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Roy v. Correct Care Solutions, LLC

United States Court of Appeals, First Circuit

January 28, 2019

TARA J. ROY, Plaintiff, Appellant,


          John P. Gause, with whom Eastern Maine Law, LLC was on brief, for appellant.

          Gail S. Coleman, with whom James L. Lee, Deputy General Counsel, Jennifer S. Goldstein, Associate General Counsel, and Elizabeth E. Theran, Assistant General Counsel, were on brief, for the Equal Opportunity Employment Commission, amicus curiae.

          Barbra L. Archer Hirsch on brief for Maine Human Rights Commission, amicus curiae.

          Melinda J. Caterine, with whom Littler Mendelson, P.C. was on brief, for appellee Correct Care Solutions, LLC.

          Valerie A. Wright, Assistant Attorney General, with whom Susan P. Herman, Deputy Attorney General, and Janet T. Mills, Attorney General of Maine, were on brief, for appellees State of Maine Department of Corrections, Bouffard, and Ross.

          Before Lynch, Stahl, and Barron, Circuit Judges.


         This case raises important issues about employer liability for a hostile work environment created by third parties and about non-employer liability for employment-related discrimination under the Maine Human Rights Act (MHRA). We articulate here the rules which govern these claims.

         Tara Roy, the plaintiff, worked as a nurse, employed by Correct Care Solutions, LLC (CCS), at a Maine Department of Corrections (MDOC) prison. After MDOC revoked her prison security clearance and CCS terminated her employment in October 2014, Roy sued three sets of defendants: CCS, the MDOC, and two individuals, the prison's warden and deputy warden. She alleged that discrimination and sexual harassment by the prison's corrections officers made her work environment hostile and that she was retaliated against for complaints about the hostile work environment and for other whistleblowing.

         Specifically, Roy alleged that CCS violated Title VII and § 4572 of the MHRA by not responding adequately to her complaints about the hostile work environment and by retaliating against her in terminating her employment for protected complaints. Her claims against MDOC under § 4633 of the MHRA alleged that MDOC interfered with her MHRA-protected right to work free from discrimination and that MDOC's revocation of her security clearance was unlawful retaliation. Finally, against Rodney Bouffard, the warden, and Troy Ross, the deputy warden, Roy brought claims under 42 U.S.C. § 1983 for violations of the Equal Protection Clause and the First Amendment.

         The district court granted summary judgment to all defendants on all claims. See Roy v. Correct Care Solutions, LLC, 321 F.Supp.3d. 155, 160 (D. Me. 2018). We reverse as to CCS and MDOC and affirm as to Bouffard and Ross.

         After an overview of the facts, we first explain that a jury could find that Roy's work environment was discriminatorily hostile. Having established this, we proceed to examine liability for each defendant. We reverse summary judgment for MDOC, first deciding an unresolved question of Maine law about the scope of § 4633 non-employer liability for workplace harassment and then finding disputes of material fact. Next, in reversing summary judgment for CCS, we explain that an employer can be liable for a hostile work environment created by non-employees as long as the employer knew of the harassment and failed to take reasonable steps to address it. A jury could find CCS liable for failing to protect Roy from the harassment, as well as for retaliation. Finally, we affirm summary judgment for the warden and deputy warden. Ross and Bouffard receive qualified immunity, as reasonable officials could have believed on these facts that no equal protection or First Amendment violations occurred.


         We present the facts in the light most favorable to Roy and draw all reasonable inferences in her favor, as we must at summary judgment. Pippin v. Boulevard Motel Corp., 835 F.3d 180, 181 (1st Cir. 2016).

         Under a contract with MDOC, CCS operates and staffs the medical facility at the Maine State Prison (MSP) in Warren, Maine. In August 2012, CCS hired Roy to work as a licensed practical nurse at the MSP, where the medical facility consists of an infirmary and a clinic. Roy worked in the clinic, and primarily interacted with the prison's corrections officers when they brought inmates in for treatment. As a safety measure, two officers were also specifically assigned to the medical facility, one to the clinic and one to the infirmary.

         In late 2012, Davis Snow, the officer assigned to the clinic, made sexual jokes and degrading comments about women to Roy and made physical contact with Roy on two occasions. Snow's remarks were "constant[]." He said, for example, "don't worry, it's because you are blonde. You wouldn't understand," and, "I wouldn't expect someone like you to understand how things are done." Snow also once squeezed and twisted Roy's wrist until she dropped to her knees in pain. And he once bent her over a chair and spanked her.

         Roy complained to her CCS supervisors and MDOC about Snow in early 2013. After MDOC investigated these complaints, Snow was reassigned, away from the medical facility.

         About a year later, in the spring of 2014, Roy began working with Donny Turner, who was often the corrections officer assigned to the medical clinic. Turner, like Snow, "constantly" made derogatory jokes and comments about women. He said, "[W]hy do we have females when . . . men do everything," and that a woman's "job is to be at home." Turner continued his remarks even after Roy told him that his comments were not funny.

         On June 20, 2014, Roy filed an Incident Report about Turner's degrading comments. The report also complained that Turner's behavior created health and safety risks. Roy explained that Turner sometimes ignored her, left her alone in exam rooms with inmates, and did not respond to her requests to bring sick or injured inmates to the clinic.

         CCS employees were instructed to fill out MDOC Incident Reports to provide information about any disruptions in the work of the clinic involving corrections officers. CCS says that reports by its employees about MDOC officers were usually submitted to CCS supervisors Elisabeth Lamson, CCS's administrator at the prison, and Robin Cross-Snell, the prison's head nurse. CCS also says that such reports were then referred to MDOC within a day or two for investigation, but the record suggests that this was not always done.

         Outside of this formal Incident Report process, Bouffard, the warden, and Ross, the deputy warden for operations, had frequent contact with Cross-Snell and Lamson. The CCS supervisors attended the prison's daily operations briefings, and Lamson routinely spoke informally with MDOC officials about concerns related to the medical facility.

         Roy's report on Turner went to Lamson, and Lamson believes she may have spoken with Turner about the report. But she did not bring the issue to his supervisors, and there is no evidence that it was ever referred to or investigated by MDOC.

         Turner's behavior around Roy escalated after Roy filed the Incident Report about him. Turner often left Roy alone with inmates, was frequently absent from his post in the clinic, talked down to Roy, and worked slowly or ignored Roy when she needed something. It is considered a security risk for an officer at the medical facility to leave his post, particularly when inmates are around.

         Roy continued to complain about Turner to her supervisors, in person and by email. For example, on July 23, 24, and 31, 2014, Roy emailed Lamson saying that Turner was absent from his post in the clinic for as long as twenty minutes while inmates were there. Lamson forwarded at least one of Roy's emails about Turner to MDOC, but there is no evidence that MDOC investigated or acted on these reports by Roy about Turner, or that CCS ever followed up.

         In early August 2014, Roy emailed Lamson about an incident with Officer Ernest Parrow. When Roy reminded Parrow about the proper procedure for bringing sick inmates to the clinic, Parrow told Roy to "stop being a bitch." He added that he now understood why people hated her. Later that month, on August 26, Roy sent an Incident Report to Cross-Snell stating that she had called Parrow to ask him to bring an inmate to the clinic to sign a form and that Parrow had responded by again calling her a "bitch" and then hanging up on her.

         Along with this August 26 Incident Report, Roy provided to CCS several sexually explicit text messages that Parrow had sent her earlier that summer. Parrow, who had previously had a brief romantic relationship with Roy, texted her, "There is still a thing or two I didn't get to do to ya," and "if you want me to bend you over let me know." Roy responded, "U have a [girlfriend]!!!" to the first message and ignored the second. She told Cross-Snell that Parrow was angry with her in part because she had rejected his advances.

         Cross-Snell verified that Parrow had called Roy a "bitch" twice and wrote an Incident Report, which she sent to MODC; CCS also gave MDOC the text messages between Parrow and Roy. CCS's regional vice president, John Newby, who supervised Roy's supervisors, learned that Parrow had called Roy a "bitch" twice and, on August 28, spoke with Ross, the deputy warden, about it. Ross says he then investigated Parrow's behavior, in part by reviewing the explicit text messages. Because of the alleged name-calling, Ross talked to Parrow about workplace professionalism.

         The text messages from Parrow reviewed by CCS and MDOC also showed an exchange between Parrow and Roy on July 16, 2014, in which Parrow said Roy was "being a shit" after Roy refused to share with him medical information that he wanted about an inmate. Roy said that the information, an inmate's prescribed medications, was confidential by statute and that Parrow was not authorized to receive it.

         Parrow was not the only officer asking Roy for confidential medical information. Throughout July and August 2014, Roy complained to her supervisors that she and other medical staff were getting frequent calls from corrections officers requesting confidential information. She said that officers responded to her refusals to share it by calling her names, yelling, hanging up on her, and threatening to file grievances against her. At least four times during the summer of 2014, she emailed her supervisors reporting specific incidents. Roy says nothing was done by CCS or MDOC.

         Roy also says that by mid-August multiple corrections officers showed daily hostility toward her. Several of these officers, including Parrow, Snow, Paul Dever, and Paul Garrido, also filed Incident Reports complaining about Roy. For example, Snow filed a report stating that Roy had yelled at him. To Roy, the officers' hostility and the filed Incident Reports constituted retaliation against her for her complaints about Snow, Turner, Parrow, and their requests for confidential medical information. At her deposition, Roy said, "[W]ith the officers, when one is upset with somebody, they all are."

         Lamson and Cross-Snell met with Roy on August 14 about the reports filed about her. Roy told her supervisors that the reports were false or exaggerated. Lamson and Cross-Snell warned Roy that she "could be moved to another department" if her behavior did not change. At that point in August, CCS obviously contemplated that it could move Roy to a different job within CCS. Weeks later, CCS's position changed, as we describe below.

         On September 12, Garrido told Roy that Officer Curtiss Doyle had said to him that an inmate needed to get sick so that the ensuing emergency medical call would "get Tara off her fat lazy ass." Roy filed another Incident Report that day saying that she viewed this comment as sexual harassment. MDOC investigated the incident in late September, days before Roy's employment was terminated.

         Also on September 12, Roy emailed the CCS human resources specialist, copying Cross-Snell, Lamson, and their supervisor Newby, asking for a transfer to a different CCS facility "d[ue] to the fact that I currently feel that my work site is bo[]rd[er]ing on a hostile work environment." The record shows no response to Roy's email, and Roy does not remember getting one.

         That same week, Officer William DeGuisto messaged Roy on Facebook to say, "You['re] lucky [Officer Paul] Dever is out on admin leave[.] He was trying hard to get you fired." When Roy asked for more information, DeGuisto told her that Dever "fucking complained to everyone you were picking on Turner and trying to get him fired" and that Dever "wrote a few reports on you." When Roy said that Dever "does [not] have ANY reason to write reports on me," DeGuisto offered, "He says you have fucked everyone in the prison."

         DeGuisto then asked in a Facebook message if he could call Roy, but she replied she would "rather not" give him her phone number. A few days later, he asked again if he could call her, and added, "Please try to smile at my window and not look at me like I'm the enemy." Four days after that, DeGuisto messaged her: "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."

         Roy filed an Incident Report about DeGuisto's Facebook messages, attaching the exchange about Dever and the later requests to call her. Lamson passed the report to her supervisor, Newby, and planned to discuss the report with Bouffard, the warden. Although MDOC says that it reviewed the allegations, Bouffard and Ross explained at their depositions that they did not act on the complaint because the interaction occurred on Facebook. Even though Roy and DeGuisto's messages were about what Roy, DeGuisto, and Dever had done, said, and heard in the workplace, in Ross's view, "The Facebook stuff, that's off-duty stuff. We don't do much with that." Similarly, Bouffard called the conversation "something that was going on in their own private lives."

         After Roy filed the Incident Report about DeGuisto, Lamson spoke to Roy about all the Incident Reports she had filed. What happened at the meeting is disputed. As Roy remembers it, Lamson told Roy that she should not write any more reports about corrections officers because Ross was upset with Roy's frequent complaints. As Lamson remembers it, she told Roy "that the report[s Roy files] should be of substance."

         About two weeks later, on September 26, 2014, Roy and another nurse, Vanessa Reed-Chapman, were working in the clinic when Officer King was the correctional officer assigned to the clinic and Officer Snodgrass was assigned to the infirmary. (Turner was usually the officer assigned to the clinic, rather than King, and Snodgrass's typical assignment was the front desk.) At about 10:00 that morning, a member of the medical staff was called to a medical emergency elsewhere in the prison. Protocol required the officer assigned to the infirmary to accompany the medical staff member, as the infirmary could be locked to secure the inmates there. That day, however, King was asked to respond to the call instead of Snodgrass.

         After King left, Roy and Reed-Chapman, who were then alone with three inmates in the medical clinic, called Snodgrass three times to come over from the infirmary. If the medical clinic officer was away, the infirmary officer was supposed to secure the infirmary and come to the clinic. Surveillance footage shows Snodgrass asleep ...

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