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Melendez v. Autogermana, Inc., --- F.3d ----, 110 FEP 832 (1st Cir. Oct. 12, 2010). Panel: TORRUELLA, Lipez, Barbadaro. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff made out prima facie case of age discrimination. He was not required, in order to prove that he met the employer's legitimate expectations, to disprove employer's proffered reason for termination (low sales). It was enough to show that he had a good general track record and that overall sales were down. But summary judgment affirmed on ground that employee could not prove pretext. Employer was not required to follow company policy, to wait to determine sales quota till July 2006; at the worst, the decision was unfair. Employee had suffered 18 months of sub-par sales. Even of quota was unreasonable, that is a business decision and there was not evidence that it was imposed because of age. Some salespeople were making the quota, nonetheless. Fact that co-workers occasionally mocked him because of his age irrelevant to management's motives, and were not temporally or causally related to termination decision. Moreover, plaintiff at 50 was terminated at same time as another salesman at age 32. No abuse of discretion denying There motions for reconsideration.

Vera v. McHugh, --- F.3d ---, 110 FEP 705 (1st Cir. Oct. 6, 2010). Panel: LIPEZ, Torruella [SELYA, dubitante]. Claims on Appeal: 1. Title VII supervisor harassment (sex). 2. Title VII co-worker harassment (sex). 3. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Court erred holding that events were not severe or pervasive. Jury could find that For There months, until plaintiff removed herself to a different office, supervisor shared her workspace for multiple hours every day, stared at her in a sexual way, came so close to her that she could feel his breath, pulled his chair next to her so that their legs touched, laughed at her discomfort, blocked her escape from the cramped office with a closed door, and on one occasion called her "Babe." While they were sharing an office, and again after plaintiff returned from an extended leave, supervisor would inappropriately close to her and smirking at her when she backed away. Conduct that forces an employee to abandon his or her own office during the workday could reasonably be seen as interfering with that employee's work performance. Supervisor's behavior caused plaintiff psychological trauma that persisted even after she had left the hostile environment. 2. Plaintiff failed to exhaust her administrative remedies. No grounds for estoppel; while EEO office did not fully comply with charge intake regulations, plaintiff was informed of the specific procedural steps involved in continuing to pursue her claim. Also, plaintiff waited an unreasonable amount of time (There years) after discovering irregularity to pursue claim. 3. Actions plaintiff identifies as retaliatory occurred a year or more after she filed her informal complaint against co-worker. As for supervisor, complaints about absenteeism, AWOL status and eventual termination pre-existed plaintiff's complaints of harassment.

Alvarado-Santos v. Department Of Health Of The Commonwealth Of Puerto Rico, 619 F.3d 126, 110 FEP 385 (1st Cir. 2010). Panel: LIPEZ, Lynch, Boudin. Claims on Appeal: Title VII non-renewal of contract (sex, national origin). Disposition Below: Judgment after a jury trial ($1.25 million compensatory, reduced to $300,000, $377,441.30 back pay) [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Evidence was insufficient as a matter of law. National origin claim fails as it was based on one, remote comment about Puerto-Rican doctors being inferior. Regarding gender, various incidents of disparate treatment compared to male doctor not shown to be motivated by sex. Plaintiff's inferior equipment claim was caused by her assignment to a new facility that had not yet been fully set up for patients. No evidence that shift assignments prejudiced plaintiff. Taking away duty of supervising staff's time records was motivated by manager's determination that the plaintiff had made unsubstantiated claim of falsifying time records. Thus JMOL ought to have been granted. Had panel reached motion for new trial, ti would likely have found that plaintiff counsel's inflammatory remarks about Dominicans were prejudicial.

Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 109 FEP 1601 (1st Cir. Aug. 5, 2010). Panel: LIPEZ, Torruella, Selya. Claims on Appeal: Title VII and P.R. retaliation. P.R. law claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff's "persistent efforts to help [employee] Hiraldo initiate her sexual harassment complaint and urge Human Resources to act upon that complaint as resistant or antagonistic to the complained-of conduct" was protected "opposition" activity under Title VII's anti-retaliation section. Employer argued that plaintiff was mostly silent during the first meeting with HR, and thus was not "opposing" anything. But protected activity was "repeatedly accompanying [employee] to Human Resources to file and pursue her sexual harassment complaint." Employer also argued that an employee who was simply carrying out his duties (here, the plaintiff was a first-report in the company's anti-harassment policy) cannot be deemed as "opposing" a discriminatory practice simply by carrying out his duties. Panel declines to rule whether such a "furtherance of supervisory responsibilities" limitation ought to placed upon Title VII (though it casts doubt on this point, in a footnote), but held regardless that plaintiff went above-and-beyond his management duties in following up the complaint. Combination of the short turn-around time between the opposition activity and termination - mere days - plus evidence of the falsity of the performance and reduction-in-force rationale was sufficient to present a triable issue on the merits. Plaintiff complained that the district court took unconscionably long (August 2006 to March 2009) to resolve the summary judgment motion. Writes the panel, "[i]n light of our conclusion that the district court erred in granting summary judgment for Bristol-Myers on Collazo's Title VII and related state law claims, we need not address this alternative claim of error. However, we remind the court upon remand of its duty to cause the case to be 'in every way expedited.' 42 U.S.C. § 2000e-5(f)(5)."

Booker v. Massachusetts Dept. of Public Health, 612 F.3d 34, 109 FEP 1281 (1st Cir. 2010). Panel: LIPEZ, Lynch, Howard. Claims on Appeal: Title VII and Mass. state law retaliation. State law tort claim (not discussed here). Disposition Below: Judgment following a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Instruction defining "materially adverse action" was not plain error (in absence of timely objection by plaintiff). Panel casts doubt on whether it is correct to instruct that proof of adverse action includes proof of "reprisals intended to discourage other employees from complaining," but in context of entire charge the single sentence was properly understood to mean that the standard for adverse action is an objective one. No error in instruction that employee had to show "change in terms and conditions of the plaintiff's employment" because under the facts of the case all of the alleged acts of retaliation involved the workplace, and judge was free to tailor instruction to the facts. No error in failing to instruct jury on spoliation where plaintiff failed to lay foundation that company deleted emails concerning the employee and knowing that they might be relevant to her case).

Galera v. Johanns, 612 F.3d 8, 109 FEP 1289 (1st Cir. 2010). Panel: TORRUELLA, Lipez, Howard. Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Release of Title VII claims abided by 29 C.F.R. § 1614.603 and applied all complaints prior to the effective date of the agreement (July 14, 2004).

Malone v. Lockheed Martin Corp., 610 F.3d 16, 109 FEP 1208 (1st Cir. 2010). Panel: STAHL, Lynch, Souter. Claims on Appeal:  Title VII and R.I. law harassment and demotion (race). State law whistleblowing claim (not discussed here). Disposition Below:  Judgment as a matter of law [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Only two allegedly adverse actions occurred within the statutory periods (a final warning about absenteeism and a performance review), but these were carried out by a different manager than the one who committed the time-barred actions, and there was no evidence that the prior manager had any influence over the more recent acts. There was also no evidence that even the prior corrective or disciplinary acts were racially motivated.

Martino v. Forward Air, Inc., 609 F.3d 1, 23 A.D. Cases 417 (1st Cir. 2010). Panel:  STAHL, Lynch, Souter. Claims on Appeal:  Mass. state law prohibited inquiry (disability). Disposition Below:  Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Assuming that the "illegal inquiry" provision of Massachusetts law is enforceable by a private right of action, plaintiff failed to allege any cognizable injury. Although he was not employed, a jury (whose verdict at trial on his discrimination claim was not appealed) found that the employer was not motivated by disability, but instead decided for business reasons not to create a new job. Any emotional harm was not logically related to company's ability to electronically discover the employee's past workers' compensation claims. Plaintiff did not advance invasion of privacy as a separate dignitary ground for recovery.

Rosario v. Dept. of Army, 607 F.3d 241, 109 FEP 673 (1st Cir. 2010). Panel: LIPEZ, Torruella, Baldock. Claims on Appeal:  Title VII harassment (sex). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff presented genuine issue of material fact about whether activity was severe or pervasive, and motivated by sex. Although co-worker did not touch plaintiff or express any sexual interest in the plaintiff, the record presented a triable issue of fact about whether his sexually-oriented jokes, suggesting a lack of respect by manager for his female colleagues, lending weight to the inference that his behavior toward plaintiff was inappropriately motivated by gender. Other witnesses testified that alleged harasser treated other females who worked at the clinic similarly. His repeated conversations with others about plaintiff's underwear, as well as his references to her as a woman of the streets in conversations with male staff provides addition al support for a finding that his behavior toward plaintiff was sex-based. While certain complained-of conduct appeared to have no sex-based connotation at all - e.g., throwing her food away and removing items from her desk - this does not diminish the force of the evidence indicating gender-based animus. Although the record revealed that co-worker also abused male employees, "[t]he record as a whole would thus permit a reasonable jury to conclude that [plaintiff] was exposed to harassment that differed in both kind and degree from that imposed on male employees."

Morales-Vallellanes v. Potter, 605 F.3d 27, 109 FEP 491 (1st Cir. 2010). Panel: TORRUELLA, Baldock, Howard. Claims on Appeal:  Title VII discrimination and retaliation (reverse sex). Disposition Below:  Judgment after a jury trial ($300,000 compensatory damages, $64,504 back pay) [plaintiff]. Outcome on Appeal:  Reversed [defendant]. Grounds: Allegations that job bid was posted with Thursday/Sunday rest days instead of Saturday/Sunday, that he was temporarily placed on window clerk duties, and that rest break policy was not applied equally - individually or cumulatively, as a matter of law - were not sufficiently adverse to support a Title VII claim.

Roman v. Potter, 604 F.3d 34, 109 FEP 228 (1st Cir. 2010). Panel:  LYNCH, Torruella, Selya. Claims on Appeal:  1. Title VII retaliation. 2. Title VII harassment and constructive discharge (sex). FMLA claim (not discussed here). Disposition Below:  1. Summary judgment [defendant] 2. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Assuming plaintiff made .out a prima facie case as to each claim of retaliation, all of the decisions challenged by the plaintiff were supported by legitimate, non-discriminatory reasons that were not a pretext for retaliation: initial failure to approve pay for FMLA leave (due to unsigned form); traffic citations and waring letter by Postal Police; reassigning local responsibility for roll-out of USPS Customer Connect Program; accidental physical pumping into plaintiff at work site; decision to return plaintiff to worksite. 2. Above acts did not constitute a hostile work environment or constructive discharge. 

Agusty-Reyes v. Department of Education, 601 F.3d 45, 108 FEP 1610 (1st Cir. 2010). Panel: LYNCH, Torruella, Selya. Claims on Appeal: 1. Title VII and P.R. law harassment (sex). 2. Title VII and P.R. law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff alleges that her supervisor made numerous sexually charged comments to her, described how 'pretty' she was, and took opportunities to be in physical contact with her and to look into her classroom to see her. He insisted all meetings with plaintiff take place in private and told her he would give her a good evaluation if she would "touch him." After the plaintiff officially complained to the agency about the harassment, supervisor allegedly criminally attacked her: The agency carried out an investigation of the harassment, but ultimately dismissed the plaintiff's complaint as unfounded. During the pendency of the plaintiff's complaint, supervisor awarded her the lowest possible rating on her evaluation, which the agency used in turn to deny her tenure after the statutorily-prescribed two-year period. When she was placed under different supervision, her performance reviews broadly improved and she was allowed -- more than a year after tenure should have been awarded -- to obtain retroactive tenure. Panel holds that there are several reasons why a jury could find that the temporary denial of tenure constituted a "tangible action," which would deprive the agency of any affirmative defense: grant or denial of tenure could be viewed as similar to a decision whether to promote; failure to grant tenure could also lead to a meaningful change in an employee's benefits in an up-or-out situation at a time when budgetary constraints loomed; deliberate delay in evaluating Agusty's performance negative review impaired employee's receipt of tenure and the job security that would accompany it. Panel also holds that even if the harassment did not culminate in a tangible act, the agency was not entitled to summary judgment on the Faragher/Ellerth defense. Even though the agency had an anti-discrimination policy, "there is no evidence that the DOE made the slightest effort to communicate its policy, whether or not it was reasonable on its face, to any of its employees, let alone to its regional directors, its supervisors, or Agusty." Moreover, the procedures of the agency's policy were tilted heavily against the complaining employee (it affords victims no opportunity to testify in support of their complaints once they are filed or to reply to the alleged harassers' testimony; those accused of sexual harassment are given an ex parte proceeding at which they can present their version of events, with counsel, without fear of rebuttal testimony or corroborative evidence from alleged victims and witnesses; victims are not even given notice of the hearing. Finally, the employee presented a genuine issue of material fact about whether she reasonably availed herself of the procedures that were available to her. "A jury could undoubtedly conclude that Agusty's concerted efforts to report Hernández's inappropriate behavior well before her January 22, 2007, complaint, constituted an altogether reasonable attempt to avoid further harm." 2. Genuine issue of material fact whether supervisor's harassment escalated after the plaintiff complained. Moreover, supervisor "completed his harsh evaluation about two weeks after Agusty first described his conduct to the DOE's Regional Director and two days after he was copied on a letter related to that meeting."

Lockridge v. University of Maine System, 597 F.3d 464, 108 FEP 1160 (1st Cir. 2010). Panel: HOWARD, Torruella, Boudin. Claims on Appeal: 1. Title VII compensation (sex). 2. Title VII retaliation. 3. Title VII harassment (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Assuming faculty member satisfied prima facie case, she failed to present genuine issue that reason for denying pay raise (unsatisfactory scholarship) was pretextual. Male faculty member to whom she compared herself was on "non-scholarly" track and therefore not comparable. No mixed-motive analysis where allegedly discriminatory behavior in the past was not linked to pay raise decision. 2. While being denied a request for office space could, in some instances, constitute a "materially adverse action" sufficient to trigger retaliation liability, here the record did not support the claim; other faculty members who had not complained about discrimination were also denied preferable office space. 3. Continuing violation theory did not make claim timely, where prior harassment was time-barred, and denial of pay raise and office space was not actionable as "anchoring acts," because as a matter of law they were not discriminatory.

Carreras v. Sajo, García & Partners, 596 F.3d 25, 22 A.D. Cases 1601 (1st Cir. 2010). Panel: LIPEZ,
 Lynch, Gajarsa. Claims on Appeal: 1. AD and P.R. law discrimination. 2. AD and P.R. law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No genuine issue of material fact that employee's diabetes substantially limited him in major life activities of eating (able to accommodate with twice-daily insulin shots and eating fairly often) and seeing (infrequent periods of blurriness, able to perform daily functions that require vision such as driving). 2. Assuming employee made out prima facie case, employee was unable to present genuine issue of material fact that proffered reason for termination (performance, insubordination) was pretextual. Minor inconsistencies in defense testimony did not raise inference that employer did not act for these reasons. Temporal proximity, while short (four days), only satisfies the prima facie case but does not establish pretext.

Richardson v. Friendly Ice Cream Corp., 594 F.3d 69, 22 A.D. Cases 473 (1st Cir. 2010). Panel: LIPEZ, Lynch, Ebel. Claims on Appeal: AD and Me. state law termination and reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine issue of material fact about employee, assistant manager of restaurant, was not "qualified individual," because essential functions of job (relying on job description) included manual tasks that she could not carry out due to injured shoulder. Even if primary function was administrative, it was still essential for assistant manager to fill in for employees, prepare food and undertake other physical tasks. No accommodation was possible, because even with modifications there were jobs she could not perform (mopping, lifting, scooping ice cream, unloading supplies), and delegating of all such tasks would mean she was no long performing essential functions. Interactive process could not have succeeded, so failure to engage in process is not a violation.

Rederford v. U.S. Airways, Inc., 589 F.3d 30, 22 A.D. Cases 1167 (1st Cir. 2009). Panel: LYNCH, Boudin, Saylor. Claims on Appeal: ADA termination. Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Claim was discharged in airline's prior bankruptcy. Court notes in dictum that because her suit was in substance a collateral attack on the bankruptcy court's judgment, it was probably subject to dismissal on that ground alone, but the defendant had not raised that argument. Definition of "claim" in the bankruptcy code is the "broadest available," and though there was no direct claim for a money judgment, the request for reinstatement could be reduced to a dollar judgment because money damages are an alternative remedy for reinstatement following wrongful termination.

Lopez v. Massachusetts, 588 F.3d 69, 107 FEP 1589 (1st Cir. 2009). Panel: LYNCH, Torruella, Howard. Claims on Appeal: Title VII disparate impact promotion (race). Disposition Below: Dismissal denied under Eleventh Amendment [plaintiff]. Outcome on Appeal: Reversed [defendant]. Grounds: Under the common-law test for employment (applied under Title VII), Commonwealth's Human Resources Division (HRD) was not "employer" of city police, even though it administered tests concerning promotion. HRD has no control over plaintiffs' day-to-day job performance and no right to exercise such control. Municipal police officers do not work on HRD's premises and have no continuing relationship with HRD. Instead, HRD affects plaintiffs only indirectly, and only to the degree that plaintiffs' local employers decide to involve HRD in various processes. HRD has no right to assign plaintiffs any projects, nor does HRD set the hours of plaintiffs' employment. Plaintiffs' work is not part of HRD's regular business; HRD is a state regulatory body concerned with the administration of the civil service system, whereas plaintiffs, as police officers, are concerned with maintaining public safety. HRD does not provide plaintiffs with any benefits, nor does HRD consider plaintiffs its employees for tax purposes. HRD has no role in termination decisions. Finally, neither HRD nor plaintiffs could have reasonably believed that they ever established an employer-employee relationship. As a matter of state law, plaintiffs are clearly described as the employees of "appointing authorities," whereas HRD is defined as the "administrator." The panel also rejects an "interference theory" of employment, under which "a party that significantly participates in and interferes with an employment relationship may be subject to liability as an employer." In so doing, panel notes split with Ninth and D.C. Circuits.

Windross v. Barton Protective Services, Inc., 586 F.3d 98, 107 FEP 1352 (1st Cir. 2009). Panel: GIBSON, Boudin, Howard. Claims on Appeal: Mass. state law termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Some counts time barred because they occurred more than 300 days before charge. For the continuing violation doctrine to apply, a plaintiff must prove that (1) at least one discriminatory act occurred within the limitations period, (2) the alleged timely discriminatory act has a substantial relationship to the alleged untimely discriminatory act, and (3) the otherwise time-barred events did not trigger his "awareness and duty" to assert his rights. Plaintiff admitted that at the time of the prior events he was conscious of possible discriminatory motives. Discipline and eventual termination supported by legitimate, non-discriminatory reason (insubordination); It was undisputed that switching shifts with another security officer without first getting permission from a supervisor is a violation of procedure. No abuse of discretion in denying leave to amend.

Thornton v. United Parcel Service, Inc., 587 F.3d 27, 22 A.D. Cases 929 (1st Cir. 2009). Panel: GAJARSA, Boudin, Lipez. Claims on Appeal: ADA job assignment. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff, a long-haul driver from 1968 to 2002, filed a charge complaining that he was denied accommodations and worked beyond his restrictions (he suffered from chronic pain from various back, shoulder and arm ailments). After commencing suit in federal district court, he amended with allegations "that UPS had engaged in per se disability discrimination by adhering to an unwritten '100% medical release' policy. . . . Under that alleged discrimination policy, employees with medical restrictions are forced to remain on unpaid leave unless they certify that they are completely recovered and one hundred percent healthy." The "100% healed" policy was not within the scope of the agency charge filed by plaintiff with the Massachusetts Commission Against Discrimination. Alternative argument that the "100% healed" claim challenged a "systemic violation" fails because plaintiff failed to produce sufficient evidence of such a systemic violation. Remaining claim about job assignment did not survive prima facie stage, where there was scant evidence that the employee was disabled or that the assignment of shifts was materially adverse. AD amendments Act not retroactive...

Vélez v. Thermo King de Puerto Rico, Inc., No. 08-1320 (1st Cir. Oct. 16, 2009). Panel: LIPEZ, Torruella, Leval. Claims on Appeal: ADE and P.R. law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Plaintiff presented genuine issue of material fact whether reason proffered for plaintiff's termination was pretext, i.e., accepting, and selling for personal gain, promotional items given to him by vendors, such as knives. Panel affirms that notwithstanding Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009), ADEA plaintiffs may still avail themselves of McDonnell Douglas Corp. v. Green, 411U.S. 792 (1973), method of proof. District court misanalyzed the prima facie case. Plaintiff met his burden of establishing his qualifications for the job by his 24-year-long spotless track record and in particular the eight years in his current job as Tool Crib Attendant. Moreover, "by concluding that Vélez was not qualified because he had not disproved the honesty of Thermo King's belief that he had violated company rules, the magistrate judge and the district court erroneously accepted for the purpose of the prima facie analysis Thermo King's stated reason for firing Vélez as proof that he was not qualified for the . . . job." Panel also finds evidence of pretext sufficient to warrant a jury trial to sort out, including employer's shifting explanations for its termination , the ambiguity of company policy and resulting uncertainty as to whether plaintiff violated it, and that in response to arguably similar conduct by younger employees, employer took no disciplinary action. Though employer had argued that the younger employees faced disciplinary action for different kinds of violations than plaintiff, and were not "comparable" for purposes of pretext, panel holds that a "rational jury could view this distinction as so meaningless that it masks a different purpose for distinguishing among the employees -- their ages." 

DeCaro v. Hasbro, Inc., 580 F.3d 55, 22 A.D. Cases 458 (1st Cir. 2009). Panel:  SELYA, Boudin, Dyk. Claims on Appeal: Mass. state law termination (disability). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion in instruction that the jury could consider plaintiff's application for SSDI disability to estop claim that he is a "qualified individual" for purposes of standing under the ADA. District court's SSDI instruction met the "thrust of the Cleveland Court's holding," stating that the fact that he "received [SSDI] benefits is not in itself necessarily fatal to his claim";' that the jury could "consider" whether the statements made by plaintiff in applying for SSDI benefits constituted "admissions" as to his inability to perform the essential functions of his job; that jury should "consider all the facts and circumstances"; and that it should "keep in mind that the standard for determining eligibility for [SSDI] benefits is different from the standard you must apply in determining whether plaintiff was able, with or without reasonable accommodation, to perform the essential functions of his job." Error in reasonable accommodation instruction moot in light of finding that plaintiff was not a qualified person with a disability. Rule 51 did not require judge to submit written charge for review before instructing jury.

Sensing v. Outback Steakhouse of Florida, 575 F.3d 145 (1st Cir. 2009). Panel: TORRUELLA, Selya, Lipez. Claims on Appeal:  Mass. state law termination (disability). Disposition Below: Summary judgment [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds: Restaurant server with MS presented genuine issue of material fact about whether she was "regarded as" handicapped as defined by state law. MS is an "impairment," and staff and management both expressed concern about plaintiff being able to perform her job safely. Fear that she might fall implies concern that employee could perform in broad class of jobs that require employee to stand or walk; in turn, these concerns also implicate other major life activities (walking, performing manual tasks). Medical evidence also establishes triable issue of fact about her ability to perform job with or without restrictions. District court erred in holding that employee suffered no adverse employment action. First, by removing her from the work schedule and rejecting her multiple attempts to return to work, plus failing to contact her with information that she needed to undergo independent medical examination (IME) exam, jury could find that plaintiff was essentially terminated from (and did not abandon) her job. Manager had also urged her to apply for unemployment. That employee consulted with lawyer while she was still employed at restaurant does not mean that she voluntarily quit. Alternatively, jury could find it was adverse employment action to remover her from schedule and offer less remunerative "light duty" position - even if only temporary - where months went by without her being returned to work. Although employer stated a legitimate reason for removing employee from schedule (safety), there was a genuine issue of material fact whether this actually motivated the decision (doctors evaluations had cleared her to return to work, employer did not contact doctors, employer demanded IME after missing only 1 and 1/2 shifts, motivation might have been speculation as to future risk rather than concern about present ability).

Correa-Ruiz v. Fortuño, 573 F.3d 311, 106 FEP 1134 (1st Cir. 2009). Panel:  LIPEZ, Howard, DiClerico. Claims on Appeal: ADEA forced retirement for fire-fighters. Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Amended Law 181, which dropped retirement age for fire-fighters to age 55 and forced retirement of incumbent officers, met the safe harbor requirements of ADEA § 623(j). Imposition of a lower retirement age was not conditioned on the HHS first approving a fitness test by regulation. Also, the age-55 retirement rule was not a subterfuge for age discrimination, and did not violate due process.

González Figueroa v. J.C Penney Puerto Rico, Inc., 573 F.3d 1, 106 FEP 1134 (1st Cir. 2009). Panel: SELYA, Leval [TORRUELLA, dissenting in part]. Claim on Appeal: P.R. law derivative age discrimination claim for relatives.  Disposition BelowDismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed in part [plaintiff]Grounds:  Predicting that Puerto Rico's hig court would hold that one year limitations period for derivative claims for employment discrimination accrues when relatives have notice of discriminatory conduct, which is not tolled during pendency of EEOC charge. Panel rejects argument that claim accrues only when employee prevails in original case. Relative may maintain derivative action, even if employee elects not to proceed. Two parties not entitled to tolling; Certification of issue to territory's highest court denied.

Chadwick v. Wellpoint, Inc.561 F.3d 38, 105 FEP 1457 (1st Cir. 2009). Panel: STAHL, Torruella, Garcia-Gregory. Claim on Appeal: Title VII/PD and Maine state law promotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: In sex-plus case, plaintiff presented genuine issue of material fact about whether employer denied her a promotion because she was a mother with four young children, where she outscored the employee who was promoted ahead of her; one of the decision-makers said "Oh, my -- I did not know you had triplets. Bless you!"; and decision makers told her at the time of the decision that "It was nothing you did or didn't do. It was just that you're going to school, you have the kids and you have a lot on your plate right now . . . .", that "there would be something better down the road," and that she would look back and say "it's a good thing that opportunity didn't work out because I'm happier with this down the road." Assumption that woman will perform job less well due to presumed family obligations, and consequent denial of opportunities, is a form of sex-stereotyping prohibited by Title VII. Court did not err in excluding expert testimony of sociologist about how comments and behavior of supervisors described in record indicated discrimination. Testimony would not be helpful to trier of fact under FRE702. Also, expert did not fully acquaint herself with the record.

Sullivan v. City of Springfield561 F.3d 7, 105 FEP 1484 (1st Cir. 2009). Panel: LYNCH, Selya, Siler. Claim on Appeal: § 1983 equal protection hiring (reverse race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant].Grounds: Panel finds that there was no racially-motivated reason for delay in hiring of white police officers, and that in any event, the order of hiring was dictated by 1973 Castro consent decree. Plaintiffs did not challenge the decree and conceded that to the extent that the order of hiring was lawful under the decree, there was no claim for relief. Claim was the captain reordered 1997 list to maintain one-minority-to-one-non-minority ratio, supposedly disadvantaging whites. City was obliged under the decree to maintain that ratio. Though captain testified that he and his staff split the list into racial categories and worked off of separate lists, the final list of hires was not so organized; it was not ordered one-to-one and did not include equal numbers of minority and non-minority employees. Thus, plaintiffs cannot show that they were relatively lower on the hire list for a racial reason. Plaintiffs argued that there was a genuine issue of material fact about causal, racial motivation, but plaintiffs waived this argument by cross-moving for summary judgment and not presenting such documents in evidence. Plaintiffs also waived by not filing a FRCP56(f) motion for addition al discovery. In any event, reordering of hire list was within scope of earlier decree. Decree did not bar reordering hire list by captain and appeared, if anything, to authorize that practice. District court did not commit reversible error in taking judicial notice of certain consent decree documents, as they were not outcome-determinative and plaintiffs were not prejudiced.

Fantini v. Salem State College, 557 F.3d 22, 105 FEP 961 (1st Cir. 2009). Panel: DOMINGUEZ, Boudin, Dyk. Claim on Appeal: 1. Title VII termination (sex). 2. Title VII and Mass. state law retaliation (sex). 3. § 1981 termination. § 1983 and state law claims (not discussed here). Disposition Below: 1. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. 2. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. 3. Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant].Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. District court erred in finding that employee failed to present her sex discrimination claims in her EEOC charge. Charge stated that male employee had committed similar errors, but was not terminated; complaint asserted same claims. Nonetheless, court affirms dismissal of individual counts against supervisors; no Title VII liability lies against individual decision makers. 2. Allegation that employee complained to company about male directors violations of Conflict of Interest and Disclosure Law not a protected activity. 3. No allegation that termination was account of race.

Monteagudo v. Asociacion de Empleados del Estado Libre Asociado de Puerto Rico, 554 F.3d 164, 105 FEP 494 (1st Cir.2009). Panel: TORRUELLA, Baldock, Howard. Claim on Appeal: Title VII and P.R. law harassment (sex). Disposition Below: Judgment after a jury trial ($332,999 compensatory under P.R. law, doubled for willfulness, $300,000 punitive; total $965,999) [plaintiff].Outcome on Appeal: Affirmed [plaintiff]. Grounds: Employer did not warrant judgment as a matter of law on Faragher/Ellerthaffirmative defense. Panel finds, though the facts were close, that the employee reasonably refused to invoke the company's anti-harassment policy when the two people she could report to were friendly to the harasser (she testified about conversations she heard among the men and that they went out to drink together). Panel also finds that the district court did not err in excluding testimony about the efficacy of agency's the anti-harassment policy by Director of administrative and Legal Affairs, regarding the efficacy of the agency's anti-harassment policy, because the plaintiff did not contest this element of the affirmative defense. District court did not err in denying remittitur finding compensatory damages, where, as a result of the sexual harassment she endured for several months, plaintiff testified that she felt "like a piece of meat' and wept every evening. After her constructive discharge, she testified that she suffered from depression and an inability to sleep."

Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 21 A.D. Cases 769 (1st Cir. 2009). Panel: LIPEZ, Torruella, Howard. Claim on Appeal: AD and Mass. state law reasonable accommodation.Disposition Below: Judgment after a jury trial ($439,315 for unpaid salary, $264,951 for addition al pension, and $151,713 for addition al thrift investment contributions; $500,000 emotional distress) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff].Grounds: Previously before court, where panel reversed summary judgment in part (433 F.3d 100 (1st Cir. 2005)). Employer not entitled to judgment as a matter of law on limitations defense. Record supported that employee's final request for reasonable accommodation (for employee with bipolar disorder) occurred within 180/300 days of charge. Employee requested specific kinds of accounts (called MM) which were easier for him to process and more service support. Court rejected the plaintiff's argument that this was a non-discrete "continuing violation" case under Morgan. Moreover, record showed that employer definitively rejected the requested accommodation The panel found, though, found no limitations problem because the plaintiff later renewed his 1997 accommodation requests within the limitations period in 2001 (general requests renewed at weekly meetings with supervisor, complaints about not having "level playing field"); the renewal was a new act with its own deadline. Issue was not waived by employer's failure to ask for a specific instruction on the issue., but argument that court should weigh the evidence itself under Fed. R. Civ. P. 49(a), because issue was omitted from special verdict, was waived. Jury could find that assignment of MM and sales support was reasonable accommodation. Although employer had argued that MMs had typically been used as a perk for high performers, record showed that Mms were not always assigned by merit. Jury could find that employee's disability did not render him incapable of handling MMs. Employer not entitled to finding on defense of undue hardship (on argument that granting MMs to employee might cost the company business). Award of front/back pay not erroneous. Evidence - including expert psychological evidence - supported finding that employer's failure to accommodate caused his inability to mitigate damages, No error in refusing remittitur of emotional distress damages, based on expert and plaintiff's own testimony about the trauma caused. District court properly calculated prejudgment interest as allowed under state law, using final judgment as the accrual date. On cross-appeal by plaintiff, district court did not err in withholding punitive damages instruction, where record showed that employer continuously weighed employee's requests and did not exhibit requisite disregard of rights. District court's decision to postpone award of attorney fees pre-appeal was within its discretion.

Abraham v. Woods Hole Oceanographic Institute, 553 F.3d 114,105 FEP 367 (1st Cir. 2009). Panel: GARCIA-GREGORY, Lynch, Howard. Claim on Appeal: Title VII termination (religion).Disposition Below: Judgment on the pleadings [defendant].Outcome on Appeal: Affirmed [defendant]. Grounds: Record showed that plaintiff never received the EEOC First Dismissal Notice because he had moved from Queens, New York to Lynchburg, Virginia and never filed a change of address with the EEOC. Dr. Abraham's lack of diligence in filing a change of address with the EEOC as required by 29 C.F.R. § 1601.7(b), precluded application of equitable tolling for filing civil action more than 90 days after he should have received notice.

Casamento v. Massachusetts Bay Transp. Auth., 550 F.3d 163, 104 FEP 1800 (1st Cir. 2008). Panel: Per Curiam (Lynch, Boudin, Lipez). Claim on Appeal: Title VII transfer and duty of fair representation (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No rebuttal of explanation by employer that it rescinded posted position due to budget concerns, or that union saw no valid complaint to grieve; no evidence of discriminatory motive.

Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 104 FEP 1700 (1st Cir. 2008). Panel: TORRUELLA, Lynch, Lipez. Claim on Appeal: N.H. law retaliation. Disposition Below: Summary judgment [affirmed]. Outcome on Appeal: Affirmed [defendant]. Grounds: Court not obliged on summary judgment to ignore affidavits by agents of employer (not disinterested) articulating their reasons for termination, if they are otherwise uncontested by employee. Doubtful that employee made out prima facie case that he was terminated because of his participation in a deposition in a discrimination case; employee has difficulty presenting genuine issue of material fact based on speculation that lawyers who were involved in deposition communicated disapproval of employee's performance at deposition to the managers who fired the employee. Decision-maker's body language of "looking away" in response to statement by employee about deposition insufficient to support inference. Also temporal proximity (two months) a problem. But if employee could make out prima facie case, he loses on pretext, where employer contended that the plaintiff was fired in a RIF. Cannot make out genuine issue of material fact about whether employer (1) had shifting rationales for decision, and (2) exaggerate plaintiff's alleged misconduct. Motion for Rule 56(f), whether or not correctly denied, not material to outcome, where requested documents would not rebut RIF explanation.

Enica v. Principi, 544 F.3d 328, 21 A.D. Cases 105 (1st Cir. 2008).Panel: DELGADO-COLÓN, Selya, Lipez. Claim on Appeal: 1. Rehabilitation Act reasonable accommodation (1996). 2. Rehabilitation Act reasonable accommodation (2002). 3. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [affirmed]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. Plaintiff was a psychiatric nurse with mobility problems. No collateral estoppel effect from worker's compensation hearing at Department of Labor, which did not concern issue of whether plaintiff failed to receive reasonable accommodations, but what caused her injury (bursitis from excessive walking). Agency could not be held liable for failing to accommodate an obvious disability without consultation with plaintiff, because her condition and duties at worked changed and required different accommodations at different times. Limitations concerning pushing and pulling patients did not necessarily imply restriction in walking. No evidence in 1996 that plaintiff complained to agency, so no evidence that agency was aware of need or request for accommodations. 2. Genuine issue of material fact about whether the agency provided plaintiff with reasonable accommodations. While the agency took part in the interactive process and made some effort to work with her, it at least arguably failed to carry out accommodations. Agency made decision to transfer plaintiff based on the belief that working in a small unit with only There beds would be less physically demanding than her current position. But it admitted that because the unit saw only one or two patients a week, it would ask its nurses, including plaintiff, to perform walking rounds in other medical units. In view of the physical distance separating units and fact that plaintiff was required to engage in walking rounds on the first day she reported for duty (for up to two miles of walking total per day), casts doubt on whether agency meant to implement the accommodations to which the parties apparently agreed which would have excused her from any physical interventions with patients and unnecessary walking. Opinion notes that although employer doesn't have to accede to employee's preferred accommodation, once it does agree to a course, it must act reasonably in carrying it out. 3. Because job was eliminated and plaintiff did not apply for newly-created position, plaintiff cannot prove causation as a matter of law. In the alternative, no direct or circumstantial evidence that protected activity (complaint to EEO specialist) motivated denial of promotion.

Sabinson v. Trustees of Dartmouth College, 542 F.3d 1, 104 FEP 321 (1st Cir. 2008). Panel: BOUDIN, Torruella, Dyk. Claim on Appeal: 1. Title VII demotion (sex, race, religion). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Affidavits of persons in college theater department attesting to environment of sexism, racism and anti-Semitism not direct evidence of discrimination. Assuming that plaintiff made out prima facie, indirect case of discrimination, college presented legitimate, non-discriminatory reason (panel investigation showed that professor's behavior was damaging department), and plaintiff failed to show reason was pretextual. Although there was a record that the panel was hand-picked by a hostile dean , no evidence that the animus behind his decisions was related to discrimination. 2. Decision to reassign professor away from directing duties and into writing and acting classes - though unwelcomed -- was recommended in report before employee made EEO complaint, and was therefore not motivated by protected act.

Chaloult v. Interstate Brands Inc., 540 F.3d 64, 104 FEP 229 (1st Cir. 2008). Panel: LYNCH, Boudin, Lipez. Claim on Appeal: Title VII harassment (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employer made out Faragher/Ellerth affirmative defense as a matter of law. Employee conceded that she had not reasonably reported acts of harassment, but contended that employer had not acted reasonably to eliminate harassment. Court rejects legal argument that co-worker's knowledge of harassment could be imputed to the employer where company policy required supervisors to report all observed harassment and, in this case, the co-worker also had the title of supervisor. Panel holds that supervisor in this context means successively higher-ranking. to victim of harassment. Court observes in this respect that there is a split with the Sixth Circuit. Even if the co-worker's knowledge could be imputed, in this case his observations did not reveal enough misconduct (several suggestive remarks) to constitute harassment.

Prescott v. Higgins, 538 F.3d 32, 104 FEP 242 (1st Cir. 2008).Panel: TORRUELLA, Lynch, O'Connor. Claims on Appeal: 1. Title VII and Mass. state law hiring (race). 2. Title VII and Mass. state law hiring disparate impact. 3. Title VII and Mass. state law compensation (race). 4. Title VII and Mass. state law harassment (race). 5. Retaliation (statute not specified in opinion). 6. Rehabilitation Act and Mass. state law discrimination. State law statutory and tort claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. 5. Summary judgment [defendant]. 6. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Affirmed [defendant]. 5. Affirmed [defendant]. 6. Affirmed [defendant]. Grounds: 1. Plaintiff did not make out prima facie case that he was qualified for the position; in his interview, he answered questions vaguely or inaccurately, compared to candidate who got the job.2. Judge was not required to take judicial notice of statistics worked up for another case against the same defendant under FRE201.3. As above, employee did not make out prima facie case of discrimination.4. No evidence of severe harassment; plaintiff admitted that he had heard no racial slurs in 20 years and got along well with his supervisor.5. Plaintiff failed to identify protected activity.6. Under federal law, lifting restriction by itself did not limit employee in a major life activity. Under state law, no demonstration that he was "handicapped" under similar analysis.

Collazo v. Nicholson, 535 F.3d 41, 103 FEP 1448 (1st Cir. 2008).Panel: LIPEZ, Torruella, Baldock. Claim on Appeal: ADEA harassment. Disposition Below: Summary judgment [defendant].Outcome on Appeal: Affirmed [defendant]. Grounds: No relief for pure humiliation, because the ADEA under 29 U.S.C. § 626(b) -- modeled after the FLSA -- provides money damages only for pecuniary losses. Because employee sought no pecuniary damages of equitable relief, he fails to state a claim.

García v. Bristol-Myers Squibb Co., 535 F.3d 23, 103 FEP 1685 (1st Cir. 2008). Panel: LYNCH, Torruella, Lipez. Claim on Appeal: Title VII termination (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds:  Male comparators were materially different; plaintiff had much worse review than comparable male in 2003, and decision to place her on performance improvement plan (PIP) had been made before 2004 reviews. Plaintiff was also only Senior Project Engineer; males had other duties, and plaintiff's alleged problems with communications with her manager were overstated. Plaintiff's unsworn statement of facts in the record properly disregarded. Asserted inconsistency between being placed on and favorable "Meets Expectation" rating within same two moths does not present an issue of pretext where it does not point to gender bias.

Arroyo-Audifred v. Verizon Wireless, 527 F.3d 215, 103 FEP 708 (1st Cir. 2008). Panel: HOWARD, Lipez, Baldock. Claim on Appeal: ADEA promotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee forfeited right to dispute uncontested statement of facts by filing responde that did not comply with local rules. Promotion claims during 2002 and 2003 time-barred. For 2006 position, employee did not make out prima facie case, because position was actually filled by emloyee two years older than he was. For 2004 promotion, employee made out prima facie case, but did not demonstrate pretext (manager testified that employee lacked professional maturity) with evidence that (1) employee who interviewed him yawned; (2) interviewer said that "this position is like stepping in a train station, sometimes the doors open and sometimes they don't"; and (3) high certification score was only qualifying factor, not determinative.

Sánchez-Figueroa v. Banco Popular de Puerto Rico, 527 F.3d 209, 20 A.D. Cases 1091 (1st Cir. 2008). Panel: LIPEZ, Baldock, Howard. Claims on Appeal: ADA reasonable accommodation.Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion deeming employer's statement of facts as uncontested, due to violations of local rules concerning response to statement of uncontested facts and use of untranslated documents. Employee did not establish prima facie case because her condition (mixed situational disorder) was temporary and thus not "substantially limiting."

Thompson v. The Coca-Cola Co., 522 F.3d 168, 103 FEP 8 (1st Cir. 2008). Panel: TORRUELLA, Lynch, Lipez. Claims on Appeal: 1. Title VII and Mass. state law termination (national origin, race). 2. Title VII and Mass. state law harassment and retaliation.Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee failed to present genuine issue of material fact about employer's legitimate, non-discriminatory reason for his termination (violating office procedure for vacation leave). Employee acknowledged that he didn't follow procedure in reporting absence. Remarks by executives about Jamaicans were unconnected to termination decision, occurred up to a year before the termination, and those executives were not decision makers. 2. There racial comments over four years were not pervasive; in any event, company took action one comment, another occurred outside the workplace, employee did not timely complain through dispute resolution system. No evidence that poor performance evaluation was in any way related to the discriminatory comments or employee's complaint about them.

Lugo-Velazquez v. Stiefel Laboratories, 522 F.3d 96, 103 FEP 282 (1st Cir. 2008). Panel: LYNCH, Torruella, Keenan. Claims on Appeal: Title VII benefits (national origin). ERISA claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Puerto Rican citizen who owes no federal income tax has no need to tax-protect retirement income, so 401(k) plan did not have to include Puerto Ricans.

Decaire v. Mukasey, 530 F.3d 1, 102 FEP 1758 (1st Cir. 2008).Panel: LYNCH, Torruella, Lipez. Claims on Appeal: 1. Title VII discrimination (sex). 2. Title VII retaliation (sex). Disposition Below: 1. Judgment after a bench trial [defendant]. 2. Judgment after a bench trial [defendant]. Outcome on Appeal: 1, Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. District court found that employee presented "convincing evidence of gender discrimination," and transfer to a lesser position was "gender discrimination pure and simple," and so clearly erred in not entering judgment to plaintiff on liability. District court also erred in holding that (1) he could not consider evidence of initial transfer on discrimination claim because it occurred more than 45 days before plaintiff consulted with EEO counselor; and (2) substituting reason for agency's decision sua sponte (i.e., personal acquaintance with other candidate, personal hositility) other than what employer advanced at trial. 2. District court erred in holding that female employee who did not show that male deputy would not have been treated the same way failed to prove retaliation; gender of comparable employee irrelevant to retaliation. District court also erred in holding that existence of allegedly discriminatory employment actions prior to the filing of a complaint immunizes an employer from a retaliation claim following the complaint. District court also created an improper "disloyalty defense," contending that in a command structure an officer might be terminated for protected activity if it violated duty of loyalty to superior officer. District court erroneously imposed duty to present addition al evidence of retaliation over and above demonstrating falsity of the employer's explanation, and requiring "direct" evidence or retaliation.

Ruiz Rivera v. Pfizer Pharmaceutical LLC, 521 F.3d 76, 20 A.D. Cases 718 (1st Cir. 2008). Panel: SMITH, Lipez, Howard. Claims on Appeal: AD and P.R. law "regarded as" disability termination .Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee's complaint does not separate her failure to accommodate claim and her regarded as claim into distinct causes of action. Mere inclusion in complaint of the word "perceived" was not enough to put employer on notice that employee was making a "regarded as" claim against it. Employee must allege in complaint specific major life activity in which she is said to be substantially limited. On the merits, employee abandoned failure to accommodate claim in the course of briefing summary judgment. Reliance on company physician's statements or opinion, based entirely on plaintiff's own doctor's recommendations, cannot support "regarded as" claim. Employee terminated only after nine months, after numerous unsuccessful attempts to seek updates on her medical status. Doctor's isolated comment allegedly made as to the impact of the of diagnosis on ability for employee to work in industry and at best stray remark.

Ríos-Jiménez v. Principi, 520 F.3d 31, 20 A.D. Cases 609 (1st Cir. 2008). Panel: SMITH, Torruella, Baldock. Claims on Appeal: 1. Rehabilitation Act termination of promotion. 2. Rehabilitation Act harassment. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employer's statement of material facts properly credited as sanction for employee's failure to comply with local rule. Employee could not establish claim by mixed motive method. Supervisor's favorable review predated performance problems employee manifested after diagnosis of depression and anxiety, and attendance problems. Email by supervisor that employee suggested was evidence of intent and statement that employee might not return to work were evidence of concern and an effort to accommodate. Employee fails under burden-shifting analysis, because she was unable to show she was otherwise-qualified, owing to poor attendance (attendance is an essential function), even with accommodation of part-time hours. Being given an assistant is not a reasonable accommodation under theses circumstances. 2. Remarks by supervisor that employee might resign and removal of employee from diabetes study not severe or pervasive.

Warren v. UPS Inc., 518 F.3d 93, 20 A.D. Cases 513 (1st Cir. 2008). Panel: LYNCH, Selya, Siler. Claims on Appeal: Maine Human Rights Act reinstatement (disability). Disposition Below: Judgment after a jury/bench trial ($74,155.99 back pay, front pay and reinstatement) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Driver with diagnosis of epilepsy won liability when employer refused to allow him to drive package delivery cars. Under Maine law, proof of safety risk is placed on employer as affirmative defense rather than as an "essential function" as under the federal ADA. Jury properly instructed on reasonable accommodation; nothing precluded jury from considering safety as a factor in accommodation. Instruction was not erroneous in informing jury that "mere possibility" that a driving job might endanger employee or public, where rest of instruction made clear that employer could consider "reasonable probability" of harm. Employer not allowed instruction on timing of individualized assessment of employee, where record showed that employee was never given assessment at all. Instruction on "record of" and "regarded as" disability was accurate statement of Maine law.

Torrech-Hernández v. General Electric Co., 519 F.3d 41, 102 FEP 1551 (1st Cir. 2008). Panel: SMITH, Torruella, Baldock. Claims on Appeal: ADE and P.R. law termination . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court not required to credit conclusory and largely subjective declaration of employee against more detailed responses in deposition. District court erred in holding under indirect method of proof that employee was not meeting the employer's legitimate expectations, because it contradicted other part of defense that employee voluntarily resigned and would not have been fired. Summary judgment affirmed on alternative ground that there was no genuine issue of material fact that employee resigned, where he initiated negotiations to quit, expressed desire for severance package, and sent his subordinates an unambiguously worded resignation email. Negotiations ended only after employee interjected substantially larger demand for severance and Threatened to return to work and to bring a lawsuit if they could not reach terms. Incident was not "constructive discharge"; employee could not have reasonably believed that ambiguous comments (e.g., that the plant was a "dinosaur," and that employee lacked "energy") made the termination inevitable, or that employer was trying to force employee to leave.

Billings v. Town of Grafton, 515 F.3d 39, 102 FEP 1091 (1st Cir. 2008). Panel: HOWARD, Lynch, Cyr. Claim on Appeal: 1. Title VII harassment (sex). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Employee presented genuine issue of material fact whether town administrator's habit of staring at her breasts regularly, for up to five seconds at a time, over a two-and-a-half year period was sufficiently severe or pervasive. Employee also presented evidence that it was objectively and subjectively offensive (concerned about visiting the administrator's office, about what she wore), and that she was able to perform the duties of her job as secretary (e.g. type letters) did not determine this issue as a matter of law. Issue of whether staring was harassment "because of sex" also a genuine issue of material fact, even if administrator had proffered another explanation (that an eye condition caused his gaze to drift); breast-staring by men is ordinarily understood to be sexual.2. Employee presented genuine issue of material fact regarding materially adverse action, where employee was transferred away from the town supervisor into an objectively less prestigious job, reporting to lower-level employee, involving less contact with elected official and public and requiring lesser qualifications. Employer also refused to reinstate employee to old job as personal secretary to town administrator when the former officeholder (whom she accused of harassment) retired. Also, it was materially adverse to subject the employee to an investigation and reprimand for opening the town supervisor's personal mail (which was part of her job responsibilities) charging her personal time for attending her deposition in the case (when defense witnesses were not so charged), and barring her from the Selectman's Office (preventing her from attending an important training session). Employee also presented a genuine issue of material fact about pretext: defendants provided conflicting accounts of who made the decision to transfer, evidence suggests that board did not consider alternatives to transfer, defendant arguably misrepresented the out come of an investigation into the harassment.

Franceschi v. Principi, 514 F.3d 81, 102 FEP 883 (1st Cir. 2008).Panel: TORRUELLA,Baldock,Lipez. Claim on Appeal: 1. Title VII harassment and discrimination (sex). 2. Title VII retaliation.Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Federal employee failed to exhaust remedies (42 U.S.C. §2000e-16(c) and 29 C.F.R. §1614.107(b)); despite that EEOC dismissed the harassment claim, it had not competed processing and investigation of discrimination complaint before employee filed civil action. 2. Although post-charge retaliation claims need not ordinarily be exhausted, where the underlying charge of discrimination was exhausted, here the original charge was not exhausted and the retaliation claim must fall with the underlying claim.

Forrest v. Brinker International Payroll Co LP, 511 F.3d 225, 102 FEP 533 (1st Cir. 2007). Panel: STAHL, Lynch, Campbell. Claims on Appeal: Title VII and Me. state law harassment (sex).Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court erred in holding that employee failed as a matter of law in establishing that co-worker harassment (name-calling and some physical contact) was based on sex rather than on personal animosity stemming from their failed relationship. "[I]mproper gender bias can be inferred from conduct; if the harassing conduct is gender-based, Title VII's requirement that the harassment be 'based upon sex' is satisfied." There is also sufficient evidence of management's knowledge of the harassment. Nevertheless, no reasonable jury could conclude that the employer's response was not prompt and appropriate, where the employee complained There or more times, employer had written policy against harassment, it imposed progressive discipline against the harasser and removed him within one month.

Mariani-Colón v. Dept of Homeland Security, 511 F.3d 216, 102 FEP 538 (1st Cir. 2007). Panel: BALDOCK, Portella, Lipez. Claims on Appeal: 1. Title VII termination (race, sex, color, national origin). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant].Grounds: 1. District court did not abuse discretion in deeming movant's statement of uncontested facts as admitted under local rule, where plaintiff merely submitted a contrasting, alternative set of facts. Plaintiff was air marshal candidate not hired after his probationary period. Assuming he made out prima facie case under McDonnell Douglas method of proof, his evidence of pretext relied largely on testimony (by himself and co-workers) lacking in personal knowledge. Plaintiff also failed to show that other employees to whom he would compare himself committed infractions perceived by the employer at the same level of seriousness. 2. Employee established disputed issue of fact about causation, where only a couple of months separated his allegations from his termination. But employee could not establish pretext for employer's explanation that he was fired for overstaying leave.

Bennett v. Saint-Gobain Corp., 507 F.3d 23, 101 FEP 1686 (1st Cir. 2007). Panel: SELYA, Boudin, Schwartzer. Claim on Appeal: 1. ADE and Mass. state law termination. 2. ADE and Mass. state law retaliation . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Alleged age discriminatory remarks by manager contained in other employees' internal grievances with the company inadmissible as hearsay, were not admissions of the employer and in any event concerned a manager who was not the decision-maker. Grievances were also unsworn, so statements in the grievance constituted hearsay within hearsay. Although employer conceded prima facie case, employee could not present genuine issue of material fact about pretext, where employee was terminated for writing harassing poems to female co-worker. Employee failed to present evidence that manager who was allegedly age-biased was involved in decision to terminate employee. Challenge to employer's good faith belief that the plaintiff was the culprit did not rebut employer's good faith belief.2. Sixteen-month gap between filing of age discrimination grievance and termination, and fact that employee filed grievance against a different manager dispels inference of retaliation.

Dixon v. Int'l Brotherhood of Police Officers, 504 F.3d 73, 101 FEP 1121 (1st Cir. 2007). Panel: LYNCH, Lipez, Howard. Claim on Appeal: 1. Title VII and Mass. state law retaliation. 2. Title VII and Mass. state law harassment (sex). State tort claim (not discussed here). Disposition Below: 1. Judgment after a jury trial, $1,205,000 compensatory, $1,027,501 punitives [plaintiff]. 2. Judgment after a jury trial, $1,205,000 compensatory, $1,027,501 punitives [plaintiff].Outcome on Appeal: 1. Affirmed [plaintiff]. 2. Affirmed [plaintiff].Grounds: 1. Statutes hold union's liable for retaliation claims for harms caused in and outside of workplace; need not pertains specifically to union membership. Judgment against officer of local affirmed; jury could find filing of TRO against plaintiff was based on false affidavit, had effect of suspending plaintiff from work (and surrendering gun), and employee suffered difficulty at job because of TRO. Although jury found against plaintiff on defamation, that is not inconsistent with theory that union made false statements. Although union had right to defend itself against plaintiff's charges, and such speech would not be actionable, and using such speech to intimidate, Threaten or interfering with right to file discrimination claim. Jury could also find admissions by union that it challenged employees fitness for work and cheer at her downfall. 2. Affirming liability for harassment on bus at union-sponsored event, where president of local was onboard and did nothing to intervene. Union's inaction and failure to investigate the incident supports liability. Jury properly instructed that TRO action could be basis of liability if it was motivated by retaliatory intent and not objectively reasonable. Instruction on punitive damages not erroneous; focused under state law on egregious misconduct.

Torres-Álamo v. Commonwealth of Puerto Rico, 502 F.3d 20, 19 A.D. Cases 1158 (1st Cir. 2007). Panel: TORRUELLA, Lipez, DiClerico. Claim on Appeal: ADA reasonable accommodation and retaliation. Defaulted constitutional and Title VII claims (not discussed here). Disposition Below: Dismissal under Fed. R. Civ. P. 12(b)(1) [defendant]. Outcome on Appeal: Reversed [plaintiff].Grounds: Although defendant was immune from Title I liability as employer under Garrett, district court abused discretion by denying employee opportunity to amend complaint to add Title V retaliation claim.

Dávila v. Corporación de Puerto Rico Para la Difusíon Pública, 498 F.3d 9, 101 FEP 323 (1st Cir. 2007). Panel: SELYA, Lynch, Lipez. Claim on Appeal: Title VII and P.R. law termination (national origin). Disposition Below: Summary judgment [defendant].Outcome on Appeal: Affirmed [defendant]. Grounds: Presence of untranslated documents in record, although in violation of local rules, not reversible error because documents were not relied upon in granting summary judgment. Employer proffered legitimate, non-discriminatory reason for termination (poor performance during probation). Challenges to evaluations' accuracy does not indicate age discrimination. Plaintiff's affidavit reflecting statements by unidentified co-workers about manager's age-bias not admissible as FRE 801(d)(2) party-admission or FRE 803(1) present sense impression.

Rolland v. Potter, 492 F.3d 45, 19 A.D. Cases 677 (1st Cir. 2007). Panel: STAFFORD, Torruella, Lipez. Claim on Appeal: Rehabilitation Act overtime hours. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: USPS's decision to place the employee with a ruptured disc in a "rehab" job does not estop the employer from later denying that the employee is "disabled" for purposes of the Rehabilitation Act. Such positions are mandated by the Federal Employees Compensation Act (FECA). "Eschewing the Rehabilitation Act's more demanding definition of the term 'disability,' Congress defined the term 'disability' for workers' compensation purposes as the 'incapacity, because of an employment injury, to earn the wages the employee was receiving at the time of the injury.' 20 C.F.R. § 10.5(f)." Affirming summary judgment, the court found that the employee was able to perform daily activity (including, for New England, the all-important task of snow-blowing) and did not meet the "demanding" standards for proving disability.

Sher v. U.S. Dep't of Veterans Affairs, 488 F.3d 489, 100 FEP 1495 (1st Cir. 2007). Panel: LIPEZ, Howard [STAHL, dissenting] .Claim on Appeal: Title VII suspension and demotion (religion, national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine issue of disputed fact of pretext presented by agency's proffered explanation for its action (employee's failure to cooperate with investigation into his alleged criminal conduct). Where employer proffers more than one reason for an adverse action, it is ordinarily the employee's burden to rebut each of them. Failure of employee to present mixed-motive analysis in district court forfeited that theory on appeal.

Morón-Barradas v. Dep't of Education of the Comm. of P.R.,488 F.3d 472, 100 FEP 1609 (1st Cir. 2007). Panel: TORRUELLA, Lynch, DiClerico . Claims on Appeal: 1. Title VII failure to hire (national origin). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Judgment of P.R. Court of Appeals upholding Public Education System Appeals Board decision that employee was not qualified for vacant position has issue preclusion effect over claim in Title VII litigation that she was not hired for discriminatory reason. No evidence of pretext on separate decision not to certify the employee. Even if the certificate was erroneously denied, it does not show that denial was for discriminatory purpose. 2. Four-month gap between filing of EEOC charge and rejection of application for certification defeated inference of causation.

Torres-Negrón v. Merck & Co., 488 F.3d 34, 100 FEP 897 (1st Cir. 2007). Panel: TORRUELLA, Baldock, Howard . Claim on Appeal: 1. Title VII harassment (national origin). 2. ADA discrimination. 3. Title VII retaliation. COBR and P.R. commonwealth claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [affirmed].Outcome on Appeal : 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. 3. Reversed [plaintiff]. Grounds: 1. Employee claimed that from her first day at work in Mexico (from Puerto Rican division), she endured negative and harassing comments about her gender, her U.S. citizenship, her U.S. salary, and her Puerto Rican accent. The panel holds that the various factors in the record (the two divisions are in the same line of business, often borrow each others' employees, maintain common personnel policies and functions, continue control and payment of the employee by the home division, and are jointly owned by the same parent corporation) combine to present at least a genuine issue of material fact as to whether the two divisions constitute a "single" or "integrated employer." 2. Because two company's may be single employer, this presented genuine issue as to whether employer was aware of her disability status. 3. Alleged acts of retaliation may be attributable to entire, single enterprise. Although failure to pay bonus was not causally related to filing of charge (because decision was already made over a year before she complained), other acts (failure to provide W-2 forms, pay timely withholding and send a COBRA notice) fell within correct time-frame, and were attributable to employer even though it retrained an accountant to carry out those duties; employer had obligation to make sure job got done. ERISA statute did not provide exclusive remedy for failure to provide COBRA notice, if failure was motivated by discriminatory purpose; ERISA only preempts state, not federal remedies.

Hoyos v. Telecorp Comm., Inc., 488 F.3d 1, 100 FEP 1088 (1st Cir. 2007). Panel: LYNCH, Selya, Lipez. Claims on Appeal: P.R. commonwealth termination (sex). P.R. commonwealth claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine issue of material fact that employee was fired for violating a direct order to stay away from a female employee who accused him of sex harassment.

Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 100 FEP 738 (1st Cir. 2007). Panel: SELYA, Lipez, DiClerico. Claim on Appeal: Title VII and P.R. law termination (national origin).Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No appellate jurisdictional defect, where docket sheet reflected failure to dismiss one defendant, where employer had stipulated that there was only one defendant, even though parent and branch were separately named. District court did not abuse discretion in rejecting employees' responsive statement of facts that violated local rules, deeming employer's statement of facts unopposed. Employees knowingly and voluntarily entered into releases of their claims. Although employer controlled terms of settlement, all other factors favored enforcement of release (educational levels of employees, clear language, bilingual, 45 days to accept, opportunity to see lawyer, sufficient consideration, described addition al benefits that employee would obtain with signed severance agreement, no evidence of duress). Contract also enforceable under Commonwealth law standards.

Freadman v. Metropolitan Prop. & Cas. Ins. Co., 484 F.3d 91, 19 A.D. Cases 257 (1st Cir. 2007) . Panel: LYNCH, Boudin, Torruella .Claims on Appeal: 1. AD and R.I. state law demotion. 2. AD and R.I. law reasonable accommodation. 3. AD and R.I. law retaliation.Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [affirmed].Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. Grounds: 1. Employee with ulcerative colitis did not present genuine issue of material fact regarding pretext, where employer's reasons for demoting employee were (1) disrespectful behavior to second-level superior during planning meeting for conference, (2) unsatisfactory presentation of slideshow during an Officer's Strategic Planning Group, and (3) resulting loss of confidence by second-level boss. Temporal relationship between request for reduced workload and demotion, within a few weeks, not probative where employer had already given employee considerable leave and part-time opportunities and allowed to hire an assistant in spite of a freeze. Moreover, the reasons proffered by the employer were all intervening events. Supposed failure to follow disciplinary policy not probative where decision was within bounds of policy for "extreme cases." 2. While working on presentation, employee requested that direct supervisor for "some time off because [she was] starting not to feel well." Although employee demonstrated genuine issue of material fact about link between disability and requested accommodation of time-off (there was considerable history prior to request that put manager on notice that request was disability related.). But there was no genuine issue of material fact about request being "sufficiently direct and specific." Employee did not ask for time-off prior to presentation, employer suggested that employee take time-off after presentation and employer engaged in interactive process to determine what kind of accommodation she needed. Employee was under duty to clarify what she needed. Being called back to work some weeks later while she was on leave to discuss change in her duties was not unreasonable. 3. No causal link shown between request for time-off from direct supervisor and second-level supervisor's decision to demote her.

Frederique-Alexandre v. Dep't of Nat'l and Env'l Resources, 478 F.3d 433, 99 FEP 1441 (1st Cir. 2007). Panel: STAHL, Torruella, Baldock. Claims on Appeal: 1. Title VII discrimination and harassment (national origin). 2. Title VII retaliation. P.R. law claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. EEOC charge filed in Spanish (which included later date), and attached as exhibit to summary judgment, was not admissible because law requires that federal proceedings in Puerto Rico be conducted in English, and employee failed to file translations after submitting motion for leave to do so. District court did not abuse discretion in granting summary judgment sua sponte on alternative argument that original charge included typographical error; employee had an opportunity to correct pleadings and failed to do so. 2. Claim not ripe because employee had not yet received right-to-sue letter from EEOC; claim dismissed without prejudice.

Gómez-Pérez v. Potter, 476 F.3d 54, 99 FEP 1185 (1st Cir. 2007).Panel : TORRUELLA, Baldock, Howard. Claim on Appeal: ADEA retaliation. Disposition Below: Summary judgment [defendant].Outcome on Appeal: Affirmed [defendant]. Grounds: Congress effectively waived sovereign immunity for ADEA suits. Nevertheless, Congress did not include specific protection into section 15 of the ADEA (29 U.S.C. § 633a) covering the federal sector covering retaliation: "The absence of statutory language providing a claim for retaliation in § 633a, when compared with the explicit prohibition on retaliation in § 623(d), further supports the conclusion that Congress intended for the ADEA to prohibit retaliation by private employers, but not by federal employers." Notes split with D.C. Circuit on latter issue.

Velázquez-Fernández v. NCE Foods, Inc., 476 F.3d 6, 99 FEP 1031 (1st Cir. 2007) . Panel: STAHL, Torruella, Baldock. Claim on Appeal: ADE and P.R. law termination. FLS and P.R. law claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Comment by manager that company could pay two younger employees on one plaintiff's salary was a stray remark by a non-decision-maker. One employee tries, unsuccessfully, to call decision-maker's business judgment into question (that she reacted overly harshly to errors) as evidence of pretext. Second plaintiff failed to make out prima facie case because he was not terminated, nor did he suffer constructive discharge; when his job was eliminated, he was offered new position as assistant manager that entailed same duties, compensation and benefits as old position.

De Jesús v. LTT Card Services, Inc., 474 F.3d 16, 99 FEP 1048 (1st Cir. 2007) . Panel: LYNCH, Stahl, Lipez. Claim on Appeal: Title VII , AD and P.R. law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff].Grounds: District court erred in holding that shareholder-directors must be excluded as a matter of law from being counted as "employees" for purposes of tallying the 15-employee Threshold under 42 U.S.C. § 2000e(b). An inference of an employment relationship may be drawn from the presence of two individuals, designated by the employer as directors, on the payroll (payroll method). Second, following traditional agency principals (Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 (2003)),the panel found that the district court could not rely solely on the employer's self-declared, unverified statement that the two individuals were partners. Because the six-factor standard set out inClackamas Gastroenterology is fact-sensitive and non-exclusive, the court held that management "authority does not necessarily entail a right to control" and that the record required further development to determine which side of the line the two fell. The case was remanded for the purpose.

Douglas v. J.C. Penney Co., 474 F.3d 10, 99 FEP 985 (1st Cir. 2007) . Panel: TORRUELLA, Stahl, Lipez. Claim on Appeal: 1. Title VII and Mass. state law termination (race and reverse sex). 2. Title VII and Mass. state law harassment (race). 2. Title VII and Mass. state law retaliation. Disposition Below: 1. Summary judgment [defendant] 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. 3. Affirmed [defendant].Grounds: 1. Employee's "performance evaluations showed not only subjective evaluations of poor performance, but also that [he] consistently failed to meet the numerical sales and inventory targets set for him on a yearly basis," and there was no evidence that white or female employees were treated more forgivingly. Distinguishes case where disparities in subjective performance evaluations did not match up with individualized objective performance factors. Evaluations were poor in year before employee claims there was any bias. 2. Isolated racial comment was not severe or pervasive. 3. Employee presented no evidence of causation.

Velez v. Janssen Ortho, LLC, 467 F.3d 802, 99 FEP 161 (1st Cir. 2006). Panel: LIPEZ, Selya, Howard Claims on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant].Outcome on Appeal: Affirmed [defendant]. Grounds: On issue of first impression, court holds that in failure to hire retaliation case to make out prima facie case employee must establish that she applied and was qualified for a specific job, as opposed to expressing generalized interest in employment.

Carmona-Rivera v. Commonwealth of Puerto Rico, 464 F.3d 14, 18 A.D. Cases 651 (1st Cir. 2006). Panel: HANSEN, Selya, Lynch.Claims on Appeal: 1. ADA discrimination under Title II. 2. ADA, Title VII harassment. 3. ADA retaliation. Disposition Below: 1. ADA discrimination under Title II. 2. ADA, Title VII harassment. 3. ADA retaliation. Outcome on Appeal: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Grounds: 1. Even assuming that employment discrimination is actionable under Title II and Commonwealth waived immunity, summary judgment could be affirmed on ground that employee already obtained accommodation (installation of new bathroom) and could not obtain monetary damages in absence of actual animus or economic damages. Delay alone is not evidence of animus. 2. General claims of rudeness and assertion that bathroom was unsanitary not severe or pervasive. 3. While delay of accommodation could count as a materially adverse action under Burlington Northern v. White, 126 S. Ct. 2405 (2006), in this case it only amounted to an inconvenience. No evidence of a retaliatory motive or animus.

Mulloy v. Acushnet Co., 460 F.3d 141, 18 A.D. Cases 545 (1st Cir. 2006). Panel: LYNCH, Selya, Lipez. Claims on Appeal: AD and Mass. state law reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Assuming that employee was disabled within meaning of AD and state law (occupational asthma), employee could not present genuine issue of material fact about whether he could perform essential functions with or without accommodation. Employer proffered as essential function the employee's physical presence at work where he worked as a senior electrical engineer in a golf ball manufacturing plant. Employer presented record that parts of job required on-site inspection (e.g., to plug computer into different parts of equipment, view processes, troubleshoot and make adjustments). Although employer previously allowed accommodation that employee did not have to enter "red zone" to which he suffered the highest sensitivity, that still allowed him to personally inspect 80% of the machines. Requested accommodation to work off-site would prevent employee from personally inspecting any equipment. Employee's personal testimony that he could continue to perform essential functions without entering plant (by using remote video feed from camera) not entitled to weight in view of substantial weight that must be accorded employer's view of his job requirements. Prior favorable evaluation not relevant because it did not apply to the period (save for six weeks) after he was transferred away from the plant. District court did not err in relying on superviaor's statements about essential function, despite that the supervisor was not involved in decision to terminate him, when her views were mirrored by the decision maker's views. Prior job description that references only training and supporting maintenance not probative in light of second, more detailed description that references troubleshooting duties, teamwork and support duties. Past work experience in same job shows that employer expected physical presence. Physical presence at work nearly universally an essential function. Proposed accommodation therefore unreasonable.

Azimi v. Jordan's Meats, Inc., 456 F.3d 228, 98 FEP 1258 (1st Cir. 2006). Panel: LYNCH, Howard, Stafford. Claims on Appeal: 1. Title VII and § 1981 harassment (race, religion). 2. Title VII and § 1981 termination (race, religion). Disposition Below: 1. Judgment for plaintiff after a jury trial but no damages [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds : 1. Employee won liability but was unable to persuade the jury that he suffered a compensable injury. Damages are not inherent to or automatic upon proof of a harassment case. Denial of damages not against manifest weight of evidence; judge did not err in denying plaintiff a new trial on damages. His testimony and testimony of spouse and friend about emotional distress, loss of sleep and appetite and strains in friendships in marriage was offset by other record evidence that he did not seek medical treatment, employee instigated some of the harassment and he and wife continued to work there. To obtain punitive damages, under prevailing First Circuit law, the employee was required to prove some damages. Panel notes split in circuits on this issue, but employee waived challenge to Circuit rule and failed to object to jury charge on damages. No plain error review. He also argues that he should have been allowed to make a demand for nominal damages. But he omitted such a request from the jury charge. Notes that while at least one circuit has judge award automatic nominal damages under § 1981, employee failed to make timely request to judge. Perfunctory statement in reply brief and vague prayer of relief did not preserve issue. 2. Employee did not establish that basis for termination was pretextual (misconduct, including Threatening and intimidating a female employee, lying when confronted with the circumstances, made false allegation against and Threatened co-worker). Complaints admissible as business records FRE803(6). Investigation not tainted with bias. Employees own deposition testimony denying the incidents does not raise inference of discrimination where company took reasonable investigation. Fact that employee persuaded state employment unemployment agency to accept his version of events did not establish that employer lacked reasonable basis for termination. No employee committed comparable degree of misconduct, and employer did mete out discipline to those who were involved in misbehavior in the past.

Padró v. Chao, 452 F.3d 31, 98 FEP 551 (1st Cir. 2006). Panel: LIPEZ, Boudin, Torruella. Claims on Appeal: Title VII discrimination, harassment (national origin) and retaliation.Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee had filed two separate EEO complaints (1999 and 2001). District court judge entered judgment on both claims on timeliness grounds, but failed to separately address the 2001 claim. "The 2001 EEO complaint has been neglected by everyone - the DOL, the EEOC, and the magistrate judge - except Padró himself. Case remanded for district court to consider continuing violation theory os discrimination, retaliation and harassment claims.

McDonugh v. City of Quincy, 452 F.3d 8, 98 FEP 481 (1st Cir. 2006). Panel: HOWARD, Coffin, Campbell. Claims on Appeal: Title VII and Mass. state law retaliation. Disposition Below: Judgment following a jury trial; $300,000 lost wages and compensatory damages [plaintiff]. Outcome on Appeal: Affirmed, with remand for trial on punitive damages [plaintiff]. Grounds: Claim not barred by claim preclusion resulting from 1999 state court lawsuit challenging prior failure to promote. Under Massachusetts law of claim preclusion, employee's failure to be appointed captain in 1998 (attributed to retaliation for exercising First Amendment rights) unrelated to year 2000 shift transfer and placement on administrative leave. Evidence was sufficient to support retaliation finding. On transfer, several different and arguably inconsistent explanations were tendered by the city, with city witnesses testifying that they had no recollection of one explanation (restructuring) being discussed at the time. There was also circumstantial evidence of pretext (e.g. that Chief first suggested employee posed a "safety Thereat" without an investigation, that Chief claimed that he was worried that officer would become violent but took minimal precautions to protect employees at department). No reversible error in evidence rulings: (1) exclusion of employee's prior law suit to prove "litigiousness"; (2) limits on cross-examination of officer about allegedly contentious relationship with other city officials (FRE403); (3) evidence of prior $500,000 settlement with another employee (not timely objected to by city); (4) out-of-court statements by department officials (FRE801(d)(2)). Jury instruction not reversible error; they adequately explained claim, even though some parts of case had been dismissed on JMOL. Damages of $300,000, covering economic and compensatory damages, not excessive, even if mostly weighted to emotional distress damages; lay testimony only. Split in circuits over whether top range is limit of damages spectrum within which the judge must calibrate award (citing Tenth and Second circuits; Seventh is to the contrary). Alternatively, no cap on state law award. On cross-appeal, jury should have been instructed on punitive damages; jury found intentional discrimination, officers knew about anti-retaliation policy, and retaliating employees were all highly-placed. On remand, district court must decide whether risk of double recovery (with emotional distress) requires retrial of entire damage claim, or just punitive damages.

Clifford v. Barnhart, 449 F.3d 276, 17 AD Cases 1765 (1st Cir. 2006). Panel: TORRUELLA, Lynch, Howard. Claims on Appeal: Rehabilitation Act hiring. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Assuming prima facie case was met (not contested by agency), employee failed to establish that reasons furnished by agency were pretext. Requirement of "current knowledge and experience," though not expressly in job description, were implicit because post was limited to current employees (which plaintiff was not), and in any case it is not compulsory for an employer to post all conceivable, job-related factors that it might consider. Reason was not fanciful (e.g. not hired because he did not wear a purple sweater). Although plaintiff had high test scores, this did not establish conclusively that he was superior with respect to current knowledge and experience. Fact that he excelled in some categories did not meant that he was entitled to the job, when successful candidate presented more extensive set of credentials. Explanations for decision not arguably inconsistent.

Stoll v. Principi, 449 F.3d 263, 98 FEP 398, 18 AD Cases 16 (1st Cir. 2006). Panel: SELYA, Lipez, Howard. Claims on Appeal: Title VII, ADE and Rehabilitation Act termination. Disposition Below: dismissed for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Federal employee who elects administrative procedures for her discrimination claims and commences appeal before the Merit Systems Protection Board barred by election of remedies from filing a civil action in federal district court, under 29 C.F.R. § 1614.302(b). Judicial review of the Board's decision must await final action by the Board.

Valentín-Almeyda v. Municipality of Aguadilla, 447 F.3d 85 (1st Cir. 2006). Panel: LYNCH, Selya, Hansen. Claims on Appeal: Title VII and P.R. law harassment (sex) and retaliation. Due process claim (not discussed here). Disposition Below: $250,000 compensatory against city (Title VII); $250,000 against city and $80,000 against supervisor under P.R. Law; $125,000 due process claim against city; P.R. law verdict doubled and reinstatement [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Harassment of female employee in police department was severe or pervasive where harasser-supervisor repeatedly intruded into plaintiff's immediate physical space on and off duty (stalked plaintiff off premises), and where he warned that employee would be "screwed" if she did not submit to demands for sex (by removing her from favorable duty and loading on shifts). After complaint to department (to There individuals) employee immediately thereafter received double shifts, lost favorable duty, was posted at a remote location and subject to disciplinary letters, which could be found to be retaliatory. Subsequent termination was not caused by inaction by employee (to obtain reinstatement under local workers' compensation law), but by department's initial decision to terminate her and not reinstate her. Jury was not compelled to conclude that employee was terminated for extended absence from work. Faragher/Ellerth instruction forfeited by department, and in any event there was no plain error (no evidence that anti-harassment policy was circulated prior to lawsuit or that employee failed to take advantage of preventative measures). Employee did not waive double damages under P.R. Law 17, because claim was cross-filed with EEOC and local agency, tolling the one-year limitations period. No abuse of discretion to deny remittitur where department did not object to verdict forms and instructions that arguably resulted in duplicative relief, and sums were not too great in light of record. Employee presented evidence of severe economic privation and emotional distress (insomnia, anxiety, guilt and depression). Motion for new trial based on manifest weight of evidence properly denied. Reinstatement proper relief, even against territorial government, where all equitable factors favor employee.

Orta-Castro v. Merck, Sharp & Dohme Química P.R., 447 F.3d 105, 17 AD Cases 1573 (1st Cir. 2006). Panel: TORRUELLA, Boudin, Selya. Claims on Appeal: 1. ADA termination. 2. ADA reasonable accommodation. FMLA claim (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. District court did not err in rejecting employee's affidavit, filed in opposition to summary judgment, where it was executed after summary judgment was filed, employee was twice deposed and represented by counsel, and deposition transcripts reveals no basis for claim that employee had memory lapses. Uncontested evidence established that employee was terminated for overstaying allocated leave rather than disability. Only potential factual dispute (issue of timing of leave) forfeited by belated submission of employee's affidavit. Thus, prima facie case not satisfied. 2. Employer complied with terms of accommodation set out by physician's letter (e.g., part-time work after returning from leave, no contact with former supervisor, one absent afternoon a very two weeks to visit doctor). Other proposed accommodations were either not clearly requested or else were unrelated to her disability (depression), such as relocating to a different floor. No evidence that employee was terminated while on medical leave.

Pomales v. Celulares Telefónica, Inc., 447 F.3d 79, 98 FEP 6 (1st Cir. 2006). Panel: HOWARD, Lipez, Hug . Panel: CAMPBELL, Lynch, Howard. Claims on Appeal: Title VII and P.R. law harassment (sex) and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee forfeited response to summary judgment. Single invitation by supervisor to have sex was not severe or pervasive, and in any event employer would have prevailed on affirmative defense underFaragher/Ellerth because employee did not pursue complaint through company's human resources. Retaliation claim fails because employee cannot show that manager who terminated employee knew about prior harassment complaint. Employee's alleged violation (falsifying documents) subjected employee to immediate termination.

Fontánez-Núñez v. Janssen Ortho LLC, 447 F.3d 50, 97 FEP 1845 (1st Cir. 2006) . Panel: HANSEN, Boudin, Torruella . Claims on Appeal: ADE and Title VII termination (sex) and harassment (sex).Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee forfeited response to summary judgment. Employee failed to establish prima facie case that she was meeting employer's reasonable expectations when she was fired for unacceptable performance after her promotion, and no evidence that this explanation was pretextual. Co-worker harassment (objectionable language and vulgar remarks) not severe or pervasive. Moreover, only complaint to a manager about allegedly hostile work environment occurred in 1997.

Rivera-García v. Sistema Universitario Ana G. Méndez, 442 F.3d 3, 17 AD Cases 1256 (1st Cir. 2006). Panel: Per Curiam [Boudin, Selya, Lynch]. Claim on Appeal: ADA termination . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Male professor fired after allegedly harassing a secretary alleges he was actually terminated because of a disability in walking. Assuming that the plaintiff is a qualified person with a disability, employee failed to meet burden of establishing that the disciplinary motivation was pretext. Chancellor's suggestion that employee resign in face of accusation not invidious. Claims of procedural irregularities not supported by the record. Availability of lesser measure to punish professor does not inherently make the termination unreasonable. Failure to allegedly provide reasonable accommodation for the professor unsubstantiated by record, and university hired him knowing about his disability, making bias less likely.

Hoffman v. Applications Sales & Service, Inc., 439 F.3d 9, 97 FEP 833 (1st Cir. 2006) . Panel: CAMPBELL, Lynch, Cyr. Claim on Appeal: ADEA termination . Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant].Grounds: District court did not abuse discretion under Fed. R.Civ. P. 56(e) by excluding alleged tabulation of documentary evidence showing ages of affected employees, submitted without back-up documentation or authentication. Employee's affidavit submitted with exhibit, although it asserted personal knowledge, contained no facts supporting assertion. Contention that exhibit was based on documents submitted during discovery did not serve to authenticate exhibit where underlying documents were not part of the record. Absent exhibit, there was no other basis for inference of age discrimination, and despite that employee was conceded to have established prima facie case, there was no evidence to rebut proffered legitimate, non-discriminatory reason (e.g. poor evaluation and missed deadline on project).

Feliciano-Hill v. Principi, 439 F.3d 18, 17 AD Cases 1098 (1st Cir. 2006) . Panel: LIPEZ, Howard, Gibson. Claim on Appeal: 1. Rehabilitation Act reasonable accommodation. 2. Rehabilitation Act retaliation . Disposition Below: 1. Judgment after a jury trial [defendant]. 2. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. District court did not abuse discretion under FRE702 and Daubertby admitting employer's medical expert, where employee only presented challenge the day of his scheduled testimony (despite pre-trial order schedule, and fact that employee had expert report for five months). Daubert challenge also lacked merit; question of whether employee said to have rheumatoid arthritis was unable to walk around the hospital was not complex and did not require more than routine diagnosis. Not necessary to give limiting instruction to jury about expert opinion being submitted purely on question of disability, not reasonable accommodation. Jury could have credited agency's expert testimony that plaintiff had little difficulty walking and did not suffer from any medical condition limiting that activity. 2. Employee failed to establish constructive discharge or hostile work environment based on frustration by her superiors over her requests for accommodation; not objectively intolerable.

Quiles-Quiles v. Henderson , 439 F.3d 1, 17 AD Cases 1089 (1st Cir. 2006). Panel: HOWARD, Torruella, Lipez. Claim on Appeal: 1. Rehabilitation Act harassment. 2. Rehabilitation Act retaliation .Disposition Below: 1 .Judgment as a matter of law [defendant]. 2. Judgment as a matter of law [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Jury awarded $950,000, capped at $300,000. Evidence supported jury's conclusion that employee who suffered from anxiety was "regarded as" disabled, where supervisors on several occasions described employee as under "psychiatric treatment," a "risk to . . security," and a "risk to the floor," and five to seven times a day called him "crazy." Statements suggested that employers regarded employee as unsuitable for any kind of work, therefore substantially limited in the major life activity of work (i.e. broad class of jobs). Same evidence shows hostile work environment, plus evidence that supervisors engaged in other hostile acts (yelling at employee, unduly supervising activity, driving a truck in his direction) , which required plaintiff to be hospitalized and withdraw from workforce. Although behavior began before employee present medical certification, it continued after plaintiff shared medical certification with them and they frequently mentioned the diagnosis; thus jury could find that harassment was because of perceived disability. 2. Jury could credit evidence that harassment intensified after he began to complain to superiors, establishing both causation and motivation because of protected activity.

Quinones v. Houser Buick, 436 F.3d 284, 97 FEP 667 (1st Cir. 2006) . Panel: CAMPBELL, Lynch, Howard. Claims on Appeal: Title VII and Mass. state law compensation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to respond to employer's statement of uncontested facts, which under local rules district court deemed admitted. Assuming that employee made out a prima facie case, employee presented legitimate reason for pay differential between plaintiff and co-workers (i.e., employees were paid under a "flat rate" method per job completed, and plaintiff's co-workers were faster at completing jobs). Plaintiff's own affidavit provided no objective evidence that favoritism may have enhanced his co-worker's pay.

Arrieta-Colon v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75, 17 A.D. Cases 769 (1st Cir. 2006). Panel: LYNCH, Boudin, Gorton. Claims on Appeal: AD and P.R. law harassment. Disposition Below: Judgment following a jury trial ($76,000 compensatory, $160,000 punitive) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff].Grounds: Employer did not establish that it was entitled to aFaragher/Ellerth instruction, where employer's "Open Door" policy existed only on paper, and no corrective action was taken on any of employee's complaints of harassment. Sufficiency of the evidence challenge by employer (whether employee was a qualified individual with a disability) waived by employer failing to renew motion at the close of the evidence. (Panel deemed issue of whether plaintiff was a person with a disability "difficult"; he had Peyronie's Disease, and required a penile implant that was visible through his clothes.) Panel declined discretionary review based on alleged "absolute dearth" of evidence. There was sufficient evidence of a hostile work environment (constant mockery by coworkers and supervisors). Evidence of some existence of anti-harassment policy did not require vacation of punitive damages where jury could have found absence of good faith, due to lack of enforcement. Mitigation argument waived. On cross-appeal, court did not err in denying back or front pay, where employee did not ask for a trial before jury on back pay and did not seek reinstatement for front pay.

Rivera Rodriguez v. Sears Roebuck de Puerto Rico, 432 F.3d 379, 97 FEP 199 (1st Cir. 2005). Panel: LYNCH, Boudin, Stahl .Claims on Appeal: ADE and P.R. law failure to rehire, and retaliation . Disposition Below: Summary judgment [defendant].Outcome on Appeal: Affirmed [defendant]. Grounds: Employer proffered legitimate reason for failure to rehire in 2000 that it could seek to fill vacancy with internal candidate, and standing policy did not treat former employees as current ones. Moreover, successful candidate was already selected before plaintiff submitted her application. Employer's secondary explanation - a hiring freeze - could have presented a genuine issue of material fact, because a national company with corporate personnel policies would be expected to have documented such a freeze, bu that e dispute was not material given the alternative valid explanation. For subsequent 2002 vacancy, employer furnished valid explanation for not hiring plaintiff (lack of qualifications), and retaliation could not have been a motive because the hiring manager supported his decision and employee did not contest that other candidate was better qualified. Other executive who had previously, allegedly made age biased remark was no longer at the employer when the second hiring decision was made.

Tobin v. Liberty Mutual Ins. Co., 433 F.3d 100, 17 A.D. Cases 696 (1st Cir. 2005). Panel: TORRUELLA, Lipez [HOWARD, concurring in part and concurring in the judgment]. Claims on Appeal: 1. AD and Mass. state law discrimination. 2. AD and Mass. state law reasonable accommodation. 3. AD and Mass. state law interactive process. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. 3. Affirmed [defendant]. Grounds: 1. Plaintiff salesperson with bipolar disorder conceded to have offered a prima facie, McDonnell Douglas case of discrimination regarding his termination. (Plaintiff waived mixed-motive analysis by not adequately presenting the ory below.) But plaintiff did not establish that asserted reason for termination (poor sales performance) was pretextual or that the real reason for his termination was disability. Documents asserted to prove discrimination actually predated the employee's disclosure of his disability. Evidence that more desirable "mass marketing" (MM) accounts were given to other salespersons did not establish that others were similarly situated. 2. District court erred in holding that assigning MM accounts to plaintiff would have altered the essential functions of his job; there was a genuine issue of material fact about whether MM accounts were distributed by merit, where other subjective standards were applied. 3. Employer as a matter of law met standards by providing multiple accommodations (i.e., a nurse, training, extra meetings).

Burton v. Town of Littleton , 426 F.3d 9 (1st Cir. 2005). Panel: LYNCH, Selya, Restani. Claims on Appeal: Title VII (sex, religion), ADE and Mass. state law termination. Due process claim (not presented here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: That supervisor allegedly called the plaintiff an "old Jew bitch" did not create genuine issue of material fact about whether improper factors motivation decision, where remark was made after termination decision was made during a heated conversation, and there was no evidence of causation, where balance of record revealed valid reason (student and others complained that the plaintiff teacher struck him) and same decision maker had hired her two weeks before.

Ramírez Rodríguez v. Boehringer Ingelheim Pharmaceuticals, Inc., 424 F.3d 67, 96 F.3d 1071 (1st Cir. 2005). Panel: LIPEZ, Torruella, Lynch. Claim on Appeal: 1. ADEA termination. 2. ADEA retaliation . Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employer terminated drug salesman for over-sampling in violation of federal standards and company policy. District court did not abuse discretion in granting protective order (Fed. R. Civ. P. 26(c)) allowing employer to redact doctor's names from There complaints employer received about the practice, where judge offered employee opportunity to craft alternative to prevent retaliation against physicians, employee never did so and he failed to submit Fed. R. Civ. P 56(f) motion to obtain information to respond to summary judgment motion. Motion in limine to exclude evidence of doctors' complaints not sufficient. Evidence of sales report and doctors' statements admissible as non-hearsay (FRE801(c)) to demonstrate that employer had reason to believe violation had been committed. No FRE403 violation. On merits, assuming plaintiff made out prima facie case, employee failed to establish pretext. No evidence that reorganization of territories was motivated by age. (Despite Morgan, year 2000 reorganization evidence allowed in as background evidence). Alleged discriminatory comments do not establish motive. Although jury could interpret one remark that employer intended to safeguard "sacred cows" from termination as age-biased, it was uttered 18 months before termination and other comments (older sales people were in "twilight zone," references to their higher salaries) not attributable to decision makers. Decision to terminate rather than discipline employee was rational. Employee failed to identify similarly-situated employees engaged in same behavior. No admissible evidence that he was unfairly denied salary increase or denied unconditional return to work from disability. 2. Retaliation claim fails at prima facie stage (no evidence of causation; discrimination complaint filed two months before termination) and pretext stage.

Codero-Soto v. Island Finance, Inc., 418 F.3d 114, 95 FEP 336 (1st Cir. 2005) . Panel: LIPEZ, Torruella, Howard. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant].Grounds: District court did not abuse discretion by (1) denying employee third extension to file belated response to summary judgment, or (2) striking plaintiff's Spanish language exhibits (barred by local rule). Assuming plaintiff made out prima facie case, employer established legitimate, non-discriminatory reason for termination (employee headed branch office that performed worse than at least 40 other branches). Plaintiff's rebuttal statement was unverified and lacked foundation of personal knowledge.

Webber v. International Paper Co., 417 F.3d 229, 16 AD Cases 1788 (1st Cir. 2005) . Panel: CYR, Lipez, Coffin . Claims on Appeal: Maine state law disability termination. Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: On review, court could consider whether employee met prima facie burden under burden-shifting analysis, despite that the case was already tried to a jury and employee did not raise issue in JMOL motion. Absence of evidence that other persons who were not terminated were not in protected group weighs in ultimate question of whether employer's articulated reason for termination was pretextual (noting Sixth Circuit authority in Barnes). Supervisors who allegedly made discriminatory remarks about plaintiff's disability did not, according to the record, communicate their bias to the manager who made the termination decision. In making decision to terminate employee during RIF, employer could rely upon fact that employee was only one of 10 engineers without a college degree. No obligation to bump others to make room for employee on work-related disability leave. Expression that "Salaried people do not get hurt" insufficiently strong to imply bias.

Ingram v. Brink's Inc., 414 F.3d 222, 96 FEP 161 (1st Cir. 2005).Panel: GERTNER, Boudin, Campbell. Claims on Appeal: 1. Mass. state law pregnancy promotion. 2. Equal Pay Act. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff failed to make out prima facie case. State law had 180 day limitations period, and only events occurring within that period were not adverse employment actions: (a) advertising position that was not filled; (b) changing title of another position, with no substantive change in duties; (c) two-week delay in making offer of promotion that plaintiff did not accept. 2. In one instance, plaintiff did not take position that paid $5000 less than allegedly comparable male, so claim never ripened. In second instance, allegedly comparable male had different duties (operation of branch, budgeting, 24-hour availability, personnel duties) from plaintiff (administrative work).

Mercado v. The Ritz-Carlton San Juan Hotel, 410 F.3d 41, 95 FEP 1464 (1st Cir. 2005). Panel: COFFIN, Torruella, Lipez. Claims on Appeal: Title VII harassment and discrimination (national origin, sex). Disposition Below: Dismissed for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Where there was disputed issue of fact under 42 U.S.C. § 2000e-10(a) about whether employer posted statutory notice of federal rights, plaintiff may benefit from tolling on their claims. Failure to post need not be shown to be deliberate to allow tolling. Plaintiffs must show lack of actual or constructive knowledge of legal rights, and that they exercised diligence in pursuing their legal rights. Employer can put employees on notice of legal rights by stating them expressly in a generally disseminated employee hand-book.

Campbell v. General Dynamics Government Systems Corp., 407 F.3d 546 , 16 AD Cases 1361 (1st Cir. 2005). Panel: SELYA, Howard [LIPEZ, concurring]. Claims on Appeal: ADA termination.Disposition Below: Motion to compel arbitration denied [plaintiff].Outcome on Appeal: Affirmed [plaintiff]. Grounds: Arbitration not appropriate under 42 U.S.C. § 12212, where transmission of arbitration policy by e-mail failed to provide minimal level of notice to employee that statutory claims are subject to arbitration. E-mail could be used to transmit policy and given full effect of written instrument by E-Sign Act, 15 U.S.C. § 7001-7031. But facts presented in this case demonstrate lack of sufficient notice: e-mail didn't require return acknowledgment, failed to inform employee that policy waived judicial forum, e-mail was unclear about whether arbitration term was contractual in nature, and personnel handbook had never previously been regarded as enforceable contract.

Pena-Crespo v. Commonwealth of Puerto Rico, 408 F.3d 10, 95 FEP 1287 (1st Cir. 2005). Panel: BALDOCK, Lynch, Lipez. Claims on Appeal : Title VII harassment (national origin). Disposition Below: Judgment entered after a bench trial, but compensatory damages limited to $12,000 [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion by excluding psychological, expert damage report by witness who submitted insufficient and untimely report under Fed. R. Civ. P. 26(a)(2)(B) (e.g., report was in Spanish in violation of local rules, did not explain basis of opinion, describe exhibits for trial, list publication and testimonial history).

Jorge v. Rumsfeld, 404 F.3d 556, 95 FEP 964 (1st Cir. 2005).Panel: SELYA, Torruella, Lynch. Claims on Appeal : Title VII (national origin)/ADEA constructive discharge. Disposition Below : Dismissed for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Regarding ADEA, claim accrued not when employee accepted early retirement offer, but when she was involuntarily transferred between commissaries, and because the transfer involved no loss of pay, benefits or status it could not be treated as an adverse employment action. Charge was filed too late to cover that transfer, in any event. Plaintiff did not allege discriminatory motive to offering early retirement; not shown that younger persons were treated relatively better. No equitable estoppel due to AUSA's suggestion that she dismiss a prior action because she was having difficulty locating some of the individual defendants. On Title VII claim, plaintiff never filed charge with EEOC, but only notice of intent to sue.

Ronda-Perez v. Banco Bilbao Vizcayargentaria, 404 F.3d 42, 95 FEP 1060 (1st Cir. 2005). Panel: COFFIN, Torruella, Lipez. Claims on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant].Grounds: Although employer conceded that plaintiff made out prima facie case, summary judgment affirmed on ground that employee failed to present genuine issue of material fact that proffered reason for termination (i.e., allegations of sex harassment) was pretext for age discrimination, where employer could have found accusers more credible and consistent, allegedly "fishy" characteristics of investigation did not suggest preordained outcome, and other figure allegedly involved in harassment exhibited remorse and was not terminated. Alleged offer to settle claim of age discrimination was inadmissible under FRE408 and had no weight. Reeves did not compel denial of summary judgment where record as a whole affirmed (rather than exposed as dishonest) employer's explanation for its decision.

Marie v. Allied Home Mortgage Co., 402 F.3d 1, 95 FEP 737 (1st Cir. 2005) . Panel: LYNCH, Stahl, Howard. Claims on Appeal: Title VII and Mass. state law harassment (sex). Disposition Below: Motion to compel arbitration denied (plaintiff). Outcome on Appeal: Reversed (defendant). Grounds: Although issue of compliance with time limit in arbitration clause should, in the first instance, be addressed by the arbitrator, the issue of waiver of the right to arbitrate due to inconsistent activity in another litigation forum remains an issue for the court. Court finds no waiver where employer waited until after EEOC issued Dismissal and Right to Sue, and plaintiff filed civil action, to serve demand.

Rodriguez-Torres v. Caribbean Forms Mfg., Inc., 399 F.3d 52, 95 FEP 353 (1st Cir. 2005) . Panel: HOWARD, Torruella, Carter. Claims on Appeal: Title VII and P.R. law termination (sex). Disposition Below: Judgment entered after a jury trial ($250,000 emotional distress, $105,000 back pay, $250,000 punitive damages) [plaintiff].Outcome on Appeal: Affirmed [plaintiff]. Grounds: Plaintiff wins a Title VII sex discrimination case, alleging wrongful termination caused when her position was eliminated. Defendant claims in a Rule 50 JMOL motion that, under the burden-shifting charge given the jury (unobjected to by either side), plaintiff was obliged to prove that the position was filled by someone outside of the protected class, which she did not do. Judgment affirmed on burden-shifting analysis. Jury instruction erroneously required plaintiff to prove she was replaced; applying correct legal standard, plaintiff did not have to meet this burden. Jury could credit supervisor's statements that women were "good for nothing," that he wanted male employees, that plaintiff was an "old woman," and that he was going to get rid of women at the company. district court properly applied tolling to P.R. law for period while charge was pending. No error in P.R. law instruction. Evidence of plaintiff's prior training was properly admitted as evidence of her qualifications. Mistrial was not required when plaintiff testified in contradiction of her deposition, where court struck the testimony. Affirms $250,000 mental distress award, despite that plaintiff presented no expert testimony. No plain error to punitive damage award; company presented little evidence in support of itsKolstad defense, and award was within range dictated by Congress. Allocation of damages between federal and P.R. claims that maximized award to plaintiff not erroneous. P.R. double damages could be awarded; they did not duplicate punitive damage award.

Noviello v. City of Boston, 398 F.3d 76, 95 FEP 810 (1st Cir. 2005).Panel: SELYA, Boudin, Cyr. Claims on Appeal: 1. Title VII and Mass. state law retaliation. 2. Title VII and Mass. state law harassment (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff presented genuine issue of material fact regarding whether she suffered co-worker retaliatory harassment after she complained of sex harassment. Circumstances were severe or pervasive (unfounded complaint of misconduct, comments like "I smell a rat," ostracism, was lied to about taking dinner breaks, co-workers took up collection for sex harasser, Thereat that harassment would be worse with shift change). Also, after she filed charge, she was nearly hit by a van and informed that "payday" was coming soon. (Two other alleged incidents were based on inadmissible hearsay and excluded.) Title VII charge was incontestably timely; plaintiff presented genuine issue of timeliness of state claim based on continuing violation theory, although the earliest incident (the sex harassment) is unconnected to the rest of the actions. Retaliatory harassment must stem from animus against reporting discrimination, rather than simply siding with another co-worker. 2. The single event (the assault) was time-barred under state law. Under federal law, while the claim was timely, the court found as a matter of law that the harasser was not a supervisor for purposes of Faragher/Ellerth(following the most conservative view hewed by the Seventh Circuit in Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1033 (7th Cir. 1998)), and that the city took otherwise reasonable precautions to deal with the harassment.

Guzmán-Rosario v. United Parcel Service, 397 F.3d 6, 16 AD Cases 728 (1st Cir. 2005). Panel: BOUDIN, Torruella, Fusté. Claims on Appeal: 1. ADA termination. 2. ADA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Law is unsettled whether a condition expected to last 6 to 24 months falls within statutory definition of "disability," or should be deemed short term, for employee with ovarian cysts. Summary judgment affirmed on alternative ground that employee demonstrated no substantial limitations on major life activities of working of caring for oneself, where occasional bouts of dizziness and pain did not significantly impinge on these activities. "Regarded as" claim forfeited on appeal. 2. Retaliation not shown where plaintiff never clearly requested accommodation, and termination came several months after employer could have been on notice about employee's need for accommodation.

Currier v. United Technologies Corp., 393 F.3d 246, 94 FEP 1735 (1st Cir. 2004). Panel: COFFIN, Lipez, Cyr. Claim on Appeal: ADE and Me. state law termination. Disposition Below: Judgment after a jury trial ($101,000 back pay, $275,000 compensatory) [plaintiff].Outcome on Appeal: Affirmed [plaintiff]. Grounds : District court did not abuse discretion admitting plaintiff's expert statistical witness; argument that expert ought to have studied a smaller pool of RIF candidates was a disputed issue of fact. Plaintiff's judgment supported by evidence that his performance ratings were unrelated to his actual performance, that his reviewer lacked information about his past performance, that the employer's explanations for the decline in his rating was unconvincing, that he was passed over for positions he was qualified to fill and the expert report indicated age bias. Damage award was not grossly disproportionate.

Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 94 FEP 1476 (1st Cir. 2004). Panel: LIPEZ, Torruella, Howard. Claims on Appeal: Title VII and Mass. state law failure to accommodate religion.Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Sales clerk wore exposed facial body piercings which she refused to cover in accordance with store-wide appearance rules. Employee contended that exposure of piercings was tenet of Church of Body Modification. Employee was eventually terminated for failure to observe rule. Courts assumed that employee met prima facie case (though expressing skepticism about bona fide religious practice, noting that even the church itself did not require adherents to wear piercings all of the time). District court held that post-termination offer to allow her to return to work wearing band-aid over jewelry or plastic retainer was a reasonable accommodation; panel suggested (though did not hold) that such accommodation was offered too late and could not remedy violation. Nevertheless, summary judgment was affirmed on alternative basis that employee's demand for blanket exemption form generally-observed appearance rule imposed more than de minimus burden on employer and thus constituted an "undue burden." That record revealed that other violations went unnoticed did not detract from legitimacy of personal appearance rule.

Joyal v. Hasbro, Inc., 380 F.3d 14, 94 FEP 527 (1st Cir. 2004).Panel: BOUDIN, Lipez, Howard. Claim on Appeal: Mass. state law (age discrimination). Mass. contract claim (not discussed here).Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Court notes that Mass. decisional law, unlike ADEA, permits plaintiff to avoid summary judgment if at least one of the reasons presented by defendant is pretextual. Plaintiff (a senior vice president) was terminated retaliation against subordinate (for refusing to allow plaintiff unauthorized use of company vehicle) and reports against plaintiff of lack of leadership and abusive behavior. Plaintiff picked at alleged errors in summary judgment facts but failed to show that reasons given were not believed by employer.

De La Vega v. The San Juan Star, 377 F.3d 111, 94 FEP 379 (1st Cir. 2004). Panel: LIPEZ, Torruella, Selya. Claim on Appeal: ADE and P.R. law constructive discharge. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant].Grounds: District court abused discretion by granting summary judgment entirely as a sanction for plaintiff's failure to file a timely response. However, district court was entitled to credit movant's unrebutted facts and disregard belatedly filed opposition. Reviewing the merits, panel finds that claim of constructive discharge fails because there was insignificant evidence of harassment or loss of significant job responsibilities.

Local Union No. 12004 v. Commonwealth of Massachusetts, 377 F.3d 64 (1st Cir. 2004). Panel: LYNCH, Selya, Porfilio. Claim on Appeal: Declaratory judgment action against state civil rights agency. Disposition Below: Dismissed on subject matter jurisdiction grounds [defendant agency and individual claimant].Outcome on Appeal: Reversed [plaintiff union]. Grounds: Federal district court erred in holding that it lacked subject matter jurisdiction over claim of preemption (of state civil rights law, as applied to claim of anti-gay harassment against union, by federal NLRA §§ 7 and 8). Court had jurisdiction both because "preemption" claim presented federal question and union also alleged section 1983 claim based on Supremacy Clause. Younger abstention does not necessarily require federal court to defer to pending state administrative proceeding; case remanded to district court to consider this alternative basis (e.g. was lawsuit instigated by management in bad faith to harass union picketers). Harassment by union members may be privileged by NLRA.

Estades-Negroni v. The Associates Corp. of No. Am., 377 F.3d 58, 15 A.D. Cases 1412 (1st Cir. 2004). Panel: TORRUELLA, Coffin, Lipez. Claim on Appeal: 1. ADEA termination. 2. ADA reasonable accommodation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff did not suffer actionable termination when she was reinstated retroactively with benefits after successful appeal of the long term disability denial. 2. Employer's ignorance of plaintiff's depression diagnosis when plaintiff asked for (and was denied) a reduced workload and an assistant precludes ADA liability.

Donahue v. City of Boston, 371 F.3d 7 (1st Cir. 2004): Panel: LIPEZ, Torruella, Lisi. Claim on Appeal: Equal Protection challenge to affirmative action consent decree. Disposition Below: Dismissed on standing [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: White applicant already exceeded age-32 limit for entering police force, thus lacking standing to challenge decree. Plaintiff's alternative challenge to age limit rejected according to rational basis test. District court did not abuse discretion in denying leave to amend complaint after original remand from court of appeals. See also Donahue v. City of Boston , 304 F.3d 110 (1st Cir.2002)

Camacho v. Puerto Rico Ports Authority, 369 F.3d 570, 93 FEP 1734 (1st Cir. 2004): Panel: SELYA, Howard, Singal. Claim on Appeal: ADEA license revocation. Disposition Below: Summary judgment denied [plaintiff]. Outcome on Appeal: Reversed on interlocutory appeal [defendant]. Grounds: Although Ports Authority had power to issue licenses to boat pilots (which expired automatically on pilot's 70th birthday) and operated ERISA retirement plan for pilots, Ports Authority did not so extensively control pilots' employment relationship that it became "de facto" employer under ADEA.

Johnson v. Spencer Press of Maine, Inc .,364 F.3d 368, 93 FEP 939 (1st Cir. 2004). Panel: LYNCH, Howard, [CYR, concurring].Claim on Appeal: Title VII and Maine state law religious harassment/constructive discharge. Disposition Below: Judgment after jury trial; back pay award of $1,227.94, compensatory damages $400,000, punitive damages $750,000 (compensatory and punitive damages capped at $300,000) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds : Motion for new trial properly denied. Jury could find that supervisor's name-calling and abuse of plaintiff was (1) motivated by religion (supervisor routinely ridiculed the plaintiff's religious moral beliefs) and (2) severe or pervasive (constant steam of insults, punctuated with Thereats of violence. Challenge to punitive damages not a live controversy, because reversal of award would not change outcome (compensatory award itself was over the cap). Not error to omit the word "extreme" from instruction on "severe or pervasive." On plaintiff's cross-appeal, panel found it error to exclude back and front pay as a matter of law on the ground that plaintiff was fired for cause from an intervening job; circuit adopts rule of NLR and other Title VII cases that such an intervening event tolls the back pay period until reemployment. Nonetheless, the denial of back/front pay is affirmed on alternative basis that (1) plaintiff was found 100% disabled by Veteran's Administration and (2) plaintiff was unable to establish that harassing work environment caused the disability.

Cariglia v. Hertz Equipment Rental Corp ., 363 F.3d 77, 93 FEP 833 (1st Cir. 2004). Panel : LIPEZ, Lynch, Siler. Claim on Appeal: Mass. state law (age discrimination). State tort claim (not discussed here). Disposition Below: Judgment after bench trial [defendant].Outcome on Appeal: Reversed [plaintiff]. Grounds : Plaintiff manager terminated after he failed to paint rental equipment ("booms"). At trial, judge found that the vice president who supervised plaintiff was personally motivated by age bias and looking for an opportunity to fire and replace plaintiff. VP passed along false information to superiors about the condition of the booms. Yet because VP was not himself a decision maker, district court found that there was no liability for company because decision makers did not share the VP's age animus. Although district court did not clearly err in finding that actual decision makers were at a higher level of the company than the biased VP, court failed to make finding about whether VP's alleged misconduct (i.e. knowingly providing false or misleading information about plaintiff to decision makers) caused plaintiff's termination, and thus tainted the decision.

Rathbun v. Autozone, Inc., 361 F.3d 62, 93 FEP 785 (1st Cir. 2004) Panel: SELYA, Boudin, Stahl. Claim on Appeal: 1. R.I. state law (failure to promote); 2. R.I. state law (unequal pay).Disposition Below: 1. Summary judgment [defendant]; 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]; 2. Affirmed [defendant]. Grounds : 1. After holding that limitations period for claim would be There years (under state's residual limitations period), rather than one year, panel reevaluates claims based on longer limitations period under pretext method of proof. Panel finds that plaintiff's qualifications for promotion to parts sales manager (PSM) were not objectively superior to the successful candidates (one male candidate had relatively lower ratings and more disciplinary write-ups, but had superior tenure and auto parts knowledge). Nor was the evidence that men were promoted at a higher rate enough to create an issue of fact on pretext, where plaintiff did not address variables on those PSM promotions (e.g. number of vacancies, new store openings, number and quality of applicants for each promotion); 2. Assuming that state law requires proof of intent(as did district court, without objection by plaintiff), plaintiff's pretext evidence regarding pay disparities fails because plaintiff failed to rebut the various rationales advanced by defendant to support classifications of employees into different pay quartiles. Statistical evidence proffered by plaintiff lacked Threshold dependability.

Candelario Ramos v. Baxter Healthcare Corp. of Puerto Rico, Inc. , 360 F.3d 53, 93 FEP 590 (1st Cir. 2004). Panel : BOUDIN, Torruella, Howard. Claim on Appeal: Title VII benefits (national origin). Disposition Below: Summary judgment [defendant].Outcome on Appeal: Affirmed [defendant]. Grounds : National employer adopted an early retirement point systems for its operations excepting its Puerto Rican subsidiary. Plaintiffs argued disparate treatment, but assuming that plaintiffs made out prima facie case, they did not rebut proffered justification that it was too costly and unnecessary to change benefits at PR subsidiary, because it was already competitive there. Company was not required contractually or otherwise to provide uniform benefits across the company, and while defendant did not rigorously study and document its reasons for withholding the benefits there, neither was it required to do so. In the absence of any evidence implying discriminatory intent, pretext evidence was insufficient to withstand summary judgment. Disparate impact claim fails because Title VII creates safe harbor for variable terms and conditions for employees who work in "different locations."

Alberty-Velez v. Corporacion de Puerto Rico Parala Difusion Publica , 361 F.3d 1, 93 FEP 550 (1st Cir. 2004). Panel: HOWARD, Boudin, Lynch. Claim on Appeal: Title VII termination (sex and pregnancy). Disposition Below: Summary judgment [defendant].Outcome on Appeal: Affirmed on other grounds [defendant].Grounds : Circuit adopts common law agency test to determine if plaintiff television host was independent contractor, as opposed to "employee," and holds that plaintiff (who was paid a flat fee for each episode without benefits or tax withholding, and controlled production of the show) was not "employee."

Sullivan v. Neiman Marcus Group, Inc ., 358 F.3d 110, 15 A.D. Cases 321 (1st Cir. 2004). Panel : LIPEZ, Campbell, Howard. Claim on Appeal: ADA termination. Disposition: Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed on other grounds [defendant]. Grounds : Plaintiff (a self-declared alcoholic) failed to show that he was substantially limited in the major life activity of work owing to that condition, in light of long and successful work history. Nor did plaintiff present evidence beyond his own termination that the employer specifically regarded him as disabled.

Rossiter v. Potter , 357 F.3d 26, 93 FEP 129 (1st Cir. 2004) Panel : SELYA, Cyr, Lynch. Claim on Appeal: ADEA termination.Disposition Below: Dismissed on Rule 12(b)(6) motion [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds : Limitations period for federal employee bringing ADEA case directly to federal court is FLSA 2-year period. Decision creates split with the Eleventh Circuit, which picked the Title VII period.

Calero-Cerezo v. U.S.Dep't of Justice , 355 F.3d 6, 15 A.D. Cases 129 (1st Cir. 2004). Panel : POSNOR, Selya, Lipez. Claim on Appeal: 1. Rehabilitation Act reasonable accommodation; 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]; 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]; 2. Affirmed [defendant]. Grounds : 1. Plaintiff, an attorney, suffered major depression. Employer conceded that plaintiff's mental impairment substantially limited one or more major life activities (thinking, sleeping, interacting with others, etc.). Genuine issue of material fact presented about whether she is "qualified individual" (notwithstanding her occasional disruptive behavior at work, she was rated as "fully successful"), and whether a transfer to a different worksite (which plaintiff requested six times and supervisor recommended) would have posed an undue burden. While plaintiff made out prima facie case that she suffered retaliatory discipline weeks after filing sex discrimination complaints with EEO officer, agency rebutted inference with legitimate, non-discriminatory reasons (plaintiff's disruptive behavior warranted warnings).

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