood was
sitting at the LGBT table.

Castle came over to the table and saw

a photo of Flood and Keri embracing at a local bar.

According to

Flood, Castle then gave her a look of shock and walked away.

Flood

believes this was the first time Castle became aware of Flood's
sexual orientation.
sponsor

of

the

After seeing the photo, Castle contacted the

LGBT

table

to

complain

that

the

picture

was

inappropriate because it depicted alcohol; the sponsor then removed
the photo from the premises.

Flood notes that no photos of

heterosexual couples were removed.
Prior to the April photo incident, Castle had engaged
with Flood in a friendly manner.

Afterwards, though, she withheld

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pleasantries and smiles in the hall, made disparaging remarks about
Flood's hair and eating habits, and glared at Flood.
mentoring

meetings,

Castle

relationship with Keri.
each

other's

company,

began

to

inquire

During their

about

Flood's

When Castle would see Keri and Flood in
she

cast

what

Flood

perceived

to

be

disapproving looks at them and made comments about "always" seeing
them together.
Flood also noticed a change in the reception to her job
performance.

In March 2010, Tabbutt began assisting Treneer with

employee evaluations.

In April 2010, roughly concurrent with the

photo incident, Flood began receiving what she perceived to be
unduly

critical

feedback

on

her

work.

Although

her

2009

evaluations had been positive, she was now receiving "does not
meet" grades on calls that she believes would have been graded
"wow" before.
There were other changes as well.

Although co-workers

often discussed their personal lives (including frequent talk of
plans for Tabbutt's Summer 2010 wedding), Flood was instructed to
keep conversations about her personal life (including talk of her
own Summer 2010 commitment ceremony with Keri) "off the floor." In
addition, employees who shared Flood's job title were routinely
permitted to take time off the phone to attend meetings of the
Bank's various affinity groups. In late July or early August 2010,

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however, Castle told Flood that she could no longer take time off
to attend the LGBT affinity group meetings.
The most overt conflict between Flood and Castle occurred
when Castle offered Flood certain advice, ostensibly to help Flood
attain her goal of becoming a manager.

Brief social visits from

co-workers or partners were not uncommon at the call center.

But

in late July or early August 2010, Castle told Flood that, for
"perception" purposes, it was "not a good idea to have [her]
girlfriend hanging at [her] desk."

Castle added that it would be

better for Keri to hear it from Flood than from Keri's boss, a
statement

Flood

interpreted

supervisor at ABM.

as

a

threat

to

contact

Keri's

Although Flood and Keri kept their distance at

work after that, Castle still complained to ABM's liaison at the
Bank, and Keri received a verbal warning from ABM later that
August.

In addition, Tabbutt would stand up and watch Flood and

Keri whenever Keri's work brought her in Flood's vicinity.
Flood, upset, contacted Castle's supervisor, Brian King,
and asked if she should report harassment to the Bank's Advice &
Counsel Department.

King said no, and instead arranged a meeting

with Castle and Flood in which he told Castle she would no longer
be Flood's mentor, that Castle should not have relayed her concern
about Keri through the ABM liaison, and that Castle should contact
ABM to apologize.

After this meeting, Keri nevertheless received

a written memorialization of her verbal warning from ABM.

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Events seemed to escalate from there.

Entry ID: 5889187

In August 2010,

Castle demanded, in Flood's presence, that Treneer give Flood a
verbal warning for an error on Flood's loan review sheet, and
Treneer did so.

The error had been on Flood's review sheet for two

weeks and had gone unmentioned. Furthermore, Flood was easily able
to prove she had nothing to do with the account and that the error
should not have been attributed to her.
That same month, Flood received a positive mid-year
review from Treneer.1 Nevertheless, she received a written "verbal
warning" on September 7 for failure to meet her productivity goals
in April, June, and July.

Flood had thought that she had met her

productivity goals for those months because Tabbutt had preapproved a number of off-the-phone ("aux") hours, which would be
credited

as

productive

productivity levels.
reclassified

a

time

in

the

calculation

of

Flood's

However, in September, Castle retroactively

number

of

those

hours

from

productive

to

unproductive, reducing Flood's efficiency statistics and resulting
in the warning.

In order to issue the warning, Castle also

contacted the Bank's Advice & Counsel Department and told them that
Flood had received a prior warning in June; there is, however, no
evidence in the record of a June warning.

1

The September warning

Although the evaluation was positive overall, Treneer noted
in at least two places that Flood needed to improve her efficiency.
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threatened

that

failure

Page: 7

to

meet

Date Filed: 02/27/2015

expectations

could

Entry ID: 5889187

lead

to

termination.
After receiving the written "verbal warning," and with
Treneer's approval, Flood began applying for positions in other
departments at the Bank.

But Castle contacted at least one

recruiter to say that Flood had trouble meeting her current goals
and was not ready for more responsibility.
On September 21, Flood learned that Tabbutt had once
again rated one of her calls "does not meet."

Flood believed she

was being held to a higher standard than other Senior Credit
Analysts and that she would soon be fired.

Later that day, there

was a team meeting with Tabbutt to discuss goals for the month.
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.
After the crude conversation, Flood felt she could take
no more.

She came to work on September 22 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.
Treneer sent Flood a letter on September 27 saying that he would

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assume she had voluntarily resigned if he did not hear from her in
three days.

On September 30, 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.
that

she

had

been

In early October, Flood saw on her computer
terminated

for

having

abandoned

her

job.

Throughout October, Flood and members of the Bank's Human Resources
Department left phone messages for each other, but never connected.
On November 4, the Bank sent Flood a letter "to inform [her] that
[her] employment was terminated on October 1, 2010 for Voluntary
Job Abandonment."
Flood filed discrimination charges against the Bank with
the Maine Human Rights Commission ("MHRC"), which issued her a
right to sue letter.

She then brought suit against the Bank in the

Maine Superior Court alleging (a) employment discrimination in
violation of the MHRA and (b) defamation under Maine common law.
The case was removed to federal court on the basis of diversity
jurisdiction.
judgment.

After

discovery,

the

Bank

moved

for

summary

In a lengthy decision, the magistrate judge issued a

recommendation to grant the motion and the district court affirmed
the recommendation summarily.

This appeal followed.2

2

This appeal only concerns Flood's claims because Keri has
settled all of her claims. We therefore treat Flood as if she had
been the sole plaintiff and confine our discussion of Keri's case
to a brief summary.
Castle reported to various Bank security
personnel that Keri had been physically bumping into a pregnant
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II.
We review the district court's grant of summary judgment
de novo.

Hicks v. Johnson, 755 F.3d 738, 743 (1st Cir. 2014).

Summary judgment is appropriate only if there is no genuine dispute
as to any material fact and the moving party is entitled to
judgment as a matter of law.

Fed. R. Civ. P. 56(a).

A genuine

dispute is one that a reasonable fact-finder could resolve in favor
of either party and a material fact is one that could affect the
outcome of the case.
Cir. 2013).

Gerald v. Univ. of P.R., 707 F.3d 7, 16 (1st

A party's assertion that a fact is or is not genuinely

disputed must be supported by citing to "materials in the record,
including

depositions,

documents,

electronically

stored

information, affidavits or declarations, stipulations . . . ,
admissions, interrogatory answers, or other materials."
Civ. P. 56(c)(1)(A).

Fed. R.

In deciding whether there is a genuine

dispute about a material fact, we view the record "in the light
most favorable to the nonmoving party, drawing all reasonable

Bank associate in the halls and that Keri attempted to trip the
associate in a stairwell with a vacuum cord. The Belfast branch's
protective services manager investigated the claim. He knew Keri
and had not known her to behave in such a manner. Neither did
video footage of the stairwell corroborate what Castle had
reported.
But the protective services manager interviewed the
associate in question, who repeated Castle's story, and he found
the associate credible. The manager then contacted ABM and asked
that Keri be reassigned, away from the Belfast facility. Instead,
ABM terminated Keri's employment.
Keri sued the Bank for
defamation and for tortiously interfering with her employment at
ABM.
Both claims survived summary judgment; Keri and the Bank
subsequently settled.
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inferences in that party's favor."

Entry ID: 5889187

Martinez-Burgos, 656 F.3d at

11.
A. Employment Discrimination Claim
Flood

advances

several

theories

of

employment

discrimination on the basis of her sexual orientation: (1) she was
discharged; (2) she was subject to a hostile work environment; (3)
she was not promoted; (4) she received an undue warning; and (5)
she endured matters that, in the aggregate, amount to unlawful
employment

discrimination

under

the

MHRA.

We

focus

on

the

discharge and hostile work environment claims, concluding that we
must vacate the district court's rejection of those claims.

We

will explain summarily our affirmance of the district court's
rejection of her other discrimination claims.
1. Discharge
Flood contends that the district court misconstrued her
discharge

claim

when

the

court

analyzed

her

claim

under

a

constructive discharge rubric. See Flood v. Bank of Am. Corp., No.
1:12-CV-00105-GZS, 2013 WL 4806863, at *9 (D. Me. Sept. 9, 2013).
A claimant asserting constructive discharge must meet a heavy
burden to show she had "no reasonable alternative to resignation
because of intolerable working conditions," King v. Bangor Fed.
Credit Union, 611 A.2d 80, 82 (Me. 1992).

The district court

determined that Flood could not carry that burden on these facts.

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But Flood argues she did not resign and, consequently, she was
never asserting constructive discharge.
We 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.3 Focusing on Flood's termination, summary judgment
was inappropriate because a reasonable fact-finder could determine
that job abandonment was a pretext, and the Bank actually fired
Flood because of her sexual orientation.
The MHRA makes it unlawful for an employer to discharge
an employee on the basis of, inter alia, sexual orientation.4
Rev. Stat. Ann. tit. 5, § 4572(1)(A).

Me.

In an employee's claim for

disparate treatment, "liability depends on whether the protected
trait . . . actually motivated the employer's decision."

Hazen

3

In Flood's opposition to summary judgment, she wrote,
"Finally, the Bank terminated Shelly's employment. There can be no
employment action more adverse than termination. Though the Bank
may insist that the termination was for 'job abandonment,' that
claim merely goes to the employer's burden of producing a nondiscriminatory reason for the adverse action [under the three-part
McDonnell Douglas framework]." DE 63 at 8.
4

By closely tracking federal employment discrimination law,
the Maine legislature "intended the courts to look to the federal
case law to provide significant guidance in the construction of
[the MHRA]." Me. Human Rights Comm'n v. City of Auburn, 408 A.2d
1253, 1261 (Me. 1979) (internal quotation marks omitted).
We
therefore properly look to federal precedent when analyzing claims
arising under clauses of the MHRA that, like the discharge clause,
have counterparts in federal law.
Compare 42 U.S.C. § 2000e2(a)(1) (prohibiting discriminatory discharge), with Me. Rev. Stat.
Ann. tit. 5, § 4572(1)(A) (same).
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Paper Co. v. Biggins, 507 U.S. 604, 610 (1993).

Entry ID: 5889187

In the absence of

direct evidence of discrimination, we evaluate the claim using the
three-step

burden-shifting

framework

articulated

in

McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). See Me. Human
Rights Comm'n v. City of Auburn, 408 A.2d 1253, 1261-62 (Me. 1979)
(adopting

the

McDonnell

Douglas

methodology).

Under

this

framework, the employee must present prima facie evidence of
unlawful employment discrimination.

The burden of production then

shifts to the employer, who must rebut with a legitimate, nondiscriminatory reason for the adverse employment action identified
in the employee's prima facie case.

Finally, the burden shifts

back to the employee, who must produce evidence that the employer's
explanation

is

pretextual.

See

Fuhrmann

v.

Staples

Office

Superstore E., Inc., 58 A.3d 1083, 1089 (Me. 2012).
In this case, we will move directly to the heart of the
matter.

See Gómez-González v. Rural Opportunities, Inc., 626 F.3d

654, 662 (1st Cir. 2010) ("[O]n summary judgment . . . a court may
often

dispense

with

strict

attention

to

the

burden-shifting

framework, focusing instead on whether the evidence as a whole is
sufficient

to

make

out

a

jury

question

as

to

pretext

and

discriminatory animus." (quoting Fennell v. First Step Designs,
Ltd., 83 F.3d 526, 535 (1st Cir. 1996))).5

5

We determine whether

Flood easily establishes a prima facie case for unlawful
termination. An employee satisfies her initial prima facie burden
by showing (1) she is a member of a protected class; (2) she
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Flood has made a sufficient showing of pretext by asking whether a
reasonable jury could conclude that the Bank: (1) knew Flood did
not abandon her job, and (2) fired Flood because of her sexual
orientation.
a. The Bank Knew Flood Did Not Abandon Her Job
There is sufficient evidence for a reasonable fact-finder
to conclude that the Bank knew Flood had not abandoned her job.
Admittedly, Flood was warned to contact Treneer within three days
of his September 27 letter, or he would "assume that . . . [she
had] voluntarily resigned."

Although Flood failed to contact him,

she did send a letter to his superior, Castle, within that threeday window, which launched an investigation at the Bank.6

A

reasonable jury could determine that the Bank treated Flood's
letter to Castle as satisfying Treneer's instruction to contact
him, thus removing the presumption that she had resigned.

Such a

determination would be particularly reasonable in light of the

satisfied the employer's legitimate job performance expectations;
(3) she was subject to an adverse employment action; and (4) the
action was based in whole or in part on her membership in a
protected class.
See Daniels v. Narraguagus Bay Health Care
Facility, 45 A.3d 722, 726 (Me. 2012) (setting forth the elements
of a prima facie case for employment discrimination based on
disability). The Bank does not dispute that Flood satisfies the
first two prongs, and termination is clearly an adverse employment
action. Our discussion below, concerning Flood's ultimate burden,
coextensively demonstrates why Flood satisfies the fourth prong of
her prima facie case.
The Bank's rebuttal is captured in its
assertion that Flood was terminated for having abandoned her job.
6

Castle testified that she read the letter and then reported
it to her manager and the Bank's Advice & Counsel Department.
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Bank's own assertion, reiterated at oral argument, that Flood's
employment was not severed until November 4.
In addition, Flood wrote in her letter to Castle that she
had "attempted to make the drive into work several times" during
the

final

week

of

September

2010,

but

she

could

not

"bring

[herself] to make the trip completely [because] the anxiety was
to[o] great."

She also explained in the letter that she saw her

employment with the Bank as "[her] career" and more than "just a
job."

Taken together, the evidence could reasonably support a

finding that the Bank knew Flood intended to return to work.
b. Discriminatory Animus
The magistrate judge explicitly found that the evidence
would support a finding of discriminatory animus, and explained
that Flood's claims would have survived summary judgment if there
had been an adverse employment action (such as discharge).
Flood, 2013 WL 4806863, at *12-14.

See

We agree with the magistrate

judge: the evidence would permit a reasonable jury to conclude that
Castle harbored animosity toward Flood because of Flood's sexual
orientation and that Castle undermined Flood's work performance for
that reason.
There are several bases for this conclusion in the
summary judgment record.

Flood's relationship with Keri became a

point of tension and conflict in Flood's relationship with Castle.
After Castle learned that Flood was bisexual, Castle began giving

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Flood cold stares and making disparaging comments about Flood's
eating habits, dress, and hair style.

In addition, Castle advised

Flood to keep her girlfriend away from her desk during working
hours if she wanted to become management and, even though Flood and
Keri complied, Castle contacted Keri's supervisor and Keri received
a reprimand.

A jury might buttress the conclusion that Castle

harbored animus toward Flood based on her sexual orientation by
crediting Flood's assertion that Castle reacted negatively when she
saw the photo of Flood and Keri on display at the Bank's April
event.
A reasonable jury could also find that, as the magistrate
judge wrote, Castle "took affirmative measures to undermine aspects
of . . . Flood's employment . . . [and was] setting up [Flood] for
termination."

Id. at *14.

After Flood complained to Castle's

supervisor, "Castle wrongly demanded that one of Shelly's team
leaders place Shelly on verbal warning for something that Shelly
was readily able to show was not her responsibility."

Id. at *12.

In addition, Castle retroactively reclassified "aux" hours that
Flood's team leader had approved so that Flood's productivity
levels would fall below expectations.

Castle also misrepresented

the existence of a June 2010 verbal warning, enabling her to issue
a

September

efficiency

2010
that

verbal

warning

threatened

productivity did not improve.

Flood

(reduced
with

to

writing)

termination

if

about
her

As the magistrate judge wrote, the

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evidence

"could

support

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inferential

finding

Entry ID: 5889187

that

the

[efficiency] basis for the negative evaluation was false or was
being manipulated by Castle . . . [because she] harbored animus
toward Shelly based on Shelly's sexual orientation."

Id. at *14.

Finally, we would add to the magistrate judge's analysis
that Castle played at least some role in Flood's actual discharge.
Although

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.

On the basis

of this evidence, a reasonable fact-finder could conclude that the
Bank's explanation for firing Flood was pretextual and that she was
actually fired because of her sexual orientation. Summary judgment
was therefore inappropriate on the discharge claim.
2. Hostile Work Environment
Flood also argues that the district court erred when it
held that the harassment she alleged was not sufficiently severe or
pervasive to sustain a hostile work environment claim.

The MHRA

makes it unlawful for an employer to "discriminate with respect to
. . . terms, conditions or privileges of employment."
Stat.

Ann.

tit.

5,

§

4572(1)(A).

That

provision,

authorizes a claim for hostile work environment.

Me. Rev.
in

turn,

See 94-348-003

Me. Code R. § 10(1)(C) (Maine Human Rights Commission regulations);
Watt v. UniFirst Corp., 969 A.2d 897, 902 (Me. 2009).

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To prevail on such a claim, the plaintiff must show:
(1) she is a member of a protected class; (2) she was subject to
harassment; (3) the harassment was based on her membership in a
protected class; (4) the harassment was sufficiently severe or
pervasive so as to alter the conditions of her employment and
create an abusive work environment; (5) the harassment was both
objectively and subjectively offensive; and (6) there exists some
basis for employer liability.

Watt, 969 A.2d at 903; see Forrest

v. Brinker Int'l Payroll Co., 511 F.3d 225, 228 (1st Cir. 2007).
The Bank insists Flood cannot satisfy the third and fourth prongs.7
a. Harassment Was Based on Flood's Sexual Orientation
The Bank insists that the alleged acts of harassment were
not based on Flood's sexual orientation, observing that she was not
exposed to explicitly homophobic statements or derogatory remarks.
Such an argument requires too much of the plaintiff.

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.

O'Rourke v. City of Providence, 235 F.3d 713, 729

(1st Cir. 2001); see Rosario v. Dep't of Army, 607 F.3d 241, 247

7

The Bank neither concedes nor contests the other elements.
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(1st Cir. 2010) (citing O'Rourke for the proposition that sexual
harassment "need not be overtly sexual in nature").
The

magistrate

judge

addressed,

see

Flood,

2013

WL

4806863, at *12-14, and we have discussed in the previous section,
how a reasonable jury could conclude that Castle was motivated by
animus toward Flood based on Flood's sexual orientation.

While

Castle is the primary antagonist in this case, Flood also alleges
that she endured harassment at the hands of another supervisor,
Tabbutt, who allegedly stood up to observe Flood and Keri whenever
Keri's work brought her near Flood.

Tabbutt also compelled Flood

to endure a crude conversation about Tabbutt's bridal shower, which
included references to a male team member as a "buck" and the
females as his "does."

Although Flood "became very uncomfortable

and repeatedly asked to be excused," Tabbutt told Flood to "deal."
According to Flood, "Tabbutt was rubbing my nose in the fact that
all other 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."

And it was Tabbutt

who, immediately after Castle discovered that Flood was bisexual,
"became more critical of Shelly's call performance."

Id. at *12.

A reasonable fact-finder could conclude that Tabbutt, like Castle,
was harassing Flood because of Flood's sexual orientation.

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b. Harassment Was Sufficiently Pervasive
Whether harassment is sufficiently severe or pervasive to
alter

the

conditions

of

one's

employment

"is

not

.

.

.

a

mathematically precise test" and it "can be determined only by
looking at all the circumstances."

Harris v. Forklift Sys., Inc.,

510 U.S. 17, 22-23 (1993); see Pomales v. Celulares Telefónica,
Inc., 447 F.3d 79, 83 (1st Cir. 2006) (stating that an evaluation
of

the

severity

and

pervasiveness

of

conduct

requires

an

"examin[ation of] all the attendant circumstances"); Noviello v.
City of Bos., 398 F.3d 76, 92 (1st Cir. 2005) ("In determining
whether a reasonable person would find particular conduct hostile
or abusive, a court must mull the totality of the circumstances.").
Pervasiveness

and

severity

are

questions

of

fact.

"[S]ubject to some policing at the outer bounds, it is for the jury
to . . . decide whether the harassment was of a kind or to a degree
that a reasonable person would have felt that it affected the
conditions of her employment."
quotation marks omitted).

Rosario, 607 F.3d at 247 (internal

The jury may consider, among an open

list of factors: whether the conduct was "physically threatening or
humiliating, or a mere offensive utterance; . . . whether it
unreasonably interfere[d] with an employee's work performance"; and
whether (and to what extent) the conduct affected the employee
psychologically.

Harris, 510 U.S. at 23.

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While "the conduct may be both [severe and pervasive],
only one of the qualities must be proved in order to prevail.
severity . . . may vary inversely with its pervasiveness."
v. Rainbow Rugs, Inc., 675 A.2d 973, 976 (Me. 1996).

The

Nadeau
We have

upheld hostile work environment claims where harassment has been
more pervasive than severe.

See, e.g., Arrieta-Colon v. Wal-Mart

P.R., Inc., 434 F.3d 75, 89 (1st Cir. 2006) (upholding jury verdict
of hostile work environment where "harassment was constant and
unbearable, leading to [the plaintiff's] resignation; and there was
evidence

that

[the

plaintiff's]

supervisors

knew

about

the

harassing conduct and rather than stop it, participated in it");
Marrero v. Goya of P.R., Inc., 304 F.3d 7, 19 (1st Cir. 2002)
(upholding

jury

verdict

of

hostile

work

environment

where

harassment was "more or less constant . . . [as] distinguished from
. . . comments that are few and far between"); White v. N.H. Dep't
of Corr., 221 F.3d 254, 260 (1st Cir. 2000) (upholding jury verdict
of hostile work environment where "disgusting comments . . .
occurred everyday [sic]" (internal quotation marks omitted)).8
Nevertheless,
threshold

of

severity.

the

harassment
Offhand

8

must

comments

pass
and

a
a

certain
tense

or

The Bank's assertion that Flood's claim must fail because
the alleged harassment only took place over a period of four or
five months mistakes the notion of pervasiveness with that of
duration.
We do not read the applicable precedent to require
hostile conditions to persist for any particular bright line period
of time before a hostile work environment claim will lie.
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uncomfortable working relationship with one's supervisor are,
without more, insufficient to support a hostile work environment
claim.

Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998);

Colón-Fontánez v. Municipality of San Juan, 660 F.3d 17, 44 (1st
Cir. 2011).

Indeed, "[t]he workplace is not a cocoon, and those

who labor in it are expected to have reasonably thick skins."
Marrero, 304 F.3d at 19 (quoting Suarez v. Pueblo Int'l, Inc., 229
F.3d 49, 54 (1st Cir. 2000)).
Here, 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.

See id. at 28

("[A]n act of harassment that is not actionable in and of itself
may form part of a hostile work environment claim.").

Viewed in

their totality, as they must be, a reasonable jury could find that
these incidents altered the conditions of Flood's employment.

See

Harris, 510 U.S. at 23 ("[W]hether an environment is 'hostile' or
'abusive'

can

be

determined

only

by

looking

at

all

the

circumstances."); Noviello, 398 F.3d at 92 (describing the hostile
work environment analysis as an evaluation of "the totality of the
circumstances").
In discussing the discriminatory animus linked to Flood's
discharge claim, we have already noted many of the atmospheric

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incidents relevant to her hostile work environment claim: Castle's
demeanor shifting when she learned Flood was bisexual; Tabbutt
standing

to

watch

whenever

Keri

approached

Flood;

Castle

instructing Flood to keep Keri away from her desk for "perception"
purposes; Flood being instructed not to discuss her personal life
at work, even though other employees, including her supervisor,
were permitted to do so -- behaviors conveying that Flood's
relationship with Keri was under the constant and disapproving
scrutiny of her supervisors.

In addition, Castle did not allow

Flood to take time away from the phone to attend LGBT affinity
group meetings, even though other employees were allowed to attend
similar types of meetings.
the

crude

conversation

A reasonable jury could also consider

to

which

Tabbutt

subjected

Flood

and

determine that it rose above "a mere offensive utterance" and was,
in fact, "humiliating" to her.

Harris, 510 U.S. at 23.

We have also noted in discussing Flood's discharge claim
incidents involving the evaluation of her work which are relevant
to her hostile work environment claim.

She alleges that her work

performance was unduly criticized, that Castle urged Treneer to
reprimand her for a mistake she did not make, and that Castle
retroactively manipulated the classification of her hours so that
her performance fell below expectations and she received a verbal
warning reduced to writing.

Again, under a totality of the

circumstances analysis, a jury could consider those incidents as

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prominent points in an underlying pattern of hostility.

See

Hernandez-Loring v. Universidad Metropolitana, 233 F.3d 49, 55-56
(1st Cir. 2000) (holding that the plaintiff's case survived summary
judgment where two specific instances of offensive conduct were
only the most notorious in a pattern of such conduct).
Hence, on these facts, we are unwilling to say that
Flood's hostile work environment claim fails as a matter of law.
To the contrary, a reasonable jury could find Flood had endured
sufficiently pervasive harassment to alter the conditions of her
employment.9
B. Defamation Claims
Flood's defamation claims are a simpler matter.

They

entered the case by way of a motion for leave to amend her
complaint. In partially granting and partially denying that leave,

9

We briefly address Flood's three remaining discrimination
claims. First, Flood's failure to promote claim fails because she
only established the first of four elements in a prima facie case
for failure to promote, namely, membership in a protected class.
See Lakshman v. Univ. of Me. Sys., 328 F. Supp. 2d 92, 117 (D. Me.
2004) (explaining that a plaintiff establishes a prima facie case
for failure to promote by showing: (1) she is a member of a
protected class; (2) she was qualified for the position; (3) she
was not hired despite her qualifications; and (4) the job was given
to someone outside the protected class). Second, having already
considered the September 2010 warning in the context of Flood's
hostile work environment claim, we decline to consider it as an
independent basis for a claim of discrimination. Finally, Flood
contends that the Bank's actions are adverse in the aggregate and
consequently actionable under the "any other matter" clause of the
MHRA.
See Me. Rev. Stat. Ann. tit. 5, § 4572(1)(A).
Here,
however, our treatment of the hostile work environment claim makes
it unnecessary for us to address this state law issue.
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the magistrate judge wrote, "[T]he only statement [Flood] has
argued with the required specificity is the statement relating to
her claim of self-publication regarding job abandonment. . . . Her
claim is limited . . . to just that portion of her defamation
claim."10

Flood did not object to that order.

Although she argued

below that the Bank defamed her within its own organization and to
the Maine Human Rights Commission, the district court held that
Flood failed to preserve those claims because she failed to object
to the magistrate judge's order.

We agree: the magistrate judge's

order

defamation

clearly

limited

Flood's

claims

to

a

self-

publication theory, and Flood's failure to object to that order
below is fatal to her third-party publication theory on appeal.
See Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 22
(1st Cir. 2014) ("[F]ailure to assert a specific objection to [the
R & R] [has] irretrievably waive[d] any right to review by the
district court and th[is] court of appeals." (quoting Cortés-Rivera
v. Dep't of Corr. & Rehab. of P.R., 626 F.3d 21, 27 (1st Cir.

10

Flood's two theories of defamation each concerned the
allegedly defamatory information that she abandoned her job. On
one theory, the Bank published that information (third-party
publication); on the other, Flood was compelled to publish it
herself (self-publication). Compare Cole v. Chandler, 752 A.2d
1189, 1193 (Me. 2000) (setting forth the elements of defamation,
including "a false and defamatory statement concerning another"),
with Carey v. Mt. Desert Island Hosp., 910 F. Supp. 7, 13 (D. Me.
1995) (holding that Maine would recognize a claim for compelled
self-publication).
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The defamation claim rooted in third-party publication

was not preserved for our review.
As to defamation under a compelled self-publication
theory, Flood has waived that claim here by providing no factual
support for it and by failing to identify any specific error of law
made below.

The district court disposed of this issue quickly:

"[T]here is no need to delve into that theory of the case.

Shelly

Flood has not presented any actual evidence of self-publication."
Flood, 2013 WL 4806863, at *16.

The same is true on appeal.

The

claim for defamation by compelled self-publication is waived.

See

Carreras v. Sajo, García & Partners, 596 F.3d 25, 32 n.5 (1st Cir.
2010) ("[I]ssues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived."
(quoting United States v. Rivera Calderón, 578 F.3d 78, 94 n.4 (1st
Cir. 2009))).
III.
For the reasons stated, we vacate the grant of summary
judgment on the discharge and hostile work environment portions of
Flood's MHRA employment discrimination claim and remand for further
proceedings consistent with this opinion.

We affirm the grant of

summary judgment on the balance of Flood's discrimination claim, as
well as on her defamation claims.
costs.
So ordered.

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Each party shall bear its own