United States Court of Appeals
For the First Circuit
No. 20-1404
LISA M. O'ROURKE,
Plaintiff, Appellant,
v.
TIFFANY AND COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Kayatta, Selya, and Barron,
Circuit Judges.
Thomas More Dickinson, with whom Law Office of Thomas M.
Dickinson and Kathleen M. Hagerty were on brief, for appellant.
Stacie B. Collier, with whom Aaron F. Nadich and Nixon Peabody
LLP were on brief, for appellee.
February 11, 2021
KAYATTA, Circuit Judge. In early 2014, Lisa O'Rourke
took leave from Tiffany and Company under the Family and Medical
Leave Act (FMLA), 29 U.S.C. § 2612, to undergo preventive surgery
after learning that she was genetically predisposed to breast and
ovarian cancer. Later that year, from mid-July to mid-August,
Tiffany allowed her to take a second leave for a related surgery
even though she had exhausted her FMLA leave rights. In October
2015, the following year, Tiffany's Vice President of
Manufacturing, Wayne Howard, informed Tiffany's human resources
department that he had decided to eliminate O'Rourke's position.
Two days later, O'Rourke told human resources that she intended to
take FMLA leave in 2016. In November 2015, after a series of
internal discussions and consultations with counsel, Tiffany went
forward with Howard's prior decision to eliminate O'Rourke's
position. As an alternative to termination, Tiffany offered
O'Rourke a newly created, lower-level position with a lower salary.
O'Rourke declined the new position, and Tiffany terminated her
employment.
O'Rourke filed suit, alleging retaliation in violation
of the FMLA, 29 U.S.C. § 2615(a), and disability discrimination in
violation of the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12101-12213, and the Rhode Island Fair Employment Practices
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Act, R.I. Gen. Laws § 28-5-7.1 The district court granted summary
judgment in favor of Tiffany. After carefully considering on de
novo review the record and briefs on appeal, as well as oral
argument by counsel, we affirm for substantially the same reasons
as those stated by the district court. See O'Rourke v. Tiffany &
Co., C.A. No. 16-626 WES, 2020 WL 1492865 (D.R.I. Mar. 27, 2020).
The record contains no evidence that, when Howard
decided to eliminate O'Rourke's position, he thought of her as
impaired in any way or knew of her plan to take any leave in 2016.
The lack of such knowledge precludes any claim of disability
discrimination or of FMLA retaliation due to her planned 2016
leave. See Tennial v. United Parcel Serv., Inc., 840 F.3d 292,
306 (6th Cir. 2016) ("An employee cannot be subject to an adverse
employment action based on his disability unless the individual
decisionmaker responsible for [that adverse action] has knowledge
of that disability."); Ameen v. Amphenol Printed Circuits, Inc.,
777 F.3d 63, 70 (1st Cir. 2015) (holding that a plaintiff "must
show that the retaliator knew" about his FMLA-protected activity
"[t]o demonstrate that he was fired in retaliation" for that
activity (first quoting Medina–Rivera v. MVM, Inc., 713 F.3d 132,
139 (1st Cir. 2013))).
1 Claims brought under the ADA and the Rhode Island statute
are generally analogous, so we analyze them as one. See Pena v.
Honeywell Int'l, Inc., 923 F.3d 18, 27 n.6 (1st Cir. 2019).
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O'Rourke tries to argue that it was her prior, 2014 FMLA
leave that motivated Howard to eliminate her position more than a
year later. But, as the district court well explained, no
reasonable jury could have so found. See O'Rourke, 2020 WL
1492865, at *9–11; see also Benoit v. Tech. Mfg. Corp., 331 F.3d
166, 175 (1st Cir. 2003) (rejecting a retaliation claim where the
employee's protected conduct occurred "more than one year" before
his termination). While O'Rourke asserts that Howard demonstrated
a retaliatory animus when he referred to her second (non-FMLA)
leave as "unfortunate," the context of Howard's comment belies
that contention. Howard's boss had emailed him asking whether he
supported a proposed merit bonus and pay increase for O'Rourke,
and Howard replied in relevant part:
I haven[]'t worked with [O'Rourke] yet, but
based on what we have seen with planning, and
the recent quick turnover of [one of
O'Rourke's new hires], there are issues in my
mind. However, I wasn’t here in 2013 so I
don't want to be unfair, and [I] planned to
evaluate her performance over the next few
months. Unfortunately, I heard last week that
she will be out again in July for up to 6
weeks. So, my thought was to sign the [bonus
and pay increase] forms and speak to [her
direct supervisor] about carefully evaluating
her performance.
O'Rourke then received her bonus and pay increase, took her second
leave, and returned to work without incident. Given this context,
we see in Howard's email no implication of retaliatory animus.
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O'Rourke also suggests that Howard began retaliating
against her when he decided to reorganize her department in 2014,
ultimately leading to her termination in 2015. However, she points
to no admissible evidence that the 2014 reorganization was
motivated by discriminatory or retaliatory animus, and she is
unable to rebut Howard's testimony that the reorganization was
intended to address longstanding issues with the planning function
in her department. As such, she has not met her burden of
demonstrating "a trialworthy issue" on whether Howard's stated
reason for the reorganization "was but a pretext for retaliating
against her for having taken protected FMLA leave." Henry v.
United Bank, 686 F.3d 50, 56 (1st Cir. 2012).
Finally, O'Rourke makes much of the fact that Tiffany's
human resources department consulted counsel after learning of
Howard's decision to eliminate her position and of her plan to
take FMLA leave in 2016. But the chronology of these events
defeats any inference of retaliation. And, in any event, "the
prudent step of seeking a lawyer's advice is not the stuff on which
a finding of [retaliatory] intent can be premised." Kouvchinov v.
Parametric Tech. Corp., 537 F.3d 62, 68 (1st Cir. 2008).
We therefore affirm the judgment of the district court.
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