TARA J. ROY, Plaintiff, Appellant,
CORRECT CARE SOLUTIONS, LLC; STATE OF MAINE DEPARTMENT OF CORRECTIONS; RODNEY BOUFFARD, individually; TROY ROSS, individually, Defendants, Appellees
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. Jon D. Levy, U.S. District Judge]
P. Gause, with whom Eastern Maine Law, LLC was on brief, for
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,
L. Archer Hirsch on brief for Maine Human Rights Commission,
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.
Lynch, Stahl, and Barron, Circuit Judges.
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.
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
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
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
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.
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).
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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.
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
bord[er]ing on a hostile work environment." The record
shows no response to Roy's email, and Roy does not
remember getting one.
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."
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
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."
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
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
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 ...