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Flood v. Bank of America Corp.

United States Court of Appeals, First Circuit

February 27, 2015

SHELLY L. FLOOD, Plaintiff, Appellant, KERI FLOOD, Plaintiff,

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[Copyrighted Material Omitted]

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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.

Before Howard, Selya, and Lipez, Circuit Judges.


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LIPEZ, Circuit Judge.

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.


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 24-hour 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, 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. After seeing the photo, Castle contacted the sponsor of 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.

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Prior to the April photo incident, Castle had engaged with Flood in a friendly manner. Afterwards, though, she withheld pleasantries and smiles in the hall, made disparaging remarks about Flood's hair and eating habits, and glared at Flood. During their mentoring meetings, Castle began to inquire about Flood's relationship with Keri. When Castle would see Keri and Flood in each other's company, 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, 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 as a threat to contact Keri's supervisor at ABM. 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.

Events seemed to escalate from there. 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 ...

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