Audette v. Town of Plymouth

United States Court of Appeals
For the First Circuit

No. 15-2457

MICHELLE AUDETTE,

Plaintiff, Appellant,

v.

TOWN OF PLYMOUTH, MA; PLYMOUTH POLICE DEPARTMENT;
CHIEF MICHAEL E. BOTIERI, in his official and individual
capacity; CAPTAIN JOHN ROGERS, in his official and individual
capacity; ROBERTA KETY, in her official and individual capacity,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Lipez, and Barron,
Circuit Judges.

Timothy M. Burke, with whom Jared S. Burke and Law Offices of
Timothy M. Burke, were on brief for appellant.
Evan C. Ouellette, with whom Leonard H. Kesten, Deidre Brennan
Regan, and Brody, Hardoon, Perkins & Kesten, LLP, were on brief
for appellee.

May 26, 2017
 LIPEZ, Circuit Judge. Appellant Michelle Audette, a

police patrol officer1 in Plymouth, Massachusetts, appeals from

the entry of summary judgment for the Town of Plymouth ("Town"),

the Plymouth Police Department ("Department"), and a number of the

Town's and the Department's employees. Audette claims that she

suffered discrimination in violation of the Americans with

Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, and its

Massachusetts state-law corollary, Massachusetts General Laws

chapter 151B § 4, when the defendants failed to accommodate her

request for transfer to another position in the Department after

she sustained an on-the-job injury. Audette further alleges that

she suffered illegal retaliation when she attempted to assert her

rights under the ADA and that she suffered discrimination on the

basis of her gender in violation of Massachusetts law. We affirm

the district court's rejection of these claims.

I.

The following facts are undisputed, except as noted.

A. Audette's Ankle Injuries

Audette began her career as a patrol officer for the

Plymouth Police Department in 1986. While working on October 4,

2010, she sustained the first of two on-the-job injuries to her

1 The Plymouth Police Department's official title for the
position is "patrolman," but we opt to use the gender-neutral term
"patrol officer" throughout this opinion.

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right ankle. These injuries led to visits to many doctors, two

surgeries, and rounds of physical therapy. To this day, she has

yet to fully recover.

Audette's doctors have prescribed physical limitations

to her movement in order to aid in her recovery. These limitations

have varied at times, but include: strictly sedentary work, shorter

working shifts (four or six hours, rather than the typical eight-

and-a-half), working in an "air-cast" boot, working with the use

of crutches, limited standing or walking to forty-five minutes out

of every hour, and limited bending. According to the Plymouth

Police Department's "Rules and Regulations" manual, a patrol

officer's duties include patrolling by foot and in a vehicle,

responding to emergencies, providing services on an emergency

basis, aiding individuals who are in danger of physical harm,

preserving crime scenes, and apprehending criminal offenders.

Since the initial injury, Audette's limitations have prevented her

from fulfilling her standard responsibilities as an active patrol

officer, except for a brief period between August 2011 and January

2012, when she sustained a second on-the-job injury to the same

ankle.

Nevertheless, the Plymouth Police Department continues

to employ Audette as a patrol officer. When doctors' limitations

on her working conditions have permitted, Audette has received

full-time pay for working part-time shifts in a light-duty capacity

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as a station officer.2 When her doctors' limitations have not

allowed her to work as a station officer, Audette has been afforded

full pay while taking "injured on duty" ("IOD") leave.3 The

Department has also granted her other accommodations not available

to other patrol officers, including an elevator key and a

designated, convenient parking spot.

B. The Department's National Incident-Based Reporting System

Like many police departments across the nation, the

Plymouth Police Department participates in the National Incident-

Based Reporting System ("NIBRS"). NIBRS is an incident-based

reporting system used by law enforcement agencies to collect and

report data on crimes. Local, state, and federal agencies compile

and maintain data in NIBRS as part of their records management

responsibilities. Ordinarily, two Department employees are

2
The Department's station officer works behind the front desk
at the Plymouth police station and can be assigned various tasks
such as assisting civilians who come to the station to file
complaints, filling out various forms, assisting with booking
procedures and fingerprinting, assisting dispatch when necessary,
coordinating overtime assignments for other officers, and
conducting prisoner cell checks at the station.
3For example, Audette was briefly placed on paid IOD leave
after her first ankle injury when her doctor limited her to
strictly sedentary work, because the station officer position --
though a light-duty position involving limited movement --
requires some amount of standing and walking. Audette was also
placed on paid IOD leave for one week when one of her doctors
required her to use crutches, due to the Department's policy of
prohibiting on-duty officers' use of crutches.

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responsible for NIBRS data: the Department's Records Sergeant,4

who oversees all records maintenance, including NIBRS, and a

civilian clerical worker. In July 2012, the Records Sergeant was

also assisted by Detective Robert Morse, who oversaw the

Department's evidence management responsibilities. After the

Records Sergeant announced his retirement in September 2012, Morse

temporarily took over NIBRS oversight responsibilities.

In May 2013 -- when Audette was out of work due to her

first ankle surgery -- Morse announced that he would retire. On

May 30, 2013, patrol officer Benjamin Dexter returned to work after

sustaining an injury, and he was placed on full-time light duty.

Plymouth Police Chief Michael Botieri assigned Dexter to train

with Morse and assist in getting "caught up" with the NIBRS

records. By October 6, the Department had sufficiently caught up

with its backlog, and Dexter was reassigned as a station officer

for the remainder of his light-duty status. The Department never

appointed another patrol officer on light duty to assist with the

NIBRS data outside of Dexter's four-month assignment in 2013.5 In

4
The Records Sergeant's duties also include managing the
Department's Records Division, maintaining and processing
Department records, ensuring compliance with public records laws,
supervising clerical staff, and responding to public records
requests.
5There was one other occasion on record in which an
officer -- though a sergeant and not a patrol officer -- was
assigned to assist with NIBRS maintenance. During the summer of
2012, Sergeant Christopher Butler suffered an injury and was placed
on light duty. The only light-duty position within the Department

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November 2013, Dexter returned to active-duty status as a patrol

officer, and Sergeant Michael Ferazzi was appointed as the new

Records Sergeant and became responsible for NIBRS oversight.

C. Audette's Accommodation Request

Audette underwent ankle surgery in June 2013. Later

that summer her doctor issued a note stating that she could return

to work on October 21. The only limitation the doctor placed on

Audette was "walking/standing based on symptoms." On October 9

-- three days after Officer Dexter had been reassigned from NIBRS

data maintenance to station officer -- Audette delivered a letter

to Chief Botieri titled "Reasonable [Accommodation]," which

requested that she be allowed to work the NIBRS data-entry position

to which Dexter had been assigned. We quote the letter in full:

I am requesting a "Reasonable [Accommodation]"
as I would like to return to work and feel
that I can be a productive member of this
Police Department.

Following a very extensive and [painful] ankle
injury I am currently in the healing process
after receiving [surgery]. I have recently
received a [Doctor's] note allowing for me to
return to work on October 21, 2013. The
physical limitations are for 4 hours, with
walking and standing limited to symptoms. As
I continue with my Physical Therapy I find
that my symptoms vary day to day.

available for sergeants is "Shift Commander." Because another
employee was already assigned to work as a shift commander -- and
to avoid having two employees assigned to the same task -- Sergeant
Butler was instead assigned to assist in updating the Department's
NIBRS logs. Sergeant Butler was removed from light duty and
returned to his active duty position by November of 2012.

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 I recently became aware that a nontraditional
"Light Duty" assignment had been offered to
another Officer and that this assignment is
currently vacant. This assignment was
utilized to aid in keeping the [NIBRS]
records/stats up to date. This assignment is
mainly sitting while reading and completing
data on a computer.

I am [hopeful] this same opportunity could be
extended to me. Being assigned to a seated
position would allow me to feel productive as
well as continue to heal and gain greater
strength as I move towards returning to work
full duty.

Chief Botieri met with Audette and told her that the

non-traditional data-entry assignment to which her letter referred

had been completed and that the only light-duty assignment

available for patrol officers was the station officer position

that she had intermittently worked before her surgery. He sent an

email to Audette on October 18 confirming this information, which

also stated that "[i]f an assignment does become available and the

work is within your limitations[,] I will notify you."

Despite not receiving the accommodation she requested,

Audette returned to work as scheduled on October 21, 2013, and she

continued to work as a station officer until September 2014, when

she took time off for her second ankle surgery. After the second

surgery, Audette again returned to work as a station officer in

April 2015 under her doctor's order that she work in a light-duty

capacity for four hours per day with "limited bending," and she

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has continued to work in that position. At no point has Audette

been assigned responsibilities that conflict with any doctor's

orders. Nor has she ever indicated to Chief Botieri or anyone

else in the Department that she is unable to perform her assigned

duties

D. Audette's Disciplinary Proceedings

At an early stage during Audette's medical ordeal, some

events occurred that underlie her retaliation and gender

discrimination claims. On the evening of November 24, 2011, one

of Audette's fellow officers got into an off-duty altercation at

a bar in downtown Plymouth. As a result, the patrol officer

contacted Audette, as his union vice-president, and officer Ray

Reid, his union steward, seeking assistance in getting placed into

an alcohol treatment facility for police officers in Brattleboro,

Vermont. The following day -- when Reid was off-duty but Audette

was on-duty -- they went to the patrol officer's house for about

an hour-and-a-half. After meeting with the patrol officer, Reid

agreed to transport him to the alcohol treatment facility, and

Audette told Reid that she would inform the Department about what

had occurred and that the patrol officer would be out sick while

at the treatment facility. When Audette left her patrol to attend

to her colleague at his home around 10:00 a.m. that morning, she

notified a dispatcher that she would be "tied up" for a while.

Audette left her coworker's home at 11:30 a.m. but did not inform

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anyone in the Department about what had occurred there, or that

the coworker was on his way to the Vermont facility, until sometime

between 1:49 - 3:00 p.m. that afternoon.

On April 17, 2012, Audette met with the Town's Human

Resources Director, Roberta Kety, to discuss Audette's return to

work at the Department after sustaining her second ankle injury.

Audette alleges that as a result of this meeting, Kety informed

Chief Botieri that Audette had complained about how she had been

treated by the Department and that she had asked for a reasonable

accommodation, including, but not limited to, a sedentary light-

duty position. Three days after meeting with Kety, Audette met

with Chief Botieri, and he broached the topic of Audette's early

retirement.6

A few days after their initial meeting, Audette again

met with Chief Botieri, who stated that there was an "open

discipline issue" regarding her handling of the incident at her

fellow patrol officer's home, though Chief Botieri chose not to

resolve the issue at that time. At some point during the next two

weeks, Audette was given the option of taking a suspension or

receiving a letter of reprimand as a result of the disciplinary

6Appellees deny both that Audette asked for an accommodation
in the meeting with Kety and that Chief Botieri suggested to
Audette that she retire.

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incident.7 On May 2, 2012, Chief Botieri issued a letter of

reprimand to Audette that stated she had violated multiple rules

of professional conduct, including engaging in "conduct unbecoming

of an officer" and "neglect of duty." The letter stated that it

would be subject to review and removal from her personnel file

within one year if she was involved in no other disciplinary

incidents during that period.

Rather than signing the letter of reprimand, Audette

opted for a disciplinary hearing. After the disciplinary hearing,

there was a finding that Audette had violated the Department's

rules and regulations, and she received a new letter of reprimand

on May 23. The second letter was identical to the first, except

that it stated it would remain in Audette's personnel file for up

to two years, rather than one. The letter of reprimand was the

only disciplinary action taken against Audette for the incident,

and it did not affect her rank, pay, or duties as a patrol officer.

Audette filed a demand for arbitration challenging the

reprimand letter. In December 2013 the police officers' union --

on Audette's behalf -- entered into a settlement agreement with

the Town of Plymouth and Chief Botieri. The settlement agreement

stated that the Town would "not rely on the reprimand for any

7 Chief Botieri asserts that suspension was never on the table
as a disciplinary option, but Captain John Rogers stated in his
deposition that he believed Audette was given a choice between
suspension and a letter of reprimand.

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future employment related purpose," that the Town would remove the

letter from Audette's file, that the settlement agreement did not

constitute an admission of any party, and that the "execution of

[the] agreement shall constitute a waiver of any action arising

under either contract or statute with regard to the issuance of

the reprimand." Because the letter had not been removed

immediately from Audette's personnel file, despite the settlement

agreement, Chief Botieri sent a letter to the Town's Human

Resources Department on May 29, 2014, notifying it that the letter

should have been removed, and he instructed the department to do

so.

E. Procedural History

In August 2014, Audette filed a complaint in

Massachusetts state court alleging a failure to accommodate under

the ADA and the Rehabilitation Act (Counts I and II);

discrimination based on an "actual handicap," a "perceived

handicap," and a "record of handicap" under Massachusetts law

(Counts III, IV, and V); gender and age discrimination under

Massachusetts law (Counts VI, VII, VIII, and IX); intentional

infliction of emotional distress (Count X); and conspiracy (Count

XI). Defendants removed the action to federal court and filed a

motion for summary judgment in September 2015.

After a hearing, the district court granted summary

judgment for the defendants, stating that Audette had "failed to

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raise a genuine issue of material fact as to her being a qualified

disabled individual, able to perform the essential functions of a

patrol officer, so her disability discrimination claims must

fail." It also found that she failed to raise "genuine and

material issues of fact" regarding her other discrimination

claims, noting that she had "not submitted admissible evidence

sufficient for a jury to infer that she has suffered an adverse

employment action because of either [her age or gender]." Finally,

it concluded that she failed to establish a prima facie case for

all of her remaining claims. Audette timely appealed.

II.

Summary judgment is appropriate where "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with affidavits, if any, show 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." Mulloy v. Acushnet Co., 460 F.3d

141, 145 (1st Cir. 2006) (quoting Fed. R. Civ. P. 56(c)).

"Material facts" are those which "might affect the outcome of the

suit under the governing law," and an issue is "genuine" if there

is evidence that would allow a reasonable jury to find for the

non-moving party. Id. (quoting Seaboard Sur. Co. v. Town of

Greenfield, 370 F.3d 215, 218-219 (1st Cir. 2004)).

Although we construe the factual record in the light

most favorable to the non-moving party -- here, Audette -- we need

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not consider "conclusory allegations, improbable inferences, [or]

unsupported speculation." Id. (quoting Carroll v. Xerox Corp.,

294 F.3d 231, 237 (1st Cir. 2002)). We review the district court's

grant of summary judgment de novo, id., and "[w]e may affirm

summary judgment 'on any basis apparent in the record,'" Jones v.

Nationwide Life Ins., 696 F.3d 78, 86 (1st Cir. 2012) (quoting

Chiang v. Verizon New Eng. Inc., 595 F.3d 26, 34 (1st Cir. 2010)).

III.

A. Disability and Handicap Discrimination Claims

The ADA prohibits employers from discriminating against

a "qualified individual" -- defined as "an individual who, with or

without reasonable accommodation, can perform the essential

functions of the employment position that such individual holds or

desires" -- on the basis of disability.8 42 U.S.C. §§ 12111(8),

12112(a); Lang v. Wal-Mart Stores East, L.P., 813 F.3d 447, 454

(1st Cir. 2016). Failing to provide reasonable accommodations for

a qualified employee's known physical or mental limitations

constitutes discrimination, unless an employer can demonstrate

8We have noted in the past that Massachusetts's handicap
discrimination statute, Massachusetts General Laws chapter 151B,
§4, is "nearly identical" to the ADA. Mulloy, 460 F.3d at 154
(1st Cir. 2006). Other than a "gloss" that the Massachusetts
workers' compensation statute potentially places on Massachusetts
General Laws chapter 151B § 4, which is not at issue in this case,
we analyze the statute in exactly the same manner as the ADA. Id.
at 154-55.

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that such an accommodation would impose an undue hardship.9 Lang,

813 F.3d at 454; 42 U.S.C. § 12112(b)(5)(A).

To prevail at the summary judgment stage on a typical

claim of failure to accommodate, a plaintiff must present

sufficient evidence indicating "that (a) she is disabled within

the ADA's definition; that (b) she could perform the job's

essential functions either with or without a reasonable

accommodation; and that (c) the employer knew of her disability,

yet failed to reasonably accommodate it." Lang, 813 F.3d at 454.

However, the burden for the employee at the second step

of the inquiry changes slightly when an employee becomes disabled,

can no longer perform the essential functions of her job, and

requests as an accommodation a transfer or complete reassignment

of duties. Instead of addressing the essential functions of her

current position, an employee must demonstrate that she can perform

the essential functions of the position she desires.10 Moreover,

9
We have noted that in a reasonable accommodation case, the
burden is first on the employee to demonstrate that a proposed
accommodation would enable her to perform the essential functions
of her job and that the proposed accommodation, on the face of
things, appears feasible for the employer. See Reed v. LePage
Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001). If the
plaintiff carries this initial burden, the employer has the
opportunity to demonstrate that the actual costs of the facially
feasible accommodation in fact create an undue hardship. Id. The
Supreme Court approvingly cited Reed's framework in U.S. Airways,
Inc. v. Barnett, 535 U.S. 391, 401-02 (2002).
10
Because the ADA definition of "qualified individual"
includes the ability to perform the essential functions of the job
that the individual "holds or desires," a disabled employee seeking

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the employee must demonstrate that there is an actual vacant

position to which she can transfer. Lang, 813 F.3d at 456. "An

employer is not required by the ADA to create a new job for an

employee, nor to re-establish a position that no longer exists."

Phelps v. Optima Health, Inc., 251 F.3d 21, 27 (1st Cir. 2001);

see also Lang, 813 F.3d at 456.

a transfer is a "qualified individual," so long as she can perform
the essential functions of the vacant position -- with or without
a reasonable accommodation -- even if she can no longer perform
the essential functions of her current position. Indeed,
"reassignment to a vacant position" is explicitly listed among the
reasonable accommodations offered by the ADA. 42 U.S.C.
§ 12111(9)(B); Barnett, 535 U.S. at 397. This understanding of a
"qualified individual" accords with one of the purposes of the
ADA -- accommodating disabled employees who can no longer perform
the essential functions of their current job, with or without a
reasonable accommodation, by allowing them to transfer to a vacant
position whose essential functions they can perform. See H.R.
Rep. No. 101-485, pt. 2, at 63 (1990) ("If an employee, because of
disability, can no longer perform the essential functions of the
job that she or he has held, a transfer to another vacant job for
which the person is qualified may prevent the employee from being
out of work and [the] employer from losing a valuable worker.");
see also 29 C.F.R. pt. 1630 App. § 1630.2(o); S. Rep. No. 101-116,
101 Cong., 129-30 (1989); Stacy M. Hickox, Transfer as an
Accommodation: Standards from Discrimination Cases and Theory, 62
Ark. L. Rev. 195, 196-201 (2009). Indeed, a number of our sister
circuits have held that the ADA requires such an interpretation.
See, e.g., Cravens v. Blue Cross & Blue Shield of Kan. City, 214
F.3d 1011, 1016-18 (8th Cir. 2000) (holding that the ADA requires
an employer to consider reassigning an individual with
disabilities where the individual can no longer perform the
essential functions of her current position); Burns v. Coca-Cola
Enters., 222 F.3d 247, 256 (6th Cir. 2000) (same); Smith v. Midland
Brake, Inc., a Div. of Echlin, Inc., 180 F.3d 1154, 1162 (10th
Cir. 1999) (same); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1301
(D.C. Cir. 1998) (same); Gile v. United Airlines, Inc., 95 F.3d
492, 498 (7th Cir. 1996) (same).

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 The parties agree that Audette has presented evidence

that she is disabled within the ADA definition, and there is no

dispute that Audette is unable to fulfill the duties and

responsibilities of an active patrol officer.11 But Audette argues

that the ADA entitles her to transfer to a clerical position

maintaining NIBRS data.

In an attempt to prove that such a vacancy existed,

Audette cites Chief Botieri's testimony that NIBRS data

maintenance is a "lot of work," "takes a lot of time," and that at

certain points the Department was "several months behind" in

logging all of its data. This testimony demonstrates only that

the Department had fallen behind on its record-keeping obligations

and that additional help was occasionally used to ease the

Department's backlog. It does nothing to establish that the

Department had a vacancy that Audette could have filled.

She next argues unpersuasively that the "time frames"

clearly demonstrate that there was a vacant NIBRS data-entry

position available. Although the Department temporarily assigned

an injured patrol officer, Officer Dexter, to assist with NIBRS

data entry during the summer that Audette underwent her first ankle

11
Each of Audette's many physicians has consistently stated
that she is unable to perform tasks beyond the light-duty station
officer assignment, and none of them have been able to predict
when she might recover to a point in which she could return to her
active patrol officer duties, with or without a reasonable
accommodation.

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surgery, the Department determined that it had sufficiently

"caught up" on the project by early fall, reassigning Dexter to

work as a station officer on October 6. Audette did not request

a transfer to the position until three days after the Department

eliminated the temporary position, and no patrol officer has

subsequently been assigned to such a position.

In a final attempt to prove that a vacancy existed,

Audette points to the Department's hiring of a new Records

Sergeant -- a position that was vacant at the time of her

accommodation request -- one month after her request for a data-

entry position was denied. As we noted, supra, the Department

tasks two people with working on NIBRS data maintenance -- a

civilian clerical worker and the Department's Records Sergeant.

But the Records Sergeant's duties are much broader than the

exclusive data-entry tasks that Audette requested to perform. The

Records Sergeant oversees all Department records (not merely

NIBRS), supervises civilian clerical staff, and responds to public

records requests. Audette cannot persuasively argue that that the

appointment of a new Records Sergeant, with the broad

responsibilities of this position, constitutes evidence that the

Department failed to consider her for a vacant NIBRS data-entry

position.12 Since Dexter's transition out of the data-entry

12Audette, a patrol officer, specifically requested a seated
data-entry position and did not request to be promoted to Records

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position on October 6, 2013, no one other than the Records Sergeant

and the civilian clerical worker has been assigned to work on the

NIBRS log.

In short, Audette has "offered no evidence that there

were any [NIBRS data-entry] vacancies when she asked for an

accommodation, and it was her burden to show as much." Lang, 813

F.3d at 456. Thus, the district court correctly entered summary

judgment on her ADA and Massachusetts General Laws chapter 151B,

§ 4 handicap discrimination claims.

B. Retaliation Claim

Audette's initial complaint did not outline a claim for

ADA retaliation. Her only claim filed under the ADA, Count I,

cites the entire statute and states that defendants "failed to

reasonably accommodate Plaintiff's disability, failed to engage in

an interactive process to properly and reasonably address her

serious health concerns, and as a result she was subject to adverse

employment actions by means of Defendants['] discriminatory

Sergeant. Some of our sister circuits have held that the ADA does
not require an employer to promote a disabled employee as a
reasonable accommodation. See, e.g., McBride v. BIC Consumer
Prods. Mfg. Co., 583 F.3d 92, 98 & n.4 (2d Cir. 2009); see also 29
C.F.R. pt. 1630, App. § 1630.2(o) ("[A]n employer is not required
to promote an individual with a disability as an accommodation.").
We have not faced this question ourselves, and need not comment
upon it here, except to note that even if Audette's request could
have been construed as a request to be promoted to Records
Sergeant, she has proffered no evidence to demonstrate that she
was qualified for the position.

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conduct and other retaliatory and unfair treatment." (emphasis

added). Appellees argue that this reference to "other retaliatory

and unfair treatment" is not substantial enough to constitute a

claim of ADA retaliation.

We need not decide whether Audette's passing reference

to "retaliatory and unfair treatment," buried within the

complaint's failure-to-accommodate claim, constitutes an

independent cause of action that she could have pursued as a

companion to her principal ADA claim. In her memoranda filed in

opposition to summary judgment, Audette addressed no ADA

retaliation claims. The only accusations of retaliation she argued

on summary judgment were in reference to her gender discrimination

claim and an intentional infliction of emotional distress claim

that is not before us on appeal. Even if we were able to glean an

ADA retaliation claim from Audette's complaint, she certainly

waived such a claim during the summary judgment proceedings. See

Schneider v. Local 103 I.B.E.W. Health Plan, 442 F.3d 1, 3 (1st

Cir. 2006) (per curiam) ("Even an issue raised in the complaint

but ignored at summary judgment may be deemed waived." (quoting

Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir.

1995))).

C. Gender Discrimination Claim

When examining an employment discrimination claim under

Massachusetts General Laws chapter 151B, the Supreme Judicial

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Court of Massachusetts uses the familiar McDonnell Douglas burden

shifting analysis. Sensing v. Outback Steakhouse of Fla., LLC,

575 F.3d 145, 154 (1st Cir. 2009); see also McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802-04 (1973). Under this analysis, a

plaintiff must first present a prima facie case of employment

discrimination. If she succeeds, the burden shifts to the

defendant to present evidence of a legitimate, non-discriminatory

reason for the employment action taken against the plaintiff.

Goncalves v. Plymouth Cty. Sheriff's Dep't, 659 F.3d 101, 105 (1st

Cir. 2011). If the defendant provides such a reason, the burden

shifts back to the plaintiff to prove by a preponderance of the

evidence that the defendant's purported reason was merely

pretextual. Id.

We begin and end with Audette's prima facie case for

gender discrimination. To establish a prima facie case in this

context, Audette must provide evidence that (1) she is a member of

a protected class, (2) she suffered from an adverse employment

action, (3) discriminatory animus, and (4) a causal linkage between

the discriminatory animus and the adverse employment action.

Lipchitz v. Raytheon Co., 751 N.E.2d 360, 368 (Mass. 2001); cf.

Ray v. Ropes & Gray LLP, 799 F.3d 99, 113 (1st Cir. 2015) (employees

claiming denial of promotion on basis of gender must demonstrate

that they are (1) a member of a protected class, (2) qualified for

the position sought, (3) suffered an adverse employment action,

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and (4) the position remained open or was filled by a person with

similar qualifications). The district court found that Audette

failed to provide "any admissible evidence sufficient for a jury

to infer that she has suffered an adverse employment action because

of either her [gender or age]."13 We agree.

Citing our decision in Bhatti v. Trs. of Bos. Univ., 659

F.3d 64, 73 (1st Cir. 2011), the district court indicated that

Audette had suffered no adverse employment action because she could

point to no "tangible consequences" of Chief Botieri's reprimand

letter. Appellees, unsurprisingly, agree with the district

court's assessment and note that the letter issued to Audette did

not affect her salary, grade, or any other objective terms of her

employment or working conditions. Conversely, Audette argues that

a formal letter of reprimand subjecting her to a period of enhanced

discipline and charging her with engaging in "conduct unbecoming

an officer" and "neglect of duty" constitutes serious reputational

harm that rises to a "tangible consequence."

If Audette's story concluded with the issuance of the

reprimand letter, she might well have a point. However, rather

than accepting a letter of reprimand, Audette sought arbitration

and, as a result, entered into a settlement agreement in which the

Town agreed to remove the letter from her file. While the Town

13Audette has not appealed the district court's decision on
her age discrimination claim.

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stated that "it will not rely on the reprimand for any future

employment related purpose," Audette's representatives agreed that

the settlement agreement "shall constitute a waiver of any action

arising under either contract or statute with regard to the

issuance of the reprimand." In light of the settlement agreement's

explicit waiver provision, Audette may not point to the reprimand

letter as the basis of an adverse employment action for her

Massachusetts General Laws chapter 151 gender discrimination

claim.14

Audette proposes a second adverse employment action --

that Chief Botieri intimidated her by making repeated, yet

unfulfilled, threats to suspend her for her conduct. Appellees

respond that Audette failed to raise this argument in the district

14
We also note that even if the settlement agreement's waiver
provision had not foreclosed this aspect of Audette's gender
discrimination claim, she faces a second obstacle. In order to
demonstrate discriminatory animus in this context, Massachusetts
law requires Audette to demonstrate that "she was treated
differently from another person, known as a comparator, who was
not a member of her protected class, but who otherwise was
'similarly situated.'" Trs. of Health and Hosps. of City of Bos.
v. Mass. Comm'n Against Discrimination, 871 N.E. 2d 444, 450 (Mass.
2007) (quoting Matthews v. Ocean Spray Cranberries, Inc., 686
N.E.2d 1303, 1310 (Mass. 1997)). Audette has failed to proffer
evidence of another Department employee whose circumstances were
"substantially similar to [Audette's] 'in all relevant aspects'
concerning the adverse employment decision." Id. (quoting
Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir.
1989)). If anything, evidence in the record demonstrates that no
such "similarly situated" employee existed, since the only other
employee involved in the incident at issue, Reid, was off-duty,
while Audette was on-duty.

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court and that we should not consider this argument for the first

time on appeal. We agree. "[I]n the absence of extraordinary

circumstances -- and none exist in this case -- 'legal theories

not raised squarely in the lower court cannot be broached for the

first time on appeal.'" B&T Masonry Constr. Co., Inc. v. Pub.

Serv. Mut. Ins. 382 F.3d 36, 40 (1st Cir. 2004) (quoting Teamsters

Union v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992)).

Moreover, even if Audette had preserved the issue for appeal, she

faces a second barrier. Her only evidence of the threats comes

from her unverified civil complaint, which cannot be considered

for summary judgment purposes. See Geshke v. Crocs, Inc., 740

F.3d 74, 78 n.3 (1st Cir. 2014) ("[U]nverified allegations in a

complaint are not evidence.")

Because Audette has provided no admissible evidence of

an adverse employment action, she has failed to establish a prima

facie claim of gender discrimination.

Affirmed.

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