ORDER

LANDYA McCAFFERTY, United States Magistrate Judge.

Asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and New Hampshire's Law Against Discrimination, N.H.Rev. Stat. Ann. ("RSA") ch. 354-A, Eric Rolfs has sued his former employer, Home Depot U.S.A., Inc. ("Home Depot") for sex discrimination (Count I) and retaliation (Count II). Before the court is defendant's motion for summary judgment. Plaintiff objects. For the reasons that follow, defendant's motion for summary judgment is granted.

Summary Judgment Standard

"Summary judgment is warranted where `there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" McGair v. Am. Bankers Ins. Co. of Fla., 693 F.3d 94, 99 (1st Cir.2012) (quoting Fed.R.Civ.P. 56(a); citing Rosciti v. Ins. Co. of Penn., 659 F.3d 92, 96 (1st Cir.2011)). "In determining whether a genuine issue of material fact exists, [the court] construe[s] the evidence in the light most favorable to the non-moving party and make[s] all reasonable inferences in that party's favor." Markel Am. Ins. Co. v. Díaz-Santiago, 674 F.3d 21, 30 (1st Cir.2012) (citing Flowers v. Fiore, 359 F.3d 24, 29 (1st Cir.2004)).

"The object of summary judgment is to `pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'" Dávila v. Corporación de P.R. para la Diffusión Pública, 498 F.3d 9, 12 (1st Cir. 2007) (quoting Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir.2004)). "[T]he court's task is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.2009) (citations and internal quotation marks omitted).

"The nonmovant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists." Sánchez-Rodríguez v. AT & T Mobility P.R., Inc., 673 F.3d 1, 9 (1st Cir.2012) (quoting Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006)). "However, `a conglomeration of conclusory allegations, improbable inferences, and unsupported speculation is insufficient to discharge the nonmovant's burden.'" Sánchez-Rodríguez, 673 F.3d at 9 (quoting DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir.2005)). "Rather, the party seeking to avoid summary judgment must be able to point to specific, competent evidence to support his [or her] claim." Sánchez-Rodríguez, 673 F.3d at 9 (quoting Soto-Ocasio v. Fed. Ex. Corp., 150 F.3d 14, 18 (1st Cir.1998)) (internal quotation marks omitted).

Background

A good argument could be made that Home Depot's ten-page, fifty-two paragraph statement of material facts is more extensive than the "short and concise statement of material facts," LR 7.2(b)(1) (emphasis added), contemplated by the Local Rules of this District. Rolfs' Rule 7.2(b)(2) counter statement, which runs for more than eighteen pages, is longer, less concise, and more argumentative than Home Depot's statement. In addition, Rolfs does not identify a single fact from Home Depot's statement "as to which [it] contends a genuine dispute exists so as to require a trial." LR 7.2(b)(2). Because Rolfs does not challenge any of the facts in Home Depot's statement, those "that are supported by appropriate record citations," LR 7.2(b)(1), are, necessarily, deemed admitted, see LR 7.2(b)(2). Accordingly, the facts related in this section are drawn, in the first instance, from Home Depot's memorandum of law, see id., but are also augmented by facts drawn from "other materials in the record," Fed. R.Civ.P. 56(c)(3).

Rolfs started working for Home Depot in 2004 and was made manager of Home Depot's Manchester store in 2006. In early 2008, Gene Kelly became Rolfs' District Manager. Shortly after Kelly assumed that position, he took several of his store managers, including Rolfs, to a strip club. There is no evidence that Rolfs went unwillingly. As Rolfs' District Manager, Kelly visited Rolfs' store once or twice a week, and generally spent between thirty minutes and two hours "walking" the store and discussing his findings with Rolfs.

At some point in mid to late 2008, during one of Kelly's visits to Rolfs' store, Rolfs introduced Kelly to one of his customers, a woman who worked as buyer for a local contractor and who visited his store relatively frequently.1 After Kelly shook the customer's hand, "he walked behind her and kind of went, whoa [and] rolled his eyes." Doc. no. 30-31 (Rolfs Dep.), at 22.2

Between the time Kelly first met the customer and the end of 2008, Kelly made comments about her to Rolfs, or made physical gestures such as a thumbs-up, between five and ten times. In particular, Kelly referred to the customer as "a nice piece of ass," doc. no. 30-31 (Rolfs Dep.), at 23, and asked Rolfs when he was "going to put it to her," id. at 33. When Rolfs expressed disinterest in pursuing sexual relations with the customer, Kelly asked him whether he was "a homo," id. at 38.3 In 2008, Rolfs did not mention Kelly's in-store boorishness to anyone at Home Depot and did not ask Kelly to stop it. Rather, he tried to change the subject when Kelly started talking about the female customer.

In January of 2009, Rolfs attended a Home Depot holiday that was being held at a restaurant. Near the end of it, Kelly launched into a loud discussion of Rolfs' interactions with the female customer.4 Kelly initially directed his remarks to guests at the party, but subsequently spoke to two other diners at the restaurant who were not attending the party. In his deposition, Rolfs described Kelly as saying:

Doc. no. 24-1, at 9-11.

On the way out of the party, Kelly told several of the attendees that he was taking them to a strip club. Rolfs went along.

After the holiday party, Kelly continued to make comments about Rolfs' female customer that were similar to those he made before the holiday party. Then, an incident occurred during one of Kelly's store visits that Rolfs has described this way:

Doc. no. 30-31 (Rolfs Dep.), at 25-26. Later in his deposition, Rolfs further described the "Come on, Gene" incident:

Doc. no. 24-1, at 26-27.

The "Come on, Gene" incident was the first time Rolfs ever said anything to Kelly about Kelly's comments concerning the female customer. After the "Come on, Gene" incident, Kelly did not engage in any further in-store boorishness. However, on several occasions, another manager who had attended the holiday party mentioned the party in the presence of Kelly and Rolfs, and Kelly did nothing to cut off the other manager's comments.

According to Rolfs, during the fall of 2009, Kelly made various management decisions with the express purpose of setting him up to fail. Specifically, Rolfs claims that Kelly assigned his two most effective assistant managers to other stores, and replaced them with chronically underperforming assistant managers, and did so at times when such changes would be particularly disruptive.

In late October or early November of 2009, Kelly walked Rolfs' store with Paul Deveno, Home Depot's Regional Vice President. Deveno identified several deficiencies. Thereafter, Kelly issued Rolfs a Performance/Discipline Notice ("P/DN"), document no. 24-8, dated November 8, 2009. The P/DN identified problems with customer service, holiday set-up, and performance "on the D25 Gold Cup" during the week of November 2. In December, Kelly issued Rolfs a second P/DN, document no. 24-9, based upon maintenance problems identified during a December 3 store walk.5 Rolfs' second P/DN also includes the following statement: "Please note that three (3) or more documented performance counseling's on a Performance and Discipline Notice within a rolling three month period require a Performance Improvement Plan." Doc. no. 24-9, at 2.

Rolfs alleges that the store walk that resulted in his first P/DN was scheduled for a day when Kelly knew that he would be away from his store. Rolfs also argues that the criticisms in the two P/DNs were inaccurate, overly subjective, or based on conditions that resulted from Kelly's own management decisions which, in Rolfs' view, were made in order to make him look bad.

On December 17, Rolfs spoke by telephone with Charles Worcester, Home Depot's Regional Associate Relations Manager. He mentioned his two P/DNs, Kelly's in-store boorishness, and the party rant.

Two days after the telephone conversation, Rolfs sent Worcester an e-mail in which he discussed the P/DNs, and also wrote:

Doc. no. 30-10.

Kelly issued Rolfs a third P/DN, document no. 24-10, dated January 25, 2010. That P/DN noted problems that were identified during store walks on November 2 and December 3, 2009, and reexamined during store walks on January 12 (conducted by Kelly, and officials referred to as "DOM" and "DHRM") and January 16 (conducted by Kelly). Rolfs contends that the criticisms in the third P/DN were inaccurate, and has produced evidence that neither he nor his staff ever saw Kelly in his store on January 16, and that Kelly does not appear on any of the store's surveillance video for that day.

On February 8, 2010, Rolfs met with Deveno. It is undisputed that Rolfs mentioned Kelly's in-store boorishness and the party rant at that meeting.

On February 10, 2010, Kelly received verbal counseling that was documented in a P/DN. That P/DN states, in pertinent part:

Doc. no. 30-4. In another part of Kelly's P/DN, under the heading "State the improvement & action plan to address [the] issue," id., the P/DN states, in a recitation of corporate values: (1) "The Company is committed to providing an environment of mutual respect, free of harassment and discrimination for our associates, customers and vendors," id.; and (2) "The Home Depot will not tolerate any retaliation or threats of retaliation against anyone who exercises his or her legal rights under any employment laws or makes good-faith reports of workplace harassment, sexual harassment or discrimination ...," id. The P/DN goes on to define both "retaliation" and "protected conduct."

From March 8 through 11, 2010, Kelly and Rolfs attended a Home Depot store-managers meeting in Los Angeles. In Los Angeles, Kelly invited several store managers to a strip club. Rolfs declined.

On March 16, 2010, Kelly issued Rolfs a fourth P/DN, document no. 24-11, based upon conditions related to maintenance and shopability that Kelly identified during store walks on March 2 and March 12. Rolfs again contests the validity of the criticisms in the P/DN, and points out that the March 12 walk was conducted the day after he returned from Los Angeles, before he had a chance to address the issues on which Kelly based the P/DN.

On March 22, Rolfs had a second meeting with Deveno. With regard to Kelly's sexually oriented conduct, Rolfs complained that in Los Angeles: (1) when another manager brought up Kelly's party rant, Kelly did nothing to prevent him from continuing to talk about it; and (2) Kelly invited him to a strip club. That same day, Rolfs sent Deveno an e-mail mentioning: (1) Kelly's "vulgar taunting and questioning of [his] `manhood' dealing with the fact that [he] wouldn't have sex and cheat on [his] wife with a female customer," doc. no. 30-21; and (2) the Los Angeles strip-club invitation which, in Rolfs words, "reinforce[d] the harassment [he] received at [Kelly's] hands as earlier discussed," id. With regard to his understanding of the reason why Kelly had issued the four P/DNs, Rolfs explained:

Id.

The next day, Kelly placed Rolfs on a sixty-day Performance Improvement Plan ("PIP"). Under the heading "Leader's Summary Assessment" in a document titled "Performance and Development Summary," the following reasons are given for placing Rolfs on a PIP.

Doc. no. 24-12.

In response to being placed on a PIP, Rolfs sent an e-mail to Deveno. He began by stating his disagreements with the four P/DNs he had received, and then continued:

Doc. no. 24-15, at 2. He concluded by stating: "I feel if my performance was viewed by any other Home Depot District Manager the result would be dramatically different and without bias as it was prior to my rebuking of Gene's sexual innuendos." Id. The next day, Deveno walked Rolfs' store. Afterward, Deveno wrote a statement titled "Unannounced Walk in Store #3482/Manchester, NH and Subsequent Conversation with Store Manager, Eric Rolfs." Doc. no. 30-23. Among other things, the statement says:

Id.

On April 8, 2010, Rolfs filed a charge of discrimination against Home Depot with the New Hampshire Commission for Human Rights ("HRC"). On April 19, Rolfs met with Worcester and discussed Kelly's conduct. After Worcester learned, the next day, that Rolfs had filed a charge of discrimination, he stopped speaking with Rolfs about Kelly. In addition, during its investigation of Rolfs' complaints about Kelly, Home Depot suspended Rolfs' PIP. On May 19, Rolfs sent Deveno an e-mail giving two weeks notice, and indicating that he was taking a less lucrative position with another company. It appears to be undisputed that at the time he resigned, Rolfs knew that Home Depot had suspended his PIP.

Based upon the foregoing, Rolfs sued Home Depot in two counts. Count I is a discrimination claim brought under both 42 U.S.C. § 2000e-2(a)(1) and RSA 354-A:7, I. Count II is a retaliation claim brought under both 42 U.S.C. § 2000e-3(a) and RSA 354-A:19.

Discussion

Home Depot moves for summary judgment on both of Rolfs' claims. The court considers each in turn.

A. Count I — Discrimination

Count I is captioned "Sex-Based Hostile Work Environment Culminating in Tangible Adverse Employment Actions." In his complaint, Rolfs states his claim in the following way:

First Am. Compl. (doc. no. 5) ¶¶ 62-65.

Home Depot argues that it is entitled to summary judgment on Count I because: (1) Rolfs' state-law discrimination claim is completely barred, and his federal discrimination claim is diminished, by the applicable limitation periods; and (2) even if not time-barred, Rolfs' claims fail on the merits. Home Depot is entitled to judgment as a matter of law on Count I because Rolfs has failed to produce evidence that would allow a reasonable jury, properly instructed, to determine that he was discriminated against because of his sex.

The court begins by noting that Rolfs' claims lie well outside the heartland of federal and state anti-discrimination law. That is, he does not claim that Kelly subjected him to abusive conduct merely because he was a man. Rather, he attributes Kelly's conduct to one of two things: (1) his failure to "fit Kelly's stereotyped expectations that a male store manager in his district should objectify woman"; or (2) Kelly's attempt to "enforce[e] some unspoken, misogynist hegemony."

Based upon the language of his complaint, it might seem that Rolfs was attempting to plead "the `gender stereotyping' variation of sex-based discrimination." Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir.2012) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion)). "A gender-stereotyping claim arises when an individual suffers an adverse employment action because she [or he] either conforms or fails to conform to some stereotype or stereotypes attributable to her [or his] gender." Morales-Cruz, 676 F.3d at 224-25 (citing Thomas v. Eastman Kodak Co., 183 F.3d 38, 59 (1st Cir.1999)); Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 355 (3d Cir.1999) (observing that Title VII protects against an employer's decisions to "fir[e] women it perceives as not feminine enough (or as too feminine)"). But, notwithstanding the complaint's references to gender stereotypes, the recitation of the elements of Rolfs' cause of action in his memorandum of law makes it clear that Count I is a traditional hostile-work-environment claim, see doc. no. 30-1, at 22 (citing O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir.2001), rather than a discrimination claim based upon gender stereotyping).6

"Because the New Hampshire Supreme Court relies on Title VII cases to analyze claims under RSA 354-A, the court will address [Rolfs' state and federal] claims together using the Title VII standard." Hudson v. Dr. Michael J. O'Connell's Pain Care Ctr., Inc., 822 F.Supp.2d 84, 92 (D.N.H.2011) (citing Madeja v. MPB Corp., 149 N.H. 371, 378, 821 A.2d 1034 (2003); Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 856-57 (1st Cir.2008); Slater v. Town of Exeter, No. 07-cv-407-JL, 2009 WL 737112, at *4 n. 5 (D.N.H. Mar. 20, 2009)).

"Title VII prohibits employers from discriminating against individuals `because of such individual's race, color, religion, sex, or national origin....'" Ramos-Echevarría v. Pichis, Inc., 659 F.3d 182, 186 n. 5 (1st Cir.2011)) (quoting 42 U.S.C. § 2000e-2(a)(1)). "Requiring a person `to work in a discriminatorily hostile or abusive environment' violates Title VII." Gerald v. Univ. of P.R., 707 F.3d 7, 17 (1st Cir.2013) (quoting Valentín-Almeyda v. Mun'y of Aguadilla, 447 F.3d 85, 94 (1st Cir.2006)); citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Title VII is violated "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Torres-Negrón v. Merck & Co., 488 F.3d 34, 39 (1st Cir.2007) (quoting Harris, 510 U.S. at 21, 114 S.Ct. 367).

Turning to the elements of his claim, for Rolfs to prevail, he must show:

Torres-Negrón, 488 F.3d at 39 (citing O'Rourke, 235 F.3d at 728; Faragher v. City of Boca Ratón, 524 U.S. 775, 787-89, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)).

Home Depot argues that Rolfs cannot establish the third element of his claim, i.e., that he was subjected to harassment based upon his membership in a protected class. Specifically, Home Depot argues that both Kelly's in-store boorishness and his party rant were mere unactionable workplace banter rather than harassment based upon Rolfs' sex. Rolfs says that "Kelly created an unlawful hostile environment by using sex-related conduct and comments to demean and humiliate [him] as a man." Pl.'s Mem. of Law (doc. no. 30-1) 1. He also cites authority for the proposition that conduct that is not overtly sexual, such as Kelly's management decisions and disciplinary actions following the "Come on, Gene" incident, may be used to support a Title VII sex-discrimination claim based upon a hostile work environment. Rolfs concludes his argument this way: "Sex, and Rolfs' [un]willingness to satisfy Kelly's sexual fantasies or fulfill Kelly's expectations of his masculinity, or put up with Kelly's repeated humiliations, was at the heart of the hostile environment Kelly subjected Rolfs to." Id. at 24.

There is indeed a problem with the third element of Rolfs' claim. To establish that element, Rolfs must show that he was subjected to harassment based on his membership in a protected class. See Higgins v. New Balance Ath. Shoe, Inc., 194 F.3d 252, 258 (1st Cir.1999) ("no claim lies [under Title VII] unless the employee presents a plausible legal theory, backed by significantly probative evidence, to show, inter alia, that the hostile environment subsisted because of such individual's race, color, religion, sex, or national origin.") (quoting 42 U.S.C. § 2000e-2(a)(1)). In Higgins, the court of appeals affirmed the trial court's grant of summary judgment against a Title VII plaintiff claiming discrimination based upon his sexual orientation, because, "as drafted and authoritatively construed, Title VII does not proscribe harassment simply because of sexual orientation." 194 F.3d at 259 (citing Hopkins v. Balt. Gas & Elec. Co., 77 F.3d 745, 751-52 & n. 3 (4th Cir. 1996); Williamson v. A.G. Edwards & Sons, 876 F.2d 69, 70 (8th Cir.1989)). Thus, to succeed on a Title VII claim, a plaintiff must allege and prove membership in a protected class.

Nowhere in his pleadings does Rolfs specifically identify the protected class to which he belongs, and he certainly does not claim that Kelly harassed him only because he is a man. The closest he comes is a factual allegation, in his complaint, that "[a]s a married man, and a born again Christian, [he] found Kelly's comments offensive." First Am. Compl. (doc. no. 5) ¶ 10.

If this were a typical sexual-harassment case, in which the plaintiff and the alleged harasser were male and female, establishing the protected class in which the plaintiff claims membership would not pose much of a problem. See O'Rourke, 235 F.3d at 728 (citing Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). But this is not such a case; both Rolfs and Kelly are men. Thus, it is not so easy for Rolfs to establish that Kelly harassed him because he is a man.

Notwithstanding Rolfs' failure to identify a protected class to which he belongs, his December 19, 2009, e-mail to Worcester, document no. 30-10, and his e-mails to Deveno on March 22 and 23, 2010, document nos. 30-21 and 24-5, shed light on the purported protected class in this case. In all three e-mails, Rolfs complained that Kelly harassed him because he did not act on Kelly's repeated suggestions that he commit adultery by having sex with the female customer who frequented his store. Thus, Rolf is not claiming that he was harassed for being a man, but that he was harassed for being a faithful spouse.

There are several problems with such a claim. First, Rolfs seems to be contending that if he had been willing to engage in adultery, then Kelly would not have created a hostile work environment for him. But, of course, "faithful spouse" is not a protected category under either Title VII, see 42 U.S.C. § 2000e-2(a)(1), or New Hampshire's Law Against Discrimination, see RSA 354-A:7, I. Accordingly, under either statute, a claim of faithful-spouse discrimination would not survive a motion to dismiss for failure to state a claim.

However, given Rolfs' references to Kelly's expectations of "male store manager[s]" and "misogynist hegemony," his claim could, perhaps, be read as asserting that he was the victim not of faithful-spouse discrimination, but of faithful-husband discrimination. Such a claim falls into a special category of Title VII claims known as "sex-plus," which is described in Higgins.

In Higgins, after rejecting a claim based upon sexual orientation, as falling outside the scope of Title VII, the court further explained:

Id. at 258-59 (parallel citations omitted).

On appeal, the plaintiff in Higgins recast his claims, and presented two new theories to explain why the harassment he suffered was because of his sex. See 194 F.3d at 259.

Id. (parallel citations omitted).

If Rolfs is not claiming faithful-spouse discrimination, but instead, faithful-husband discrimination, that claim would fall into the sex-plus category. The problem is that in response to Home Depot's argument that he could not show that he was harassed because of sex, Rolfs has not produced any evidence to create a triable issue regarding his discrimination claim.

The Court of Appeals for the Tenth Circuit has provided a good description of the evidence necessary to support a sex-plus claim, also known as a "gender-plus" claim:

Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1203-04 (10th Cir. 1997) (emphasis in the original) (parallel citations omitted).

Based upon Coleman, a sex-plus claim must be proven by demonstrating differential treatment. Here, Home Depot could only be liable if Rolfs were able to prove that Kelly treated women who were faithful to their spouses better than he treated men who were faithful. That would be a sex-discrimination claim.

But, Rolfs has neither alleged differential treatment of any sort nor produced any evidence that Kelly treated women better than he treated men. Because the only claim that Rolfs could possibly assert in Count I is a sex-plus claim, and because he has produced no evidence of differential treatment, he cannot prove that Kelly subjected him to a hostile work environment because of his sex, which entitles Home Depot to judgment as a matter of law on Count I.

In sum, it cannot be disputed that Kelly's in-store boorishness and his party rant were sexually charged and extremely offensive. Those factors alone, however, are not enough to establish that Kelly's conduct, unsavory as it may have been, was sexual harassment or sex discrimination that violated Title VII or New Hampshire's Law Against Discrimination. See Higgins, 194 F.3d at 258 ("The record makes manifest that the appellant toiled in a wretchedly hostile environment. That is not enough, however, to make his employer liable under Title VII....").

B. Count II — Retaliation

Count II is captioned "Retaliatory Hostile Work Environment Culminating in Constructive Discharge." In it, Rolfs claims that he engaged in four activities protected by the anti-retaliation provisions of Title VII and New Hampshire's Law Against Discrimination, and that Kelly engaged in a variety of conduct that constituted unlawful retaliation.

Specifically, Rolfs alleges that he engaged in protected activity by: (1) opposing Kelly's suggestions that he have sex with his female customer during the "Come on, Gene" incident; (2) complaining to Worcester in December of 2009 about Kelly's harassment and retaliation;7 (3) complaining to Deveno in February of 2010 about Kelly's harassment; and (4) filing a charge with the HRC in April of 2010. Rolfs alleges that Kelly retaliated against him by: (1) "administer[ing] unfounded PDNs ... to justify putting [him] on a PIP to deprive him of his earned performance bonuses," First Am. Compl. (doc. no. 5) ¶ 70(b); (2) subjecting him to a retaliatory hostile work environment and depriving him of "supportive, problem-solving, constructive criticism designed to help [him] and his store succeed and meet sales goals and profit margins," id. ¶ 70(b); (3) making "a mockery of The Home Depot's performance improvement process, and refus[ing] to acknowledge [his] performance toward the unjustified performance improvement goals," id. ¶ 70(c); and (4) "leak[ing] his PIP status to members of management in other stores in the district," after he filed his complaint with the HRC, id. ¶ 72.

In his memorandum of law, Rolfs describes the adverse employment actions he claims to have suffered this way:

Pl.'s Mem. of Law (doc. no. 30-1) 27-28. That passage can reasonably be read as a retrenchment from the complaint, which identified both the PIP and the P/DNs as affirmative adverse employment actions. But, on the other hand, later in his memorandum, Rolfs accuses Kelly of "launch[ing] a campaign of harassment, and unfounded discipline and criticism," id., and contends that "it is clear that the pretextual disciplinary actions were part of Kelly's retaliatory efforts," id. While Rolfs' memorandum is not entirely clear on this point, the court will read it expansively, and presume that Rolfs intends to assert that Kelly retaliated against him by putting him on a PIP and by issuing the P/DNs that led to the PIP. That said, the court begins with the relevant law and then turns to Rolfs' two retaliation claims, one based upon Kelly's disciplinary actions, the other based upon a purported constructive discharge.

Like Count I, Count II asserts claims under both Title VII and RSA 354-A. As with Count I, the court will conduct a single analysis under the standard applicable to Title VII. See Hudson, 822 F.Supp.2d at 92. The Title VII anti-retaliation provision makes it unlawful

42 U.S.C. § 2000e-3(a)). The mechanics for making and defending against a retaliation claim are as follows:

Gerald, 707 F.3d at 24 (parallel citations omitted). With respect to the third element of the prima facie case, the Supreme Court has recently held that "[t]he text, structure, and history of Title VII demonstrate that a plaintiff making a retaliation claim under [42 U.S.C.] § 2000e-3(a) must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer." Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2534, 186 L.Ed.2d 503 (2013).

1. The P/DNs and the PIP

Rolfs first claims that Kelly retaliated against him by issuing him four P/DNs and putting him on a PIP. Of course, one does not just retaliate, one retaliates against another person for having done something. Here, for Kelly's alleged retaliation to be actionable, he must have retaliated against Rolfs for engaging in activity protected by Title VII or RSA chapter 354-A.

Rolfs' complaint identifies four instances of protected activity. But, it is undisputed that Rolfs filed his HRC complaint after Kelly imposed the PIP, which means that Kelly could not have imposed the PIP (or issue the P/DNs that precipitated the PIP) in retaliation for Rolfs' HRC complaint. See Pearson v. Mass. Bay. Transp. Auth., 723 F.3d 36, 42 (1st Cir.2013) ("Causation moves forward, not backwards, and no protected conduct after an adverse employment action can serve as the predicate for a retaliation claim.") (citing Sullivan v. Raytheon Co., 262 F.3d 41, 49 (1st Cir. 2001)). At the other end of the time line, Kelly gave Rolfs his first P/DN after the "Come on, Gene" incident. Moreover, it is indisputable that Kelly was aware of that incident, and Kelly's knowledge is necessary but not sufficient to establish causation. See Medina-Rivera v. MVM, Inc., 713 F.3d 132, 139 (1st Cir.2013) ("Obviously too, the employee must show that the retaliator knew about [his or] her protected activity — after all, one cannot have been motivated to retaliate by something he [or she] was unaware of.") (citing Alvarado v. Donahoe, 687 F.3d 453, 458-59 (1st Cir. 2012); Lewis v. Gillette Co., 22 F.3d 22, 24 (1st Cir.1994)); Pearson, 723 F.3d at 42 (explaining that an alleged retaliator's "knowledge alone cannot provide the causal link").

That leaves two potential instances of protected activity that could have been causally connected to the disciplinary actions Kelly took against Rolfs, to wit, the complaints Rolfs made to Worcester and to Deveno about Kelly's behavior. For purposes of ruling on Home Depot's motion for summary judgment, the court will assume that the P/DN Kelly received on February 10 alerted him to Rolfs' complaints about him to Worcester and Deveno. See Medina-Rivera, 713 F.3d at 139 (suggesting that an alleged retaliator's "awareness [of protected activity] may be shown by circumstantial evidence"). Rolfs, however, has produced no evidence, circumstantial or otherwise, that Kelly knew about Rolfs' complaints about him any earlier than February 10. Thus, Kelly's knowledge of those instances of protected activity came after he had issued three of the four P/DNs at issue, but did predate the fourth P/DN and the PIP. In the remainder of this section, the court considers, in turn, retaliation claims based upon the "Come on, Gene" incident and Rolfs' complaints about Kelly to Worcester and Deveno.9

a. "Come on, Gene"

Home Depot contends that Rolfs cannot establish his prima facie case because "Come on, Gene" did not rise to the level of protected activity. Indeed, if "Come on, Gene" was not protected activity, then even if Kelly did retaliate against Rolfs for saying those words, any such retaliation would fall outside the scope of Title VII and RSA chapter 354-A. Rolfs contests Home Depot's characterization of "Come on, Gene."

For the proposition that "Come on, Gene" did not rise to the level of protected activity, Home Depot relies upon several opinions, including Morgan v. Massachusetts General Hospital, 901 F.2d 186 (1st Cir.1990). In Morgan, the plaintiff complained that he was sexually harassed at a Christmas party by a co-worker who "asked him to dance with him, and started to `pull on him.'" 901 F.2d at 188. Even though the plaintiff "told his supervisor... about the Christmas party incidents," id., and "that the co-worker [from the Christmas party] sometimes stood behind him as he was mopping, causing him to bump into the co-worker," see id., the court of appeals affirmed the district court's determination that the plaintiff had failed to establish that he had engaged in protected activity, because, when he talked to his supervisor, "he failed to specify any particular prohibited practices that he opposed and/or sought to change," id. at 194; see also Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 594 (2d Cir.1988) (explaining, when affirming trial court's determination that plaintiff failed to establish prima facie case of retaliation, "we agree with Judge Goettel that appellant's objections at the time neither pointed out discrimination against particular individuals nor discriminatory practices by Columbia").

Rolfs incorrectly argues that the rule from Morgan on which Home Depot relies was effectively abrogated by the Supreme Court's decision in Crawford v. Metropolitan Government, 555 U.S. 271, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009). Judge Lipez has described Crawford in the following way:

Collazo, 617 F.3d at 46-47. Nothing in Crawford abrogated Morgan's holding that to qualify as protected activity, an employee's statement to his employer must provide adequate specificity to alert the employer that the employee is, in fact, complaining about conduct proscribed by Title VII.

Standing alone, the words "Come on, Gene" neither pointed out discrimination or discriminatory practices, see Manoharan, 842 F.2d at 594, nor specified the conduct that Rolfs purportedly opposed, see Morgan, 901 F.2d at 194. If those three words were the only evidence before the court, it would be relatively easy to dismiss "Come on, Gene" as insufficient to qualify as protected conduct. But, as Rolfs points out, Kelly engaged in no further in-store boorishness after Rolfs said "Come on, Gene." That, in turn, is good evidence that notwithstanding whatever interpretation a third party might give the words "Come on, Gene," Kelly himself regarded those words as a complaint about his in-store boorishness. Because Rolfs could have reasonably believed, in good faith, that Kelly's in-store boorishness violated Title VII, the court will treat "Come on, Gene" as protected activity. See Morales-Cruz, 676 F.3d at 226 (citing Collazo, 617 F.3d at 48; Fantini v. Salem State Coll., 557 F.3d 22 (1st Cir.2009); Wimmer v. Suffolk Cnty. Police Dept., 176 F.3d 125, 134 (2d Cir.1999)).

To establish the second element of his prima facie case, Rolfs must show that he "suffered an adverse employment action." Gerald, 707 F.3d at 24 (citation omitted).

Colon v. Tracey, 717 F.3d 43, 50 (1st Cir. 2013) (parallel citations omitted).

Rolfs claims that Kelly retaliated against him for "Come on, Gene" by issuing him four P/DNs and placing him on a PIP. However, it is difficult to characterize the P/DNs as adverse employment actions for purposes of a Title VII retaliation claim. Hours after Rolfs received his second P/DN, which mentioned the process by which P/DNs can lead to a PIP, he called Worcester and complained about Kelly's in-store boorishness and his party rant. Within a week of receiving his third P/DN, Rolfs contacted Worcester again, and about a week after that, Rolfs complained to Deveno about Kelly's in-store boorishness and his party rant. Then, about a week after he received his fourth P/DN, Rolfs had another meeting with Deveno to discuss Kelly's behavior. And, hours after Kelly placed him on a PIP, Rolfs sent Deveno another e-mail complaining about Kelly's sexual behavior. While Kelly's first disciplinary action against Rolfs came weeks, if not months, after "Come on, Gene," Rolfs complained to Deveno about Kelly's alleged sexual harassment hours, if not minutes, after Kelly's final disciplinary action.

Based upon the undisputed evidence, it seems fair to conclude that rather than inhibiting Rolfs from complaining about discrimination, the P/DNs, and even the imposition of a PIP, actually inspired him to do so. Moreover, Rolfs' pattern of responding to P/DNs and his PIP by complaining, almost immediately, about Kelly's sexually oriented behavior calls to mind the First Circuit's explanation for why an alleged retaliator's mere knowledge of protected conduct is not enough to establish the causation element of a retaliation claim: "Were the rule otherwise, then a disgruntled employee, no matter how poor his performance or how contemptuous his attitude toward his supervisors, could effectively inhibit a well-deserved discharge by merely filing, or threatening to file, a discrimination complaint." Pearson, 723 F.3d at 42 (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir.1991)).

In sum, Rolfs' own conduct undermines any argument that the P/DNs were adverse employment actions for purposes of his retaliation claim. If the P/DNs were not adverse employment actions, then Rolfs' first retaliation claim is reduced to an assertion that Kelly placed him on a PIP in retaliation for "Come on, Gene."10 But, even if the P/DNs are also adverse employment actions, Rolfs faces an insurmountable problem in establishing the third element of his prima facie case, causation.

The court of appeals has held that "[v]ery close temporal proximity between protected activity and an adverse employment action can satisfy a plaintiff's burden of showing causal connection." Sánchez-Rodríguez, 673 F.3d at 15 (quoting Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25 (1st Cir.2004); citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509) (2001)) (emphasis added, internal quotation marks omitted). In Sánchez-Rodríguez, a span of three months between the filing of an EEOC complaint and an employer's disciplinary action was held to be sufficient temporal proximity to satisfy the plaintiff's burden of showing a causal connection. See 673 F.3d at 15. In Calero-Cerezo, the court held that a span of one month was sufficient, see 355 F.3d at 26, but also noted that "[t]hree and four month periods have been held insufficient to establish a causal connection based on temporal proximity," id. at 25 (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir.1997)); Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir.1992)).

In the typical case, both the date of the protected activity and the date of the allegedly retaliatory act are undisputed. Here, Kelly issued Rolfs' first P/DN in early November of 2009, and put him on a PIP in late March of 2010. Rolfs, however, concedes his inability to say when the "Come on, Gene" incident happened, placing it "approximately in — some time in around spring to summer of 2009," id.

Even if the "Come on, Gene" incident occurred toward the end of the summer of 2009, it happened too far in advance of the PIP for causation to be established by temporal proximity. As for the P/DNs, the court notes that: (1) a span of three or four months between protected activity and an adverse employment action is pretty much the outer limit for establishing causation through temporal proximity; and (2) Rolfs can do no better than to place "Come on, Gene" somewhere within a span of six months that ended no later than late September of 2009. Thus, even if the P/DNs were adverse employment actions, there is nothing beyond mere speculation to establish that even the earliest P/DN was issued soon enough after "Come on, Gene" to establish causation based upon temporal proximity, and "[c]onclusions that rest wholly on speculation are insufficient to defeat a motion for summary judgment," Alvarado, 687 F.3d at 460 (quoting Ahern v. Shinseki, 629 F.3d 49, 58 (1st Cir.2010)).

Then, there is Rolfs' own view of causation, as demonstrated by the undisputed record evidence. In Rolfs' December 19, 2009, e-mail to Worcester he did not describe his first two P/DNs as retaliation for "Come on, Gene." He did not even mention the "Come on, Gene" incident. Rather, he described those two P/DNs as "preemptive strikes" flowing from Kelly's party rant. See doc. no. 30-10. In other words, Rolfs appears to characterize Kelly's disciplinary actions as "retaliation" for something Kelly did, not as retaliation for something he did. As late as March of 2010, after Kelly had issued him two more P/DNs and put him on a PIP, Rolfs was saying the same thing to Deveno. See doc. nos. 30-21 (March 22 e-mail) & 24-15 (March 23 e-mail). Thus, Rolfs himself did not understand either his P/DNs or his PIP to be retaliation for "Come on, Gene" at the time those disciplinary actions were imposed, when "Come on, Gene" was still relatively fresh in his mind.

Finally, Rolfs' memorandum of law says next to nothing about the causation element of his prima facie case. His discussion of causation is limited to this:

Pl.'s Mem. of Law (doc. no. 30-1) 29. Those conclusory statements are not enough to establish that "Come on, Gene" was the cause of Rolfs' P/DNs or his PIP, under either the but-for standard established in Nassar, or the more liberal standard the Supreme Court rejected in that opinion. See Pearson, 723 F.3d at 42 ("We have rejected claims on this ground [i.e., the plaintiff's failure to establish the causal link element of a retaliation claim] when the allegations are `largely conclusory and lacking in the concrete documentation necessary to prove the causal link.'") (quoting Ramos v. Roche Prods., Inc., 936 F.2d 43, 49 (1st Cir.1991)).

However, even if the P/DNs were adverse employment actions, and even if "Come on, Gene" was the but-for cause of any of the P/DNs or the PIP, Rolfs' retaliation claim would still fail, at the third step of the McDonnell Douglas framework. Under that framework, Rolfs' establishment of a prima facie case shifted the burden to Home Depot "to articulate a legitimate, non-retaliatory reason for its employment [actions]." Gerald, 707 F.3d at 24 (citation omitted). Because the P/DNs and the Performance and Development Summary ("P & DS") form that accompanied Rolfs' PIP all explained why they were issued, Home Depot has carried its burden. Rolfs does not argue to the contrary. Thus, for Rolfs to avoid summary judgment, he must produce evidence from which a reasonable jury could conclude that Kelly's reasons for disciplining him, i.e., those described in the P/DNs and the P & DS form, were actually pretexts intended to hide retaliatory animus. Rolfs has not produced the evidence necessary to avoid summary judgment on the issue of pretext.

Home Depot argues that Rolfs has no evidence with which to carry his burden of showing pretext. In his memorandum of law, Rolfs focuses exclusively on his prima facie case, primarily by arguing that "Come on, Gene" was protected activity, and he does not refer to the McDonnell Douglas framework at all. Thus, he has nothing to say about his obligation to show that Home Depot's explanations for his P/DNs and his PIP were pretextual. Rather, to the extent that he addresses pretext at all, he does so through stray references to "unwarranted discipline,"12 Pl.'s Mem. of Law (doc. no. 30-1) 28, "unfounded discipline and criticism," id. at 29, and "pretextual disciplinary actions," id. While Rolfs uses those phrases, he does not actually argue that the reasons given for his discipline were pretextual.

Turning to the legal principles that must guide this court's consideration of pretext, the court of appeals has explained:

Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108, 116 (1st Cir.2013) (parallel citations omitted). In other words, when "assessing whether an adverse employment decision is pretextual, [a court] do[es] not sit as a super-personnel department that reexamines an entity's business decisions." Espinal v. Nat'l Grid NE Holdings 2, LLC, 693 F.3d 31, 35 (1st Cir.2012) (quoting Gonzalez v. El Dia, Inc., 304 F.3d 63, 69 (1st Cir.2002); citing Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988)) (internal quotation marks omitted). Rather, the court's task "is limited to determining whether the employer `believe[d] in the accuracy of the reason given for the adverse employment action.'" Espinal, 693 F.3d at 35 (quoting Kouvchinov v. Parametric Tech. Corp., 537 F.3d 62, 67 (1st Cir.2008); citing Feliciano de la Cruz, 218 F.3d at 7).

Here, the court has no difficulty concluding that the reasons stated in the P & DS for placing Rolfs on a PIP were not pretextual. Before Kelly placed Rolfs on the PIP, he had issued Rolfs four P/DNs. The first P/DN, dated November 8, 2009, came close on the heels of store walks by both Kelly and Deveno, and it is undisputed that after a store walk in late October or early November, Deveno was dissatisfied with the condition of Rolfs' store. The third P/DN was based, in part, on a "District Business Walk" conducted by Kelly and two other Home Depot managers. See doc. no. 24-10. The participation of several managers other than Kelly in store walks that led to two of the P/DNs that led to Rolfs' PIP undermines any suggestion that Kelly was using either the P/DNs or the PIP to engage in a vendetta against Rolfs. Rather, that fact strongly supports a conclusion that the appraisals of Rolfs' performance reflected in the P/DNs and the P & DS were shared by Home Depot management as a whole, not just the individual manager who Rolfs identifies as his antagonist.

Moreover, after Kelly put Rolfs on his PIP, Deveno visited Rolfs' store, at Rolfs' suggestion, and confirmed the existence of the conditions on which Kelly based his decision to impose the PIP. Finally, in the P/DN that was issued to Kelly in February of 2010, Rolfs was specifically identified as one of Kelly's "weaker SMs." Doc. no. 30-4.

In several of his communications with Worcester and Deveno, and in his memorandum of law, Rolfs has argued that Kelly, Deveno, and Home Depot should have used different metrics to evaluate his performance. But, "mere questions regarding the employer's business judgment are insufficient to raise a triable issue as to pretext." Pearson, 723 F.3d at 41 (quoting Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 140 (1st Cir. 2012)); see also Espinal, 693 F.3d at 35 (citation omitted). The only possible exception to that rule would be a situation in which an employer bases an adverse employment action on a business decision that is so ridiculous as to render the employer's purported reliance upon that decision unworthy of credence. See Aly v. Mohegan Council, Boy Scouts of Am., 711 F.3d 34, 46 (1st Cir.2013) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)); see also Gómez-González v. Rural Opps., Inc., 626 F.3d 654, 662-63 (1st Cir. 2010) ("Pretext can be shown by such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.") (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). As Rolfs has done nothing more that suggest that his performance should have been evaluated in terms of his store's profit margins rather than in terms of its appearance, or the customer service provided by its employees, he has come nowhere close to providing a basis from which a reasonable factfinder could conclude that the reasons given for Rolfs' P/DNs and his PIP are unworthy of credence.

In sum, there is ample evidence that Kelly and his superiors thought Rolfs was a poor performer and believed the P/DNs and the P & DS to be accurate. Rolfs has produced no evidence to the contrary. Thus, he cannot establish that the reasons given for his P/DNs and his PIP were pretextual. That, in turn, is fatal to his claim that Kelly imposed those disciplinary measures in retaliation for "Come on, Gene."

b. Rolfs' Complaints to Worcester and Deveno

Home Depot contends that Rolfs cannot establish a prima facie case that Kelly retaliated against him for complaining to Worcester and Deveno because of two causation problems: (1) Rolfs' complaint to Worcester came, at the very earliest, after he had received his first two P/DNs; and (2) Rolfs has produced no evidence that Kelly knew about his complaints to either Worcester or Deveno.

With regard to Home Depot's second argument, the court has already assumed that the P/DN Kelly received in February of 2010 informed him that Rolfs had complained to Worcester and/or Deveno about his in-store boorishness and his party rant. With regard to Home Depot's first argument, there is some merit to the idea that Rolfs cannot establish causation because the possibility that his deficient performance could lead to a PIP was expressly mentioned in his second P/DN, which predated his complaint to Worcester. See Breeden, 532 U.S. at 272, 121 S.Ct. 1508 (explaining that an employer's "proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality"). But, the "burden of establishing a prima facie case of retaliation" is "relatively light." Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 32 (1st Cir.2011) (quoting DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir.2008); citing Mariani-Colón v. Dep't of Homeland Sec., 511 F.3d 216, 224 (1st Cir.2007)). Accordingly, the court assumes that Rolfs has established a prima facie case of retaliation for the complaints he made about Kelly to Worcester and Deveno.

As with the retaliation claim based upon "Come on, Gene," Home Depot also argues that Rolfs cannot carry his burden on the issue of pretext. Home Depot is correct. The discussion of pretext in the previous section applies with full force to Rolfs' claim that Kelly issued him the March 16 P/DN and placed him on a PIP because he had complained about his in-store boorishness and his party rant to Worcester and Deveno.

c. Summary

Because Rolfs has not established that his P/DNs were adverse employment actions, has not established the causation element of his prima facie case vis à vis his "Come on, Gene" retaliation claim, and has failed to produce evidence that the reasons given for issuing his P/DNs and placing him on a PIP were pretextual, Home Depot is entitled to judgment as a matter of law on Rolfs' claim that he was subjected to Home Depot's disciplinary process in retaliation for opposing conduct proscribed by Title VII and RSA chapter 354-A.

2. Constructive Discharge

Rolfs also asserts that he was constructively discharged by Home Depot as a result of being forced to work in intolerable conditions, and that his constructive discharge was a second adverse employment action for purposes of his retaliation claims. In the abstract, that is a viable legal theory:

Alvarado, 687 F.3d at 458-59. While "a series of minor retaliatory actions may, when considered in the aggregate, satisfy the McDonnell Douglas prima facie adverse action requirement," id. (citation omitted), a "string of trivial annoyances will not suffice to make an adverse action showing: the alleged harassment must be severe or pervasive," id. at 461 (quoting Gómez-Pérez v. Potter, 452 Fed.Appx. 3, 9 (1st Cir.2011); citing Che, 342 F.3d at 40) (internal quotation marks omitted).

Moving from the quantitative realm to the qualitative, it is well established that, for purposes of Title VII, a work environment may be rendered hostile both by conduct that is explicitly racial or sexual and by conduct that is not. See Rosario v. Dep't of the Army, 607 F.3d 241, 248-49 (1st Cir.2010) (citing Marrero v. Goya of P.R., Inc., 304 F.3d 7, 20 (1st Cir.2002); O'Rourke, 235 F.3d at 730). But, as the opinion in O'Rourke points out, for non-sexual conduct to contribute to a sex-based hostile work environment, the non-sexual conduct must be charged with discriminatory animus. See 235 F.3d at 729 (citing Lipsett v. Univ. of P.R., 864 F.2d 881, 905 (1st Cir.1988)); see also Alvarado, 687 F.3d at 459.

Typically, when sexual (or racial) and non-sexual (or nonracial) conduct are properly aggregated in the context of a hostile-work-environment claim, the discriminatory animus of the non-sexual or non-racial conduct is demonstrated by the fact that both forms of conduct are roughly contemporaneous and intertwined. See, e.g., DeGrace v. Rumsfeld, 614 F.2d 796, 800 (1st Cir.1980); Williams v. Gen. Motors Corp., 187 F.3d 553, 559 (6th Cir. 1999). Here, however, Rolfs has produced no evidence that Kelly engaged in any sex-related conduct near enough in time to any of the non-sexual acts that Rolfs calls hostile to support a reasonable inference that those non-sexual acts were charged with discriminatory sexual animus. Rather, according to Rolfs' own complaint, see doc. no. 5 ¶ 63, and all the evidence he has produced, the "Come on, Gene" incident marked a sharp line of demarcation between Kelly's sexual conduct and his non-sexual conduct. That line of demarcation, in turn, is a significant part of the "totality of circumstances," O'Rourke, 235 F.3d at 730, that courts must consider when evaluating hostile-work-environment claims, see id.

The only connection between the two that Rolfs posits is his theory that Kelly transferred his competent assistant managers, issued him four P/DNs, and placed him on a PIP in attempt to fire him, an attempt that Rolfs characterizes as somehow growing out of Kelly's party rant. The problem is that with regard to the theory he advances, Rolfs does not "`point to specific facts that were properly asserted in ... affidavits and supporting materials' which would permit a reasonable juror to find in his favor at trial," Alvarado, 687 F.3d at 460 (quoting Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir.1985); citing Over the Rd. Drivers, Inc. v. Transp. Ins. Co., 637 F.2d 816, 818 (1st Cir.1980)). Absent any provable connection between Kelly's explicitly sexual conduct and his non-sexual conduct, the only working conditions at issue in the following analysis are those that were explicitly sexual in nature, i.e., Kelly's in-store boorishness and his party rant.

Rolfs relies upon Marrero to support his assertion that he was constructively discharged. In Marrero, the court of appeals explained:

304 F.3d at 28; see also Gerald, 707 F.3d at 25.

The Marrero court described the employee's objectively intolerable working conditions this way:

Marrero, 304 F.3d at 29.

Rolfs' reliance upon Marrero is unavailing. The plaintiff in that case endured sexual harassment throughout the course of her employment. See 304 F.3d at 14-16. Here, in contrast, it is undisputed that with the exception of the Los Angeles strip-club invitation — which the court hesitates to characterize as sexual harassment, given Rolfs' history of accepting such invitations in the past — Kelly completely stopped making sexually oriented comments to Rolfs many months before Rolfs left his position at Home Depot. Moreover, the harasser in Marrero continued to sexually harass the plaintiff after she confronted him, and even ratcheted up the vulgarity of his harassment thereafter. See id. at 14. Here, it is undisputed that after Rolfs said "Come on, Gene," Kelly completely stopped his boorish in-store behavior. Similarly, while the sexual harassment in Marrero did not abate as a result of the complaints the plaintiff raised, see id. at 15-16, the alleged sexual harassment in this case had ended long before Rolfs first complained to Worcester about Kelly.

Not only does the time gap between Kelly's last act of alleged sexual harassment and Rolfs' resignation make this case distinguishable from Marrero, it raises a problem of its own. In the words of the First Circuit:

Gerald, 707 F.3d at 26. Depending upon when during the spring and summer of 2009 the "Come on, Gene" incident occurred, Rolfs voluntarily resigned at least seven and a half months after the final act of alleged harassment. That is too long a span of time to support a claim that Rolfs was constructively discharged as a result of Kelly's alleged sexual harassment. See id.

Finally, on the undisputed facts of this case, no reasonable jury could find that it would have been intolerable for Rolfs to stay on the job while seeking redress for Kelly's purported sexual harassment. At the time of his resignation Rolfs had, in fact, remained on the job for more than four months while pursuing redress. Perhaps more importantly, he resigned after his PIP had been suspended, pending the results of Home Depot's investigation into his complaints about Kelly.

In short, Rolfs has produced no evidence to show that it was reasonable for him to believe that he had to resign in order to escape from Kelly's alleged sexual harassment. Rolfs' own testimony establishes that Kelly's objectionable conduct had ceased between six months and one year before Rolfs left Home Depot. Construing the undisputed evidence in Rolfs' favor, no reasonable juror could conclude that Kelly's alleged sexual harassment forced him to resign. As a matter of law, Rolfs did not suffer a constructive discharge resulting from the manner in which Home Depot responded to his charges of sexual harassment. Home Depot, therefore, is entitled to judgment as a matter of law on Rolfs' second theory of retaliation.

Conclusion

For the reasons detailed above, Home Depot's motion for summary judgment, document no. 23, is granted. The clerk of the court shall enter judgment in accordance with this order and close the case.

SO ORDERED.