Pippin v. Boulevard Motel Corp.

• Decision Date: 31 August 2016
• Docket Number: 15-2012,Nos. 15-2011,s. 15-2011
• Citation: 835 F.3d 180
• Parties: Brenda Pippin, Grace Parker, Plaintiffs, Appellants, v. Boulevard Motel Corp., d/b/a Comfort Inn South Portland Hotel, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

835 F.3d 180

Brenda Pippin, Grace Parker, Plaintiffs, Appellants,

v.Boulevard Motel Corp., d/b/a Comfort Inn South Portland Hotel, Defendant, Appellee.

Nos. 15-2011

15-2012

United States Court of Appeals, First Circuit.

August 31, 2016

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 , Portland, ME, 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.

Before Torruella and Barron, Circuit Judges, and Lisi,^* District Judge.

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 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 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.

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 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 “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 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...