Henry v. United Bank

United States Court of Appeals
For the First Circuit

No. 11-1666

KATHY HENRY,

Plaintiff, Appellant,

v.

UNITED BANK,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Kenneth P. Neiman, U.S. Magistrate Judge]

Before

Torruella, Howard and Thompson,
Circuit Judges.

Michael O. Shea, with whom Law Office of Michael O. Shea, P.C.
was on brief, for appellant.
Marylou Fabbo, with whom Skoler, Abbot & Presser, P.C. was on
brief, for appellee.

July 13, 2012
 HOWARD, Circuit Judge. Plaintiff-appellant Kathy Henry

appeals an award of summary judgment in favor of her former

employer, defendant-appellee United Bank, on her claims of

retaliation in violation of the Family and Medical Leave Act

(FMLA), 29 U.S.C. §§ 2601-2654, and disability discrimination in

violation of Massachusetts law, Mass. Gen. L. ch. 151B. Her claims

arise from United Bank's decision to terminate her employment after

she had exhausted 12 weeks of medical leave. Agreeing with the

magistrate judge that the undisputed material facts compel judgment

in favor of United Bank, we affirm.

I. Background

We recite the facts in the light most favorable to Henry

as the non-moving party. See Jones v. Walgreen Co., 679 F.3d 9, 12

(1st Cir. 2012). Henry began working for United Bank in 2006 as a

commercial loan administrative assistant and in the following year

was promoted to the position of commercial credit analyst. As a

credit analyst, her tasks included evaluating the credit-worthiness

of commercial borrowers and making lending recommendations. She

reported to Joanne Sheedy, the Assistant Vice President of Credit,

who in turn reported to Jack Patterson, the Vice President of Risk

Management.

In January 2008, Henry began experiencing neck pain,

blurred vision, and dizziness. Her primary care physician (PCP)

Dr. Suzanne Jorey examined her and referred her to a neurologist,

-2-
Dr. Christopher Comey. Dr. Comey determined that Henry was

suffering from a spinal cord compression in her cervical spine.

She received physical therapy during this time frame and scheduled

another appointment with Dr. Comey for early September. That

appointment was later changed to September 24. Henry kept the bank

informed of her physical condition and of the scheduled September

appointment with the neurologist.

With some workplace accommodations provided by the bank,

Henry was able to perform her job for a time. These accommodations

included, for example, an ergonomic chair and modifications to an

air conditioning vent in the plaintiff's office. Henry also

compensated for her sedentary position by walking around several

times during the day. Despite these adjustments, however, her

symptoms worsened, and on the first day of July she had difficulty

getting out of bed. That day Henry went to her PCP, who examined

her and completed an "Excuse Slip." This note, which Henry gave to

the bank, stated that she would be on "bed rest until further

notice."

Near the end of July, Henry's PCP recommended that her

leave of absence be extended for three weeks while further tests

were performed and a diagnosis reached. In mid-August, the PCP

provided an "Attending Physician Statement" to the Bank. This

statement noted that Henry could not sit all day, that she suffered

a decreased range of motion in her neck and back, and that it was

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"indeterminable" when she could return to work. Henry told the

bank's human resources department that her PCP wanted her to remain

out of work until her appointment with the neurologist at the end

of September.

Intermittently over the course of the summer, Henry's

employer provided her with forms to complete for FMLA leave and

short-term disability leave. Toward the end of July, the bank

informed her that her 12-week "FMLA/Disability leave" had begun on

July 1, leaving about nine more weeks of leave time remaining. In

early September, however, the bank sent Henry a letter stating that

her request for short-term disability had not yet been approved,

pending "further documentation from [her] doctor," and, therefore,

it was unable to qualify her work absence as FMLA leave. The

correspondence included a "Certification of Health Care Provider"

form (CHCP form) which was to be completed within fifteen days. At

Henry's direction, the bank also sent the form to her PCP's office.

A few days later, the bank's disability insurance company informed

Henry that her request for short-term disability had been denied

due to a lack of medical documentation showing that she was totally

disabled.

Meanwhile, Sheedy, Patterson, and Senior Vice President

of Human Resources Miriam Siegal met in early September to discuss

the staffing needs of the credit analysis department. This

discussion included the topic of the bank's ability to continue to

-4-
hold Henry's position open indefinitely. Sheedy communicated to

Siegal that the department was strained from short staffing; two

other credit analysts, as well as Sheedy herself, had been carrying

the plaintiff's workload. They opted, however, to wait to make a

decision until the end of September.

By mid-month, the bank received the completed CHCP form

from the PCP's office. That certification stated that Henry was

"not incapacitated" and was "able to perform [her] job" on a normal

work schedule with "no heavy lifting." On September 22, Sheedy,

Patterson, and Siegal decided that the bank was unable to hold

Henry's position open any longer; Siegal told Henry that she was

expected to return to work on September 25, after her scheduled

September 24 appointment with the neurologist. In her

correspondence memorializing the bank's decision, Siegal

characterized Henry's "lengthy absence" as "unexcused" and not

FMLA-eligible leave, because it had "not been supported by [her]

healthcare providers."

The morning of September 25, after she saw her

neurologist Henry arrived at the bank with a note authored by him.

It stated:

Ms. Henry is under my care for a
neurosurgical condition (cervical myelopathy).
Our office will be scheduling a surgical
procedure for her in the next few weeks. Due
to extreme pain Ms. Henry has been unable to
go to work since July 1, 2008, she is to
remain out of work until further notice.

-5-
When Henry attempted to deliver the note to Lynn Orr, the Payroll

and Benefits Administrator, Orr told her that she needed to wait

for Siegal to arrive to work in a "few minutes" in order to give

the note directly to her. Henry declined to wait and left the note

with another employee to deliver to Siegal. Later that same day,

Henry sent an email message to Siegal, advising her that the

surgery referred to in the neurologist's note was scheduled for

October 17. Siegal responded by informing Henry that her

employment was terminated, noting that the Bank "cannot continue to

hold [her] position open indefinitely" and that she had been given

a full 12-week period of FMLA leave commencing July 1, even though

the medical documentation did not support it.

Henry took the position that the CHCP form submitted by

her primary care physician in August had mistakenly characterized

her as able to work. She never provided a statement from the PCP

to modify that form, however, nor did she provide an additional

CHCP form completed by the neurologist. Henry did undergo the

surgery in October, and on April 2009 she was cleared to work

without restrictions.

Henry subsequently filed this action, which United Bank

removed to federal court, and the parties consented to proceed

before a magistrate judge. In due course, the bank moved for

summary judgment on all claims, and also sought to strike certain

portions of the plaintiff's statement of facts. The magistrate

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judge granted the motion to strike in part and entered judgment in

favor of United Bank. This timely appeal followed.

II. Analysis

We review a grant of summary judgment de novo, taking the

record evidence in the light most favorable to Henry as the

nonmoving party. See Hodgens v. General Dynamics Corp., 144 F.3d

151, 158 (1st Cir. 1998); Fed. R. Civ. P. 56(c). To defeat summary

judgment in the trial court, the plaintiff must provide "specific

facts showing that there is a genuine issue of material fact as to

each issue upon which [s]he would bear the ultimate burden of proof

at trial," an obligation that is triggered once the defendant has

properly supported its summary judgment motion. Hodgens, 144 F.3d

at 158 (internal quotation marks omitted). "The very mission of

the summary judgment procedure is to pierce the pleadings and to

assess the proof in order to see whether there is a genuine need

for trial." Id. (internal quotation marks omitted); see also

Godfrey v. Globe Newspaper Co., Inc., 928 N.E.2d 327, 333 (Mass.

2010) (noting that while "[s]ummary judgment is generally

disfavored in cases involving employment discrimination because the

question of intent requires a credibility determination," it

nonetheless "may at times be appropriate").

-7-
A. Scope of Summary Judgment Record

Henry first challenges the district court’s decision to

strike from her Rule 56 Statement of Material Facts an assertion

that the CHCP form completed by her PCP's office had "mistakenly"

characterized her health status and endorsed her ability to work

with minimal limitation. The court did not commit error.

At bottom, the plaintiff's belief that the statements

were wrong does not affect the PCP's stated position as represented

on the form. Henry offered no evidence that the PCP's office ever

modified or otherwise corrected any perceived error. Further, as

noted by the magistrate judge, the neurologist's opinion

(memorialized in the September 24 note) that Henry had been unable

to work since July 1 does not necessarily override the PCP's

opinion because the conflict could simply represent a difference in

medical opinions. In any event, even assuming that the form

mistakenly characterized Henry's work abilities, she has not

demonstrated how this conclusion helps establish that the bank

acted unlawfully when it decided to terminate her on the stated

ground that it could not hold the position open indefinitely. We

find no abuse of discretion in the magistrate's decision to strike

the statement, see Casas Office Machines, Inc. v. Mita Copystar

America, Inc., 42 F.3d 668, 681 (1st Cir. 1994), and turn next to

Henry's claim that this case should be resolved by a jury.

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B. FMLA Retaliation Claim

The Family and Medical Leave Act entitles eligible

private sector employees to take, for medical reasons, reasonable

leave up to a maximum of twelve weeks, and then to return to the

same or an alternative position with some equivalency. See

Hodgens, 144 F.3d at 159; 29 U.S.C. §§ 2612(a)(1)(D), 2614(a)(1).

The Act also prohibits employers from retaliating against employees

for exercising their statutory rights. See 29 U.S.C. § 2615(a).

Thus, an employer cannot regard the taking of FMLA leave as a

negative factor in deciding to terminate an employee. See 29

C.F.R. § 825.220(c); Mellen v. Trustees of Boston Univ., 504 F.3d

21, 26-27 (1st Cir. 2007). But, although an employee who properly

takes FMLA leave cannot be discharged for exercising a right

provided by the statute, she nevertheless can be discharged for

independent reasons. Nagle v. Acton-Boxborough Reg'l Sch. Dist.,

576 F.3d 1, 3 (1st Cir. 2009).1

Henry's claim challenges United Bank's motivation for

terminating her, and she acknowledges that the McDonnell Douglas

burden-shifting framework applies. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-04 (1973); Hodgens, 144 F.3d at 160

(noting that the burden-shifting framework applies when there is no

direct evidence of discrimination); Colburn v. Parker

1
This case does not require us to determine whether Henry was
entitled to the FMLA leave that she received.

-9-
Hannifin/Nichols Portland Div., 429 F.3d 325, 336 (1st Cir. 2005);

see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

141-49 (2000) (further explaining McDonnell Douglas framework in

the summary judgment context).2

We will assume for the sake of argument that the

plaintiff has satisfied her initial burden of establishing a prima

facie case. See Hodgens, 144 F.3d at 161 (setting forth the

elements of a prima facie FMLA retaliation claim). Additionally,

because Henry does not challenge the magistrate judge's ruling that

the bank satisfied its evidentiary burden under the second step of

McDonnell Douglas, we also assume that the bank produced "enough

competent evidence which, if taken as true, would permit a rational

factfinder to conclude that the challenged employment action was

taken for a legitimate, nondiscriminatory reason." Id. at 166

(internal quotation marks omitted). Nonetheless, we describe the

evidence supporting the bank's proffered business decision -- that

it could not hold Henry's position open indefinitely -- in order to

set the stage for the final McDonnell Douglas prong on pretext,

which is the crux of the dispute.

2
Stated in simplified form, under this test the employee
must first bring forward enough evidence to make out a prima facie
case of discrimination; if the employer then provides a legitimate,
nondiscriminatory reason for the employment action, the plaintiff
must show that the employer's stated reason was pretextual.
Hodgens, 144 F.3d at 161.

-10-
 Siegal testified at her deposition that the credit

analysis department was critical to the bank's business because the

analysts perform credit risk assessments with respect to both

potential and current commercial loans. She underscored that, in

2007, an independent auditing company had recommended that the bank

maintain three credit analysts, and that the auditors were due to

perform their bi-annual review of the bank's credit functions in

the fall of 2008. At the time that the bank made its termination

decision, Henry had been out of work for about three months. The

two remaining analysts and Sheedy had taken on the extra work,

which strained the department.

Siegal also testified that no other employee in the bank

was available to temporarily fill the third analyst position, and

that hiring a temporary employee was not a wise business practice,

due to the confidential nature of the client information to which

the credit analysts have access and the particularized training

involved in preparing an employee to competently perform the job.

Additionally, she explained that the analysts' loan review

responsibilities were expected to increase for a variety of

reasons. These included the fact that the poor state of the

economy had created a need for increased financial documentation

when scrutinizing credit-worthiness, and the fact that an increase

in new loans was expected due to the bank having recently hired

additional commercial lenders. Finally, Siegal testified that the

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neurologist's note did not change the bank's decision to terminate

Henry's employment, because the note gave no indication of a date

by when she possibly might return to work.

In light of this undisputed evidence that the Bank's

termination decision was animated by legitimate, nondiscriminatory

reasons, any presumption of retaliatory animus created by the prima

facie case evaporates. See id. at 160; see also Reeves, 530 U.S.

at 142-43. Thus, to survive summary judgment, Henry's burden is to

demonstrate, without the benefit of the animus presumption, a

trialworthy issue on whether the stated reason was but a pretext

for retaliating against her for having taken protected FMLA leave.

Hodgens, 144 F.3d at 161; see also Reeves, 530 U.S. at 143.

Henry argues that, viewed in her favor, the summary

judgment record would permit a jury to infer pretext and

discriminatory animus. She focuses primarily on the circumstances

leading up to her termination and on two remarks made by Sheedy in

the workplace. Additionally, she contends that the record contains

evidence that undermines the veracity of the bank's stated need to

fill the third analyst position.

Henry first points to the employer's conduct leading up

to her termination, including: (1) the bank's changed position

about the status of her requested FMLA leave that it had initially

approved; (2) Siegal's insistence that Henry return to work,

despite being aware of her upcoming appointment to see the

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neurologist; (3) Orr's demand that she have the CHCP form completed

in mid-September, rather than allowing her to wait for the

scheduled appointment with the neurologist; (4) the bank's failure

to reconsider its termination decision once she informed Siegal

that the PCP's statements in the CHCP form were mistaken; and (5)

Orr's refusal to accept the neurologist's note on the morning of

September 25.

We first note with respect to Orr's conduct that there is

no evidence that she had anything to do with the decision to

terminate Henry. See Colburn, 429 F.3d at 337. Additionally, we

reject the argument that the bank took an inconsistent stance on

the status of Henry's leave that is suggestive of pretext or bad

motive. In late July, about three weeks into her absence, the bank

simply sent her a letter stating that her FMLA leave began on July

1. In early September, after two months had passed since she left

work, the bank informed Henry that her absence could not qualify as

FMLA leave without proper medical documentation substantiating her

claimed disabled status. The bank included a CHCP form in that

correspondence, in order to assist her in providing the necessary

documentation.

Neither do the circumstances surrounding the submission

of the CHCP form itself suggest retaliatory animus. We detect

nothing nefarious in Siegal's requiring that Henry return to work

once the bank learned in mid-September that her PCP deemed her able

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to do so with the minimal accommodation of "no heavy lifting."

Further, although Henry told Siegal that the form was mistaken, she

points to no evidence suggesting that the bank prevented her from

submitting a modified form by the PCP to correct any perceived

error. And, once the bank received the neurologist's note stating

that she would be out of work "until further notice," it simply

remained consistent in its position that it could not hold her job

open indefinitely.

Henry highlights the temporal proximity between the

conclusion of the 12-week FMLA leave period, Dr. Comey's note

documenting her need for additional time, and her termination.

Although timing can be relevant when considering whether there was

retaliatory animus, the timing here is unremarkable. See id. at

170-71; Colburn, 429 F.3d at 337-38. The undisputed facts show

that the decisionmakers began discussing staffing issues related to

Henry's continued absence in early September, and, before ever

receiving the neurologist's note, Siegal notified Henry that the

bank could not hold her position open indefinitely, setting

September 25 as the date for her to return to work.

We next consider the workplace comments made by Sheedy.

Viewed in the context offered by the record, we agree with the

magistrate judge that neither comment can be understood fairly to

communicate a discriminatory or retaliatory message. First, during

a telephone call with Siegal in mid-September discussing her need

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to remain out of work, Henry apparently heard Sheedy in the

background exclaiming "What did I do to you? Did I do something to

you?" Even assuming that this background remark was directed at

the plaintiff, it does not reflect any FMLA-related animus.

The second comment, according to Henry, was made while

another employee was out on disability leave. In Henry's presence,

Sheedy asked whether "anybody [had] heard from Dan or his wife on

when he's coming back to work," and later, when the co-worker's

spouse called the office, Sheedy remarked that he was a "wuss" and

"needed to get a back bone." Nothing in the record connects this

stray remark to Henry's medical leave. Suffice to say, neither of

Sheedy's comments help create a triable issue on pretext and

motive.

Finally, Henry attempts to discredit the evidentiary

basis for the bank's stated reason for terminating her. Relying on

her own deposition testimony, she contends that the bank could have

hired a temporary employee because her job was not a complicated

one and the bank could have taken extra precautions to ensure that

any such employee treated confidential customer information in an

appropriate manner. Similarly, she challenges the bank's

perspective on the increasing workload of the credit analysis

department, and the purported immediate need for three credit

analysts. These iterations, as well as the others she raises in

her brief, constitute mere disagreement with her employer's

-15-
business decisions and do not display the kind of weaknesses or

implausibilities that give rise to a triable question on pretext.3

Cf. Bennett v. Saint-Gobain Corp., 507 F.3d 23, 31 (1st Cir. 2007)

("In the absence of some other proof that the decisionmaker

harbored a discriminatory animus, it is not enough that [the

employer's] perception may have been incorrect. Rather, the

plaintiff must show that the decisionmaker did not believe in the

accuracy of the reason given." (citations omitted)).

In sum, Henry does no more than raise tenuous

insinuations on the facts surrounding her termination and the

bank's reason for taking that action. This is insufficient to

create a triable issue on discriminatory or retaliatory animus.

See Roman v. Potter, 604 F.3d 34, 40 (1st Cir. 2010); see also

Reeves, 530 U.S. at 148. Indeed, the undisputed facts reflect that

the bank made several workplace accommodations for Henry from the

time that she began displaying physical symptoms in January 2008.

While she was out of work, it held her position open for 12 weeks

and contributed to her group health insurance during that period,

3
There is only one piece of evidence offered by the plaintiff
that potentially belies the stated needed to fill the third analyst
position. Henry testified in her deposition that in May and June
of 2008, before she began her leave time, the credit analysis
department "was slow" because "[t]he market was tumbling" to such
an extent that she was performing "idle work." However, this does
not answer the evidence that the bank had hired two more commercial
lenders in 2008 and thereby anticipated having more borrowers for
credit analyst review. Nor does it undermine the evidence that the
auditing company had recommended that the department be stocked
with three full-time analysts.

-16-
despite its view that she failed to provide appropriate medical

documentation supporting FMLA leave. And there is no evidence of

contemporaneous statements made by the decisionmakers suggesting

retaliation for her requesting and taking leave. In the end, the

plaintiff's attempt to establish a triable issue on pretext and

motive comes to naught. See Jones, 679 F.3d at 21-22; Hodgens, 144

F.3d at 167 Reeves, 530 U.S. at 147-48; cf. Roman, 604 F.3d at 40

(explaining that the employee's individual belief that the adverse

employment action was motived by retaliatory animus is not enough

to show pretext or animus).

C. State Law Claims under Chapter 151B

In her brief, Henry advances three state law theories for

relief under Massachusetts General Laws ch. 151B: disparate

treatment, retaliation, and failure to provide a reasonable

accommodation.4 As Chapter 151B is considered the state analogue

4
Massachusetts General Law Chapter 151B, § 4(4), provides:

It shall be an unlawful practice . . . [f]or
any . . . employer . . . to discharge, expel
or otherwise discriminate against any person
because he has opposed any practices forbidden
under this chapter or because he has filed a
complaint, testified or assisted in any
proceeding under section five.

Massachusetts General Law Chapter 151B, § 4(16), further
provides:

It shall be an unlawful practice . . . [f]or

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to the Americans with Disabilities Act (ADA), Massachusetts courts

look to cases decided under the federal counterpart to inform its

interpretation; we do likewise as needed. See Jones, 679 F.3d at

13-14; Russell v. Cooley Dickinson Hosp., Inc., 772 N.E.2d 1054,

1062 n.6 (Mass. 2002).

We may address the first two state law claims --

disparate treatment and retaliation -- summarily. Premising these

claims on the same operative facts as her federal FMLA retaliation

claim, Henry asserts that the bank discriminated against her by

terminating her because of her medical disability, and retaliated

against her for requesting and taking medical leave.5 Our

conclusion on her federal claim, however, is equally fatal to these

state law claims because the evidence on pretext and discriminatory

intent is no stronger. See Sensing v. Outback Steakhouse of Fla.,

an employer . . . to dismiss from employment
. . . or otherwise discriminate against,
because of his handicap, any person alleging
to be a qualified handicapped person, capable
of performing the essential functions of the
position involved with reasonable
accommodation, unless the employer can
demonstrate that the accommodation required to
be made to the physical or mental limitations
of the person would impose an undue hardship
to the employer's business.

5
See Godfrey, 928 N.E.2d at 333 (generally setting forth the
elements of a disability discrimination claim under Mass. Gen. Law
ch. 151B § 4(16)); Mole v. Univ. of Mass., 814 N.E.2d 329, 338-39
(Mass. 2004) (generally setting forth the elements of a retaliation
claim under Mass. Gen. Law ch. 151B § 4(4)).

-18-
LLC, 575 F.3d 145, 154 (1st Cir. 2009) (noting that Chapter 151B

employment discrimination cases follow the McDonnell Douglas

framework); Abramian v. President & Fellows of Harvard Coll., 731

N.E.2d 1075, 1084-86 (Mass. 2000) (same).

As a final matter, Henry argues that the district court

incorrectly analyzed her failure-to-accommodate claim. She says

that the magistrate judge required her to show discriminatory

animus, even though there is no animus requirement in establishing

that an employer failed to provide a disabled person with a

reasonable accommodation. In this respect, however, she has on

appeal impermissibly attempted to recast her complaint as including

an independent reasonable accommodation claim under the ADA and

Chapter 151B.

First, the only federal claims in the complaint are

expressly asserted to be violations of "the Family Medical Leave

Act - 29 U.S.C. § 2601, et. seq." Next, while two counts do assert

state claims under Chapter 151B, they are entitled "Discrimination

and Harassment" and "Retaliation," respectively. More so, the

operative allegations point to "harass[ment]" and "adverse action"

that the bank allegedly took against Henry because of her "medical

condition and/or handicap" and her having requested and taken

medical leave. Thus, it is doubtful that either state law count

can be read fairly to lodge an independent reasonable accommodation

claim under Chapter 151B. Moreover, it does not appear that Henry

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argued in the district court that it had misread the complaint, and

she makes no effort on appeal to parse her own complaint to

illustrate the putative independently-raised claim. In any event,

even assuming that the complaint does allege a state law reasonable

accommodation claim, the claim nevertheless fails.

Generally stated, a disability discrimination claim based

upon a failure to accommodate requires a plaintiff to show that:

(1) she is a handicapped person within the meaning of the statute;

(2) she is qualified to perform the essential functions of the job

with or without reasonable accommodation; and (3) the employer knew

of her disability but did not reasonably accommodate it upon a

request. Faiola v. APCO Graphics, Inc., 629 F.3d 43, 47 (1st Cir.

2010) (reciting the tandem legal standards for a reasonable

accommodation claim under the ADA and Chapter 151B); see also

Russell, 772 N.E.2d at 1054 (noting that the employee bears the

initial burden to request reasonable accommodation in order to be

able to perform his existing duties).

With respect to extended medical leave, the Supreme

Judicial Court of Massachusetts has held that "[a] request for a

limited extension, setting a more definite time for the employee's

return to work, may . . . constitute a reasonable accommodation .

. . based on the circumstances." Russell, 772 N.E.2d at 1064. It

also has held, however, that "[a]n open-ended or indefinite leave

extension" does not constitute a reasonable accommodation under

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Chapter 151B. Id.6 Russell relied on analogous federal case law

to the effect that the term "reasonable accommodation" connotes one

"which presently, or in the immediate future, enables the employee

to perform the essential functions of the job." Id. (internal

quotation marks omitted). Here, the record does not give rise to

a jury question on whether Henry's apparent request for extended

leave constitutes a reasonable accommodation.

From July through September, United Bank received several

communications from Henry's medical providers documenting her

inability to work. While one note that the bank received from

Henry's PCP in July suggested that she may return to work after

three more weeks of leave time, ultimately she did not. And

although her PCP indicated (in the CHCP form provided to the Bank

in mid-September) that the plaintiff was able to work with a slight

restriction, Henry says that this was an error. Thus, as of the

date of her termination, the plaintiff could not work in her

position at all and had given the bank neither a relative time

frame for her anticipated recovery nor any indication of when or

whether she would ever be able to return to her credit analyst

position in the future.

6
To the extent that the appellant suggests that the bank was
required to hold open an alternative position during her leave, we
disagree. See, e.g., Godfrey, 928 N.E.2d at 336 ("Neither
elimination of an essential duty from a position nor assignment to
an unrelated position are 'reasonable accommodations' within the
meaning of G.L. c. 151B, § 1.")

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 Henry counters that the content of the September 24

neurologist's note creates a factual issue about whether it would

have been reasonable for the bank to have provided an additional

three-week extension for her to undergo surgery and allow time for

a proper diagnosis to be made. While there may be circumstances in

which a request to wait for a medical diagnosis may constitute a

reasonable accommodation, such is not the case here.

Upon exhaustion of her FMLA leave, Henry had been out of

work for three months, and the bank had informed her on September

22 that it could not hold her position open indefinitely, requiring

her to return to work on September 25. Even after the long-awaited

appointment with the neurologist on September 24, Henry provided

the bank with only a generally stated note that she had been unable

to work since July 1, surgery would be scheduled in a few weeks,

and she must remain out of work "until further notice." The record

is devoid of even an estimate as to expected recovery time or the

possibility that she may be able to perform any portion of the

essential functions of her sedentary credit analyst position.7

Such an open-ended request for additional leave is just

the type of wait-and-see approach that has been rejected as giving

rise to a triable issue on reasonable accommodation. See, e.g.,

Russell, 772 N.E.2d at 1065 (concluding that the employee failed to

7
The fact that Henry later fully recovered by April 2009 is
immaterial since neither party knew as of September 25, 2008 when
and whether she would be able to return to work.

-22-
demonstrate a triable issue on reasonable accommodation when at the

time the employee requested a leave extension, "she did not

indicate when (if ever) she would be able to return to her

position"); Scott v. Encore Images, Inc., 955 N.E.2d 319, 325

(Mass. App. Ct. 2011) (concluding that the employer was not

required to provide the possible accommodation of an indefinite

leave of absence).

The federal case law relied upon by the appellant does

not persuade us otherwise; the circumstances of each cited case

differ materially from this one. Cf. Garcia-Ayala, 212 F.3d at

647-48 (finding that the employee's request for a leave extension

was a reasonable accommodation given that the employee proffered a

definitive date, the employer had been relying on help from

temporary agencies, and the employer's termination decision

centered on per se compliance with company leave policy rather than

on its business needs); Criado v. IBM Corp., 145 F.3d 437, 444 (1st

Cir. 1998) (concluding that a factual issue remained about whether

a request was reasonable where the employee offered "evidence

tending to show that her leave would be temporary and would allow

her physician to design an effective treatment program," and it was

undisputed that the leave would not produce an undue burden on the

employer).8

8
The appellant's reliance on the federal district court
decision Fink v. Printed Circuit Corp., 204 F. Supp. 2d 119 (D.
Mass. 2002), is of little help to her. That case does not endorse

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 Because the extended leave requested by Henry is not a

reasonable accommodation, the bank had no obligation to show that

the request would impose an undue burden on its business or to

engage in the informal interactive process. See Godfrey, 928

N.E.2d at 333-34, 337. And, to the extent that such burdens may be

relevant to the reasonable accommodation mix in this case, the

claim still falls short. There is no material factual issue on the

bank's need to fill Henry’s position, and no trier of fact could

reasonably find on this record that the bank was required to go

further than it did to accommodate Henry, especially since she

remained firm in her stance that she could perform no part of her

duties for an indefinite time. See Jones, 679 F.3d at 19-20.

This ends the matter.

III. Conclusion

We affirm the judgment in favor of United Bank.

non-definitive requests for extended leave time as reasonable
accommodations. See id. at 127-28 ("The instant case certainly
approaches . . . an open-ended time frame" which is unreasonable as
a matter of law, but "[a]t this point in the litigation . . . this
Court cannot conclude that the plaintiff sought a per se
unreasonable accommodation."). Indeed, the particular circumstances
before us are more in line with another, recent district court
decision. See Cailler v. Care Alternatives of Mass., No. 09-12040,
2012 WL 987320, at *5-6 (D. Mass. March 23, 2012) (ruling on
summary judgment that the employee had failed to establish that an
extended leave was a possible reasonable accommodation where she
remained unable to perform her job after exhausting FMLA leave time
and participating in the company's modified work plan, and her
physician was unable to provide an estimated time for recovery and
return to work date).

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