            United States Court of Appeals
                        For the First Circuit

Nos. 15-2011, 15-2012

                    BRENDA PIPPIN, GRACE PARKER,

                        Plaintiffs, Appellants,

                                  v.

 BOULEVARD MOTEL CORP., d/b/a Comfort Inn South Portland Hotel,

                         Defendant, Appellee.


            APPEALS FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF MAINE
          [Hon. John A. Woodcock, Jr., U.S. District Judge]


                                Before
                Torruella and Barron, Circuit Judges,
                      and Lisi,* District Judge.


     James A. Clifford, with whom Andrew P. Cotter and Clifford &
Clifford, LLC, were on brief, for appellants.
     Barbara Archer Hirsch for Maine Human Rights Commission,
amicus curiae.
     Katharine I. Rand, with whom James R. Erwin, Michelle Y. Bush,
and Pierce Atwood LLP were on brief, for appellee.
          Anne Noel Occhialino, Attorney, Equal Employment
Opportunity Commission, P. David Lopez, General Counsel, Jennifer
S. Goldstein, Associate General Counsel, and Lorraine C. Davis,
Assistant General Counsel, on brief for Equal Employment
Opportunity Commission, amicus curiae.


                            August 31, 2016



     *   Of the District of Rhode Island, sitting by designation.
          BARRON, Circuit Judge.           Plaintiffs Brenda Pippin and

Grace   Parker    are    former   employees   of   the   Boulevard   Motel

Corporation ("Boulevard").        They filed complaints that alleged

that Boulevard fired them in violation of the Maine Whistleblowers'

Protection Act ("MWPA") and the Maine Human Rights Act ("MHRA").

The District Court granted summary judgment for Boulevard, relying

on a purported "job duties exception" to both statutes. On appeal,

the parties agree that our intervening decision in Harrison v.

Granite Bay Care, Inc., 811 F.3d 36 (1st Cir. 2016), made clear

that no "job duties exception" exists under either the MWPA or, by

implication, the MHRA.       But Boulevard argues that we nonetheless

can affirm the District Court's ruling because it is supportable

on other grounds.       Because we disagree that other grounds support

the order granting summary judgment, we reverse.

                                     I.

          "On review of an order granting summary judgment, we

recite the facts in the light most favorable to the nonmoving

part[ies]."      Walsh v. TelTech Sys., Inc., 821 F.3d 155, 157–58

(1st Cir. 2016).        Thus, we present the facts in the light most

favorable to the plaintiffs.

          This case concerns an incident of sexual harassment that

occurred at the Comfort Inn Hotel in South Portland, Maine.           The

hotel is owned by the defendant, Boulevard.          The plaintiffs are




                                   - 2 -
Pippin, the hotel's former executive housekeeper, and Parker, the

hotel's former assistant executive housekeeper.

              The incident involved a maintenance worker at the hotel

making graphic, sexual comments to a female housekeeper about her

body.       The victim -- along with Pippin and Parker -- made the

initial report of the incident to the defendant.             The three women

made that report to the hotel's general manager, Beth Landergren.

At that initial meeting on April 27, 2010, Pippin told Landergren:

"[the victim] needs to talk to you. . . . she has gone through

some incidents with [the maintenance worker] . . . and it's not

pleasant."      The victim then proceeded to describe the incident to

Landergren.

              In the course of the defendant's resulting investigation

of the incident, the plaintiffs each also made oral and written

statements     about   it    to   Ignacio   Mello,   the   defendant's   human

resources manager.1         On May 11, 2010, after the investigation had

come to a close, the defendant sent a written reprimand to the




        1
       Parker also helped the victim, who struggled to write in
English, to write a statement to submit to Mello in connection
with his investigation. At the end of the letter Parker wrote on
behalf of the victim, Parker wrote: "This is written by Grace
Parker because [the victim] can not spell and write English very
well." Parker then included a postscript in which she recounted
the victim's description of the impact of the incident on her.
Parker concluded the postscript by writing: "[The victim] also
mentioned that this entire incident was embarrassing and very hard
to talk about. I told her she has done nothing wrong."


                                      - 3 -
maintenance worker.      No further disciplinary action was taken

against him.

             More than three weeks later, on June 2, 2010, each

plaintiff sent another written statement to Mello.           Parker's

statement described a conversation with a co-worker, Veronica

Connolly, in which Connolly had reported feeling pressured by

Landergren     to   protect   the    accused   harasser   during   the

investigation.      Pippin's statement recounted a meeting that she

had with the victim and Landergren the day before, during which

the victim had accused Landergren of, among other things, only

caring about "saving [the accused harasser]."

             In 2011, both plaintiffs were terminated from their

employment by the defendant.        On March 21, 2014, each plaintiff

brought suit, in two separate complaints, in Maine Superior Court.

Each plaintiff alleged that her termination violated both the MWPA,

which protects an employee who, in good faith, "reports orally or

in writing to [her] employer or a public body what the employee

has reasonable cause to believe is a violation of [] law" by her

employer, Me. Rev. Stat. tit. 26, § 833; Costain v. Sunbury Primary

Care, P.A., 954 A.2d 1051, 1054 (Me. 2008), and the antiretaliation

provision of the MHRA, which prohibits "discriminat[ion] against

any individual because that individual has opposed any act or

practice that is unlawful under [the MHRA]," see Me. Rev. Stat.

tit. 5, § 4633.



                                 - 4 -
                Boulevard removed the two cases to federal court on

April 22, 2014.      On February 27, 2015, Boulevard filed a motion

for   summary    judgment      in   each   case,   contending     that   neither

plaintiff had engaged in activity protected by either statute.                In

its ruling on the motions, the District Court concluded that a

"job duties exception" applied under both the MWPA and the MHRA,

that Pippin and Parker were carrying out their job duties in making

the   initial    report   of    harassment,    and   that   the    letters   the

plaintiffs sent after the defendant ended the investigation were

not made in opposition to any unlawful activity by the employer.

Based on those conclusions, the District Court granted Boulevard's

motion as to both plaintiffs.         At the end of its opinion, however,

the District Court stated that it had "misgivings" about the

application of the job duties exception to each statute and that

it was "concerned that the job duties exception ha[d] denied Ms.

Pippin and Ms. Parker their day in court."

           The plaintiffs separately appealed, and we consolidated

the two appeals.      On January 8, 2016, the plaintiffs filed their

initial brief.     Five days later, we issued a decision in Harrison

v. Granite Bay Care, Inc., 811 F.3d 36, 49 (1st Cir. 2016), in

which we made clear that no "broad-based job duties exception"

applied under the MWPA.         We explained that "although a particular

employee's job duties may be relevant in discerning his or her

actual motivation in reporting information, those duties are not



                                      - 5 -
dispositive of" whether the employee engaged in protected activity

under the statute.    Id. at 51.    In light of Harrison, we asked the

plaintiffs to file a new brief and adjusted the briefing schedule

accordingly.    A full round of briefing,2 along with oral argument,

followed.

                                    II.

            Before turning directly to our review of the District

Court's order, we need to provide some background regarding both

the applicable law and the arguments that the parties are making

on appeal.     We start with the claims arising under the MWPA and

then turn to those arising under the MHRA.

            To obtain relief under the MWPA, a plaintiff must show

that "(1) she engaged in activity protected by the [M]WPA; (2) she

experienced    an   adverse   employment    action;   and   (3)    a   causal

connection existed between the protected activity and the adverse

employment action."      Walsh v. Town of Millinocket, 28 A.3d 610,

616 (Me. 2011).     The parties agree that only the first of these

three elements is at issue on appeal, as the defendant did not

move for summary judgment on any other ground.

            The parties are less than clear as to which of the

plaintiffs'    actions    constitutes      the   potentially      qualifying



     2  We thank amici curiae Equal Employment Opportunity
Commission and Maine Human Rights Commission for their briefs in
support of reversal.


                                   - 6 -
"report[]"    under   the   MWPA.     See    Me.    Rev.   Stat.   tit.   26,

§ 833(1)(A).      But the plaintiffs do not argue that their post-

investigation letters to Mello standing alone would constitute

such a report.      The plaintiffs thus appear to be contending that

their initial report is the one that qualifies, at least when

considered in light of their later conduct.             The defendant, for

its part, does not appear to contest that we may evaluate the

plaintiffs' course of conduct as a whole in determining whether

that initial report qualifies as protected activity.           Nor does the

defendant challenge the plaintiffs' assertion that the initial

report concerning the maintenance worker's harassment constitutes

a potentially qualifying report of unlawful conduct committed by

the plaintiffs' employer.

             Of   course,   the   District   Court    concluded    that   the

plaintiffs' initial report was not protected activity under the

MWPA based on its conclusion that pre-Harrison precedent set forth

a "job duties exception" to the MWPA.              But Harrison made clear

that "the critical point when analyzing whether a plaintiff has

made out the first element of a [MWPA] claim -- engaging in

activity protected by the Act -- is an employee's motivation in

making a particular report or complaint."           811 F.3d at 51.   Thus,

as we explained in Harrison, a plaintiff may be deemed to have

engaged in activity protected by the MWPA even if the report of

unlawful activity she makes is one her employer required her to



                                    - 7 -
make as part of her job duties.         The employee need only show that

her "report was made to shed light on and 'in opposition to' [the

defendant]'s potential illegal acts."         Id.

             Turning to the plaintiffs' claims under § 4633 of the

MHRA,3 the statute prohibits discrimination against any individual

who "has opposed an[] act or practice that is unlawful under [the

MHRA]," Me. Rev. Stat. tit. 5, § 4633.             The only element of the

plaintiffs' claims under this statute that is in dispute on appeal

is,   once   again,   whether   the    plaintiffs    engaged   in   protected

activity under the statute. And although the District Court relied

on a job duties exception in ruling that the plaintiffs did not,

the defendant concedes that -- at least after Harrison -- the

plaintiffs can show that they engaged in protected activity so

long as they can show that their initial report was made in

opposition    to   the   maintenance    worker's    harassment,     which   the

parties agree was conduct that is unlawful under the MHRA.

             Against this background, our task is clear. Because

neither party has asked us to remand to allow the District Court

to further consider the motions for summary judgment on the

underlying claims in light of Harrison, and because we may affirm

the District Court on any ground made manifest in the record,


      3Other provisions of the MHRA constitute the source of an
employee's right of action for a violation of the MWPA. See Me.
Rev. Stat. Ann. tit. 5, §§ 4572, 4621; Harrison, 811 F.3d at 46
n.12.


                                      - 8 -
Walsh, 821 F.3d at 161, we must now decide what the evidence shows

regarding whether the plaintiffs' initial report to their employer

was made "in opposition to" the harassment being reported.     See

Miranda-Rivera v. Toledo-Dávila, 813 F.3d 64, 69 (1st Cir. 2016)

(explaining that, for purposes of summary judgment, "[a] 'genuine'

dispute exists when a jury can reasonably interpret the evidence

in the non-movant's favor").   Only if the record shows "that there

is 'no genuine dispute as to any material fact" regarding whether

that report was made with the requisite oppositional motivation

would the District Court's orders granting summary judgment be

proper.   Massachusetts Delivery Ass'n v. Healey, 821 F.3d 187, 191

(1st Cir. 2016) (quoting Fed. R. Civ. P. 56(a)).   Our review is de

novo, and we must "view[] the facts in the light most favorable to

the non-moving part[ies]," the plaintiffs.   Id.

                                III.

            The defendant contends that, even under Harrison, the

evidence supporting the plaintiffs' claims that they engaged in

protected activity under the MWPA and under § 4633 of the MWPA is

insufficient to permit the plaintiffs' claims to survive summary

judgment.    Specifically, the defendant argues that the evidence

reveals that the plaintiffs "merely ensured that [the victim]'s

complaint . . . was passed up the chain" and provided what

"information they had in the context of written statements and

interviews."   And the defendant further contends that the evidence



                               - 9 -
shows that the plaintiffs never expressed "any personal opinion

about       [the    accused       harasser]'s     actions      or    concern    about

[d]efendant's response to [the victim]'s harassment complaint."

For that reason, the defendant contends that the record is devoid

of   evidence       that    the     plaintiffs     acted      with   the    requisite

oppositional intent.

               But, as we have explained in an analogous context,

opposition to unlawful activity may take forms other than express

statements of opposition.                Rather, "employees may communicate

their       views   to   their    employers     through    'purposive      conduct.'"

Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 47 (1st

Cir. 2010) (addressing a claim under Title VII of the 1964 Civil

Rights Act) (quoting Crawford v. Metro. Gov't of Nashville &

Davidson       Cty.,     Tenn.,    555   U.S.   271,    281   (2009)   (Alito,   J.,

concurring)); accord DeMasters v. Carilion Clinic, 796 F.3d 409,

417 (4th Cir. 2015) (recognizing that courts have taken "an

expansive view of what constitutes oppositional conduct" under

Title VII).4        And, here, the plaintiffs contend that the record as

a whole shows that they did just that.                 See DeMasters, 796 F.3d at


        4
       Maine courts have made clear that, in adopting the MHRA,
"the Maine legislature by adopting provisions that generally track
the federal antidiscrimination statutes intended the courts to
look to the federal case law to 'provide significant guidance in
the construction of [the Maine] statute.'"     Maine Human Rights
Comm'n v. City of Auburn, 408 A.2d 1253, 1261 (Me. 1979) (quoting
Maine Human Rights Comm'n v. Local 1361, Me., 383 A.2d 369, 375
(Me. 1978)).


                                         - 10 -
418 ("[W]e must examine the course of a plaintiff's conduct through

a panoramic lens, viewing the individual scenes in their broader

context and judging the picture as a whole.")

             In particular, the plaintiffs point not only to their

role in initially reporting the harassment to a supervisor but

also to the evidence of their unsolicited, post-investigation

letters to Mello concerning how the allegation of harassment had

been    handled     by    the   defendant.        They        contend     that    this

evidence   --     considered     as   a   whole   --    supports      a   reasonable

inference that, in initially reporting the harassment, they were

motivated not only by their interest in fulfilling their job duties

but also by their opposition to the employer's unlawful conduct.

The    defendant,    by    contrast,      contends     that    even     viewing   the

plaintiffs' course of conduct as a whole, there is no evidence

that any of the plaintiffs' conduct was taken with the requisite

motivation.       We disagree.

             The record shows that Pippin and Parker did more than

simply facilitate the victim's lodging of her complaint and then

cooperate with the ensuing investigation.                     Rather, the record

reveals    that    three   weeks      after   that     investigation       into   the

complaint of harassment had come to an end, Pippin had a meeting

with the victim and Landergren at which the victim told Landergren

that she was unhappy with the defendant's resolution of her

complaint.      The record then shows that, the next day, Pippin and



                                       - 11 -
Parker, apparently on their own initiative, each sent handwritten

letters   to   Mello    recounting     ongoing   concerns   that   their   co-

workers, including the victim, had about the integrity of the

investigation.

           In her letter, Pippin wrote that the victim stated during

that meeting that Landergren only cared about "saving [the accused

harasser]" and that the victim did not trust Landergren.                Pippin

also wrote that the victim told Landergren that a co-worker,

Connolly, had apologized to the victim for lying during the

investigation and that Connolly had said she would have been fired

if she had not lied.       Parker's separate letter to Mello described

a conversation that she had with Connolly in which Connolly stated

that she had felt pressured by Landergren to "go along with [her]

about the [harassment] situation" and that she felt she would have

been fired if she had not.

           Thus, the record, read in the light most favorable to

the   plaintiffs,      shows   that   the   plaintiffs   were   fired    after

continuing to raise concerns about the handling of an investigation

into a complaint of sexual harassment that they, along with the

victim, had first reported to the employer. And the record further

supports the plaintiffs' claims that they continued to press these

concerns even after the employer's investigation had ended and

even though they were apparently under no obligation to their

employer to do so.       See Harrison, 811 F.3d at 51 ("[A] particular



                                      - 12 -
employee's job duties may be relevant in discerning his or her

actual   motivation   in   reporting   information,   [although]   those

duties are not dispositive of the question.").

           To be sure, this is a close case.           The plaintiffs'

initial reports of harassment involved little more than Pippin's

telling Landergren that the victim needed to talk to her about

something that was "not pleasant."        And perhaps Pippin and Parker

sent their post-investigation letters purely out of an interest in

ensuring the proper handling of internal investigations or in

informing the human resources department about unrest among their

co-workers.

           But a reasonable jury would not be required to draw

either of those inferences.      Rather, a trier of fact reasonably

could draw the common-sense inference that these employees, who

first were involved in reporting an incident of harassment to their

employer and then persisted in raising concerns to their employer

about an internal investigation of that incident following a

meeting in which the victim expressed concerns about how her

initial complaint had been handled, were motivated throughout by

their opposition to the employer's unlawful conduct.        See Ballew

v. Georgia, 435 U.S. 223, 233-34 (1978) (discussing the importance

of a jury's "application of the common sense of the community to

the facts of any given case"); CSX Transp., Inc. v. McBride, 564

U.S. 685, 700 (2011) (referring to a jury's use of "experience and



                                 - 13 -
common sense"); United States v. Smith, 680 F.2d 255, 260 (1st

Cir. 1982) ("Neither juries nor judges are required to divorce

themselves of common sense . . . .").        Thus, a jury reasonably

could conclude that their initial report of harassment to their

employer "was made to shed light on and 'in opposition to' [the

defendant]'s potential illegal acts."       See Harrison, 811 F.3d at

51.5       And, as the defendant concedes, if a jury reasonably could

reach that conclusion, then we must reverse the District Court's

orders granting summary judgment.

               Of course, on remand it is possible that the jury will

find that the plaintiffs did not engage in protected activity under

either statute or that the plaintiffs' claims may fail for some

other reason. But those possibilities are just that. They provide

no basis for affirming the summary judgment rulings concerning

whether the plaintiffs engaged in protected activity under the

MWPA or § 4633 of the MHRA, and thereby denying the plaintiffs the

opportunity to convince a jury otherwise.          See Rubinovitz v.

Rogato, 60 F.3d 906, 912 (1st Cir. 1995) (vacating a grant of

summary judgment even while recognizing that "the case might be a

difficult one for the plaintiffs," given the Court's "obligation



       5For this reason, the defendant's contention that the
plaintiffs' post-investigation letters themselves constituted
direct opposition only to the allegedly biased investigation, and
not to the harassment giving rise to that investigation, is beside
the point.


                                  - 14 -
to draw all reasonable inferences in favor of the party opposing

summary judgment").

                               IV.

          For the reasons set forth above, we reverse the order of

the District Court granting summary judgment and remand this case

for further proceedings consistent with this opinion.




                             - 15 -
