United States Court of Appeals
For the First Circuit
No. 07-1714
ALLISON FORREST,
Plaintiff, Appellant,
v.
BRINKER INTERNATIONAL PAYROLL COMPANY, LP,
D/B/A CHILI'S GRILL & BAR
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, Senior U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
Guy D. Loranger with whom Nichols, Webb & Loranger, PA, was
on brief for appellant.
Louis B. Butterfield with whom Moss Shapiro was on brief for
appellee.
December 19, 2007
STAHL, Senior Circuit Judge. Plaintiff-appellant Allison
Forrest appeals from a district court's order affirming a
recommended decision by a magistrate judge granting summary
judgment in favor of Brinker International Payroll Company LP D/B/A
Chili's Grill & Bar ("Chili's"). Forrest's complaint alleged that
Chili's, her former employer, exposed her to a hostile work
environment created by the sexually harassing behavior of her co-
worker and former paramour Mike Vashaw, in violation of Title VII
of the Civil Rights Act of 1964 and the Maine Human Rights Act
("MHRA"). The magistrate judge's recommended decision found as a
matter of law that Vashaw's actions did not constitute sexual
harassment pursuant to Title VII because they were not "based upon
her sex" and that in any case Chili's was not liable for Vashaw's
behavior because it took prompt and appropriate action in response.
The district court affirmed and adopted the magistrate judge's
recommended decision. We find sufficient evidence in the record to
establish that Vashaw's harassment of Forrest was based upon her
sex, but affirm the grant of summary judgment to Chili's on the
grounds that its response was prompt and appropriate.
I. BACKGROUND
As befits an appeal from summary judgment, we review the
facts in the light most favorable to Forrest, drawing all
inferences in her favor. See Velazquez-Garcia v. Horizon Lines of
P.R., Inc., 473 F.3d 11, 14 (1st Cir. 2007).
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Forrest worked as a server and then a bartender at
Chili's Bar and Restaurant in South Portland, Maine from July 2003
to May 2005. She began to date her co-worker Vashaw, who was
employed as a line cook at the same restaurant, in October 2003.
The couple dated "on and off" for about a year. In October 2004,
after Forrest had broken off the relationship, she and Vashaw
argued about money that Vashaw owed her. Forrest was then
threatened by four women in the parking lot of the restaurant, who
she claimed acted at Vashaw's instigation. Forrest reported the
incident to the general manager of the restaurant the next day and
following that report did not experience any similar incidents.
Forrest and Vashaw continued to see each other socially
after the October 2004 incident and engaged in intimate relations
as late as January 2005. In March of 2005 Forrest began dating
another man, Jeremy Gregor. Vashaw, apparently upset by Forrest's
new relationship, questioned Forrest frequently about Gregor, began
to call her names such as "whore" and "bitch," and refused to give
her things that she needed in the kitchen. In early March 2005,
Forrest complained about Vashaw to the restaurant's general manager
Claude Hadjaissa; however, she told Hadjaissa that she did not want
Vashaw to be fired. Hadjaissa investigated the complaint and gave
Vashaw an oral warning to "stop, and behave as a professional" or
"circumstances will take place."
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Forrest alleges that Vashaw's verbal abuse continued
unabated throughout March 2005, and that she and other co-workers
witnessed Vashaw calling her names such as "whore," "slut,"
"bitch," and "cunt." At the end of March 2005, Forrest complained
to the kitchen manager Craig Twombly that she was upset with
Vashaw's handling of her food orders, that he was calling her
names, and that he was talking to other employees about her. On
March 27, Twombly issued a final written warning to Vashaw,
directing him to "stop all negative confrontations with other
employees," instructing him that he must correct the problem
"immediate[ly]; there will be no other warnings on this matter,"
and informing him that failure to comply would result in "immediate
termination." Twombly and Hadjaissa informed Forrest that Vashaw
had been given a written warning and asked her to let them know if
his inappropriate behavior continued.
On April 13, 2005, Forrest reported to Hadjaissa that on
the previous night Vashaw had squirted her with hot water while she
was making a personal phone call, had acted rudely towards her, had
cornered her in a walk-in cooler, called her a whore and other
names, as well as telling her she was fat and needed to go to the
gym. Hadjaissa terminated Vashaw after he admitted that he had
told Forrest she was fat and needed to go to the gym, though he
denied calling her a whore.
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After Vashaw was terminated, Forrest obtained first a
temporary and then a permanent restraining order against him.
Forrest also initiated a meeting with the Chili's area director,
Jonathan Witham. Witham told Forrest that Vashaw would not be
allowed on the premises when she was working, but that Chili's
could not prevent him from entering the premises when she was not
in the building. Forrest resigned from her position on May 14,
2005.
The record also demonstrates that Chili's has an anti-
sexual harassment policy, a copy of which was provided to Forrest
when she began her employment there. Among other things, the
policy prohibits derogatory or sexual comments, making threats
after a sexual advance is rejected, and certain types of
inappropriate physical conduct. The policy also lays out a
complaint procedure, providing that management will begin an
objective, thorough investigation upon receiving a complaint of
harassment and that "[a]ny employee found to have violated the
policy on discrimination and/or harassment will be subject to
disciplinary action, which may include reprimand, suspension, or
termination if warranted."
II. DISCUSSION
This court reviews a district court's grant of summary
judgment de novo. See Wojcik v. Mass. State Lottery Comm'n, 300
F.3d 92, 98 (1st Cir. 2002). Summary judgment is appropriate where
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the evidence shows that "there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law." Fed. R. Civ. P. 56(c).
Title VII of the Civil Rights Act of 1964 prohibits
employers from discriminating "against any individual with respect
to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion,
sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).1 "A
plaintiff may establish a violation of Title VII by proving that
discrimination based on sex has created a hostile or abusive work
environment."2 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66
1
Maine courts apply the MHRA in accordance with federal anti-
discrimination law. See Morrison v. Carleton Woolen Mills, Inc.,
108 F.3d 429, 436 n.3 (1st Cir. 1997). Accordingly, the magistrate
judge considered Forrest's MHRA claim and Title VII claim
concurrently; we will do the same.
2
Within the broad category of workplace sexual harassment
prohibited by Title VII, there are various types of harassment
claims, each generally treated by courts as analytically distinct
from the others. For example, there are quid pro quo harassment
claims, there are hostile work environment claims, and there are
retaliation claims. See Valentin-Almeyda v. Municipality of
Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006)(surveying different
types of Title VII claims and laying out standard for each type);
see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751
(1998)(stating that "quid pro quo" and "hostile work environment"
terminology is useful only in "making a rough demarcation between
cases in which threats [to take tangible adverse employment action
against the target of the harassment] are carried out and those
where they are not or are absent altogether"). We note that the
instant case does not involve a retaliation claim or a charge of
quid pro quo harassment, and so analyze the present case through
the lens appropriate for co-worker hostile work environment claims
only.
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(1986). To prove a claim of hostile work environment sexual
harassment, a plaintiff must demonstrate:
(1) that she (or he) is a member of a
protected class; (2) that she was subjected to
unwelcome sexual harassment; (3) that the
harassment was based upon sex; (4) that the
harassment was sufficiently severe or
pervasive so as to alter the conditions of
plaintiff's employment and create an abusive
work environment; (5) that sexually
objectionable conduct was both objectively and
subjectively offensive, such that a reasonable
person would find it hostile or abusive and
the victim in fact did perceive it to be so;
and (6) that some basis for employer liability
has been established.
Crowley v. L.L. Bean, Inc., 303 F.3d 387, 395 (1st Cir. 2002).
This appeal focuses on the third and sixth prongs of the test; that
is, whether the harassment was "based upon sex" and whether, even
if so, Chili's may be held liable. We consider each point in
turn.3
1. Based Upon Sex
The magistrate judge found that Forrest did not proffer
sufficient evidence to allow a reasonable factfinder to conclude
that Vashaw's inappropriate behavior towards Forrest was harassment
3
Like the district court, we find it unnecessary to reach the
parties' arguments on the other prongs, because Chili's is entitled
to summary judgment on the basis of lack of employer liability
alone. We therefore do not reach the question of whether the other
elements of a hostile work environment claim--particularly whether
the "the harassment was sufficiently severe or pervasive so as to
alter the conditions of plaintiff's employment and create an
abusive work environment"--are satisfied in this case as a matter
of law if grounds for employer liability had been established.
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based on her sex, as required by Title VII, rather than on personal
animosity stemming from their failed relationship.
In cases involving a prior failed relationship between an
accused harasser and alleged victim, reasoning that the harassment
could not have been motivated by the victim's sex because it was
instead motivated by a romantic relationship gone sour establishes
a false dichotomy. Presumably the prior relationship would never
have occurred if the victim were not a member of the sex preferred
by the harasser, and thus the victim's sex is inextricably linked
to the harasser's decision to harass. To interpret sexual
harassment perpetrated by a jilted lover in all cases not as gender
discrimination, but rather as discrimination "'on the basis of the
failed interpersonal relationship' ... is as flawed a proposition
under Title VII as the corollary that 'ordinary' sexual harassment
does not violate Title VII when the [ ] asserted purpose is the
establishment of a 'new interpersonal relationship.'" Babcock v.
Frank, 729 F. Supp. 279, 288 (S.D.N.Y. 1990)(internal citations
omitted). Whether a harasser picks his or her targets because of
a prior intimate relationship, desire for a future intimate
relationship, or any other factor that draws the harasser's
attention should not be the focus of the Title VII analysis.
Instead, improper gender bias can be inferred from conduct; if the
harassing conduct is gender-based, Title VII's requirement that the
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harassment be "based upon sex" is satisfied.4 See Oakstone v.
Postmaster General, 332 F. Supp. 2d 261, 271 (D. Me. 2004)(holding
that there is a "difference for Title VII purposes between non-
gender based and gender-based harassment;"); see also Perks v. Town
of Huntington, 251 F. Supp. 2d 1143, 1157 (E.D.N.Y. 2003)(holding
that employees are not barred from invoking the protection of Title
VII merely because of a previous relationship with the harasser).
The magistrate judge conceded that "retribution after a
failed romantic relationship" may rise to the level of Title VII
harassment, but found that "[i]n this case, while the language
Vashaw is alleged to have directed toward the plaintiff was
certainly gender-specific ... [Forrest] does not proffer evidence
of sexual advances by Vashaw, physical touching of a sexual nature
or the type of activities found by the [Lipphardt v. Durango
Steakhouse of Brandon, Inc., 267 F.3d 1183 (11th Cir. 2001)] court
to have the potential to cross the line into Title VII harassment."
A raft of case law, however, establishes that the use of sexually
degrading, gender-specific epithets, such as "slut," "cunt,"
"whore," and "bitch," with which Vashaw barraged Forrest at work,
has been consistently held to constitute harassment based upon sex.
See, e.g., Winsor v. Hinckley Dodge, Inc., 79 F.3d 996, 1000-01
4
We do not reach the question, as it is not present in this
case, of whether there are ways to establish harassment based upon
sex in failed romance hostile work environment cases other than by
evaluating the gender-specific nature of the harassing conduct.
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(10th Cir. 1996) (finding it "beyond dispute" that plaintiff
subjected to "vulgar and offensive epithets" such as "whore,"
"bitch" and "curb side cunt" could establish Title VII sexual
harassment claim even though abuse may have been motivated by
gender neutral reasons)(internal citations omitted); Burns v.
McGregor Elec. Indus., 989 F.2d 959, 965 (8th Cir. 1993)(noting
that "a female worker need not be propositioned, touched
offensively, or harassed by sexual innuendo" in order for a sexual
harassment claim to lie and holding that names such as "bitch,"
"slut," and "cunt" directed to female employee amount to harassment
based on her sex); Andrews v. City of Philadelphia, 895 F.2d 1469,
1485 (3d Cir. 1990)("[T]he pervasive use of derogatory and
insulting terms relating to women generally and addressed to female
employees personally may serve as evidence of a hostile
environment.").
There is no analytically defensible reason to draw a line
in the sand in "failed relationship" cases between this type of
sexually harassing conduct and sexual advances, physical touching,
or any other conduct that has been held to be harassment based on
sex pursuant to Title VII.5 Nowhere does prior case law suggest
5
Indeed in Oakstone, the conduct that led to the allegation
of sexual harassment was not "sexual advances," "physical touching
of a sexual nature," or the sort of particularly egregious sexually
charged behavior that the magistrate judge in this case seemed to
believe necessary in order for a failed relationship case to "cross
the line into Title VII harassment." Rather, the accused harasser
in Oakstone (a woman) filed a false allegation of physical abuse
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that certain types of discriminatory behavior, held to constitute
gender-based harassment in other cases, may not constitute gender-
based harassment when the parties had previously engaged in a
romantic relationship.6
Thus the record below establishes that a reasonable jury
could conclude that Vashaw's behavior towards Forrest was based on
her sex.
2. Employer Liability
The parties do not dispute that Vashaw was Forrest's co-
worker, not her supervisor. "A plaintiff must satisfy different
standards for establishing employer liability in a hostile work
environment case depending on whether the harasser is a supervisor
against the plaintiff (a man) with a supervisor at their workplace.
The Oakstone court refused to grant the employer's motion for
summary judgment because it found sufficient evidence from which a
jury could conclude that the harassment was gender-based, because
the accused harasser made a charge against the plaintiff which "she
knew would trigger an immediate and irreparable consequence for
him, due to a stereotype about his gender." Oakstone, 332 F. Supp.
2d at 271-72.
6
To support their position, Chili's in its appellate brief
and the magistrate judge in his recommended decision rely on the
Eleventh Circuit's Succar and Lipphardt cases. We have doubts as
to the correctness of those cases, to the extent that Succar
appears to affirm the fallacy that harassment could not be based
upon sex because it was based upon acrimony resulting from a failed
relationship and Lipphardt, although more in line with our
reasoning here, does not reject that principle. See Succar v. Dade
County Sch. Bd., 229 F.3d 1343, 1345 (11th Cir. 2000); Lipphardt v.
Durango Steakhouse of Brandon, Inc., 267 F.3d 1183 (11th Cir.
2001). Even under the terms of those cases, however, accepted
dubitante, the evidence in this case is sufficient to establish
harassment based upon sex.
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or co-employee of the victim." Crowley, 303 F.3d at 401. In this
Circuit, in order to establish employer liability for a
non-supervisory co-employee, "a plaintiff must demonstrate that the
employer 'knew or should have known of the charged sexual
harassment and failed to implement prompt and appropriate action.'"
Id. (quoting White v. N.H. Dept. of Corr., 221 F.3d 254, 261 (1st
Cir. 2000)); see also Arrieta-Colon v. Wal-Mart P.R., Inc., 434
F.3d 75, 85-86 (1st Cir. 2006)(reiterating same standard for
employer liability for non-supervisory co-worker hostile work
environment claim brought under Americans With Disabilities Act);
O'Rourke v. City of Providence, 235 F.3d 713, 736 (1st Cir.
2001)(if harasser is co-worker, employer is only liable if
superior knew, or should have known, of harassment and failed to
take prompt remedial action).7 We find that Chili's remedial
actions in this case satisfy the "prompt and appropriate"
standard.8
7
The Supreme Court has specifically reserved the question of
what the correct standard is for determining employer liability for
co-worker harassment. See Penn. State Police v. Suders, 542 U.S.
129, 143 n.6 (2004)("Ellerth and [Faragher v. City of Boca Raton,
524 U.S. 775 (1998)] expressed no view on the employer liability
standard for co-worker harassment. Nor do we.").
8
We therefore find it unnecessary to consider the
applicability of the standard articulated by the Sixth Circuit in
McCombs v. Meijer, which was cited in both the magistrate judge's
recommended decision and Chili's brief on appeal. See McCombs v.
Meijer, 395 F.3d 346, 353 (6th Cir. 2005)("[A]n employer who
implements a remedy can be liable for sex discrimination in
violation of Title VII only if that remedy exhibits such
indifference as to indicate an attitude of permissiveness that
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Drawing all factual inferences in favor of Forrest, it is
evident that there is sufficient evidence in the record for a
reasonable jury to conclude that Chili's knew or should have known
of the harassment. Forrest complained about Vashaw's behavior to
her managers on at least three occasions and specified that he was
calling her names, including "whore." Furthermore, Vashaw spouted
his verbal abuse openly in the kitchen, in front of Forrest and
other employees; indeed, evidence submitted by Chili's establishes
that the managers who investigated Forrest's complaints spoke with
other employees who confirmed Vashaw's inappropriate behavior.
Liability attaches to Chili's, however, only if it failed
to take "prompt and appropriate action" in response to Forrest's
complaints. Forrest argues on appeal that the magistrate judge
erred in determining that the remedial action taken by Chili's met
this standard as a matter of law. Forrest asserts that the
magistrate judge based this legal conclusion on erroneous fact-
finding, creating a genuine issue of material fact as to the number
of times Forrest or other employees complained to Chili's about
Vashaw's harassing behavior. The following facts, however, are
undisputed: 1) Chili's had adopted and implemented a policy
amounts to discrimination.")(internal citations omitted). We note
that this appears to establish a higher bar to employer liability
than the current standard in this Circuit. A reasonable jury could
find that an employer response was not prompt and appropriate
without being so indifferent as to indicate an attitude of
permissiveness amounting to discrimination.
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prohibiting sexual harassment and had trained its managers to take
disciplinary action against offenders, "which may include
reprimand, suspension, or termination if warranted"; 2) Vashaw's
harassment of Forrest occurred over a period of four to six weeks
from March to mid-April 2005; 3) Forrest initially told Chili's
that she still cared about Vashaw and did not want him to be fired;
4) Chili's knew that Forrest and Vashaw had been embroiled in a
tempestuous, on-again, off-again relationship; and 5) Chili's
investigated Forrest's complaints and took remedial action against
Vashaw three times, issuing an oral warning in mid-March,
delivering a written warning in late March, and ultimately
terminating Vashaw in mid-April.
Determining what constitutes a "prompt and appropriate"
employer response to allegations of sexual harassment often
requires the sort of case-specific, fact-intensive analysis best
left to a jury. However, given the undisputed facts here, no
reasonable jury could conclude that Chili's response was not prompt
and appropriate. Whether Forrest complained to the restaurant
managers only three times, as Chili's asserts, or a few more times,
as Forrest asserts, Chili's response was reasonably prompt and
appropriate considering the particular facts of this case. Faced
with allegations of sexual harassment between ex-lovers known to
have a volatile relationship, Chili's acted reasonably in
addressing Forrest's complaints with progressive discipline of
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Vashaw, giving Vashaw an opportunity to correct his behavior, and
ultimately firing him when he did not do so, within a month of the
first warning.
III. CONCLUSION
For the foregoing reasons, we affirm the summary judgment
order of the district court.
Affirmed.
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