Audette v. Plymouth, MA, et al

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Kermit V. Lipez, Appellate Judge and David J. Barron, Appellate Judge. Published. [15-2457]

Case: 15-2457

Document: 00117160072

Page: 1

Date Filed: 05/26/2017

Entry ID: 6095203

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

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LIPEZ, Circuit Judge.

Date Filed: 05/26/2017

Entry ID: 6095203

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

of

discrimination

Disabilities
Massachusetts

Act

in

("ADA"),

state-law

violation
42

U.S.C.

corollary,

§§

the

Americans

12101-12213,

Massachusetts

and

General

with
its
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.

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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 eightand-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.
Police

Department's

"Rules

and

According to the Plymouth

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

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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 IncidentBased 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.
3

For 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.
also

assisted

by

In July 2012, the Records Sergeant was

Detective

Robert

Morse,

who

oversaw

Department's evidence management responsibilities.

the

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.
5

There 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.

Entry ID: 6095203

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

discrimination claims.

underlie

her

retaliation

and

gender

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 lightduty 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

6

Appellees 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

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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

discrimination

the
based

Rehabilitation
on

an

Act

"actual

(Counts

I

handicap,"

a

and

II);

"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,

fail."
material

so

her

disability

discrimination

claims

must

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

qualified

Failing to provide reasonable accommodations for

employee's

known

physical

or

mental

limitations

constitutes discrimination, unless an employer can demonstrate

8

We 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;

essential

functions

that
either

(b)

she

with

could

or

perform

without

a

the

job's

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

responsibilities of an active patrol officer.11

the

duties

and

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

Department's backlog.

was

occasionally

used

to

ease

the

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

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determined

that

it

had

Entry ID: 6095203

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
Sergeant

points
--

a

to

the

position

Department's
that

was

hiring

vacant

at

of

a

the

new
time

Records
of

her

accommodation request -- one month after her request for a dataentry 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.
Records

Sergeant

oversees

all

Department

records

(not

The

merely

NIBRS), supervises civilian clerical staff, and responds to public
records requests.
appointment

of

Audette cannot persuasively argue that that the
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

12

out

of

the

data-entry

Audette, 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."
F.3d at 456.

Lang, 813

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."
added).

Entry ID: 6095203

(emphasis

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

complaint's

and

unfair

treatment,"

failure-to-accommodate

buried

claim,

within

the

constitutes

an

independent cause of action that she could have pursued as a
companion to her principal ADA claim.
opposition

to

summary

judgment,

In her memoranda filed in

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

pretextual.

the

defendant's

purported

reason

was

merely

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.

13

While the Town

Audette 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,

unfulfilled, threats to suspend her for her conduct.

yet

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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