Bisexual Worker Fired by Bank of America May Proceed With Discrimination Claims

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By Lisa Nagele

March 2 — A bisexual call center worker in Maine who was fired for job abandonment after she stopped reporting to work because of a senior officer's alleged sexual-orientation bias may proceed with state-law wrongful discharge and hostile work environment claims, the U.S. Court of Appeals for the First Circuit ruled Feb. 27.

Vacating a ruling in part for Bank of America Corp. and FIA Card Services N.A., the First Circuit found that Shelly Flood raised a genuine dispute about whether the bank's purported reason for discharging her was a pretext for sexual orientation discrimination in violation of the Maine Human Rights Act.

According to the court, Flood began working for the bank in 2006 as a call center customer service representative. In 2009, Flood met her girlfriend, who worked for a janitorial company that cleaned the call center. Flood alleged that when senior officer Diana Castle learned about her same-sex relationship, Castle gave a “look of shock” and thereafter subjected Flood to disparate treatment because of her bisexuality. Flood said she stopped reporting to work when she could no longer endure the discrimination, and she was discharged for job abandonment.

A district court ruled for the bank, finding that Flood didn't show she “had no reasonable alternative other than to resign” under the constructive discharge rubric. But Flood argued that the district court used the wrong analysis because she never actually resigned.

The First Circuit agreed with Flood. According to the record, Flood failed to timely report to work after her supervisor informed her that the company would consider it her voluntary resignation if she failed to contact him within a three-day period. However, she did send a letter to Castle—to whom her supervisor reported—within that time period explaining the reasons she didn't feel comfortable returning to work.

A reasonable jury could find that the letter to Castle satisfied the requirement to contact her supervisor, the court said. Furthermore, in her letter to Castle, Flood said she attempted to go to work several times but couldn't bring herself to do it and that she saw her position with the bank as a career, not just a job. This could support a finding that the bank knew Flood intended to return to work, the court said.

The court also found that Flood produced sufficient evidence to support her hostile work environment claim.

Flood claimed that Castle was friendly with her prior to learning she was bisexual but made disparaging remarks thereafter.

Flood said her girlfriend occasionally stopped by her desk, and Castle gave them “disapproving looks” and told Flood that for “perception purposes” it wasn't a good idea to have her girlfriend “hanging around her desk.”

Flood also produced evidence that around the same time, her immediate supervisors started giving her low performance scores and that, on one occasion, Castle retroactively manipulated her performance scores so they fell below expectations.

Furthermore, Flood claimed she was told to keep her personal life “off the floor” even though her co-workers frequently discussed theirs. Flood said the final event that “humiliated” her was when her co-workers made her participate in a “crude” conversation about a bridal shower. She asked to be excused, but a superior told Flood that she could “deal.”

Thus, “a reasonable jury could find Flood had endured sufficiently pervasive harassment to alter the conditions of her employment,” the appeals court held.

To contact the reporter on this story: Lisa Nagele in Washington at lnagele@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Flood_v_Bank_of_Am_Corp_No_141068_2015_BL_52977_1st_Cir_Feb_27_20.