Jones v. Walgreen Co.

United States Court of Appeals
For the First Circuit

No. 11-1917

PAMELA A. JONES,

Plaintiff, Appellant,

v.

WALGREEN CO.; WALGREEN CO. INCOME PROTECTION PLAN FOR STORE
MANAGERS; METROPOLITAN LIFE INSURANCE COMPANY; MICHAEL CAMPBELL,

Defendants, Appellees.

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

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Torruella, Circuit Judge,
Souter,* Associate Justice,
and Boudin, Circuit Judge.

Joshua Karsh, with whom Hughes Socol Piers Resnick & Dym,
John M. Brown, and Law Office of John M. Brown, were on brief for
appellant.
Gregory A. Manousos, with whom Robert P. Morris and Morgan,
Brown & Joy, LLP, were on brief for appellee.

May 10, 2012

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 TORRUELLA, Circuit Judge. Plaintiff-Appellant Pamela

Jones ("Jones") appeals the district court's award of summary

judgment to her employer, Walgreen Co. ("Walgreens"), on her claims

of (1) disability discrimination in violation of the Americans with

Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and

Massachusetts General Laws ch. 151B and (2) unlawful retaliation in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-3 ("Title VII"), and Massachusetts General Laws ch. 151B.

See Jones v. Walgreen Co., 765 F. Supp. 2d 100 (D. Mass. 2011). We

conclude that summary judgment was properly granted as to Jones's

disability discrimination claims. We further hold that no triable

issues of material fact remain with regards to Jones's claim of

unlawful retaliation and affirm the judgment of the district court

on this issue as well.

I. Background and Procedural History

We set forth the facts in the light most favorable to

Jones. Rivera-Colón v. Mills, 635 F.3d 9, 10 (1st Cir. 2011).

Jones worked as a Walgreens employee for approximately

twenty years, starting in 1986. During most of her tenure, Jones

served as a Store Manager at a Walgreens location in Enfield,

Connecticut and reported to District Manager Jerry Telson

("Telson").

In January 2004, Jones slipped on ice in front of a

Walgreens office, injuring her knee. Thereafter, Jones was on

-2-
medical leave until May 2004 recovering from her injuries. Jones

again stepped away from work in June 2004, this time to have

surgery on her knee. In March 2005, while still on leave, Jones

wrote Telson to inform him that she hoped to return to work with

"reasonable accommodations." This letter was soon followed by

another, dated April 14, 2005, whereby Jones provided a report from

her orthopedist, Dr. Martin Luber ("Dr. Luber"), which explained

that Jones was limited to lifting weights lower than twenty-five

pounds and could only exert herself to minimal bending, stooping,

and squatting.

While out on leave in July 2005, Jones filed claims with

the Connecticut Commission on Human Rights and Opportunities and

the U.S. Equal Employment Opportunity Commission ("EEOC") in which

she accused Walgreens of discrimination against women. After Jones

received the requisite right-to-sue papers from these agencies,

Jones incorporated her claims into a nationwide Title VII class

action complaint on behalf of over 21,000 plaintiffs, which she

subsequently filed in July 2006 in the U.S. District Court for the

District of Connecticut.1

1
"As of August 27, 2010, the suit had settled for $17,000,000 to
be distributed among 21,000 class members, including [Jones], with
each class member receiving between $100 and $6000." Jones, 765 F.
Supp. 2d at 104 n.1. The class action suit and its settlement are
only important to this appeal insofar as the suit formed the basis
for Jones's claim of retaliation against her in the wake of her
termination. We discuss this claim infra.

-3-
 In October 2005, Walgreens offered Jones a position as

Store Manager in Springfield, Massachusetts. Jones accepted the

offer to relocate to Springfield and resume her employment, but

warned Telson in an email that she could not climb ladders, lift

objects that weighed more than twenty pounds, or work shifts

greater than eight hours in a day. Jones also voiced her concerns

that the Walgreens location in Springfield was understaffed and

expressed her belief that she deserved a raise. In addition, Jones

let Telson know that her approach as Store Manager would be to

delegate, to the extent to which it was possible, the physical

obligations of store operations to other staff members.

Jones then resumed her employment with Walgreens at the

Springfield location. In September 2006, however, Jones

communicated with Telson to inform him that she was having

difficulty walking and shelving items at the store. Jones also

expressed that she thought she was working longer hours than were

medically advisable. Telson then asked Jones to provide updated

medical information, which she did later that month. In this

updated medical information, Dr. Luber tendered his medical opinion

that Jones had several permanent physical restrictions. On

October 13, 2006, shortly after receiving this updated information,

Telson provided Jones with a notice of termination, which explained

that her employment with Walgreens was being terminated effective

-4-
immediately, as it was "clear" that Jones could "no longer perform

the essential functions of [her] position as Store Manager."

Jones filed suit against Walgreens in the U.S. District

Court for the District of Massachusetts on January 15, 2009. In

relevant part,2 her complaint alleged disability discrimination in

violation of the ADA. In addition, Jones alleged that, in

terminating her employment, Walgreens had unlawfully retaliated

against her in violation of Title VII. Her complaint also asserted

claims under the relevant Massachusetts statutory analogues to the

ADA and Title VII. See Mass. Gen. Laws ch. 151B.

On December 20, 2010, Walgreens moved for summary

judgment as to Jones's discrimination and retaliation claims.

Jones filed her opposition on January 21, 2011. On February 24,

2011, the district court granted Walgreens's motion for summary

judgment, concluding that no reasonable jury could find in Jones's

favor with regards to either her disability or retaliation claims.

This timely appeal followed.

II. Discussion

A. Standard of Review

We begin our discussion by framing our analysis within

the relevant standard of review.

2
Jones's complaint asserted six other claims not at issue in this
appeal, all of which alleged violations of the Employee Retirement
Income Security Act of 1974 (ERISA).

-5-
 Summary judgment may suitably issue where "the movant

shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law." Fed. R.

Civ. P. 56(a). "We review the district court's grant of summary

judgment de novo, 'drawing all reasonable inferences in favor of

the non-moving party while ignoring conclusory allegations,

improbable inferences, and unsupported speculation.'" Balser v.

IUE Local 201 & Gen. Elec. Co., 661 F.3d 109, 118 (1st Cir. 2011)

(quoting Sutliffe v. Epping Sch. Dist., 584 F.3d 314, 325 (1st Cir.

2009) (quotations omitted)). In doing so, "[w]e are not wed to the

lower court's rationale, but rather, may affirm . . . summary

judgment on any ground made manifest by the record." Okmyansky v.

Herbalife Int'l of Am., Inc., 415 F.3d 154, 158 (1st Cir. 2005).

B. Disability Discrimination

Jones's primary grounds for appeal implicate her claim

that Walgreens discriminated against her based on disability, in

violation of 42 U.S.C. § 12101 et seq. and Massachusetts General

Laws ch. 151B, § 4(16). We note that "Chapter 151B is considered

the 'Massachusetts analogue' to the [ADA]." Sensing v. Outback

Steakhouse of Fla., LLC, 575 F.3d 145, 153 (1st Cir. 2009) (quoting

Whitney v. Greenberg, Rosenblatt, Kull & Bitsoli, P.C., 258 F.3d

30, 32 & n.1 (1st Cir. 2001)). Accordingly, we need not conduct

parallel analyses under both federal and state law since our

application of either would unfold in the same manner. See Russell

-6-
v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 772 N.E.2d 1054,

1062 n.6 (2002) (noting the Supreme Judicial Court of Massachusetts

"look[s] to the Federal cases decided under the ADA as a guide to

the interpretation of [Chapter] 151B").

A plaintiff seeking to establish a prima facie case of

disability discrimination under the ADA must show, by a

preponderance of the evidence,

(1) that she was "disabled" within the meaning
of the ADA; (2) that she was able to perform
the essential functions of her job with or
without accommodation; and (3) that she was
discharged or adversely affected, in whole or
in part, because of her disability.

Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 82 (1st Cir. 2008).

If a plaintiff so establishes these factors, "the burden shifts to

the employer to articulate a legitimate, non-discriminatory reason

for its action." Ramos-Echevarría v. Pichis, Inc., 659 F.3d 182,

186-87 (1st Cir. 2011).

In granting summary judgment in favor of Walgreens, the

district court assumed that Jones could meet the threshold issue of

disability, but concluded that no reasonable jury could find that

Jones was "able to perform the essential functions of her job even

with reasonable accommodations." Jones, 765 F. Supp. 2d at 106.

We agree with the district court and affirm its judgment on this

issue for the reasons we now explain.

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 1. The "Essential Functions" of a Walgreens Store Manager

An essential function is "one that is 'fundamental' to a

position rather than 'marginal.'" Richardson v. Friendly Ice Cream

Corp., 594 F.3d 69, 75 (1st Cir. 2010) (quoting Kvorjak v. Maine,

259 F.3d 48, 55 (1st Cir. 2001)). The regulatory framework

provides helpful guidance as to what constitutes such a function.

Thus, in conducting the relevant inquiry a court may look to

"'[t]he employer's judgment as to which functions are essential';

'[w]ritten job descriptions prepared before advertising or

interviewing applicants for the job'; '[t]he work experience of

past incumbents in the job'; and '[t]he current work experience of

incumbents in similar jobs.'" Mulloy v. Acushnet Co., 460 F.3d

141, 147 (1st Cir. 2006) (alterations in original) (quoting 29

C.F.R. § 1630.2(n)(3)).

Because the applicable statutory and regulatory framework

accords a significant degree of deference to an employer's own

business judgment regarding which functions are essential to a

given position, our inquiry may begin by turning to the written

descriptions attached to a particular job. See 29 C.F.R. § 1630.2

(n)(3)(i) (dictating "employer's judgment" serves as evidence as to

"which functions are essential"); see also Richardson, 594 F.3d at

76 ("[I]f an employer has prepared a written description before

advertising or interviewing applicants for the job, this

description shall be considered evidence of the essential functions

-8-
of the job." (quoting 42 U.S.C. § 12111(8)) (internal quotation

marks omitted)). We take the written descriptions of the Store

Manager position that Walgreens has provided as our starting point,

mindful, however, that an "employer's good-faith view of what a job

entails, though important, is not dispositive." Gillen v. Fallon

Ambulance Serv., Inc., 283 F.3d 11, 25 (1st Cir. 2002).

Walgreens's official written description of the Store

Manager position itemizes twenty-nine distinct primary

responsibilities, many of which describe the job's duties in

aspirational or general terms. Thus, for example, a Walgreens

Store Manager is responsible for "[a]ssuring [Equal Employment

Opportunity] compliance through equity, consistency, and fairness;

prevent[ing] workplace harassment; . . . [and] communicat[ing]

openly and honestly to employees at all times." According to

Walgreens's description, a Store Manager is similarly responsible

for "[i]mplement[ing] store organization through proper hiring and

placement, scheduling of work, assignment of responsibility, and

delegation of authority."

These somewhat abstractly-defined primary job

responsibilities could make our task more difficult; we have noted

in the past that in identifying the functions that are essential to

a specific job, "[p]recision is critical, as the level of

generality at which the essential functions are defined can be

outcome determinative." Richardson, 594 F.3d at 75. Nevertheless,

-9-
undisputed evidence in the record persuades us that the listed

responsibilities of the Store Manager position cannot be properly

read as an exhaustive list of all the tasks required of an employee

in that role and establishes that the Store Manager job is, in

indispensable part, an on-your-feet post requiring routine physical

activity.3

We need not discuss each of the duties listed in the

Store Manager written job description or the physical tasks that

may be involved in fulfilling these. Instead, we train our focus

on two primary job responsibilities found in the official Store

Manager job description, the details of which have been fleshed out

during the litigation below and in the parties' filings to this

Court. Specifically, the employer's job description at issue in

this case explains that a Store Manager is expected to, among other

things,

(1) Improve[] and maintain[] store condition,
maintenance, and appearance for the safety,
health, and well-being of customers and
employees . . . .

3
Most notably, Walgreens's official job description includes the
disclaimer: "This job description is to be used as a guide for
accomplishing Company and department objectives, and only covers
the primary functions and responsibilities of the position. It is
in no way to be construed as an all encompassing list of duties."
(Emphasis added).

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 (2) Implement[] Corporate [planograms]4 and
merchandising guidelines, to include properly
using endstands, promotional space, and
display tables. . . .

These two primary responsibilities outline the contours of the

routine physical tasks that Walgreens requires of a Store Manager

and, we conclude, may properly be deemed essential to the position.

As we now explain, the summary judgment record leaves no doubt that

several physical tasks are part and parcel of these essential

functions. While a Store Manager does not spend her days working

the chain gang, neither does she merely count beans or paper-push.

Cf. Richardson, 594 F.3d at 78 ("It is not uncommon for 'managers'

of small restaurants and retail stores to spend little of their

time managing others.").

The evidence of record demonstrates that in fulfilling

her duties, a Walgreens Store Manager spends an appreciable amount

of time performing several tasks of a physical nature. See 29

C.F.R. § 1630.2(n)(3)(iii) (providing amount of time spent on job

performing function serves as evidence of whether that function is

essential). In her deposition Jones herself explained that before

she injured her knee in 2004, her responsibilities included tasks

such as "inspecting the sales floor, assisting customers with

4
"A planogram is essentially a diagram showing where specific
products are to be positioned in the space allotted by a retail
store for a particular category of products." Church & Dwight Co.,
Inc. v. Mayer Labs., Inc., 2012 WL 1231801, at *1 n.1 (N.D. Cal.
Apr. 12, 2012) (quotation marks omitted).

-11-
requests, placing signs on the sales floor, cleaning shelves,

restocking shelves, unloading delivery trucks, [] using a ladder to

reach high shelves . . . . [and] walk[ing] the floor 'numerous'

times on a daily basis." Jones, 765 F. Supp. 2d at 106. Telson,

Jones's supervisor, also explained that Store Managers were

routinely required to, among other tasks, sweep floors, clean

bathrooms, pull stock, stock shelves, unload trucks, make end

stands become side racks (for store displays), and build tables as

these tasks became necessary for a store to operate properly.

Telson explained in detail during his deposition that a Store

Manager must, commensurate with her responsibilities, conduct daily

walkthroughs "three feet by three feet" at a time. See id. at 107.

Telson affirmed that these walkthroughs were a time-consuming

endeavor which regularly took more than an hour on account of

interruptions from customers, vendors, and employees. Id.

Importantly, Telson's averments to this effect were corroborated by

two incumbent Store Managers at Walgreens locations, see 29 C.F.R.

§ 1630.2(n)(2)(vii) (providing "current work experience of

incumbents in similar jobs" is proper evidence of whether a

particular function is essential), "one of whom testified that he

spends six-and-a-half hours on the sales floor every day and one of

whom testified that she spends two or three hours doing her

walkthrough each day." Jones, 765 F. Supp. 2d at 107 (internal

citations omitted).

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 Jones stands her ground. She argues that in granting

summary judgment in Walgreens's favor, the district court ignored

substantial evidence raising triable issues of fact on which

functions were essential to her erstwhile post as Store Manager.

She urges us not to do the same.

Jones begins by claiming that her most recent Walgreens

performance review made no mention of her work having been affected

by physical limitations or inability to perform any of the above-

referenced tasks. She reasons that a jury could have feasibly

relied on her past performance of the job to determine that the

physical tasks that Walgreens claims are essential to the Store

Manager position were unimportant or marginal.

Jones's arguments on this point are unavailing. The

performance review that Jones brings to our attention, endorsed by

both Telson and Jones on April 28, 2006, accounts for Jones's

performance as a Store Manager at a Walgreens location in

Springfield, Massachusetts during a period of "12 months through

March 2006." However, as we discuss further infra, the record

shows that whatever Walgreens's understanding of Jones's

limitations or restrictions was during this period, it certainly

changed when Walgreens received supplementary information from

Dr. Luber in September 2006. At that point, Walgreens was informed

that Dr. Luber believed that Jones should permanently refrain from

engaging in several of the physical tasks listed above. It was

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only thereafter that Walgreens acted to terminate Jones's

employment. Thus, a performance review that was completed

approximately five months before Walgreens received this updated

medical information is immaterial to answering the question of

whether Jones could perform the essential functions of her job as

of the date she was terminated.

Second, Jones contends that evidence in the record shows

that certain tasks Walgreens claims are crucial to the Store

Manager role could be either delegated to other store personnel or

altogether disregarded. Here, Jones relies on the testimony of

Rosemary Patchell ("Patchell"), an incumbent Store Manager deposed

on Jones's behalf. In her deposition, Patchell affirmed that in

the five years she had functioned as a Store Manager at her current

store location, she had never unloaded a delivery truck because she

had opted to routinely delegate that task to her staff. Jones also

relies on statements Telson made during his deposition to the

effect that several tasks -- e.g., sweeping the store, setting up

stands, side racks, and tables, stocking shelves, and cleaning

bathrooms -- could be delegated to a subordinate, if such a person

were available and had been properly trained. Based on this

testimony, Jones posits that since a number of tasks were

delegable, they could not also be considered essential.

Jones's reasoning on this issue is unconvincing. The

fact that certain tasks associated with a particular position can

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be either reduced, reassigned, or reallocated to a subordinate does

not, by itself, render them non-essential to the position they were

associated to in the first place. See Richardson, 594 F.3d at 78

(noting evidence that restaurant manager's "physical duties were

reduced or shifted to other employees after she was injured" held

"minimal value" as to whether those duties were essential). Our

cases recognize that "[a]n employer does not concede that a job

function is 'non-essential' simply by voluntarily assuming the

limited burden associated with a temporary accommodation." Laurin

v. Providence Hosp., 150 F.3d 52, 60-61 (1st Cir. 1998).

Consequently, the fact that at any given time certain tasks

ascribed to the role of Store Manager may be delegated or

reassigned to other store personnel may inform our inquiry into the

job's essential functions but by no means ends it.

We conclude that the summary judgment record before us

leaves no room for a reasonable jury to fail to find that it was

essential for Jones, as Store Manager of a Walgreens location, to

(1) improve and maintain store condition, maintenance, and

appearance for the safety, health, and well-being of customers and

employees and (2) to implement corporate planograms and

merchandising guidelines, to include properly using endstands,

promotional space, and display tables. In addition, the record

establishes that varied tasks of a discernibly physical nature were

-15-
necessary in carrying out these functions and crucial to the proper

performance of the Store Manager position.

2. Jones's Ability to Perform the Essential Functions of
the Store Manager Position

Our second task is to determine whether Jones was capable

of performing the essential functions of the Store Manager position

with or without reasonable accommodation. Simply stated, we assess

whether the summary judgment record would allow a reasonable jury

to find that Jones could perform enough of the tasks required to

properly (1) improve and maintain store condition, maintenance, and

appearance for the safety, health, and well-being of customers and

employees and (2) to implement corporate planograms and

merchandising guidelines, to include properly using endstands,

promotional space, and display tables. See Richardson, 594 F.3d at

79 ("[I]f an employer has a legitimate reason for specifying

multiple duties for a particular job classification . . ., a

disabled employee will not be qualified for the position unless

[s]he can perform enough of these duties to enable a judgment that

[s]he can perform its essential duties." (quoting Miller v. Ill.

Dep't of Corr., 107 F.3d 483, 485 (7th Cir. 1997) (emphasis

altered)). Jones bears the burden of showing she could perform the

essential functions of the Store Manager role with or without

accommodation. See Calef v. Gillette Co., 322 F.3d 75, 86 (1st

Cir. 2003).

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 As she did at the district court, Jones makes much of the

fact that she had been working as Store Manager for close to a year

following her initial knee surgery before receiving her notice of

termination. See Jones, 765 F. Supp. 2d at 107-08. Jones thus

reasons that her apparent past ability to perform the job without

issue supports an inference that she could effectively undertake

the essential functions of the Store Manager role.

Jones's argument misses the mark. It is well settled

that "'[a]n ADA plaintiff may not rely on past performance to

establish that [s]he is a qualified individual without

accommodation when there is undisputed evidence of diminished or

deteriorated abilities.'" Richardson, 594 F.3d at 80 (quoting Land

v. Wash. Cnty., Minn., 243 F.3d 1093, 1096 (8th Cir. 2001)); see

also Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1048 (8th

Cir. 1999) (upholding denial of judgment as a matter of law against

ADA plaintiff where "record reflect[ed] virtually nothing to

indicate that, at the time [she] was fired, she could perform the

essential functions of her job without accommodation"). Even if we

assume that Jones was fully capable of performing the essential

functions of her job prior to September 2006, the record amply

supports the district court's determination that competent evidence

foreclosed the same conclusion after that date. Indeed, Walgreens

is on firm ground when it argues that whatever its understanding of

Jones's physical restrictions was, that understanding was altered

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in September 2006 when it first gleaned the full scope of Jones's

physical limitations.

Specifically, a note from Dr. Luber dated September 11,

2006, explained his belief that Jones should permanently refrain

from bending, stooping, or reaching below her knees, squatting,

kneeling, climbing stairs, or using ladders. Dr. Luber also noted

that Jones would have to minimize standing or walking and could

only work up to eight hours a day. A more formal follow-up note

dated September 14, 2006 then explained that Dr. Luber thought

Jones "should not have to stand or walk for greater than 30 minutes

at a duration without being allowed to take a break, change

positions or sit down when necessary." If given a short break, Dr.

Luber added, Jones could "again stand for an additional 30

minutes," but could spend "no more than 4-5 total hours each

day . . . in a standing position, [] with frequent breaks as

necessary." Dr. Luber clarified that these limitations were also

of a permanent nature and stated his impression that Jones had

"reached end maximum medical improvement."5

"An employer may base a decision that [an] employee

cannot perform an essential function on an employee's actual

limitations, even when those limitations result from a disability."

5
In his second note, Dr. Luber expressly apologized for any
confusion he could have caused by using "a generic note that can be
utilized to make [] restrictions temporary until [medical] follow-
up" to convey his impressions in the first note.

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Calef, 322 F.3d at 86. Walgreens certainly could, as it states it

did, rely on Jones's physician's medical opinion when it assessed

the scope of Jones's limitations. Reviewing Dr. Luber's

instructions, we must necessarily conclude that, as of September

2006, due to her physical restrictions Jones could not, among other

things, competently conduct store walkthroughs -- a crucial task

expected of the Store Manager that, according to Telson's

testimony, could neither be completed in under 30 minutes nor be

done in shorter temporal segments -- without accommodation; "bend,

stoop, and reach to the ground or to low shelves to get products

for customers or to pick up items that have fallen," Jones, 765 F.

Supp. 2d at 107, as Telson testified a Store Manager routinely

would have to do; or use ladders to reach high shelves, as Jones

herself testified she regularly did before her accident, see id. at

106. Nor could Jones inventory merchandise, arrange store

displays, or unload delivery trucks -- all tasks assigned to the

Store Manager position, each of which, according to evidence in the

record, requires bending at the knees, kneeling, or standing for

extended periods of time.

This was all simply too much. A reading of the record

suggests that, as of September 2006, Jones could not undertake a

broad enough range of the tasks necessary to adequately perform the

functions essential to the Store Manager position. Even if Jones

could perform some of the tasks associated with the essential

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functions of the job, her physical limitations prevented her from

executing a great too many others. Cf. Miller, 107 F.3d at 485

("If it is reasonable for a farmer to require each of his farmhands

to be able to drive a tractor, clean out the stables, bale the hay,

and watch the sheep, a farmhand incapable of performing any of

these tasks except the lightest one (watching the sheep) is not

able to perform the essential duties of the position."). We must

therefore conclude that no reasonable jury could find that Jones

could effectively perform the essential functions that we have

already identified above.

3. Walgreens's Alleged Failure to Engage in an
"Interactive Process" Regarding Possible Accommodations

Jones complements her "essential functions" arguments

with allegations that the district court mistakenly concluded that

Walgreens did not violate the ADA by failing to engage her in

discussions regarding possible accommodations. This claim is

grounded in 29 C.F.R. § 1630.2(o)(3), which prescribes: "To

determine [] appropriate reasonable accommodation[s] it may be

necessary for [an employer] to initiate an informal, interactive

process . . . [to] identify the precise limitations resulting from

the disability and potential reasonable accommodations that could

overcome those limitations." Jones reasons that she had already

requested reasonable accommodations before she was terminated --

i.e., by clarifying that she would delegate most physical

obligations of store operations -- and had, by that time, performed

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her job for approximately a year. Jones argues that Walgreens

unilaterally dissolved those accommodations when it terminated her

in contravention of the "interactive accommodation process"

envisioned by the ADA.

We find that this ancillary claim similarly fails and

hold that the district court correctly concluded that Walgreens was

not under a legally-imposed obligation to go further than it did or

engage in a more demanding interactive process to accommodate

Jones. Our cases are clear that "an employer's duty to accommodate

does not arise unless (at a bare minimum) the employee is able to

perform the essential functions of [her] job with an

accommodation." DeCaro v. Hasbro, Inc., 580 F.3d 55, 63 (1st Cir.

2009). Faced with the panoply of tasks that Jones was barred from

performing as of the date of her orthopedist's last correspondence

with Walgreens, we do not believe a trier of fact could reasonably

find that Jones could perform the essential functions of the Store

Manager post, with or without accommodation.6 And it is no answer

6
Contrary to what Jones suggests, it was her burden to proffer
accommodations that were reasonable under the circumstances -- a
burden Jones did not meet below. See Feliciano v. State of R.I.,
160 F.3d 780, 786 (1st Cir. 1998) ("The plaintiff . . . bears the
burden of showing the existence of a reasonable accommodation.").
Indeed, in granting summary judgment, the district court noted that
Jones "ha[d] identified no accommodation that would have enabled
her, within her restrictions, to perform the [] physically
demanding job of Store Manager." Jones, 765 F. Supp. 2d at 108.
Thus, while Jones's brief posits that further engagement could have
potentially unveiled certain accommodations, such as the use of a
mobility scooter with which to conduct store walkthroughs, Jones
did not raise this or other possible arrangements until her

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under either federal or Massachusetts law for Jones to say, as she

does, that she could work past her physical restrictions by

delegating the considerable number of tasks that she could not

accomplish. See Richardson, 594 F.3d at 81 ("'[T]he law does not

require an employer to accommodate a disability by foregoing an

essential function of the position or by reallocating essential

functions to make other workers' jobs more onerous.'") (alterations

in original) (quoting Mulloy, 460 F.3d at 153)); Godfrey v. Globe

Newspaper Co., 457 Mass. 113, 928 N.E.2d 327, 336 (2010) ("Neither

elimination of an essential duty from a position nor assignment to

an unrelated position are 'reasonable accommodations' . . . .").

C. Allegations of Retaliation

Having determined that Jones may not sustain her claims

that Walgreens unlawfully discriminated against her because of a

disability, we now address Jones's remaining claim on appeal. At

issue is whether the district court erred when it granted summary

judgment against Jones in connection with her claim that Walgreens

retaliated against her for protected conduct in violation of 42

U.S.C. § 2000e-3 and Mass. Gen. Laws ch. 151B, § 4(4). Jones's

retaliation claim does not depend on the success of her disability

claim. See Colón-Fontánez v. Municipality of San Juan, 660 F.3d

briefing to this Court and has thus waived this issue. See Malavé
v. Carney Hosp., 170 F.3d 217, 222 (1st Cir. 1999) (noting "bedrock
rule of appellate practice that, except in the most extraordinary
circumstances . . ., matters not raised in the trial court cannot
be hawked for the first time on appeal").

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17, 36 (1st Cir. 2011); Carreras v. Sajo, García & Partners, 596

F.3d 25, 35-36 (1st Cir. 2010). Federal and Massachusetts law are

in harmony on this issue. See Wright v. CompUSA, Inc., 352 F.3d

472, 477 (1st Cir. 2003) ("Massachusetts anti-discrimination law

also treats retaliation as a 'separate and independent cause of

action.'" (quoting Abramian v. President & Fellows of Harvard

Coll., 432 Mass. 107, 731 N.E.2d 1075, 1087 (2000))).

Our discussion of Jones's allegations of unlawful

retaliation under either federal or Massachusetts law is

coterminous with the other. See Dixon v. Int'l Bhd. of Police

Officers, 504 F.3d 73, 81 n.4 (1st Cir. 2007) (noting burden-

shifting framework articulated in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) "applie[s] to claims brought under both the

federal and [Massachusetts] state retaliation provisions"). Jones

must first establish a prima facie claim of retaliation.7 If she

does make out a prima facie case, "the burden shifts to the

employer 'to articulate a legitimate, nondiscriminatory [or

nonretaliatory] reason for its employment decision.'" Wright, 352

F.3d at 478 (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 827

(1st Cir. 1991)). If the employer successfully meets this burden,

the burden shifts again and the plaintiff-employee must then show

7
In order to make a prima facie case, Jones must show that: "(1)
she [] engaged in protected conduct; (2) suffered an adverse
employment action; and (3) [that] there was a causal connection
between the protected conduct and the adverse action." Colón-
Fontánez, 660 F.3d at 36.

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"'that the proffered legitimate reason is in fact a pretext and

that the job action was the result of the defendant's retaliatory

animus.'" Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39,

46 (1st Cir. 2010) (quoting Román v. Potter, 604 F.3d 34, 39 (1st

Cir. 2010)).

Two of Jones's actions -- her filing a gender

discrimination claim with the EEOC and its Connecticut counterpart

and her subsequent filing of a class action complaint against

Walgreens -- are clearly protected conduct. See, e.g., Pérez-

Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 31 (1st Cir. 2011); Gu

v. Bos. Police Dept., 312 F.3d 6, 14 (1st Cir. 2002). The fact

that Jones's firing from her post constituted an adverse employment

action is another issue that need not unduly detain us. See Valle-

Arce v. P.R. Ports Auth., 651 F.3d 190, 198 (1st Cir. 2011)

("[T]ermination of employment obviously is an adverse employment

action . . . ."). Because we agree with the district court that in

light of Jones's twenty-year tenure a three-and-one-half month

period between the time Jones filed a class action lawsuit against

Walgreens and her termination could, to a reasonable juror, seem

sufficiently close temporal proximity, we assume for present

purposes that Jones can establish a prima facie causal connection.8

8
We disagree with Walgreens to the extent it points to Jones's
filing of her EEOC and Connecticut administrative complaints,
fifteen months before her firing, as the only protected act
relevant to the issue of whether she can make a prima facie
retaliation claim. Jones also engaged in protected activity when

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See Wyatt v. City of Bos., 35 F.3d 13, 16 (1st Cir. 1994) (per

curiam) ("One way of showing causation is by establishing that the

employer's knowledge of the protected activity was close in time to

the employer's adverse action.").

Walgreens asserts that it terminated Jones from her

employment as a Store Manager because it determined, based on the

medical information it received from Dr. Luber in September 2006,

that Jones was unable to perform the essential functions of her

position. Jones accordingly bears the ultimate burden of showing

that Walgreens's explanation was, in fact, pretextual. To do so

she must "raise a genuine issue of fact as to whether retaliation

motivated the adverse employment action." Collazo, 617 F.3d at 50.

We do not believe that Jones has met her burden of

showing that a reasonable factfinder could conclude that Walgreens

acted because of retaliatory motives instead of the legitimate

reasons it asserts. Even reading the record before us in the light

most favorable to Jones, we must still conclude that a rational

she filed a nationwide class action complaint against Walgreens
alleging gender discrimination on behalf of over 21,000 women on
July 1, 2006, approximately three-and-one-half months before she
was removed from the Store Manager position. We agree with the
D.C. Circuit case Jones cites for the sound proposition that
"[T]itle VII . . . protect[s] employees who engage in any protected
activity," Jones v. Bernanke, 557 F.3d 670, 680 (D.C. Cir. 2009)
(emphasis added), not just those who suffer adverse employment
action immediately after they first engage in protected conduct.
See id. (rejecting employer's argument that "temporal proximity
could support an inference of retaliation only in the immediate
aftermath of the employee's first protected act").

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trier of fact would inescapably find that Walgreens terminated

Jones's employment for the reasons it claims it did -- because, as

of September 2006, it possessed indisputable evidence in the form

of information from Jones's orthopedist that Jones was physically

unable to perform her job.

Furthermore, Jones's efforts to suggest pretext do not

persuade. First, Jones notes that Walgreens did not make an issue

of her ability to perform the physical demands of the Store Manager

role until she filed a nationwide class action suit against

Walgreens on behalf of over 21,000 plaintiffs. In trying to draw

a causal connection between these two events, however, Jones too

conveniently overlooks that, according to Telson's undisputed

testimony, Walgreens only requested updated medical information

from Jones once she complained to Telson that she was having a hard

time walking and shelving items in the store she oversaw. It was

then that Dr. Luber communicated his medical opinion to Walgreens

and only thereafter that Walgreens acted to remove Jones from her

position as Store Manager.

Second, Jones underscores that her last Walgreens

performance review, dated April 28, 2006, did not specifically

explain that Jones had difficulty performing her job because of

physical restrictions. Jones reasons that the absence of any

reference to deficient performance due to physical limitations in

this review supports a causal connection between her protected

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activity later that year and Walgreens's subsequent decision to

fire her.

Again, Jones either discounts or fails to account for

evidence in the record. In particular, and as the district court

emphasized, while Jones's last performance review did not make

explicit mention of problematic physical restrictions, the form

nonetheless memorialized her supervisors' opinion that she

"Need[ed] Improvement" in certain categories, such as "Customer

Service," "Inventory Management," and "Store Condition." See

Jones, 765 F. Supp. 2d at 111. Importantly, Telson -- who, as

Jones's supervisor, was named on the performance review form as the

authoring reviewer -- testified that these categories were germane

to Jones's physical faculties and, specifically, to Jones's

"restricted ability to be present on the sales floor." Id.

We go no further. Read as a whole the record does not

support Jones's contention that a reasonable jury could find that

Walgreens acted out of retaliatory animus when it removed her from

her position as Store Manager. We accordingly find that her

retaliation claim fails as a matter of law.

III. Conclusion

For the reasons stated, we affirm the district court's

grant of summary judgment.

Affirmed.

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