Flood v. Bank of America Corporation
2015 U.S. App. LEXIS 3090
| 1st Cir. | 2015Background
- Flood worked as a senior credit analyst at Bank of America’s 24-hour call center in Belfast, Maine (2006–2010) and began dating Keri, an ABM janitorial employee, in Oct. 2009.
- After a photo of Flood and Keri appeared at an LGBT table at a bank event, supervisor Diana Castle learned of Flood’s bisexuality; Flood alleges Castle’s demeanor and treatment of her changed thereafter.
- Flood alleges supervisors (primarily Castle, also Tabbutt) subjected her to heightened scrutiny: critical performance reviews, retroactive reclassification of approved aux hours, written warnings, restrictions on discussing her personal life and attending LGBT meetings, and efforts that undermined Keri’s employment.
- Following a crude, sex-related conversation Flood found humiliating, Flood stopped reporting to work on Sept. 22, 2010; the Bank later terminated her for job abandonment (formal termination notice dated Nov. 4, 2010).
- Flood filed MHRA discrimination and Maine common-law defamation claims; the district court granted summary judgment to the Bank. The First Circuit vacated summary judgment as to wrongful termination and hostile work environment claims and affirmed as to remaining discrimination claims and defamation claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Discharge — unlawful termination based on sexual orientation | Flood: Bank fired her and job-abandonment finding was pretext for discrimination | Bank: Flood voluntarily abandoned job; lawful termination for job abandonment | Vacated summary judgment; jury could find Bank knew she had not abandoned and fired her due to sexual orientation |
| Hostile work environment under MHRA | Flood: supervisors’ conduct (demeanor change, targeted critiques, exclusion, crude talk) was motivated by sexual orientation and was severe/pervasive | Bank: Conduct not based on sexual orientation; not sufficiently severe or pervasive | Vacated summary judgment; material factual dispute exists as to motivation and severity/pervasiveness |
| Failure to promote | Flood: was qualified but passed over due to sexual orientation | Bank: challenges elements of prima facie case | Affirmed for Bank — Flood failed to establish prima facie case (only established protected status) |
| Defamation (third‑party publication and compelled self‑publication) | Flood: Bank published or compelled disclosure that she abandoned her job | Bank: denies actionable publication; procedural limitations | Affirmed for Bank — third‑party publication claim waived below; self‑publication claim waived for lack of factual support |
Key Cases Cited
- Martinez-Burgos v. Guayama Corp., 656 F.3d 7 (1st Cir. 2011) (summary judgment standard and inference-drawing rule)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (burden-shifting framework for disparate-treatment claims)
- Biggins v. Consol. Paper Co., 507 U.S. 604 (U.S. 1993) (discriminatory motive is dispositive in discharge cases)
- Harris v. Forklift Sys., Inc., 510 U.S. 17 (U.S. 1993) (hostile work environment — totality of circumstances test)
- Faragher v. City of Boca Raton, 524 U.S. 775 (U.S. 1998) (limits of actionable workplace hostility)
- Pomales v. Celulares Telefonica, Inc., 447 F.3d 79 (1st Cir. 2006) (hostile work environment analysis)
- Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005) (totality-of-circumstances and objective/subjective offensiveness)