Higgins v. New Balance Athletic Shoe Inc.

• Decision Date: 04 August 1999
• Docket Number: No. 99-1043,99-1043
• Citation: 194 F.3d 252
• Parties: (1st Cir. 1999) ROBERT E. HIGGINS, Plaintiff, Appellant, v. NEW BALANCE ATHLETIC SHOE, INC., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 252

194 F.3d 252 (1st Cir. 1999)

ROBERT E. HIGGINS, Plaintiff, Appellant, v. NEW BALANCE ATHLETIC SHOE, INC., Defendant, Appellee.

No. 99-1043.

United States Court of Appeals for the First Circuit.

Heard Aug. 4, 1999.

Decided Oct. 22, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] John P. Gause, with whom Berman & Simmons, P.A., Burton G. Shiro, and Shiro & Shiro Law Offices were on brief, for appellant.

Bernard J. Kubetz, with whom Thad B. Zmistowski and Eaton, Peabody, Bradford & Veague, P.A. were on brief, for appellee.

Before Selya, Circuit Judge, Cyr, Senior Circuit Judge, and Boudin, Circuit Judge.

SELYA, Circuit Judge.

Plaintiff-appellant Robert E. Higgins sued his former employer, defendant-appellee New Balance Athletic Shoe, Inc. (New Balance), claiming, inter alia, hostile environment sex discrimination (relating to actions of, and remarks by, his supervisor and co-workers, allegedly on account of his homosexuality), retaliatory discharge (relating to his frequent complaints about activities in the factory that he thought were unsafe or illegal), and disability discrimination (relating to a hearing impairment that impeded his ability to work comfortably in the factory). The district court granted summary judgment in New Balance's favor. See Higgins v. New Balance Athletic Shoe, Inc., 21 F. Supp. 2d 66 (D. Me. 1998). Higgins appeals. In large part, the arguments that he advances bear only a faint resemblance to the arguments raised below, and therefore fail. Higgins's remaining arguments are mostly (but not entirely) unavailing. Thus, we affirm the judgment below in substantial part. Regarding one aspect of Higgins's disability discrimination claim, however, we vacate the judgment and remand for further proceedings.

I. BACKGROUND

We present only the facts necessary to place the appealed claims into proper perspective, referring the reader who hungers for greater detail to the district court's more exegetic account. See id. at 69-71. Like the district court, we credit the factual account that the appellant prefers, consistent with record support, and indulge all reasonable inferences favorably to his cause. See Conward v. Cambridge Sch. Comm., 171 F.3d 12, 17 (1st Cir. 1999).

For ten years, beginning in 1986, the appellant worked on the production line at New Balance's factory in Norridgewock, Maine. Although he earned generally positive evaluations, he received two warnings in 1995 about his failure to comport himself as a team player. New Balance says that these warnings stemmed from Higgins's disregard of its philosophy that the manufacturing process requires workers to collaborate and communicate with each other. Higgins refused to sign the warnings because he deemed them unjustified.

Apart from job performance, other problems plagued the appellant in the workplace. Apparently due to his homosexuality, many of his fellow workers mistreated him: they called him vulgar and derogatory names, made obscene remarks about his imagined sexual activities, and mocked him (e.g., by using high-pitched voices or gesturing in stereotypically feminine ways).¹ The appellant says that he complained repeatedly to persons in authority, but nothing was done to ameliorate the situation. Indeed, Ron Plourde, who eventually became the appellant's supervisor, was one of his foremost tormentors.

A confrontation with yet another tormentor, Melanie Vitalone, precipitated the appellant's discharge. According to the appellant's account, Vitalone not only would ridicule him because of his sexual orientation but also would blame him when her work did not go well. He often griped about Vitalone's predilections, but without result. Indeed, his supervisor (Plourde) told him at one indeterminate point that he would be "out the door" if he complained one more time about Vitalone. On what proved to be the appellant's last day of work (January 4, 1996), Vitalone left the production line to socialize. When she returned, a backlog confronted her. She lashed out at the appellant, mouthing derogatory epithets and blaming him for the back-up. Vitalone called the matter to Plourde's attention, telling him that she had asked Higgins a question and that he had refused to reply. Plourde spoke with both protagonists. Then, citing the personnel reports of Higgins's failed communications, Plourde fired him for insubordination.

Harassment was not the appellant's only bugaboo; he frequently complained about many other conditions and activities in the workplace. He groused, for example, about noxious fumes, misleading product labeling, and substance abuse by factory workers. Of particular interest here, he asserts that he complained that conditions in the factory made it hard for him to do his work because he had a hearing disability. He allegedly asked his superiors to accommodate his impaired hearing by (1) having a fan installed near his work station (as did other workers) because steam-induced perspiration was ruining his hearing aid, and (2) moving a loudspeaker that exacerbated his difficulty in hearing his co-workers. According to the appellant, New Balance spurned these requests.

II. DISCUSSION

The summary judgment standard requires this court to give the nonmovant the benefit of genuinely disputed facts and inferences, but even this latitudinarian approach does not allow the nonmovant to switch horses in midstream. Consequently, although the court of appeals affords de novo review to orders granting summary judgment, it will not reverse such an order on the basis of arguments that were not made in the trial court. See Sammartano v. Palmas del Mar Props., Inc., 161 F.3d 96, 97-98 (1st Cir. 1998); Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995); Muniz-Cabrero v. Ruiz, 23 F.3d 607, 609 (1st Cir. 1994); see also United States v. Slade, 980 F.2d 27, 31 (1st Cir. 1992) ("[T]he raise-or-waive rule applies with full force when an appellant tries to present a new theory about why facts previously placed on record are determinative."). With these words of caution, we turn to the three claims that the appellant presses on appeal.

A. The Hostile Environment Claim.

The centerpiece of the appellant's case is his contention that the continual abuse he suffered in the workplace created an actionably hostile environment within the purview of Title VII, 42 U.S.C. §§ 2000e to 2000e-17, and the Maine Human Rights Act (MHRA), Me. Rev. Stat. Ann. tit. 5, §§ 4551-4631.² The lower court rejected this claim on the ground that the appellant had shown only harassment because of his sexual orientation, not harassment because of his sex. See Higgins, 21 F. Supp. 2d at 75-76. Accordingly, the court did not reach logically subsequent questions such as whether the harassment resulted in a tangible employment action. See generally Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2293 (1998); Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257, 2261 (1998).

The record makes manifest that the appellant toiled in a wretchedly hostile environment. That is not enough, however, to make his employer liable under Title VII: no claim lies unless the employee presents a plausible legal theory, backed by significantly probative evidence, to show, inter alia, that the hostile environment subsisted "because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). If the appellant did not frame a trialworthy issue as to this essential element of his claim, Fed. R. Civ. P. 56(c) authorized the entry of summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Supreme Court has made clear in Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998 (1998) that, in same-sex harassment cases as in all sexual harassment cases, the plaintiff "must always prove that the conduct at issue was not merely tinged with offensive sexual connotations," but in fact constituted discrimination "because of . . . sex." Id. at 1002. The statutory "because of . . . sex" requirement is not met merely because workplace harassment involves sexual matters: the substance of the violation is discrimination based on sex or, as the Court put the matter, "whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Id. (internal quotation marks omitted).

We hold no brief for harassment because of sexual orientation; it is a noxious practice, deserving of censure and opprobrium. But we are called upon here to construe a statute as glossed by the Supreme Court, not to make a moral judgment -- and we regard it as settled law that, as drafted and authoritatively construed, Title VII does not proscribe harassment simply because of sexual orientation. See Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 751-52 & n.3 (4th Cir. 1996); Williamson v. A.G. Edwards & Sons, 876 F.2d 69, 70 (8th Cir. 1989). The appellant argued below for a contrary rule, but the court correctly rejected his importunings. See Higgins, 21 F. Supp. 2d at 73-74, 76. To that extent, summary judgment plainly was appropriate.

On appeal, Higgins recasts his argument and presents two additional theories suggesting why the hostile environment that pervaded New Balance's factory was "because of . . . sex," and thus actionable under Title VII. His first, a "sex-plus" theory, posits that the employer discriminated against men -- and only men -- who possessed certain qualities. Eminent authority indicates that such a course of action, if proven, may constitute discrimination "because of . . . sex." See Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (per curiam) (reversing summary judgment and holding that an employer may have violated Title VII by treating women with pre-school-age children differently than men with children of the...