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First Circuit

Updated to November 5, 2018

First Circuit

Bonilla-Ramirez v. MVM Inc., 904 F.3d 88, 130 FEP 1864 (1st Cir. 2018). Panel: BARRON, Howard, Selya. Claim on Appeal: 1. Title VII and P.R. law termination (sex). 2. Title VII and P.R. law retaliationRehabilitation Act, and Maine state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Plaintiff presented no genuine dispute of material fact on pretext. Three male employees whom plaintiff identifies as having been similarly situated to her but not similarly disciplined for their misconduct were not in fact similarly situated to her (employing agency did not request that they be removed from duty). No evidence to indicate that the three male employees that she contends are similarly situated to her engaged in misconduct that constituted a "security violation." Only other employees who were identified as having committed security violations (male and female) were removed from duty. 2. Although plaintiff filed charge and was terminated on the same day, no evidence that defendant-contractor had prompted employer-agency to take that action; "as [defendant-contractor] MVM received that request [from employing agency] on the same day that she filed her complaint and MVM then removed her the next day." Internal complaints that plaintiff allegedly made prior to adverse actions did not constitute protected activity, because they did not concern discrimination.

Richard v. Regional School Unit 57, 901 F.3d 52 (1st Cir. 2018). Panel: KAYATTA, Lynch [TORRUELLA, dissenting]. Claim on Appeal: ADA, Rehabilitation Act, and Maine state law retaliation. State whistleblowing claim [not discussed here]. Disposition Below: Judgment after a jury verdict [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Court reserves for future consideration whether McDonnell Douglas burden-shifting analysis should be used at trial stage, but neither party challenged analysis. "The district court found that Richard had made out a prima facie case and that RSU 57 had offered a legitimate reason for its actions (Superintendent Davis's frustration with Richard and other professionals' inability to manage the kindergarten classroom at issue). The court also found that Richard demonstrated that this reason was pretextual, given that Superintendent Davis had taken no action against any other education professional at Waterboro Elementary School as a result of the issues in Richard's classroom." Nevertheless, the district court found - and did not clearly err - that the plaintiff did not establish that the reason was advocacy for disabled students. Little evidence that the superintendent was aware of the plaintiff's advocacy efforts, nor that such advocacy would have had any role in Superintendent's decision. Court was not required to find in plaintiff's favor merely by finding pretext. Court did not err in failing to make findings on all of plaintiff's contentions under FRCP52(a). Record supported inferences that resource concerns did not motivate defendant's actions. Contrary to plaintiff's argument, court did consider the motives not just of Superintendent, but of all other decisionmakers in chain. Court could have found that alleged acts of retaliation were motivated by desire to please Superintendent rather than to retaliation for advocacy efforts.

Carlson v. University of New England, 899 F.3d 36 (1st Cir. 2018). Panel: LYNCH, Torreulla, Barron. Claim on Appeal: Title VII and Maine state law retaliation 1981 and Mass. state law termination (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute of material fact whether plaintiff's transfer was sufficiently adverse. Although district court thought it could not be adverse because plaintiff agreed to it, there was evidence that the employee was misled into accepting the position. She consented to transfer departments on the condition that she could "keep [her] classes and continue to do [her] job." Yet she was given different, lower-level classes. A jury could find that she would not have accepted the job but for the employer's misrepresentations. District court did not err, though, in tossing claim of retaliatory denial of raise where no comparative evidence was provided.

Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 130 FEP 1753 (1st Cir.  2018). Panel: THOMPSON, Howard, Lipez. Claim on Appeal: 1. Title VII pay (sex). 2. ADEA harassment. 3. Title VII harassment (sex). 4. ADEA and Title VII retaliation. 5. ADEA and Title VII constructive discharge. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. 5. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Reversed [plaintiff]. 3. Affirmed [defendant]. 4. Reversed [plaintiff]. 5. Reversed [plaintiff]. Grounds: 1. Plaintiff presented no admissible evidence that men were paid more. All she offered was her own testimony of men telling her that they earned more. This fails for reasons that "most law students would be able to catch" - it's inadmissible hearsay - compounded by the employer's own detailed submissions of salary history (with W-2s). Indeed, the panel dresses down the plaintiff for originally omitting that evidence from her original appendix, though landing short of sanctioning her for it. 2. Panel criticizes the district court for demanding unreasonable specificity from the plaintiff, which "appears to have believed that Rivera was required to produce evidence of every single individual offensive act directed toward her--including the exact date, exact individual involved, and exact words used." But "the facts present in Rivera's declaration are not the fuzzy, vague details that would derail a claim at this stage of the game." To the contrary, the declaration provides the right amount of information under Rule 56(e): "It would be unreasonable to expect the average worker in an allegedly perpetually abusive environment to keep track of her abuse to that degree of detail (lest we mandate the keeping of a diary in anticipation of litigation, which we decline to do). In instances of alleged habitual persecution like Rivera's, one day's harassment can easily bleed into the next. Thus, where a worker being continuously harassed is able to provide information about the type of harassment (including specific words, actions, or incidents) directed at her, as well as the individuals involved in creating such an environment, such claims should generally be sustainable provided the employee can tie her mistreatment to her membership in a protected class." The panel also holds that the allegation of daily use of these slurs presented a genuine dispute about pervasiveness and severity. 3. Despite that Rivera allegedly endured "constant yelling and screaming" and felt "physically threatened," the record "failed to connect her alleged harassment to gender at all." 4. Plaintiff testified "that mere days following her filing of the EEOC and ADU charges, she began being subjected to threats of termination by Pepín." Moreover, these threats, "which occurred on a 'daily basis' weren't untethered. Rather, they were tied directly to her complaints with the enforcement agencies to whom she reported Medina's allegedly unlawful discriminatory practices." Although the employer contended that the hostile work environment was just a continuation of the age- and sex-based harassment claims, the panel holds that the later threats of termination were "due specifically to her decision to go to the EEOC and ADU with her complaints. 5. Persistent threats of termination may constitute constructive discharge, which can greatly enhance the damages available to a plaintiff. "It is not unreasonable to expect that an employee will resign due to the apparent inevitability of her termination when that employee is told over and over (and over) again that she will be fired."

Micheo-Acevedo v. Stericycle of Puerto Rico, Inc., 897 F.3d 360 (1st Cir. 2018). Panel: BARRON, Torruella, Lynch. Claim on Appeal: 1. Title VII promotion (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. No genuine dispute of material fact that the position plaintiff sought did not exist. Although male employee claimed to hold such position, record shows that that employee did not receive a raise (indeed, had has salary reduced) and was not granted supervisory authority over plaintiff. 2. Plaintiff's "exclusion" from a golf tournament (left off email chain) supervisor's email to her admonishing her for "insubordination" insufficiently adverse. Suspension and termination were materially adverse, but while plaintiff made out prima facie case, she did not present genuine dispute about pretext. Temporal proximity of three months insufficient to establish causation. No irregularity shown in putting plaintiff on performance improvement plan, and no evidence of materially inconsistent explanations to establish "shifting reasons." No error in refusing to strike defendant's motion for alleged failure to comply with local procedures (by mislabeling exhibits).

Dimanche v. Massachusetts Bay Transp. Auth., 893 F.3d 1, 130 FEP 1625 (1st Cir. 2018). Panel: LYNCH, Kayatta, Barron. Claim on Appeal: § 1981 and Mass. state law termination (race). Disposition Below: Judgment after a jury trial ($1.3 million compensatory damages, $1.3 million in punitive damages) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Panel rejects challenge to sufficiency of the evidence, holding that the judgment was fully supported by the record: "Here, assuming the jury credited Dimanche's testimony and the testimony of her witnesses, there is ample, direct evidence of racial discrimination. Three of the MBTA's supervisory staff who either concurred in Dimanche's dismissal or were involved in the investigation of the January 25th altercation, had demonstrated racial animus towards her. [One MBTA staff member] was reported to have said that he wanted to 'get her black ass.' And [two others] had a long history of mocking Dimanche's Haitian accent, calling her 'black b[***]h,' threatening her, and attempting to retaliate against her for making complaints. Coupled with Dimanche's testimony that each of her four previous disciplinary infractions was fabricated, a reasonable jury could have concluded that the MBTA improperly terminated her employment because of her race." Upholds the punitive damage award, holding that the relevant factors under state law for award of such relief tilted in the plaintiff's favor. Cites "notice to the MBTA of racially-based and racially-demeaning comments made to Dimanche, a failure to investigate her complaints to management, a failure to discipline the offenders or to remedy the situation, and a concerted effort to isolate her and to cause the termination of her employment." Defendant challenged preclusive sanction entered at the pleadings stage. When the defendant originally defaulted, the district court judge provisionally granted its motion to vacate the default. It was on condition, though, that the agency would be limited to defending the case based entirely on the evidence of a "meritorious defense" supplied in its motion. Sanction was erroneous. The trial judge "failed to provide any factual or legal basis for imposing an evidentiary sanction on the MBTA," and "the sanction on its face was calibrated not to ameliorate any prejudice to Dimanche, but instead to punish the MBTA." But because defendant failed to preserve an objection to the sanction in the district court and it waived that ground. Reviewing the decision for plain error, it found no prejudice: the agency was allowed to put in its entire defense, notwithstanding the sanction, and did not make offers of proof about allegedly excluded evidence. The agency also complained that it was blindsided by the late introduction of a hostile-work-environment theory, but (again, on plain-error review) the panel holds that defendant did not make a record that it was prejudiced by the jury charge, such as what kinds of testimony or evidence it would have presented in defense. Finally, the MBTA belatedly argued that section 1981 did not apply to a public-sector employer, based on the intervening decision of Buntin v. City of Boston, 857 F.3d 69 (1st Cir. 2017), so holding. Unfortunately for the defense, it again failed to preserve this ground below and the argument - not going to the subject-matter jurisdiction of the court - could not be raised for the first time on appeal.

Caraballo-Caraballo v. Administración de Correccion, 892 F.3d 53, 130 FEP 1581 (1st Cir. 2018). Panel: LIPEZ, Howard, Thompson. Claim on Appeal: Title VII transfer (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court should not mechanically assume that an analysis developed in one Title VII case will necessarily fit the facts of the next case: "Given the variety of discrimination cases in which courts apply the McDonnell Douglas framework, a principle established in one case will not always translate to another. In particular, there are significant distinctions between the qualifications elements in failure to promote or hire cases and those elements in discharge or transfer cases." For a hiring or promotion case, "the plaintiff is ordinarily vying for an open position, for which the employer has established certain minimum qualifications." Thus, "the district court's decision did not account for this contextual distinction between failure to hire or promote cases and discriminatory discharge or transfer cases." Because her work experience was the equal of or greater to her two successors, Caraballo, holds the panel, established that she was "similarly situated" to them in a legally meaningful way. The defendant offered an alternative basis for affirmance - that the transfer was not an "adverse employment action" - but the panel rejects that too. "[Plaintiff's] six years working in the Radio Communications Area allowed her to gain significant experience, and develop some expertise, in the field of radio communications. She inspected, programmed, and replaced radio equipment, performed repairs, maintained inventories, taught cadets to use radio equipment, and ensured that the Department was compliant with FCC guidelines. That experience and knowledge were rendered useless by her transfer to the commissary, a job that consisted of handling inmate purchases. This disparity in duties distinguishes Caraballo's transfer from those that we have found insufficient, and makes the transfer an adverse employment action." Having held that the plaintiff met her prima facie case, the burden shifted to the employer to proffer a legitimate, non-discriminatory reason for its decision, but "the Department's briefing before the district court did not even attempt to offer such a justification."

Sepúlveda-Vargas v. Caribbean Restaurants, LLC, 888 F.3d 549, 33 A.D. Cases 1703 (1st Cir. 2018). Panel: THOMPSON, Howard, Lipez. Claim on Appeal: 1. ADA reasonable accommodation. 2. ADA retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. In light of employee's requested accommodation (for PTSD and major depression) to be assigned fixed shifts at a single location, he was not qualified to perform the essential job functions required of assistant managers. Employer considered rotating shifts essential to equal distribution of work among the managerial staff (plaintiff conceded in deposition); it was featured in the application and job description. Temporary accommodation did not forfeit employer's right to eventually return the employee to rotating shifts. 2. Various allegedly hostile acts were not sufficiently materially adverse: (1) scolded by direct supervisor for requesting an accommodation from HR after the direct supervisor had already denied it; (2) direct supervisor allegedly accusing plaintiff of taking four pills of unnecessary medication, which made him feel embarrassed; (3) direct supervisor attempting to briefly change plaintiff's schedule and expressing disbelief that he had a serious medical condition; (4) forced to pull down his pants in front of a restaurant manager to show that he had a skin condition requiring medical treatment; (5) direct supervisor and other employees called him a "cry baby" on three occasions; (6) plaintiff was forced to take a paid vacation until he passed a health safety examination Caribbean required; (7) plaitniff told to stay past his shift's end until 11:00pm on one occasion and was admonished when he failed to abide by this instruction; and (8) supposedly treated differently in a general way than other assistant managers in his working hour requirements and labor assignments.District court did not abuse discretion

Teixeira v. Town of Coventry, RI, 882 F.3d 13, 33 A.D. Cases 1557 (1st Cir. 2018). Panel: SELYA, Lynch, Souter. Claim on Appeal: RI state law termination (disability). FMLA claim (not discussed here). Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion in using the McDonnell Douglas framework in the jury instruction or by instructing jury to consider whether the employer had shown that the defendants' reasons for firing her were pretextual (latter argument subject to plain-error review). 

Franchina v. Providence Fire Dep't, 881 F.3d 32, 130 FEP 1169 (1st Cir. 2017). Panel: THOMPSON, Torruella, Kayatta. Claim on Appeal: Title VII harassment (sex). Disposition Below: Judgment after a jury trial ($161,000.00 emotional distress, $545,000 front pay) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Claims were timelythe effective date of her EEOC charge was February 3, 2011, and "Franchina's testimony that she returned to the firehouse for a 'good portion' of 2011 could certainly be understood to mean that she returned past February 3, 2011 (and logic reasonably suggests that the words 'good portion' encompassed not merely the first thirty-three days of the year)." The department also challenged the admission of evidence of certain incidents. It claimed that a union-hall incident was irrelevant because it was unconnected to the workplace. "First, we have never mandated that evidence of non-workplace harassment have direct, formal workplace consequences (such as those listed above) for it to be relevant .... Second--and not to belabor the point--we have explained that non-workplace incidences are admissible if they cast light on the motivations, pervasiveness, and/or severity of the harassment." Panel affirms admission of the TRO transcript for non-hearsay purposes: "Testimony from senior officers (i.e. those in positions of power) concerning what happened at the union hall, regardless of its truth, could be understood as lending credence to the inference that the Department should have been on notice of the hostile work environment with which Franchina contended." And even if admission of the evidence were in error, it was harmless because "[t]here was a plethora of other, independent evidence introduced at trial that more than supports the verdict that Franchina was discriminated against on the basis of her gender." Plaintiff in sex-plus case ("plus" here being sexual orientation), to meet burden of proof, not required "to identify a corresponding sub-class of the opposite gender and show that the corresponding class was not subject to similar harassment or discrimination." This would imply a "but for" standard of causation that does not apply to status-based discrimination claims under Title VII. And "we see no reason why claims where the 'plus-factor' is sexual orientation would not be viable if the gay or lesbian plaintiff asserting the claim also demonstrates that he or she was discriminated at least in part because of his or her gender. Reviewing the record, the panel finds "a plethora of evidence showing that the impetus for the discrimination she sustained was based in part on her being a female.... There was evidence that Franchina was subjected to humiliating sexual remarks and innuendos by Ferro, including asking the plaintiff if she wanted to have babies and if he could help her conceive. This type of sexually based animus is a hallmark of Title VII." The panel rejects a claim of error on the jury instruction: it holds that it would have been superfluous to instruct, as the department wanted, that "[i]f you find that Ms. Franchina faced harassment solely because of her sexual orientation, then she has not proven that she faced harassment because of her gender." Sufficient evidence to support front-pay award. The court lays out relevant factors: "In deciding on a request for front pay, a district court can consider an array of issues. A nonexhaustive list includes the following: Is the plaintiff able and allowed to return to work with the employer? What pay and benefits was she receiving? What other work can and will she likely obtain to offset the loss? What pay increases might she have obtained had she remained employed? For how long would she have worked? What will be the effects of inflation? What will be the rate of return on any award?" The plaintiff presented some evidence on most of these factors. Forced to retire from her job on disability at a relatively young age, she conceivably gave up decades of employment. "[T]he crucial factor in estimating future lost wages was the number of years that her annual unadjusted loss of $73,000 to $105,000 would have continued." The court holds that despite the district court failing to announce a specific discount rate, the award fell within a reasonable range. The panel also holds, following the decision of other circuits, that it is not essential for a plaintiff to present expert testimony to support a front pay award.

Garcia-Garcia v. Costco Wholesale Corp., 878 F.3d 411, 130 FEP 1057 (1st Cir. 2017). Panel: THOMPSON, Lynch, Kayatta. Claim on Appeal: 1. Puerto Rican law termination (sex). 2. Puerto Rican law retaliation. Other Puerto Rican law claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No error in admitting affidavits that did not expressly declare that they were based on "personal knowledge," because knowledge can be inferred and plaintiff largely did not object to facts. Challenge to authentication of exhibits inadequate. Fact that three women were involved in $95,000 fraud but not fired not comparable to plaintiff (who was fired for not being able to account for a discrepancy in his store's inventory), because they were part of ring with two men, who were also not fired. Unrelated work rule violations by women was also not comparable. 2. Probative force of temporal proximity (seven days from grievance to termination) mitigated by fact that allegation of discrimination only came in response to Costco's accusation of misconduct that was itself the cause for the discharge that ensued. No rebuttal to legitimate, non-discriminatory reason other than conclusory deposition testimony that he was terminated unfairly.

Jonson v. FDIC, 877 F.3d 52, 33 A.D. Cases 1347 (1st Cir. 2017). Panel: STAHL, Barron, Selya. Claim on Appeal: ADA associational discrimination. Disposition Below: Dismissal for lack of subject-matter jurisdiction, FRCP12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: An employee who withdraws a claim of discrimination in an MSPB proceeding, and never reinstates the claim in that proceeding, does not have a mixed case within the jurisdiction of the district court. Failure to raise 28 U.S.C. § 1631 waived right to seek transfer to the Federal Circuit; alternatively, because it lacked subject-matter jurisdiction over the claim, it also lacked power to transfer.

Cherkaoui v. City of Quincy, Mass., No. 16-2304 (1st Cir. Dec. 4, 2017). Panel: TORRUELLA, Lynch, Lipez. Claim on Appeal: 1. ADA, Title VII (religion) and Mass. law discrimination (sex). 2. ADA, Title VII and Mass. law retaliation. 3. ADA, Title VII (religion) and Mass. law constructive discharge. 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. City splitting plaintiff's assignment over two schools not materially adverse because the employee herself requested it as an accommodation to her ADHD. Assuming that There other actions constitute adverse actions for purpose of prima facie test (a There-day suspension; a change in teaching assignment to include a science component and larger class sizes; and a failure to accommodate her requests for transfer), city proffered legitimate reasons for each. Disciplinary actions against plaintiff were in response to tardiness, even after city provided her an addition al ten minutes of travel time between schools. Class size and directive that plaintiff include a science component in her classes based on student needs and the qualifications of the pool of teachers at school at the time. Accommodations were either granted or else infeasible. Temporal proximity of adverse actions to request for accommodations not sufficient to rebut explanations. 2. While employee engaged in protected activities by filing original and amended EEOC charges, alleged adverse actions often took place years after the protected activities and employer offered legitimate, non-discriminatory explanations for each such action. One adverse action that was in reasonable temporal proximity was the City's requirement that she undergo an IME to substantiate her application for extended sick leave benefits. But city was exercising its right under the collective bargaining agreement to demand verification, and plaintiff consented (subject to accommodation request that was granted). 3. Working conditions had not reached a level of unbearableness where a reasonable person would have resigned. Even though Plaintiff did encounter several uncomfortable situations within her work place, none of these show a pattern of unusually aggravating working conditions. Also, the City had taken steps to investigate her allegations of discriminatory treatment and accommodated many of her requests.

González v. Vélez, 864 F.3d 45 (1st Cir. 2017). Panel: SELYA, Howard, McConnell. Claim on Appeal: Bivens and RICO action alleging race and national origin discrimination. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Civil Service Reform Act (CSRA), 5 U.S.C. § 1201, and Title VII preclude the pleading of employment discrimination claims as Equal Protection Bivens claim or RICO.

McDonald v. Town of Brookline, 863 F.3d 57, 33 A.D. Cases 927 (1st Cir. 2017). Panel: STAHL, Torruella, Thompson. Claim on Appeal: ADA termination. Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion by failing to instruct jury that the duty of reasonable accommodation might include post-termination period of time between May 12 and a June hearing, based on the sound principle that it is not incumbent on the trial judge to, as the court below put it, "outline to the jury all the evidence" with respect to what was required by way of accommodation. Plaintiff permitted to argue that point to jury. Also no error (under plain error review) withholding instruction that a "reasonable accommodation may include, inter alia, leave of absence and leave extension; [and] addition al leave beyond that allowed in leave policy."

Cruz v. Mattis, 861 F.3d 22, 130 FEP 366 (1st Cir. 2017). Panel: BARRON, Torruella, Kayatta. Claim on Appeal: Title VII hiring (sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine dispute of material fact that "[q]ualification [for the 2010 vacancies] was predicated on creditable teaching experience," while plaintiff's only teaching experience was substitute teaching experience, which agency treated as "non-creditable" experience. No evidence that substitute teaching experience as "non-creditable" experience was a post-hoc justification for its hiring decisions. Being on 2009 referral list was not probative of whether he was qualified in 2010.

Audette v. Town of Plymouth, Mass., 858 F.3d 13, 130 FEP 214, 33 A.D. Cases 765 (1st Cir. 2017). Panel: LIPEZ, Torruella, Baron. Claim on Appeal: 1. AD and Mass. state law reasonable accommodation. 2. AD and Mass. state law retaliation. 3. Mass. state law discrimination (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. No evidence that a light-duty position existed at the time. 2. Claim not mentioned in complaint and not raised until summary judgment waived. 3. Letter of reprimand placed in personnel file (which did not affect plaintiff's rank, pay, or duties as a patrol officer), then removed as the result of an arbitration, not an adverse action.

Buntin v. City of Boston, No. 16-2265 (1st Cir. May 15, 2017). Panel: LYNCH, Torruella, Selya. Claim on Appeal: § 1981 termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: § 1981 provides no implied private right of action for damages against state actors.

Echevarría  v. AstraZeneca Pharmaceutical LP, 856 F.3d 119, 33 A.D. Cases 673 (1st Cir. 2017). Panel: THOMPSON, Dyk, Kayatta. Claim on Appeal: 1. ADA termination. 2. ADA retaliation. State statutory 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. No genuine dispute of material fact that employee was unable to perform the essential functions of her position with a reasonable accommodation. Plaintiff suffered depression and anxiety; request for an addition al twelve months of leave (essentially indefinite) was not a facially reasonable accommodation. Plaintiff also failed to present genuine issue that requested accommodation would have enabled her to perform the essential functions of her position. Reasonableness measured from the facts available to employer at time of decision. Single entry on leave-request form for expected return date ("twelve months") insufficient. Plaintiff also failed to show that her proposed accommodation of an addition al twelve months of leave is facially reasonable (e.g., sheer length of the delay, when coupled with her prior five-month leave; obvious burden on employer). Even if plaintiff might have been eligible for such benefits under company policies in principle, she did not shoe that she qualified under her factual circumstances. Failure of employer to advance evidence of undue burden irrelevant, where plaintiff fails to meet Threshold obligation of preferring a facially reasonable accommodation. No stand-alone claim for failure of interactive process where employee fails to satisfy her burden of showing that a reasonable accommodation existed. 2. Assuming that the plaintiff made out a prima facie case, no genuine dispute about reasons for termination, i.e., employer repeatedly informed plaintiff that she would be presumed to have resigned from her employment if she failed to return to work after her STD benefits were terminated, and yet she failed to return to work as instructed. Position was eliminated. Reasons are not shifting or inconsistent. Alleged instances of company failing to follow its applicable STD policy not supported by record, either because plaintiff cited wrong policy or policy was ambiguous. Plaintiff challenged contention that her position was eliminated. "[Given [plaintiff's] failure to address [defense] deposition testimony that her position was eliminated in a second reorganization, it effectively stands unrebutted on appeal." Prior positive job history does not rebut reasons given by employer.

Ortiz-Martínez v. Fresenius Health Partners, PR, LLC, 853 F.3d 599 (1st Cir. 2017). Panel: THOMPSON, Howard, Selya. Claim on Appeal: ADA reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine dispute that plaintiff was responsible for the breakdown of the interactive process, where she refused to meaningfully engage after submitting an initial letter from her doctors on July 18, 2013 and attending a meeting on August 6, 2013. She declined to provide follow-up information requested by employer.

Rodriguez v. United States, 852 F.3d 67, 129 FEP 1857 (1st Cir. 2017). Panel: DYK, Howard, Thompson. Claim on Appeal: Title VII disparate impact and treatment benefits (national origin). APA claim (not discussed here). Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Challenge to Office of Personnel Management (OPM) regulations that exclude cost-of-living allowances (COLAs) from calculation of retirement and other benefits. COLAs are received by federal employees working in non-foreign areas located outside the contiguous United States. Disparate impact claim is barred by the location-based, safe harbor provision of 42 U.S.C. § 2000e-2(h). Plaintiffs failed to exhaust disparate treatment claims by including it in its administrative EEO complaint.

Jones v. City of Boston, 845 F.3d 28, 129 FEP 1420 (1st Cir. 2016). Panel: KAYATTA, Howard, Selya. Claim on Appeal: Title VII disparate impact drug testing (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute of material fact whether the defendant could have adopted an available alternative to the challenged hair testing for drugs that would have met the city's legitimate needs while having less of a disparate impact. Panel affirms holdings below that the test was job-related and consistent with business necessity. Test was accurate: the negative hair test results were all accurate, and the hair test was accurate in the overwhelming majority of cases. Ruling in 2013 by the Massachusetts Civil Service Commission ("MCSC") that overruled termination of officers with positive results did not collaterally precludes defendant from claiming that the hair test was job related and consistent with business necessity, where issue was limited to whether a positive test result by itself was just cause for terminating a tenured public employee. But plaintiffs presented evidence that hair-analysis combined with urinalysis tests would have been more accurate and had less of an impact on Black officers. Indeed, the city had already used a series of negative urinalysis tests as a basis to reinstate suspended officers who tested positive on the hair test. Plaintiffs need not prove less-discriminatory alternative by exhaustive statistical study; it is sufficient that the plaintiff in some situations use the statistically determined impact of the challenged process as a baseline, and demonstrate that the alternative practice must necessarily be less. To establish that "the [employer] refuses to adopt such alternative employment practice," it is not necessary to establish that the policy was formally tendered to the employer, if it was available and the employer had an opportunity to adopt it.

Garmon v. National Railroad Passenger Corp., 844 F.3d 307, 129 FEP 1478(1st Cir. 2016). Panel: THOMPSON, Lynch, Barron. Claim on Appeal: 1. § 1981 discrimination. 2. § 1981 harassment. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Overtime policy adopted under collective bargaining agreement not shown to be racially motivated, and plaintiff's own affidavit, averring discriminatory administration of the plan "in large part contains unsupported, speculative assertions about the way overtime was determined and administered at Amtrak." No testimony based on plaintiff's personal knowledge about overtime opportunities available to him prior to the initiation of the alleged discriminatory policy, the amount of overtime shifts available to him after the alleged policy was initiated, any increase in overtime for first-shift, white co-workers, or his seeking or being denied any overtime lineman opportunities that he requested. 2. Complaints of various alleged hostile acts (failing to provide him keys, denying adequate training, reducing overtime opportunities, subjecting him to intimidation, assignment to night shift) not shown to be related to race.

Pippin v. Boulevard Motel Corp., 835 F.3d 180 (1st Cir. 2016). Panel: BARRON, Torruella, Lisi. Claim on Appeal: Maine state law retaliation. State statutory law claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Maine Human Rights Act does not recognize a "job duties" exception to retaliation. Reporting an employee's sexual harassment to the employer, and providing further evidence of it weeks later, was a protected activity.

Tyree v. Foxx, 835 F.3d 35, 129 FEP 785 (1st Cir. 2016). Panel: TORRUELLA, Kayatta (THOMPSON, dissenting). Claim on Appeal: Title VII discrimination (sex, race, national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Assuming that plaintiff made out prima facie case, she did not rebut explanation that agency decline to approve her proposal both because plaintiff ceased negotiations and resisted suggestions to make proposal more "sellable to the Volpe Center" through supervisor's proposed changes. "At best, Tyree has described a scenario in which she and her employer disagreed about the scope of her research. Her description of the nature of this disagreement would not allow a reasonable fact-finder to conclude it stemmed from discriminatory animus." No inconsistent or shifting explanations. No abuse in discretion denying plaintiff discovery into how quickly other research proposals were decided, where there was no suggestion that such incidents were factually comparable to her proposal.

Fontanillas-Lopez v. Morell Bauzá Cartagena & Dapena, LLC, 832 F.3d 50 (1st Cir. 2016). Panel: KAYATTA, Barron. McAuliffe. Claim on Appeal: Title VII and P.R. law termination (sex). Disposition Below: Summary judgment and award of $53,662.50 defense fees as sanction [defendant]]. Outcome on Appeal: Affirmed [defendant]. Grounds: No abuse of discretion denying leave to file post-judgment motions in excess of local-rule page limits. Plaintiff's timely Rule 59(e) motion tolled limitations period for filing appeal for all post-judgment motions. Order striking timely motion from the record because of page-limit violations did not vitiate the tolling effect. district court's order rejecting Rule 59(e) motion for its noncompliance with the local rules was an "order disposing of" that motion. Fed. R. App. P. 4(a)(4)(A)(iv). District court did not abuse discretion by awarding fees to employer. Litigation that was not necessarily frivolous at the outset continued past the moment at which it became clear that the claims asserted were "frivolous and without foundation," i.e., when plaintiff's deposition was taken. Plaintiff failed to make argument to rebut this finding. Court rejects argument that district court based sanction. District court's opinion states that basis for the fees award was its view that "Fontanillas was duly apprised that her claims were devoid of any merit" following her deposition and that she nonetheless "continued to vexatiously and unreasonably litigate a claim that, after the taking of her deposition, had clearly become frivolous and without foundation." While plaintiff did seek to voluntarily dismiss case after her deposition, it was not unconditional (it sought release of any claims to defense fees and costs). Defendant could seek fees even if it was representing itself (as law firm) in case. Denial of Rule 60 relief to vacate summary judgment not abuse of discretion. Even if plaintiff had successfully adduced the requisite clear and convincing evidence of her opponents' misconduct, she had not shown how any such misconduct had substantially inhibited her from "fully and fairly preparing her case." No grounds for "mistake," where plaintiff essentially repeated her opposition to summary judgment on merits.

Burns v. Johnson, 829 F.3d 1, 129 FEP 567 (1st Cir. 2016). Panel: LYNCH, Thompson, Kayatta. Claim on Appeal: 1. Title VII discrimination (sex). 2. Title VII harassment (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. "[I]t was error for the district court to expect that under the mixed-motives theory Burns had to present direct evidence of discrimination," citing Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Although plaintiff pursued her demotion claim under both the mixed-motive and McDonnell Douglas pretext methods, regardless of the method deployed, there was "a convincing mosaic of circumstantial evidence" indicating that discrimination occurred. Reassignment of scheduling duties constitutes an "adverse employment action" where the change reduced Burns to "clerical duties" because it transferred seventy-five percent of her responsibilities to others and replaced a system she had in part designed. That the work changes were not fully implemented at the time Burns retired does not change the adverse nature of the actions. Moreover, the agency "offered no evidence about what duties it intended to offer Burns had she stayed .... The record suggests that things would get worse, not better, especially given that there was no plan for what Burns would do in the long term and Johnson continued to exhibit arguably hostile behavior toward Burns." Genuine dispute about the discriminatory motives, citing supervisor's antagonistic use of the pronoun "she" during the meeting: "[A] reasonable jury could infer from [supervisor]'s emphasis and condescending tone that he was not motivated by either of his stated reasons, a desire to achieve conformity with the other field offices or to give the SFAMs leadership, but because he disliked that a woman was responsible for the task .... A reasonable jury could find that a sex-based stereotype was behind [supervisor]'s questioning of why 'she' was in that role as well as his belief that 'leadership' should instead be given to the group of male SFAMs, and that these biased beliefs precipitated the decision to give Burns's duties to a group of men." These comments were bolstered by evidence that supervisor regularly disparaged plaintiff's' performance without factual support, and "that Johnson knew that Burns was the employee primarily in charge of international flight scheduling, and yet there is no evidence that Johnson solicited input or feedback from Burns about his proposed changes to the system." The inference of gender bias "is also supported by evidence that Johnson used a baseball bat around Burns in an intimidating manner .... there is evidence that Johnson used the bat with Burns in every interaction after he officially took over, but not constantly with men, and that [supervisor] used the bat in a manner with Burns that was different from how he used it with men." 2. Supervisor's comments, conduct, and tone about and toward plaintiff were sufficient to support a hostile work environment claim. Notes unequal way in which supervisor wielded the bat around plaintiff - supposedly every time - but not so much around men. The district court erred by requiring proof of both severe and pervasive harassment. Rejects alternative ground that the agency had an affirmative defense, as a matter of law, that Burns did not present her harassment complaint through channels (Faragher/Ellerth). "[T]here is evidence in the record that Burns feared retaliation, which is bolstered by the fact that others expressed fear of retaliation for mere participation in the TSA investigation into [supervisor]. There is also evidence that Burns had earlier reported her concerns, including to her direct supervisor."

Vélez-Ramírez v. Commonwealth of Puerto Rico, No827 F.3d 154, 32 A.D. Cases 1515 (1st Cir. 2016). Panel: HOWARD, Torruella, Lynch. Claim on Appeal: ADA termination and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine issue of material dispute about adverse action. Plaintiff received letter that she was denied accommodation, but employer did not terminate her. Denial of accommodation is not tantamount to termination or constructive termination. Failure to rehire supported by legitimate, non-discriminatory reason: plaintiff did not submit paperwork to be renewed. Employer had no duty to follow up and find out why paperwork was not submitted.

Tang v. Citizens Bank, N.A., 821 F.3d 206, 129 FEP 173 (1st Cir. 2016). Panel: TORRUELLA, Lipez, Thompson. Claim on Appeal: 1. Title VII and Mass. state law harassment (sex). 2. 1. Title VII and Mass. state law retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Plaintiff presented genuine dispute about being subjected to pervasive hostile work environment. While supervisor never directly propositioned plaintiff, he "made it very clear" he wanted a relationship with her. On various occasions supervisor encountered plaintiff in office, he would discuss his Thai au pairs and their swimming attire, offer to teach her to golf, leer at her, repeat that he thought Asian women were obedient, ask constantly about Tang's relationships, continually stare at her, ask about her personal relationships, and once made obscene gestures while saying "this your ass, this my ass." While many exchanges were not explicitly sexual in nature, it is relevant that much of the egregious behavior in their later interactions (yelling, Threatening job) may have stemmed from her having rebuffed his advances. While supervisor did not in the same office as plaintiff, and her deposition testimony is unclear as to how frequently exchanges took place, Nevertheless, supervisor did make appearances at office and acted as the manager of plaintiff's group, giving her projects and delivering her performance reviews. Also genuine issue about whether behavior was objectively and subjectively offensive. 2. Plaintiff as pro se litigant did not waive retaliation by not making it a separate count in complaint, where allegations included that "[d]efendants did wrongfully, unjustly, and tortiously fire her, as a result of her respectfully informing HR of her complaint against him, and her declining to have sex with him," and that supervisor sought a sexual relationship with her and that she was terminated despite "solid job performance" after "declin[ing] his advances." Genuine issue about whether there was causal connection between protected activity (going to HR with complaint) and being fired. While there was a four month gap, causation may be inferred because many of the emails that were the foundation for the termination were forwarded to HR in March 2011, immediately after plaintiff complained to HR. Jury could infer that supervisor held onto complaints until after plaintiff went to HR. That plaintiff received positive reviews up until she began working with her alleged harasser raises the reasonable inference that her negative reviews and termination were related to her rebuffing supervisor.

Lopez v. City of Boston, Mass., 823 F.3d 102, 129 FEP 182 (1st Cir. 2016). Panel: KAYATTA, Lynch [TORRUELLA, dissenting]. Claim on Appeal: Title VII disparate impact promotions (race). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Use of a pen-and-paper test that counted for 80% of an applicant's final score was found to have a disparate impact on promotions. Average scores for those designated as "minority test takers" fell below the average scores for the "non-minority test takers" by 6.4 points in 2005 and 6.6 points in 2008. But test was a valid selection tool that helped the city select sergeants based on merit. District court did not clearly err in finding that content validity was established by testimony of Dr. James Outtz, opined that exams were based on job analyses that validly identified critical skills used by actual police sergeants and that tests, combined with "education and experience" ("E&E") rating, covered a "representative sample" of the content of the job. Uniform Guidelines on Employee Selection Procedures, while persuasive, not controlling in analysis. Nevertheless, district court used guidelines; examined "knowledge, skills and abilities" (KSAs) to make sure there was link to selection process; focused on KSAs that can be practically and reliably measured; cited to testimony establishing that knowledge of the constitutional and regulatory law applicable to police work is "critical to a police sergeant's ability to effectively perform as a supervisor" and to evidence that a written job knowledge test is "[a]n effective way" of testing whether a candidate possesses such critical knowledge. "[T]he relevant aim of the law, when a disparate impact occurs, is to ensure that the practice causing that impact serves an important need of the employer, in which case it can be used unless there is another way to meet that need with lesser disparate impact.". Use of rank-order selection measured separately, requiring more scrutiny of the validation evidence as a whole, also had content validity. Officers "made no effort to demonstrate that an increased number of Black and Hispanic applicants likely would have been selected under such an [banding] alternative approach." Moreover the plaintiffs failed to prove that there was an alternative selection tool that was available, that was as (or more) valid than the test used, and that would have resulted in the promotion of a higher percentage of Black and Hispanic officers. No evidence that "adding test components such as an assessment center, structured oral interview, or performance review to an exam process increases the validity of an exam while having less adverse impact on minorities." While such procedures "generally tend to result in less adverse impact than does a reliance on multiple choice exams," district court did not err in holding that officers failed to rebut "Outtz's opinion that the low rates of job openings in the Boston sergeant ranks relative to the number of applicants made it unlikely that any alternative selection device would have materially reduced adverse impact in 2005 and 2008," and potentially would have added $1.2MM in cost.

Murray v. Warren Pumps, LLC, 821 F.3d 77, 32 A.D. Cases 1233 (1st Cir.  2016). Panel: HOWARD, Selya, Lipez. Claim on Appeal: 1. AD and Mass. state law reasonable accommodation. 2. AD and Mass. state law harassment. 3. AD and Mass. state law retaliation. State law tort (not discussed here). 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. "An otherwise qualified employee with a disability who may need differing accommodations at different times (depending on his physical restrictions and varying job duties) will not be protected under the law when he fails to alert his employer that a particular task requested of him conflicts with a medical restriction." Employer provided accommodation by allowing plaintiff "to self-monitor whether certain tasks were stressing his physical abilities, and to make appropriate adjustments himself or request accommodation." Record showed that relief was granted whenever requested. Theory that employer "deliberately" assigned duties beyond plaintiff's restrictions unsupported by record. 2. Occasional comments about physical restrictions and "questioning" that he endured about his need for time off for medical appointments not severe or pervasive. 3. Where record establishes that plaintiff only made definite requests for accommodations years before termination, and only indefinite ones afterwards, no causal link to protected activity.

Escribano-Reyes v. Professional Hepa Certificate Corp., 817 F.3d 380, 128 FEP 1895, 32 A.D. Cases 1189 (1st Cir. 2016). Panel: LYNCH, Howard, Torruella. Claim on Appeal: AD and ADEA harassment, discrimination and retaliation. Disposition Below: Summary judgment and $1000 sanction against lawyer under Rule 11 and § 1927 [defendant]. Outcome on Appeal: Affirmed. Grounds: No abuse of discretion striking plaintiff's declaration in view of inconsistencies between deposition testimony and allegations in statement, and timing of declaration (after defendant already filed summary judgment motion). Contention that defense counsel failed to pursue factual allegations at deposition insufficient ground for contradicting testimony and failing to describe acts of discrimination at deposition. Employer did not employee sufficient number of workers for coverage under federal acts. Only evidence offered by plaintiff was list of 27 names of people supposedly employed there., but the "sparse evidence he provides -names, general job titles, and very rough estimates of when those individuals worked for HEPA-does not come close to satisfying the multifaceted common-law agency test." Sanction against lawyer for filing of "sham" affidavit affirmed.

Lang v. Wal-Mart Stores East, L.P., 813 F.3d 447 (1st Cir. 2016). Panel: THOMPSON, Torruella, Lynch. Claim on Appeal: 1. ADA termination. 2. NH state law termination. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No genuine dispute that plaintiff was not a "qualified individual," where plaintiff conceded that "moving, lifting, etc., up to 60 pounds without assistance" as an essential function of the job. Plaintiff's alternatives were not reasonable: (a) assigning her only to trailers that did not require unloading by hand is simply to excuse her from performing an essential function; while (b) transferring her to a vacant position that did not require her to lift up to 60 pounds was unsupported by evidence of vacancies. Evidence that other, pregnant women were temporarily transferred alone insufficient absent details (essential functions of the jobs in question, timing of transfers, the availability or not of a similar job when plaintiff made her accommodation request). Failure to engage in interactive process does not support claim where there is no evidence of a reasonable accommodation. 2. Disability-discrimination claim fails for same reason as ADA claim, that employee was not "qualified individual." Retaliation claim fails because employer had legitimate, non-discriminatory reason to terminate (plaintiff failed to support leave with required medical papers). Comment that plaintiff's "pregnancy was a liability" and that she should "apply for FMLA" leave made by non-decision maker. Also, plaintiff failed to present evidence of communications between employer and insurer that would shed light on whether it was trying to scuttle her claim for coverage (plaintiff offers only speculation on this point).

Martinez Rivera v. Commonwealth of Puerto Rico, 812 F.3d 69, 32 A.D. Cases 860 (1st Cir. 2016). Panel: THOMPSON, Torruella, Lipez. Claim on Appeal: 1. ADA termination. 2. ADEA termination. § 1983 political discrimination and commonwealth law claims (not discussed here) Disposition Below: 1. Dismissed on jurisdictional grounds, FRCP12(b)(1) [defendant]. 2. Dismissed on jurisdictional grounds, FRCP12(b)(1) [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Filing suit prior to receipt of right-to-sue letter was not jurisdictional defect; defendant abandoned this ground on appeal. 2. Claim properly dismissed for failure to cite ADEA claim in EEOC charge (scope of charge).

Buntin v. City of Boston, 813 F.3d 401, 128 FEP 76 (1st Cir. 2015). Panel: STAHL, Howard, Selya. Claim on Appeal: 1. § 1981 discrimination and retaliation. 2. § 1983 discrimination (race) and retaliation. Disposition Below: 1. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. 2. Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Court erred in holding that plaintiff must file a charge with the state civil-rights agency as a prerequisite to filing suit. Panel rejects alternative argument that claim was barred by limitations; it was filed within four-year period. Limitations ran from when plaintiff learned of his suspension and termination, not when he got earlier warning letter. Complaint was not "conclusory," because it sets forth, in fairly significant detail, the specific facts and circumstances surrounding the events of February 4 through 10, 2011, during which time plaintiff was allegedly disciplined in an unlawfully discriminatory manner, then suspended and terminated discriminatorily and in retaliation for having protested his disparate treatment. 2. Demand for name-clearing hearing does not state a claim: no allegation that City publicized the defamatory statements beyond the hearings at which they were made, and complaint itself establishes that the alleged defamatory statements were not made in conjunction with an alteration in employment status.

Casey v. Burwell, 807 F.3d 395, 128 FEP 704 (1st Cir. 2015). Panel: STAHL, Howard, Selya. Claim on Appeal: Title VII retaliation. Bivens action (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Government ad no liability as employer under "joint employment doctrine." Considering right-to-control element, measure of control that agency exercised in setting performance criteria overseeing administration of the program did not make agency employer, where such control is inherent in most government contracts. Contractor controlled salary and benefits. Contractor retrained final authority to hire and fire. Plaintiff was described in paperwork as "full-time employee of" contractor.

Abril-Rivera v. Johnson, 806 F.3d 599, 128 FEP 484 (1st Cir. 2015). Panel: LYNCH, Thompson [TORRUELLA, dissenting]. Claim on Appeal: 1. Title VII disparate impact termination (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. No genuine dispute that adoption of rotational staffing plan at facility owing to safety concerns (maintaining as many employees as possible to assist in the event of a disaster) was legitimate and non-discriminatory. Title VII did not require FEMA to re-staff the center the minute that the majority of the safety concerns were resolved, particularly given that defendants had begun contemplating the closing of the center by that time. Business justifications for closure included that (1) remedying the deficiencies identified in a 2008 inspection would have been very expensive; (2) establishing and operating a new facility in Puerto Rico would have been even more expensive; (3) even though employees took Spanish- and English-language calls, the Puerto Rico facility was established specifically for bilingual services, and by 2008, the volume of Spanish-language calls had decreased; and (4) the existing system could absorb the workload if the facility closed. 2. Rotational staffing plan not shown to be casually related to complaints of disparate impact. No evidence to support suggestion that the 2007 inspection leading to report was itself a mere pretext to eventually close the center. "The premise of this entire lawsuit was erroneous. Plaintiffs cannot force a government agency to keep open an unsafe facility which would have cost excessive sums to repair when there are alternate means by which the agency can accomplish its goals."

Shervin v. Partners Healthcare System, Inc., 804 F.3d 23 (1st Cir. 2015). Panel: SELYA, Kayetta, Dyk. Claim on Appeal: Title VII and Mass. termination (sex) and retaliation. State tort claim (not discussed here). Disposition Below: Judgment after a jury trial [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not err in holding on summary judgment that probation occurring before June 5, 2008 (or December 30, 2008 for employer Harvard) was time-barred. Arguing that probation only hindered plaintiff's ability to obtain a medical license later (summer of 2008) is simply present effects of past discrimination. Plaintiff had notice at time of probation that disciplinary action was both tangible and concrete: her probation was unconditional and instantly resulted in the imposition of a series of burdensome conditions (such as heightened supervision, more frequent evaluations, and a ban on any outside work). Faculty advised that probation could affect licensure; suggestion by chief medical officer that she should just "accept the probation" because it was an internal matter did not create genuine dispute, where plaintiff had been advised otherwise and there were more immediate negative consequences. Continuing violation doctrine under Massachusetts law does not apply because there was no genuine dispute that, during the 300 days following either the February 2007 probation decision or March 2007 discriminatory comments that plaintiff reasonably thought it likely that discriminatory treatment would cease. Incorrect advice that plaintiff received in interim period about likely impact of probation on licensing and employment did not mitigate immediate adverse impact of probation decision. Internal grievance process under her employment contract did not toll limitations where plaintiff failed to formally invoke it. Moreover, plaintiff cannot claim ignorance about filing period or that she was misled into not making a timely filing. Fact that one witness was a first-cousin not a basis for judicial recusal; argument was forfeited by not seeking recusal at two junctures. No error in excluding as hearsay alleged discriminatory remarks. One remark "there's not a court in the land that could force me to hire Dr. Shervin back," excluded under FRE403 because nothing connected it to denial of job offer from another institution. Evidence of allegedly retaliatory comment by non-party (executive of a non-profit organization affiliated with, but separate from, school) not admissible as part-admissions under FRE801(d)(2)(D); also, could be upheld on FRE403 grounds because there was no evidence of school's involvement in decision. Court also properly excluded alleged vicarious admission (about being "on the same page" about hiring of plaintiff) where person who made comment held only a clinical associate position at Harvard and, thus, no proof that any statements made regarding hiring were within the scope of his faculty appointment. Instruction on limitations defense was not error, where it expressly permitted jury to consider time-barred events as background evidence. Definition of adverse employment action was not error, i.e., that action is one that "standing alone" causes harm; instruction also carefully distinguished between differential standards for discrimination and retaliation. Where positions were advertised publically, no error in instructing that plaintiff was obliged to apply to raise claim of failure to hire. Plaintiff not entitled to instruction that animus flowed from the "apex of the organizational hierarchy" where record offered no grounds for finding of animus in the higher reaches of organization.

Del Valle-Santana v. Servicios Legales De Puerto Rico, Inc., 804 F.3d 127, 128 FEP 209 (1st Cir. 2015). Panel: THOMPSON, Lynch, Kayetta. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Affirms on alternative ground that employee failed to make out prima facie case, because plaintiff fails to show that the younger employees who occupied these assumedly same positions were significantly younger than her. Plaintiff failed to put evidence in record about ages of supposedly younger employees, nor did she introduce other evidence that employer failed to treat age neutrally.

Pérez v. Horizon Lines, Inc., 804 F.3d 1, 128 FEP 65 (1st Cir. 2015). Panel: HOWARD, Torruella, Kayetta. Claim on Appeal: Title VII harassment. Commonwealth claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Supervisor's weekly demand that plaintiff deliver cornbread and pastries to her office "hot," and that supervisor warned him that she had vice president "eating out of her hand" and that "you do not know when you are going to need a favor," failed to present genuine dispute about quid pro quo harassment. Plaintiff conceded at multiple points during his deposition that he never once delivered food and sent another employee instead. Hostile work environment fails because activity was not severe or pervasive, at most "subtle instances of sexual innuendo," even if prior putative incidents of harassment were included. Supervisor also asked others to perform personal errands. No evidence that the lack of in-person visits to supervisor's office affected his work performance. Also, no evidence to suggest that if there was any differential treatment, gender was reason for that difference.

Ray v. Ropes & Gray, LLP, 799 F.3d 99, 127 FEP 1606 (1st Cir. 2015). Panel: HOWARD, Lipez, Thompson. Claim on Appeal: 1. Title VII partnership (race). 2. Title VII retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Judgment after a jury trial [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Putative comparator law-firm associates could be from different practice groups, but evaluations of the non-black associates contain a mix of both positive and negative commentary on those associates' work product and ability to work with others, in contrast to largely negative reviews for plaintiff. Even if assumed that evaluations show that plaintiff's work quality was equivalent to the work of the comparator associates, partnership decisions are based on a number of factors beyond quality of associate's work. Though there were Asian comparators, their language skills were also seen as a plus. Subjective review process not shown to be biased against blacks. Alleged racial remarks made years earlier by non-decision makers not probative. Bare statistic that only one black associate advanced to partner fails to support an inference that employer discriminated. 2. Plaintiff did not waive challenge to "good faith" requirement in claim based on participation clause (for filing charge). While under the participation clause, an employee need not hold a reasonable belief that his employer's actions actually violated Title VII, it was not error to instruct jury that plaintiff made his EEOC complaint in good faith out of a "sincerely held belief that his right to be free from discrimination had been violated." Issue was not definitively resolved by existing circuit case law and plaintiff did not develop argument on appeal. Instruction regarding opposition activity did not erroneously shift jury's focus from plaintiff's own subjective beliefs about his underlying claim to whether his conduct was reasonable.

Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 127 FEP 1185 (1st Cir. 2015). Panel: LIPEZ, Thompson, Barron. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Assuming (without deciding) that plaintiff's complaints to harassers themselves are protected activity, there was no genuine dispute of material fact that alleged acts of retaliation were caused by retaliation: (1) $4,000 chargeback on her commission check in April 2011 (no evidence that employees who initiated chargeback knew about harassment complaints); (2) manager's behavior toward her, including denying her the opportunity to work with existing timeshare owners in June and July 2012 (no evidence that manager knew at time about complaints); and (3) manager's Thereats to fire her (two-month proximity to complaints alone not enough to establish genuine dispute of material fact about pretext). Court states that Thereats to fire may constitute materially adverse act.

Santangelo v. N.Y. Life Ins. Co., 785 F.3d 65, 126 FEP 1183 (1st Cir. 2015). Panel: BARRON, Lynch, Thompson. Claim on Appeal: ADE and Mass. law termination. Contract claim (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: State claim was time-barred. Federal claim fails because employee fails to present a genuine dispute of material fact on pretext, where employee produced evidence that he was terminated for repeatedly maintaining incomplete forms signed by customers. That younger agents were hired after employee's termination does not raise inference of age discrimination. That other agents were not fired for the same violation does not support pretext where record does not reveal ages of other offenders.

Vaello-Carmona v. Siemens Medical Solutions USA, Inc., 781 F.3d 1, 31 A.D. Cases 537 (1st Cir. 2015). Panel: LIPEZ, Howard, Selya. Claim on Appeal: AD and P.R. law termination. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Claims are inheritable under Puerto Rican law.

Raymond James Finan. Serv's, Inc., 780 F.3d 59 (1st Cir. 2015). Panel: LIPEZ, Howard, Barron. Claim on Appeal: Florida state law termination (disability). Disposition Below: Arbitration award for employee vacated [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Award should have been affirmed, despite that panel might have cited the wrong jurisdiction's statute in support and misapplied limitations period.

Ayala v. Shinseki, 780 F.3d 52, 126 FEP 666 (1st Cir. 2015). Panel: TORRUELLA, Lipez, Barron. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Continuing violation doctrine does not apply applies to stripping plaintiff of all duties and transferring her to a small windowless office, where harassment is not alleged and transfer was otherwise a discrete action.

Flood v. Bank of America Corp., 780 F.3d 1, 126 FEP 491 (1st Cir. 2015). Panel: LIPEZ, Howard, Selya. Claim on Appeal: 1. Maine state law termination (sexual orientation). 2. Maine state law harassment (sexual orientation). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds: 1. Employee at call center who identified as bisexual was criticized by manager for appearing at a company event sitting at LGBT table, asked that her picture (with a woman date) be removed from event, then subject to frostiness by supervisor, negative performance reviews, told not to talk about relationship at work, and subjected unwillingly to risqué conversations between heterosexual co-workers. Boss also retroactively classified off-the-phone hours approved by another supervisor from 'productive to unproductive, reducing Flood's efficiency statistics and resulting in the warning.' District court erred by categorizing Flood's termination claim as a "constructive discharge" claim, which would have burdened Flood with proving that there was "no reasonable alternative to resignation because of intolerable working conditions." The panel holds that "[w]e agree that the district court misconstrued Flood's claim. Her argument below was the same as it is on appeal: the Bank used job abandonment as a pretext for improperly terminating her employment." Above incidents presented sufficient evidence of animus against employee because of bisexuality to support an inference of discrimination. Because employee contacted her supervisors about the reason for her absence from work (anxiety), there was likewise "sufficient evidence for a reasonable fact-finder to conclude that the Bank knew Flood had not abandoned her job." 2. Absence of overt slurs or Thereats did not meant that the hostile work environment was not pervasive. Conduct included supervisor's pestering and meeting in which supervisor "was rubbing my nose in the fact that all other Bank employees could discuss their love lives during working hours and engage in sexual banter in graphic terms, but I was not allowed to mention my relationship with another woman or even to be seen with her during working hours."

Soto-Feliciano v. Villa Cofresí Hotels, Inc., 779 F.3d 19, 126 FEP 314 (1st Cir. 2015). Panel: BARRON, Torruella, Lipez. Claim on Appeal: 1. ADE and P.R. law termination. 2. ADE 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. An employee who worked himself up from a resort's kitchen staff to head chef claims that he was fired for age and retaliation for opposing discrimination. Prior to his suspension, he had never received a formal written complaint from hotel management about his performance during his seven years of employment at the hotel." Employer fired him, supposedly because of rudeness to staff and guests, insubordination, tardiness and a Threatening remark. District court correctly held that Soto made out a prima facie case on his qualifications under federal and Puerto Rican law: "Our precedents make clear, however, that we may not credit the same evidence that an employer puts forth to show its legitimate, nondiscriminatory reason for firing an employee to defeat that same employee's prima facie showing that he was qualified." Evidence of pretext included HR head saying "I understand that you are old to work at the cooking line and that your co-workers are also saying that you are old to work at the cooking line," and "You are no longer capable to work at the line because you are old. I am going to bring in a new chef. Maybe I can let you work only in banquets. You need some long vacations because you are old and slow at the line. We at the Hotel Villa Cofresí are moving up, not down." Also, kitchen manager regularly hectored him, saying "[f]ool you are too old" and "[f]ool, you are too slow." Comments were specific to the plaintiff, made close to the time of the termination, and issued from the mouths of "the key decision maker regarding his termination," who was also a defendant, and "the plaintiff's direct supervisor." It also holds that there was a genuine dispute of material fact about whether the report genuinely believed that termination was a fitting response to Soto's misconduct. Plaintiff also disputed that he'd ever been informed of complaint about his performance before he was fired, including a meeting with hotel management on February 28, 2010, which Soto also testified was likewise silent on the same alleged infractions. "In context, the hotel's failure to raise the incidents of alleged misconduct either through the established disciplinary processes or at the meeting on February 28 permits a jury to doubt the likelihood that the cited incidents truly were the basis for the decision to suspend and fire Soto." 2. In addition to above evidence of pretext, "Soto points out that he directly informed hotel management of his concerns about age discrimination on a number of occasions in the days prior to his suspension. And thus Soto argues not only that there was a temporal connection between his independent actions to protect his rights and the suspension and firing that followed, but also that the defendants knew that he had taken such steps and were concerned that he had done so." In particular, plaintiff presented evidence that "the hotel manager who signed the March 2 suspension letter had inquired about Soto's visit to the Department of Labor" just days before, thus supporting temporal proximity.

EEOC v. Kohl's Dep't Stores, Inc., 774 F.3d 127, 31 A.D. Cases 2 (1st Cir. 2014). Panel: TORRUELLA, Thompson [KAYATTA, dissenting]. Claim on Appeal: 1. ADA reasonable accommodation. 2. ADA constructive discharge. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee th diabetes requested predictable day shift. During meeting to discuss accommodations, employer offered no specific accommodation and employee resigned based on belief that HR would not offer alternative schedule. No genuine issue of material fact that employee failed to engage in interactive process by abruptly leaving meeting, refusing entreaties (in informal break room meeting with one executive) to return to meeting, then rebuffing another inquiry ten days later by phone. 2. Resignation not reasonable in light of company's repeated efforts to engage employee in negotiations over accommodations.

Collazo-Rosado v. University of Puerto Rico, 765 F.3d 863, 30 A.D. Cases 805 (1st Cir. 2014). Panel:  THOMPSON, Lynch, Kayatta. Claim on Appeal: ADA retaliation.  First Amendment (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee not renewed in contract for performance reasons failed to present a genuine dispute of material fact about pretext. Employer was not obliged to furnish all reasons for termination contemporaneously, and reasons given were not inconsistent. There was disciplinary history regarding performance and series of notations in file about attendance problems, so they were not merely concocted after the fact. Moreover, restructuring rationale was mentioned in non-renewal letter.

Dunn v. Trustees of Boston University, 761 F.3d 63, 123 FEP 1593 (1st Cir. 2014). Grounds: Mass. state law termination (age). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Under state decisional law, an employee terminated during a RIF cannot make out prima facie case solely by reliance on fact that his former duties were given to younger employee. Alternatively, no genuine dispute of material fact about pretext (plaintiff's job was consolidated under one manager. Employee failed to present dispute about whether employee who took over duties was substantially less qualified, establish that any deviation of procedure was relevant, or alleged age bias in remarks that employee was "resistant" to change. Moreover, there was no age pattern to layoffs to signal bias. 

Vázquez-Rivera v. Figueroa, 759 F.3d 44, 30 A.D. Cases 330 (1st Cir. 2014). Panel: TORRUELLA, Lynch, Selya. Claim on Appeal: Rehabilitation Act discrimination, harassment and retaliation. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Plaintiff failed to establish that he had mental disability so severe that it prevented him meeting 15-day federal-sector limit for filing a formal charge with the EEOC under 29 C.F.R. § 1614.604(c), thus no equitable tolling.

Hicks v. Johnson, 755 F.3d 738, 123 FEP 473 (1st Cir. 2014). Panel: LIPEZ, Stahl, Lipez. Claim on Appeal: Title VII promotion (race, sex). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Court did not err in refusing pro se litigant relief under Rule 56(d); far from clear that she would obtain relevant information from further depositions. Though a prima facie case was conceded, plaintiff presents no genuine dispute of material fact over the legitimate, non-discriminatory reason (plaintiff's performance in the interview). Other arguments do not raise inference of pretext: (1) Relative qualifications: plaintiff takes too narrow view of "specialized experience," weighing of management experience in discretion of agency. (2) "Subjective" interview questions: questions were standardized and judged on uniform scale. (3) Absence of other African-Americans: no evidence that other blacks applies. (4) Comment about "angry black woman" made by non-decision maker.

Velázquez-Pérez v. Developers Diversified Realty Corp., 753 F.3d 265, 122 FEP 1692 (1st Cir. 2014). Panel: KAYATTA, Torruella, Baldock. Claim on Appeal: 1. Title VII termination (sex). 2. Title VII 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. Employer may be held liable for sex discrimination where co-worker (who's advances plaintiff rebuffed) acts with intent to have employee terminated, co-worker's actions were proximate cause of termination, and employer acted while knowing (or reasonably on notice) of the discriminatory intent. In this case, jury could find that female co-worker proximately caused termination by repeatedly sending accusations against plaintiff in her capacity as HR executive, and Threatening to go over executive's head to senior officials if he was not immediately terminated. Because female co-worker was not a "supervisor" under rubric of Vance, no vicarious liability, but liability could be assigned to employer under Staub "cat's paw" theory. 2. Harassment not shown to be unwanted, or otherwise not severe or pervasive. Up to a certain period, flirting was consensual. Thereafter, kisses on cheek, gifts, and profession of love were neither severe nor pervasive. 3. While worksharing agreements can permit state proceedings to commence automatically when the EEOC receives the charge, and thus charge was timely, plaintiff waived making argument of but-for causation (vs. motivating factor for discrimination claim).

Ahmed v. Johnson, 752 F.3d 490, 122 FEP 1529 (1st Cir. 2014). Panel: LIPEZ, Thompson, Selya. Claim on Appeal: Title VII promotion (race, religion, national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine dispute of material fact whether employer's reasons for passing over plaintiff were pretextual. District court erred in focusing on one officer's selections alone, rather than widening the spotlight to include others who may simply have refused to consider plaintiff's application. A jury may find that the recommending officers and decision maker made a single decision. While agency contended that successful applicants had superior qualifications, record was in dispute. Along with sparkling reviews, plaintiff "notes that he achieved a higher score on the qualification test than any of the There men promoted (97, compared to their scores of 96, 92, and 90), and he contrasts his excellent performance history with the characterization of [one successful candidate] Shepherd by one of Shepherd's supervisors as lazy and underperforming." Moreover, "the record contains sparkling appraisals of Ahmed's work and attitude, contrasting with negative reports of Shepherd's work ethic." Indeed, one agent (with 15 years' experience with the agency) described Shepherd as having "one of the worst reputations as far as just being a lazy worker." Further, Ahmed's "long-term tenure in the Criminal Alien Program [arguably] provided him with the most pertinent resume for the Deportation Officer position." Plaintiff had advanced language skills, while the There selectees do not. Also, it is noteworthy that neither [of two finalists] appeared on the second list of certified candidates, perhaps indicating that they had dropped out of the top group after addition al applications were submitted." That the deciding officers were not aware of Ahmed's precise race, national origin or religion was not decisive. "The record contains more than adequate evidence from which a reasonable jury could determine that the decision makers viewed Ahmed as a member of multiple minority groups. As noted above, Chadbourne testified that he believed Ahmed was African-American, an impression evidently based on visual observation and, hence, likely to be shared by Lawler and Martin. A jury also could find that all There men knew, or believed, that Ahmed was of Arab heritage. His name is suggestive, and his resume states that he has advanced skills in reading, writing, and speaking Arabic. Chadbourne stated that he had heard that Ahmed was Lebanese." Also, agency had a record of not promoting blacks.

Climent-García v. Autoridad de Transporte Marítimo y Las Islas Municipio, 754 F.3d 17, 122 FEP 1543 (1st Cir. 2014). Panel: TORRUELLA, Lynch, Lipez. Claim on Appeal: Title VII and P.R. law demotion and failure to transfer. Disposition Below: Judgment after a jury trial ($291,500 back pay and compensatory relief) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Defendant waived review of sufficiency-of-the-evidence review by not renewing Rule 50(a) motion after verdict. Filing of Rule 59(e) motion does not substitute for seeking judgment as a matter of law. District court did not abuse discretion in denying remittitur of back pay award of $95,750 (doubled under Puerto Rican law). Jury did not have to credit testimony that position would only last 14 months, where other evidence in the record showed that position had no fixed end date. Jury did not have to set off overtime plaintiff earned because agency failed to introduce trial evidence of overtime worked by plaintiff after August 2008.

Jones v. City of Boston, 752 F.3d 38, 122 FEP 1189 (1st Cir. 2014). Panel: KAYATTA, Torruella, Howard. Claim on Appeal: 1. Title VII disparate impact drug testing (sex). 2. ADA testing. Tort and due process claims (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Since 1999, under the department's collective bargaining agreement, police officers required to participate in periodic drug testing. Officers who test positive for illegal drugs must submit to a further medical examination, have a second test (with a different hair sample), and - if not cleared - are subject to penalties from a 45-day suspension up to termination. Plaintiffs allege that use of hair samples (which they contend are unreliable, producing false positives) lands harder on blacks than whites. During the eight years for which the plaintiffs present data, black officers and cadets tested positive for cocaine approximately 1.3% of the time, while white officers and cadets tested positive just under 0.3% of the time." Panel reverses and orders entry of a partial judgment in favor of plaintiffs that they established their prima facie case of disparate impact. Plaintiffs' expert reported 7.14 standard deviations between blacks and whites. Hair test also flunked "four-fifths" rule, 29 C.F.R. § 1607.4(D). City argued that plaintiffs' study revealed no "practical significance," that is, that there can be no inference of discrimination - even with two or more standard deviations - where the numerical size of the disparity is negligible. Panel holds that to import practical significance into the analysis lacked any statutory basis and would be difficult to administer: "To begin, the concept of practical significance is impossible to define in even a remotely precise manner. We are aware of no test generally accepted by statisticians that we might employ to gauge practical significance (as we employ, for example, the notion that a p-value less than five percent provides good reason to presume that a difference in outcomes is not the result of chance). Panel also rejects arguments contesting the data sample. It declined to exclude from the sample those "who opted to avoid termination in the wake of a positive test result by undergoing drug rehabilitation or resigning," and a cadet who was not hired. The city also challenged the aggregation of eight years of statistics on appeal, but the panel finds that it did not adequately present that argument in the district court, and thus waived it. Panel declines to resolve the issue of whether the drug test is "job-related . . . and consistent with business necessity." Whether the use of hair samples significantly correlated with actual drug use, the panel holds, is a factual inquiry upon which the sizeable record goes both ways. 2. Because testing was directed at using (not a disability) rather than addiction (which can be a disability), and current users are excluded from protection under 42 U.S.C. § 12114(a), testing violated no rights.

Adamson v. Walgreens Co., 750 F.3d 73, 122 FEP 1212 (1st Cir. 2014). Panel: STAHL, Howard, Lipez. Claim on Appeal: ADE and Mass. state law termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Assuming that plaintiff made out prima facie case, summary judgment affirmed where employee failed to present a genuine dispute of material fact over pretext. Employer contended that employee was fired for inadequate customer service (abandoning the register, making customer wait). Dispute about how long employee was away from counter not material, where employee still prevented customer from transacting sale. No departure from ordinary procedures; like younger employees, was given final written warning, then fired after repeat incident. Allegedly favorable schedule and training for younger employees contradicted by uncontested evidence of other employees' schedules; addition al training of one employee owing to employer's plan to promote her.

Bartlett v. Dep't of the Treasury, 749 F.3d 1, 29 AD 983 (1st Cir. 2014). Panel: RIPPLE, Howard, Thompson. Claim on Appeal: Rehabilitation Act constructive discharge. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Whether federal-sector employee is limited to proceeding under §501, and cannot resort to §504, is open question. In any case, such employee fmust exhaust administrative procedures, Plaintiff time-barred for failure to file administrative complaint with EEO officer. Delay in responding not equitably tolled, either by alleged failure to inform of deadline or mental disorder (not sufficient to prevent employee from engaging in rational thought or deliberative decision.

Rivera-Díaz v. Humana Ins. of Puerto Rico, 748 F.3d 387, 29 AD 975 (1st Cir. 2014). Panel: SELYA, Lynch, Howard. Claim on Appeal: ADA discrimination and retaliation. Disposition Below: Dismissed for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Puerto Rico was not deferral jurisdiction with respect to retaliation claims (other than for reporting sex harassment), so 180 day window applied to such claims. Issuance of original right-to-sue letter, and failure to file in 90-day window forfeited original discrimination claim. Although EEOC has power to rescind and issue new right-to-sue letter, that was never done here. Second charge, with new claim of retaliation, filed outside of 180 day period. No extraordinary circumstances that justify tolling; plaintiff's misapprehension that filing second charge within 90 day window would toll filing period.

Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 122 FEP 549 (1st Cir. 2014). Panel: LYNCH, Torruella, Selya. Claim on Appeal: 1. Title VII and P.R. commonwealth law hiring (race). 2. Title VII and P.R. commonwealth law retaliation. Disposition Below: 1. Dismissal of complaint sua sponte [defendant]. 2. Dismissal for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: 1. Reversed [defendant]. 2. Reversed [defendant]. Grounds: 1. Failure to object to magistrate's report and recommendation to dismiss city mayor and post-hire claims of discrimination waived that ground for reversal. Dismissal of claims sua sponte without an opportunity to respond is reversible error; employer had not sought to have pre-hire discrimination claims dismissed. Rejects alternative basis for reversal on ground that plaintiff was eventually hired, because original failures to hire (in favor of male applicants with lower scores) not excused, and was possibly motivated by plaintiff's successful pursuit of EEOC determination. 2. District court erred holding that plaintiff had to allege prima facie case in complaint. Dismissal for lack of "temporal proximity" error where there may be other facts that support causation, and (in any event) judge got the temporal analysis wrong: employee was subject to adverse actions weeks (not months) after employer learned of EEOC determination.

Rodríguez-Vives v. Puerto Rico Firefighters Corps, 743 F.3d 278, 121 FEP 1181 (1st Cir. 2014). Panel: KAYATTA, Torruella, Baldock. Claim on Appeal: Title VII retaliation. Disposition Below: Dismissal for failure to state a claim, FRCP12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: A 2009 Settlement did not convert Title VII retaliation claim into a to a breach-of-contract claim on the original settlement. Post-settlement harassment constitutes its own claim under Title VII. "Suppose the Corps had intentionally run over Rodríguez-Vives with a truck to prevent her from being able to perform her new position. No reasonable person would argue that her remedies would be limited to filing a motion to enforce the settlement agreement. Plaintiff adequately pled that she was engaged in "protected activity" under Title VII with her original lawsuit, despite that it was brought solely under 42 U.S.C. § 1983 and Commonwealth law. Opposition to workplace sex discrimination is protected under Title VII even if the employee never formally invokes that statute. Plaitniff also alleged sergeant's alleged behavior did not constitute a "materially adverse" action within the meaning of Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Allowing a male volunteer to perform core activities denied to the plaintiff, and the harassment itself, were materially adverse: "In this regard, we note that several of the specific acts alleged by Rodríguez-Vives by themselves go quite a ways toward making out a claim. For example, the alleged refusal of Rodríguez-Vives's superiors to allow her, like others, to travel on fire vehicles to get lunch might be an adverse employment action on its own. Similarly, Rodríguez-Vives's allegation that she was assigned to cook and clean rather than to perform the same jobs as others in the station, depending on the surrounding facts, might make plausible a finding that there was an adverse employment action."].

Ponte v. Steelcase Inc, 741 F.3d 310, 121 FEP 742 (1st Cir. 2014). Panel: LYNCH, Souter, Selya. Claim on Appeal: 1. Title VII and Mass. state law harassment (sex). 2. Title VII and Mass. state law retaliation termination. Disposition Below: 1. Summary judgment [defendant]. 2. summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Two incidents of supervisor putting arm around or near employee while driving in car not severe or pervasive. 2. Phone call by employee complaining about supervisor's "inappropriate behavior," not a protected activity. Moreover, no proof of causation, where performance complaints (which were widespread, and even employee herself acknowledged) pre-existed complaint of inappropriate behavior. Moreover, employee could not establish pretext, where performance problems were legitimate, non-discriminatory reason for termination. No evidence of retaliation in recalculating sales figure.

Diaz v. Jitan Hotel Mgt., 741 F.3d 170, 121 FEP 1 (1st Cir. 2013). Panel: KAYATTA, Lynch, Thompson. Claim on Appeal: Mass. state law termination (sex). Disposition Below: Attorneys fees of $104,626.34 [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Despite mandate from prior appeal (704 F.3d 150 (1st Cir. 2012)), district court had discretion under FRCP60(a) to revise formula for calculating reduction in lodestar. Panel in prior appeal had not considered whether district court could raise lodestar amount, and thus did not preclude it. Failure of district court expressly to recite and apply Hensley factors not abuse of discretion, where opinion reflects that the factors were considered in context of remand. No abuse of discretion awarding $104,626 fees on an award of $7650; There is no proportionality rule under Massachusetts law.

Pina v. The Children's Place, 740 F.3d 785, 121 FEP 769 (1st Cir. 2014). Panel: TORRUELLA, Howard, Kayatta. Claim on Appeal: 1. § 1981 and Mass. state law discrimination (race). 2. § 1981 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. No abuse of discretion in denying second deposition of FRCP30(b)(6) witness, owing to four-page errata sheet. FRCP30(e) permits changes in substance, but in any even the changes did not affect the outcome of the summary judgment motion. No abuse of discretion to deny motion to strike affidavit submitted by defendant as sanction for not listing witness in initial disclosures, FRCP26(a)(1)(a); identity of witness was later disclosed, so covered by exemption in FRCP26(e). no prejudice to plaintiff, where she was long aware of witness's testimony that she was unaware of employee's charge filed with state agency. No abuse of discretion in denying FRCP56(d) motion where plaintiff had delayed until the end of discovery in noticing depositions and then, after getting leave to extend discovery, waited another two months to depose principal witness. Also, plaintiff failed to demonstrate probability that deposition would produce addition al material facts. Summary judgment affirmed No evidence that company decision makers were aware of plaintiff's interracial relationship. Evidence that company allegedly stretched the definition of "disorderly or disruptive" behavior and allegedly failed to investigate a theft report made by the employee not probative. In particular, district court could in rare instance evaluate credibility of plaintiff's claim about the ft report where her own testimony about whether she made a report was equivocal and company records revealed no reports. No evidence that any employees at company expressed disapproval of interracial relationship. 2. Did not show that she applied for position that she claimed that she was denied on the basis of retaliation, or that she was qualified for the position in any event.

Rivera-Almodóvar v. Instituto Socioeconómic, 730 F.3d 23, 119 FEP 1497 (1st Cir. 2013). Panel: SELYA, Torruella, Howard. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion denying discovery extension and Rule 56(d) motion. Employee waited nearly a year before requesting documents, then There more months to move to compel. Plaintiff also failed to abide by order requiring that motions for extension be filed prior to expiration of the date of discovery.

Pearson v. Massachusetts Bay Transp. Auth., 723 F.3d 36, 119 FEP 36 (1st Cir. 2013). Panel: SOUTER, Howard, Stahl. Claim on Appeal: 1. Title VII and Mass. state law termination (race). 2. Title VII 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. Plaintiff did not create genuine dispute about whether he was terminated for insubordination and reaching the end of the progressive discipline process. Alleged comparable white employee had not directly defied order from a supervisor. Arbitrator's decision to reinstate plaintiff did not infer that original reason for termination was motivated by race. 2. Undisputed that decision to terminate pre-dated protected activity (sending a letter to U.S. Senator complaining about race bias).

Colón v. Tracey, 717 F.3d 43, 118 FEP 777 (1st Cir. 2013). Panel: LYNCH, Torruella, Lipez. Claim on Appeal: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Reassignment to Business Partner on temporary basis not shown to constitute materially adverse action; alternatively, no evidence that proffered reason was pretextual (i.e., to increase flexibility in HR staff). Collecting and faxing/storing confidential firm compensation data was not a protected activity.

Woodward v. Emulex Corp., 714 F.3d 632, 118 FEP 36 (1st Cir. 2013). Panel: HOWARD, Stahl, Lipez. Claim on Appeal: Mass. state law termination (age). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion denying motion to compel information about terminations of all senior-level employees beyond list of 21 named employees, and quashing deposition notices served at the end of discovery when it became impracticable to schedule the dates. Employee did not present sufficient evidence to rebut legitimate, non-discriminatory reason for termination (fall off in revenues in plaintiff's area: (1) arguing that employer's strategy leading to drop in sales was due to unwise business decisions does not tend to prove pretext for age discrimination; (2) allegedly similarly-situated employees were either senior to plaintiff or were 40-or-over and in divisions that did not lose as much revenue; (3) manager comment that company needed to "re-energize" his group not evidence of age-animus.

Johnson v. Univ. of Puerto Rico, 714 F.3d 48, 118 FEP 41 (1st Cir. 2013)). Panel: LYNCH, Torruella, Lipez. Claim on Appeal: Title VII hiring (sex, national origin). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee did not rebut legitimate, non-discriminatory reason for not hiring plaintiff into tenure-track position (she lacked Ph.D.), and exception provided regulations did not apply (employee did not accept schools offer for leave to obtain her doctorate, subsidized by the school itself), plus school was able to recruit ample qualified applicants, including women.  

Medina-Rivera v. MVM, Inc., 713 F.3d 132, 117 FEP 1545 (1st Cir. 2013). Panel: THOMPSON, Torruella, Howard. 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. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Though employer must provide their personnel with a harassment-free workplace, which includes policing nonemployee's sexually-harassing behavior, employer must know/should have known about behavior and failed to take prompt, effective steps to correct it. Here, employer barred contact between plaintiff (a contract employee) and employee of host agency from workplace immediately after assault. Employee's prior complaints were not specific either in sexual content or volume of contacts. Even employee was speculating about many of the harassing calls (they were hang-ups untraceable to alleged harasser). 2. Employee alleges that employer (a) suspended her almost immediately, from October 24 (the day she told employer about assault) until November 15; then (b) "severely" cut her work hours; and later (c) humiliated her during the sexual-harassment seminar. Record revealed that employee worked during the claimed "suspension," there is no proof of a reduction in hours, and treatment during seminar not shown to be caused by protected activity.

Aly v. Mohegan Council, Boy Scouts of America, 711 F.3d 34, 117 FEP 1258 (1st Cir. 2013). Panel: TORRUELLA, Howard, Thompson. Claim on Appeal: Title VII and Mass. state law training (national origin, religion). Disposition Below: Judgment after a jury trial [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Judgment as a matter of law properly denied on each issue. (1) administrative charge with the Massachusetts Commission Against Discrimination was timely filed. Interview Form, while defective in not including employee's signature, was a valid initial filing, and his subsequent formal charge filed cured the technical verification defect and served as an amendment that "related back" to the original complaint. Contrary to employer argument, agency made no finding on sufficiency of charge, only assumed that charge was untimely based on date of charge. (2) Employer claimed that it was not an "employer" with the requisite fifteen or more employees under Title VII. Court holds that jury could find in addition to the fourteen full-time employees, there was a fifteenth employee employed for twelve weeks and at least one of the seasonal workers was employed for eight weeks (or that at least one of the seasonal workers worked year-round). (3) Sufficient evidence supported a finding of discrimination. Employee alleged that he was denied promotional opportunities. He demonstrated that he was rated as meeting employer's work expectations. Most negative evaluations were issued during the period when he held recruitment meetings in mosques to expand recruitment into the Muslim community. Delay in being evaluated for recommendation to the PD-LIII training program and the employer's refusal to send him to the PD-LIII training once recommended, resulting in his ineligibility for a promotion, thus "adverse." Non-Muslim, non-Egyptian employee with same credentials was permitted to have these opportunities; performance reviews were almost equivalent, and while other employee received higher performance scores than plaintiff in certain categories and overall, he received lower performance scores than him in certain categories in 2003 and 2004. Employee was also able to directly challenge employer's depiction of work performance, point to procedural defects in process, show that complaints about "commitment" to organization arose after he complained of discrimination, employer relied on judgment of agents who employee had accused of discrimination, and employer suspended budget concerns to send other employee to training.

Kelley v. Correctional Medical Services, Inc, 707 F.3d 108, 27 A.D. Cases 673 (1st Cir. 2013). Panel: LIPEZ, Lynch, Torruella. Claim on Appeal: ADA retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine issue of material fact whether the reason for the termination was insubordination or, rather, a "disingenuous overreaction" prompted by the supervisor's irritation with nurse's insistence that her workplace accommodations be horned. The record contained considerable evidence that supervisor resented medical restrictions: "Even before [employee] returned to work after her medical leave, [manager] suggested that she would not be permitted to return unless she could come back full time. When [employee] did in fact return from her leave of absence, [manager] tried to prevent her from working until she returned with a properly formatted doctor's note describing the extent of her injuries. [Manager's] own supervisor overruled this decision and permitted [employee] to begin work and bring a properly formatted note at a later date . . . . There was also the evidence that [manager] prohibited [employee] from using a cane until she returned with a doctor's note stating that she was required to use the cane to aid her mobility, despite the fact that [employee's] disability was more than evident." District court erred in crediting the employer's argument that employee's insubordination was to blame: "[Manager's] ongoing disability-based animus and the way in which that animus might have influenced [her] adverse employment action against [employee]. Moreover, an employer's seeming willingness to accommodate an employee's disability does not conclusively preclude a finding that the employer was motivated by retaliatory intent."

Gerald v. University of Puerto Rico, 707 F.3d 7, 117 FEP144 (1st Cir. 2013). Panel: THOMPSON, Torruella, Howard. Claim on Appeal: 1. Title VII harassment/quid pro quo (sex). 2. Title VII retaliation. 3. Title VII constructive discharge (sex). 4. P.R. commonwealth law (harassment vs. individual supervisor). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. 3. Summary judgment [defendant]. 4. Summary judgment [defendant]. Outcome on Appeal: 1. Reversed [plaintiff]. 2. Affirmed [defendant]. 3. Affirmed [defendant]. 4. Reversed [plaintiff]. Grounds: 1. Employee professor presented genuine issue of material fact on each of the elements of the claim. That employee tells vulgar jokes does not mean she welcomes propositioning and grabbing of breast. Jury could find There incidents, even in six years, severe where one was direct propositioning and one - breast-grabbing - constitutes physical Thereat. That employee was able to perform job did not negate proof that employee testified that she could not work effectively while subject to harassment and was required to seek counseling. Evidence established likelihood of objective/subjective offensiveness: botherd by propositioning, offended by grabbing, seeing therapist and taking anti-depressants. Because alleged harasser was supervisor of employee, and employer did not raise Faragher/Ellerth defense on appeal, liability would be vicarious. In any event, plaintiff presented sufficient evidence to support quid pro quo liability, where evidence (weighed in favor of employee) showed that supervisor removed duties from plaintiff and (in ambiguous emails) suggested that she submit to sexual propositioning; plus, there was ample evidence that employer gave for demotion was implausible (good write-ups which ceased only after plaintiff rebuffed supervisor; duties that university attributed to plaintiff were not supported by the record, there was no direction about how often she need physically attend work, not responsible for some of the incidents attributed to her, emails suggested otherwise good relationship between employee and supervisor). 2. Allegedly poorly conducted investigation into harassment and transfer did not constitute materially adverse actions. 3. Transfer, though it entailed inconveniences, was not so intolerable that reasonable employee would have considered resignation a fitting response. 4. Filing of EEOC charge tolled limitations period for filing complaint against individual supervisor. Though individual supervisor complained that he was not included in the charge, he failed to support defense by submitting evidence of the charge itself. Otherwise, on merits, summary judgment must be reversed on same grounds as Title VII claim.

Trainor v. HEI Hospitality, 699 F.3d 19, 116 FEP 615 (1st Cir. 2012). Panel: SELYA, Howard, Ripple. Claim on Appeal: ADE and Mass. state law retaliation. Disposition Below: Judgment after a jury trial ($500,000 in back pay; $750,000 in front pay; $1,000,000 for emotional distress, remitted to $500,000; liquidated damages; attorneys' fees) [plaintiff]. Outcome on Appeal: Affirmed, but emotional damage award remitted to $200,000 [plaintiff]. Grounds: There was sufficient evidence of causation to support the verdict. "[T]he record admits of conflicting interpretations about the events that transpired from November 2008 through January 2009. Although HEI suggests that a jury could not supportably find retaliation because the elimination of the plaintiff's position and his eventual termination were part of a larger plan set in motion long before the plaintiff engaged in any protected activity, the plaintiff counters that matters were in flux until after he engaged in the protected activities." In particular, the jury could have found that the withdrawal of the offer to transfer to Norwalk was never contemplated until after the plaintiff complained about discrimination, that the company's actual corporate plan (to continue acquisitions) cut against its claim that it was eliminating the SVP position for business reasons, and the mere hours between the filing of a discrimination charge and termination bespoke an obvious intent to punish Trainor. The record also supported the jury's decision to reject a mitigation-of-damages defense. HEI claimed that Trainor could have accepted the lower-compensated hotel manager position, and still remained employed. "But the jury could reasonably have concluded that the negotiations concerning this position were cut short by Mendell's abrupt termination of the plaintiff's employment and that, therefore, the option no longer remained open." Front pay is available even when the employee wins liquidated damages. Although a district court may in its discretion deny front pay when double-damages are awarded, the court did not abuse its discretion in this case by allowing both forms of recovery. Also, though questioning whether the jury should have decided the front pay issue at all (typically a bench issue), the panel holds that there was enough evidence to support that the executive intended to remain employed until 2013. While affirming the reduced emotional distress award, the panel orders it remitted in light of the thin record. Emotional distress damages may be supported purely by lay evidence, as in this case, but "the plaintiff did not introduce any evidence that he received medical treatment, counseling, or other similar attention for his despondency. While evidence from a physician or other mental health professional is not a sine qua non to an award of damages for emotional distress, the absence of such evidence is relevant in assessing the amount of such an award. . . . Here, moreover, the plaintiff proffered no evidence that he suffered any physical infirmity as a result of his ouster. The only relevant evidence is anecdotal and, to some extent, self-serving." Reviewing verdicts upheld in other comparable cases, the damage award is further remitted to $200,000. The defense waived its right to challenge any inconsistency in the verdict regarding liquidated damages by failing to timely raise it while the jury was still empanelled. The district court's decision to award attorneys' fees even for the hours committed to the losing age discrimination claim is affirmed as within the judge's discretion. Equitable relief to allow "the plaintiff a right to participate and vest in the There company-sponsored investment funds" is also affirmed. "The opportunity to participate in these investment vehicles was much coveted and viewed as a fringe benefit (and, thus, as part of an executive's compensation package). HEI made the opportunity available only to selected employees - a grouping that included the plaintiff. The promise that he could participate in the funds was a critical factor in the plaintiff's decision to join HEI."

Diaz v. Jiten Hotel Management, Inc., 671 F.3d 78 (1st Cir. 2012). Panel: HAWKINS, Boudin, Thompson. Claim on Appeal: Mass. state law termination (age). Disposition Below: Attorney fee reduced from $139,622 to $25,000 [defendant].Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred by holding employee to one-third of the last settlement offer. Contingent fee contract does not set ceiling on reasonable fee; moreover, offer was not made in form of Fed. R. Civ. P. 68 offer of judgment. Remanded for calculation under Hensley factors. Court also erred in deducting as costs transcripts of deponents who did not testify, when There of the witnesses did in fact testify. Attorney also entitled to post-judgment interest.

Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 116 FEP 289 (1st Cir. 2012). Panel: TORRUELLA, Lynch, Lipez. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: District court erred in analyzing whether defendant's proffered non-discriminatory reason for termination of plaintiff (employee with a 31-year history is fired at age 56) was false, i.e., four alleged incidents in 2004 and 2006 of unsanitary or disordered conditions on production floor. Plaintiff met prima facie case by establishing that he had credentials for job and eleven years' of experience with company. Although incidents constituted legitimate, non-discriminatory reason for termination, employee presented genuine issue of material fact on pretext. Each of the reasons given were - with inferences drawn in plaintiff's favor - the fault of other employees. There were also inconsistencies in the way that the supervisor described the incidents and plaintiff's role in them. Fact that 2004 incidents had already been addressed by 2005 Performance Improvement Plan presents genuine issue of material fact, when he was awarded "Fully Met Expectations" and awarded performance bonus by same supervisor who fired him. Deviation from progressive discipline and filing of memorandum also provides evidence of pretext. There was also evidence that the reason for these actions was age. Supervisor had made remarks in the six months leading up to termination that the problem with the plant was employees "who had been in the company a long time" who were "not performing," referring specifically to long-tenured maintenance workers in plaintiff's department. Also, same supervisor did not treat comparable 2008 infractions by younger replacement equally severely. "after 2003 -- the year in which Ceinos became Site Leader -- the company hired approximately 140 employees, 114 of whom were less than forty years of age. In the same period, Ex-Lax fired only 17 employees, 15 of whom were older than forty." In addition, manager testified that when Sit Leader came in during 2003, he declared that he wanted to develop plan to get rid of employees near retirement age.

Jones v. Nationwide Life Ins. Co., 696 F.3d 78 (1st Cir. 2012). Panel: LYNCH, Boudin, Thompson. Claim on Appeal: AD and Mass. state law reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee was not a "qualified individual" because he did not pass a qualifying Series 65 examination after four tries, or schedule a retest by the company deadline. Moreover, there is no evidence that plaintiff explicitly requested a timely accommodation, such as extended time to take the test. Though he did make written request, it did not refer to his disability but only to symptoms related to recent illness; moreover, request came only after he had already been informed he would be terminated for not passing examination. Because there was no evidence that employee was "qualified individual," no duty to engage in interactive process kicked in.

Loubriel v. Fondo del Seguro del Estado, 694 F.3d 139, 26 A.D. Cases 1537 (1st Cir. 2012). Panel: SELYA, Thompson, Lipez. Claim on Appeal: ADA reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Where employee's attorney received right-to-sue letter, and record did not reflect when the attorney received it, then court may apply presumption that lawyer (on behalf employee) received it within a reasonable time, which in this case was more than 90 day before filing of lawsuit.

Espinal v. Nat'l Grid NE Holdings 2, LLC., 693 F.3d 31, 115 FEP 1418 (1st Cir. 2012). Panel: LYNCH, Lipez, Howard. Claim on Appeal:  1. Title VII suspension (race). 2. Title VII harassment (race). Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No evidence that disciplinary probation was pretextual, where plaintiff was punished for failing to respond to two service pages for gas leaks. White employee given an identical five-day probation for comparable offense. Difference in methods of investigation explained by presence of dispatch supervisor when plaintiff missed call. 2. Employer handled two incidents of harassment reasonably by investigating claim and admonishing employee accused of harassment about zero-tolerance policy.

Palmquist v. Shinseki, 689 F.3d 66, 26 A.D. Cases 1038 (1st Cir. 2012). Panel: SELYA, Howard, Thompson. Claim on Appeal: 1. Rehabilitation Act retaliation, promotion. 2. Rehabilitation Act retaliation, reference. 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. Jury found that retaliation motivated decision, but that plaintiff would not have been promoted anyway. In light of Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), and omission of retaliation from 42 U.S.C. § 2000e-2(m) and -5(g)(2)(B), Rehabilitation Act retaliation claim does not support mixed-motive framework and verdict for employer was correct. 2. Employer's reason for ambiguous reference for employee (suggesting that employee put too much zeal behind work for veterans) supported by legitimate, non-discriminatory reason. Reference was overall favorable and there was no evidence that reference-giver had been injured in any way by plaintiff's protected activity.

Alvarado v. Donahoe, 687 F.3d 453, 26 A.D. Cases 912 (1st Cir. 2012). Panel: TORRUELLA, Lynch, Selya. Claim on Appeal:  Rehabilitation Act retaliation. Disposition Below:  Summary judgment[defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Employee failed to make out prima face case of retaliation. Employee alleges that accumulation of smaller events constituted a hostile work environment for engaging in protected activity (filing EEO complaint), but record established that many of these acts were attributed to persons who had no knowledge of plaintiff's complaint. Remaining episodes where co-worker and supervisors allegedly referred to employee as "crazy" reduces to There discrete events in eight months, insufficient to be severe or pervasive.

Gove v. Career Systems Develop. Corp., No. 11-2468 (1st Cir. July 17, 2012). Panel: LIPEZ, Lynch [TORRUELLA, dissenting]. Claim on Appeal:  Title VII and Me. state law hiring (sex, pregnancy). Disposition Below:  Motion to compel arbitration denied [plaintiff]. Outcome on Appeal:  Affirmed [plaintiff]. Grounds: While the issue of how broadly to construe the scope of the agreement is ordinarily governed by the FAA policy, embracing a wide presumption of arbitrability, employer waived argument in favor of having scope issue assessed by Maine state law standards. Under contra profferentem applied under state law, arbitration clause was ambiguous as to whether failure to hire was covered and was thus properly interpreted by court against the employer-drafter and in favor of employee.

Cham v. Station Operators, Inc., 685 F.3d 87, 115 FEP 821 (1st Cir. 2012). Panel: LYNCH, Lipez, Thompson. Claim on Appeal:  Title VII shift assignment (race, national origin). FMLA claim (not discussed here). Disposition Below:  Judgment as a matter of law [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Loss of shift during holiday weeks not an adverse employment action. Alternatively, reduction of hours supported by legitimate, non-discriminatory reason that employer had to hire addition al workers and give them hours. Rule 59 grant of a new trial after original verdict in favor of plaintiff was not an abuse of discretion, where evidence of harassment and disparate treatment were properly dismissed and evidence submitted on those claims likely prejudiced jury on other non-dismissed claims.

Cameron v. Idearc Media Corp., 685 F.3d 44, 115 FEP 816 (1st Cir. 2012). Panel: BOUDIN, Lynch, Selya. Claim on Appeal:  1. ADEA termination. 2. ADEA retaliation. ERISA claim (not discussed here). Disposition Below:  1. Summary judgment [defendant]. 2. Judgment after a jury trial [defendant]. Outcome on Appeal:  1. Reversed [plaintiff]. 2. Affirmed [defendant]. Grounds: 1. Terminations of four plaintiff sales representatives under Minimum Standards Plan ("MSP"), used under collective bargaining agreement to cull least productive employees, constituted legitimate, non-discriminatory reason for termination. Single comment by one sales manager about age and asserted pension cost savings did not establish pretext. 2. Refusal to reinstate based on alleged commitment in collective bargaining agreement not retaliatory, where CBA term at issue was never adopted or implemented.

Henry v. Union Bank, 686 F.3d 50 (1st Cir. 2012). Panel: HOWARD, Torruella, Thompson. Claim on Appeal: Mass. state law disability. FMLA claim (not discussed here). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Decision to terminate because employer could not hold job open any more after There months was a legitimate, non-discriminatory reason and did not support retaliation or discrimination claim. Employee waived reasonable accommodation claim, or alternatively open-ended request for leave "until further notice" was not a request for reasonable accommodation.

Escobar-Noble v. Luxury Hotels Int'l of Puerto Rico, Inc., 680 F.3d 118, 115 FEP 301 (1st Cir. 2012). Panel: SELYA, Lipez [LYNCH, concurring]. Claim on Appeal:  Title VII, ADE and P.R. law discrimination and retaliation claims. Disposition Below:  Arbitration compelled [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds: Whether one-year limitation for arbitration demand conflicts with There-year statutory limitation for Puerto Rican law claims is ambiguous, and thus an issue initially for the arbitrator to decide.

Jones v. Walgreen Co., 679 F.3d 9, 26 A.D. Cases 261 (1st Cir. 2012). Panel: TORRUELLA, Souter, Boudin. Claim on Appeal:  1. ADA termination 2. Title VII, 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. No genuine issue of material fact that maintaining store condition and appearance, and implementing planograms are essential functions of store manager's job (job descriptions and testimony of company executives, other store managers). Performance evaluation that made no mention of employee being physically limited immaterial because it predated current medical restrictions owing to knee surgery. That certain duties could be assigned to others does not make them non-essential. Due to physical restrictions, employee could not (among other things) conduct store walk throughs, bend, stoop, climb or move/shelve inventory. No duty for employer to engage in "interactive process" where she could not perform essential functions within medical restrictions, even with accommodation. 2. Assuming that employee can create inference of retaliation from close proximity in time between filing charges/filing class action lawsuit and termination, employee cannot establish that reason for termination (failure to meet physical requirements, according to doctor's restrictions to perform job) is a pretext for retaliation. Prior performance reviews not a sufficient basis to establish pretext, where there were intervening developments in employee's physical condition.

Morales-Cruz v. University of Puerto Rico , 676 F.3d 220, 114 FEP 1185 (1st Cir. 2012). Panel: SELYA, Lynch, Torruella. Claim on Appeal:  1. Title VII non-renewal (sex). 2. Title VII retaliation. Disposition Below:  1. Dismissal for failure to state a claim, FRCP 12(b)(6) [defendant]. 2. Dismissal for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal:  1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee who was charged with being "fragile," "immature," "unable to handle complex and sensitive issues," engaged in "twisting the truth" and lacking judgment not sex-stereotyping because there was no evidence that they were gender-based. 2. No reasonable basis for believing that employee suffered gender-based discrimination.

McDonugh v. Donahoe, 673 F.3d 41, 25 A.D. Cases 1697 (1st Cir. 2012). Panel: THOMPSON, Boudin, Howard. Claim on Appeal: Rehabilitation Act harassment and retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to establish as a matter of law that she was substantially limited by neck and back pain in the major life activities of working (was able to perform full with a stool, cart and shortened work-day); walking and standing (could perform these activities continuously for one hour and intermittently for four); sitting (could drive, garden and conduct other sitting activities); or lifting (10 pounds continuously, twenty pounds intermittently). Eligibility for Federal Employees Compensation Act (FECA) benefits did not make her per se "regarded as" disabled, where definition of FECA disability differs from Rehabilitation Act.

Sánchez-Rodríguez v. AT&T Mobility Puerto Rico, 673 F.3d 1, 114 FEP 912 (1st Cir. 2012). Panel: TORRUELLA, Boudin, Dyk. Claim on Appeal: 1. Title VII reasonable accommodation [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. Rule 56(f) motion properly denied where employee failed to show diligence in obtaining essential discovery. District court erred in treating Rule 56 on "case-stated" basis (i.e., where parties consent to waive trial and present case on undisputed facts of pre-trial record). Judgment affirmed on the merits. Employee was Seventh Day Adventist who could not work on Saturdays. Employer met burden by offering options to switch shifts, transfer positions and excuse previous absences. 2. Employee failed to meet prima facie burden of showing that, had he been interviewed for Small Biz Advisor position, that he was even eligible for it. Failure to reach an accommodation acceptable to all was not an adverse action. Disciplinary admonishment, assuming that it was an adverse action at all, held not pretextual as a matter of law: employee failed to establish any reason other than enforcing rules against absenteeism.

Diaz v. Jitan Hotel Mgt., 671 F.3d 78, 114 FEP 449 (1st Cir. 2012). Panel: STAHL, Boudin, Thompson. Claim on Appeal: Mass. state law termination [age]. Disposition Below: Judgment after a jury trial ($7,650 compensatory damages) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: District court did not err in submitting mixed-motive instruction to jury under state law, notwithstanding Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), where state's highest court announced that it would continue to adhere to Price Waterhouse. District court did not abuse discretion in not submitting mixed-motive issue to Mass. Supreme Judicial Court. Even if judge erred in omitting statute of limitations instruction, error was harmless because employee was denied one raise within limitations period and Mass. law recognizes continuing-violation theory.

Serrano v. Sociedad Española de Auxilio Mutuo y Beneficiencia, 671 F.3d 49, 114 FEP 412 (1st Cir. 2012). Panel: HOWARD, Lipez, Baldock. Claim on Appeal: ADE and P.R. retaliation. Disposition Below: Judgment after a jury trial ($1,000,000 compensatory, $265,400 back pay, $267,400 liquidated, $250,979 front pay, $139,906 attorneys fees) [plaintiff]. Outcome on Appeal: Affirmed [plaintiff]. Grounds: Employee established causation for termination from 1998 filing of lawsuit and 2004 deposition. Although deposition could not have caused termination (firing decision was made before board knew about deposition), but verdict could be sustained on chain events (filing of lawsuit, decision to prevent plaintiff doctor from acquiring/using electrocardiograph, barred doctor from testifying in his own defense at hearing, warned by decision maker that lawsuit would get him blackballed). Under Puerto Rican law, verdict upheld. Defendant waived limitations defense in post-trial briefing. ADEA is not preclusive of local-law remedy; issue was also waived by failure to raise possible conflict. Defendant waived objection to jury instruction on "gross negligence." Challenges to willfulness finding, front pay and fee award overruled.

Ayala-Sepúlveda v. Municipality of San Germán, 671 F.3d 24, 114 FEP 234 (1st Cir. 2012). Panel: TORRUELLA, Lynch, Thompson. Claim on Appeal: 1.§ 1983 harassment (sex). 2. § 1983 retaliation and transfer (sex). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. No evidence that ridicule by co-workers was sever or pervasive, or that it affected his work performance. 2. No adverse action on transfer (no affect on pay, rank or duties) and not evidence that it was motivated because of sex or complaints of discrimination (no similarly situated comparators).

Field v. Napolitano, 663 F.3d 505, 25 AD Cases 673 (1st Cir. 2011). Panel: LYNCH, Howard, Thompson. Claim on Appeal: Rehabilitation Act termination. Disposition Below: Dismissed for failure to state a claim, FRCP 12(b)(6) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Aviation and Transportation Security Act, which applies to airport screeners, by its terms precludes the application of the Rehabilitation Act to screeners under 49 U.S.C. § 44935(f).

Farris v. Shinseki, 660 F.3d 557 (1st Cir. 2011). Panel: THOMPSON, Torruella, Saris. Claim on Appeal: ADA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: District court did not abuse discretion when it denied equitable tolling of fifteen-day complaint-filing deadline to allow eleven-day late filing; employee had notice of fifteen-day period and there was no affirmative misconduct by the agency that mislead employee into delaying her filing. Employee is bound by lawyer's error. That 15 days fell over holidays is not an excuse.

Ramos-Echevarría v. Pichis, Inc., 659 F.3d 182, 25 A.D. Cases 545 (1st Cir. 2011). Panel: THOMPSON, Selya, Dyk. Claim on Appeal: AD and P.R. law promotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine issue of material fact that kitchen employee with epilepsy was not affected, or substantially limited, in the major life activity of work. While he was limited in some activities, such as climbing or driving, he did not do these things at work. He almost never missed attending work, admitted in his deposition that he was not limited, had medical clearance to work, and at one point actually held two jobs. No record-of liability, because even though work records indicate the diagnosis, there is no suggestion that the disease substantially limits the employee. Puerto Rican law claim properly dismissed without prejudice and remanded.

Bonefort-Igaravidez v. Int'l Shipping Corp., 659 F.3d 120, 113 FEP 934 (1st Cir. 2011). Panel: HOWARD, Ripple, Selya. Claim on Appeal: ADEA termination. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: No genuine issue of material fact that employee was fired not because of age but because he hit a co-worker. Not evidence of pretext that the incident reports have different signatures. Although five other younger employees had also been involved in fist-fights and not fired, but there was insufficient evidence of whether those fights were similar enough to the incident in this case to be comparable. Although employee claims that the report of the fight was exaggerated, employer was entitled to rely on its reasonable assessment; it does not have to be accurate, just honest.

Colón-Fontánez v. Municipality of San Juan, 660 F.3d 17 (1st Cir. 2011). Panel: TORRUELLA, Lynch, Siler. Claim on Appeal: 1. AD and Rehabilitation Act reasonable accommodation. 2. ADA retaliation. Equal protection (not discussed here). Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Exhibits submitted by employee in Spanish only could be disregarded under local rule requiring that federal court proceedings be English-only. FRE1006 summary of employee attendance records admissible; party offering summary is not required to submit the summary to the other side first, but need only offer to produce the underlying documents. No genuine issue of material fact that employee was not a qualified individual where, although she could perform her job functions when present, she had an atrocious attendance record even prior to her fibromyalgia diagnosis. Attendance is an essential function. Employer met all policies in notifying employee of attendance problems. Although some tardiness might be associated with the disability and alleged failure to accommodate (by providing a designated parking slot), other accommodations that the employer did provide turned out to be of no use.2. Occasional temporary removal of office equipment not materially adverse. Withholding of paychecks was established beyond plausible doubt to be motivated by other reasons, and timing or other circumstantial evidence does not support idea that they were motivated by retaliation. Change in work schedule that was temporary only not materially adverse. Delay in computer training not materially adverse. Negative memo in employee's file unconnected in time to request for accommodation and not material. Work re-assignment not shown to significantly alter employee's duties. Alleged elimination of work duties in Women's Affairs Department occurred a year after her request for her accommodation, so no causation, and not materially adverse. Alleged retaliatory harassment was not severe or pervasive.

Goncalves v. Plymouth County Sherriff's Dep't, 659 F.3d 101, 113 FEP 805 (1st Cir. 2011). Panel: TORRUELLA, Lynch, Thompson. Claim on Appeal: Title VII (sex, national origin, race), ADE and Mass. state law promotion. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee was not "qualified individual" because she (but not the successful candidate) lacked IT programming, web design or related skills required for job. For the same reason, plaintiff was not shown to be "similarly situated" to other candidates.

Bhatti v. Trustees of Boston Univ., 659 F.3d 64, 113 FEP 722 (1st Cir. 2011). Panel: THOMPSON, Howard, Selya. Claim on Appeal: 1. Title VII, § 1981 discrimination. 2. Title VII, § 1981 retaliation. Disposition Below: 1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal: 1. Affirmed [defendant]. 2. Affirmed [defendant]. Grounds: 1. Employee could not rely on hearsay evidence of white co-workers that they were paid for set-up time, which was inadmissible. Record revealed no scheduling disparities, not that white employees were given more tolerant treatment. No evidence that the plaintiff was ever denied early departures. 2. Reprimand without material consequences for employee were not materially adverse. Alleged hostile work environment insufficiently severe or pervasive.

Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 113 FEP 627 (1st Cir. 2011). Panel: LIPEZ, Torruella, Lipez. Claim on Appeal: 1. Title VII discrimination (sex). 2. Title VII retaliation. 3. ADEA promotion. 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 failed to exhaust claims of sex discrimination in her charge; only reference to sex discrimination was made under retaliation claim2. Federal-sector Title VII implies a cause of action for retaliation. Decision-maker's awareness of the employee's EEO complaints when he made promotion decision was not enough by itself to prove causation. Moreover, complaint about discrimination and promotion decision were years apart, disaffirming any inference of discrimination.3. Employee failed to preserve federal-sector ADE argument that causation is mixed- rather than single-motive because of the statute's different language. Even assuming mixed-motives, disputes about the use of the term "new blood" and the plaintiff's allegedly superior qualifications not enough to raise an inference that age was even a motivating factor.

Tuli v. Brigham & Women's Hospital, 656 F.3d 33, 113 FEP 116 (1st Cir. 2011). Panel: BOUDIN, Lynch, Lipez. Claim on Appeal: 1. Title VII and Mass. state law harassment (sex). 2. Title VII and Mass. state retaliation. State tort law (not discussed here). Disposition Below: 1. Judgment after a jury trial ($1 million compensatory damages; $1,352,525.94 in attorney's fees) [plaintiff]. 2. Judgment after a jury trial ($600,000 compensatory damages) [plaintiff]. Outcome on Appeal: 1. Affirmed (plaintiff). 2. Affirmed (plaintiff). Grounds: 1. Plaintiff (a female surgeon) presented sufficient evidence to established a hostile work environment: 14 specific incidents over four years (including demeaning comments, being professionally snubbed, propositioning, and physical assault), plus other recurrent behavior of unspecified dates. Jury could also find that plaintiff attempted corrective effort by approaching superior who discouraged her from filing formal complaint, and in any event there was a tangible employment action (action to remove her surgical privileges and place her under mandatory counseling), so Faragher/Ellerth would not apply. In any event, under Massachusetts law there is no parallel defense. Evidence of offensive comments was not hearsay (not admitted for hearsay purpose). Instruction on severe or pervasive was not in error. 2. Mandatory counseling was sufficiently adverse (in terms of stigma, invasion of privacy and effect on licensing to constitute "adverse employment action." Jury could find that there was a causal connection between plaintiff's complaint of harassment and mandatory counseling where doctors involved in making the referral were involved in the harassment; second round of review of decision did not break chain of causation (Staub) because at least one member of panel was aware that the doctor who supplied the adverse information about the employee was accused of harassment, and he did not tell others on panel about this potential source of bias. No remittitur of award where employee testified that harassment derailed her career and caused anxiety, including physical illness (loss of weight, pain, nausea). No medical testimony required to support award. No cap required under Title VII because Massachusetts law was uncapped; no basis for hospital's argument that award was based solely on federal claims. Attorney's fees affirmed, despite that rate was higher than what hospital's expert recommended, plaintiff largely prevailed despite small recovery on state law claims, and plaintiff also succeeded at obtaining a preliminary injunction against hospital's efforts to revoke her license.

Pérez-Cordero v. Wal-Mart Puerto Rico, Inc., 656 F.3d 19, 113 FEP 125 (1st Cir. 2011). Panel:  LIPEZ, Torruella, Ripple. Claim on Appeal: 1. Title VII and P.R. law harassment (sex). 2. Title VII and P.R. retaliation. Disposition Below:  1. Summary judgment [defendant]. 2. Summary judgment [defendant]. Outcome on Appeal:  1. Reversed [plaintiff]. 2. Reversed [plaintiff]. Grounds:  1. Male employee presented genuine issue of material fact on each element of harassment claim. Plaintiff supported unwelcomeness by evidence that he avoided female supervisor, resented the increased attention and inequitable work assignments, and did not acquiesce to incident where supervisor - instead of kissing plaintiff in the cheek, in customary greeting - grabbed his neck and sucked it instead. To establish that harassment was based on sex, it is not necessary to show that it is motivated be sexual desire, only that it is gender-specific. Initial period where supervisor pursued plaintiff, followed by retaliation because he turned her advances down, were sever or pervasive (included Threatening with a negative evaluation, initiating a formal disciplinary proceeding, and unfairly assigning excess physical work. Fact that employee continued to come to work and was offered a promotion did not mitigate fact that harassment altered terms and conditions of employment. Employee also demonstrated that behavior was subjectively offensive (employee suffered physically and emotionally from the harassment). No Faragher/Ellerth defense where plaintiff complained repeatedly, and no corrective actions were taken. 2. Plaintiff engaged in protected activity when he complained about the harassment. Escalation of harassment after complaints could constitute an adverse employment action. Same evidence of gender and retaliatory harassment admissible to consider both claims. Employer advanced no legitimate, non-retaliatory reason for supervisor's harassing behavior.

Martinez-Burgos v. Guayama Inc., 656 F.3d 7, 113 FEP 253 (1st Cir. 2011). Panel:  HOWARD, Lynch, Lipez. Claim on Appeal: Title VII and P.R. law hiring (pregnancy). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds:  Applicant failed to establish that she was qualified for permanent position by failing eight out of ten competence standards. Employee also applied for temporary position, but employer proffered legitimate, non-discriminatory reason (that person holding that position at the time was doing a better job than plaintiff previously did), which was not rebutted.

Delia v. Verizon Communications Inc., 656 F.3d 1 113 FEP 1 (1st Cir. 2011). Panel:  HOWARD, Lynch, Boudin. Claim on Appeal: Title VII and Mass. state law harassment (sex) and retaliation, and ADA reasonable accommodation. State tort and contract claims (not discussed here). Disposition Below:  Summary judgment [defendant]. Outcome on Appeal:  Affirmed [defendant]. Grounds:  Employee did not establish that Verizon parent company was her employer with her own conclusory affidavit, company logo on keycard, code of conduct that applied to Verizon and subsidiaries, Verizon administered (but did not fund) benefits and 15-year-old letter from Verizon CEO congratulating her on her work.

Román-Oliveras v. Puerto Rico Electric Power Auth., 655 F.3d 43, 25 A.D. Cases 1 (1st Cir. 2011). Panel:  LIPEZ, Souter, Selya. Claim on Appeal: AD and P.R. law termination. § 1983 claim (not discussed here). Disposition Below:  Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal:  Reversed [plaintiff]. Grounds:  Employee with schizophrenia presented genuine issue of material fact about whether employer regarded him as disabled, where - after 22 years of employment - company's social worker recommended his removal, employee was offered no alternative assignments, and he was never allowed to return in spite of receiving multiple clearances from doctors that he could perform his job. Employee established that blanket work-ban supported claim that employer regarded him as substantially limited in the major life activity of work. Court finds that there is no individual liability for managers or supervisors under ADA.

Irizarry-Mora v. Univ. of Puerto Rico, 647 F.3d 9, 112 FEP 1461 (1st Cir. 2011). Panel: LIPEZ, Torruella, Thompson. Claim on Appeal: ADEA discrimination and retaliation. Disposition Below: Dismissal for lack of jurisdiction, FRCP 12(b)(1) [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: University is an arm of the Commonwealth, for purposes of Eleventh Amendment, and thus immune from ADEA lawsuit.

Valle-Arce v. Puerto Rico Ports Authority, 651 F.3d 190, 24 A.D. Cases 1537(1st Cir. 2011). Panel: LYNCH, Lipez, Howard. Claims on Appeal: ADA reasonable accommodation and retaliation. Disposition Below: Judgment as a matter of law [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Genuine issue of material fact whether plaintiff was a qualified individual with a disability. While the Authority did not dispute the employee's disability status, it argued that job attendance was an essential function of her job. But employee testified that she had never been reprimanded in relation to her attendance during the period from 2003-2005 in which her supervisors had informally granted her a flexible schedule. She also testified that the stress of supervisor's repeated haranguing about her attendance contributed to her acute need to take extended medical leave, which in turn resulted in the long absences on which the district court based its ruling. There was expert testimony to support this contention (psychiatrist testified that it caused employee a great deal of stress to go to work realizing that she was going to be late, which led to many of her absences). A reasonable jury crediting this testimony could conclude that Valle had produced sufficient evidence that she was able to attend work regularly when granted the reasonable accommodation of a flexible schedule." Also a genuine issue of material fact on whether the delay in readjusting the employee's schedule deprived her of a reasonable accommodation. "Here, where Valle testified to ways in which the Ports Authority did not follow its normal reasonable accommodations procedure in her case, where the agency delayed months after even the 2006 request, and where the rigid 9:00 a.m. to 5:00 p.m. schedule eventually granted was not what she sought and arguably did not reasonably accommodate Valle's condition, Valle was entitled to present to a jury the question of whether the agency failed to grant her a reasonable accommodation."

Hernández-Miranda v. Empresas Díaz Massó, Inc., 651 F.3d 167, 112 FEP 1113 (1st Cir. 2011). Panel: LYNCH, Torruella, Siler. Claims on Appeal: Title VII harassment (sex). Disposition Below:  Judgment after a jury trial ($300,000 compensatory damages, capped at $50,000 by district court) [plaintiff]. Outcome on Appeal: Verdict of $300,000 reinstated [plaintiff]. Grounds: Adopting holdings of the Fourth and Fifth Circuits (and, by implication, the Seventh Circuit), panel holds that the "current" calendar year under § 1981a(b)(3) is the year when the discriminatory acts occur. This lines up with 42 U.S.C. § 2000e(b), which defines an "employer" under Title VII as a person with fifteen or more employees "in each of twenty or more calendar weeks in the current or preceding calendar year." The panel observes that "[t]he fact that Congress used the same terminology in the 1991 amendments as in § 2000e(b) makes it quite likely, under normal canons of statutory interpretation, that it intended to adopt the year of discrimination as the 'current' year in § 1981a(b)(3)." Panel also holds that it is the employer's burden to proffer evidence about the relevant number of employees, and that failing to present evidence of the relevant number, defendant forfeited this defense.

Aponte-Rivera v. DHL Solutions (USA), Inc., 650 F.3d 803, 112 FEP 590 (1st Cir. 2011). Panel: SILER, Lipez, Howard. Claims on Appeal: Title VII and P.R. law harassment (sex). Disposition Below: Judgment after a jury trial ($350,000 emotional distress award remitted to $200,000; $1.00 allocated to Title VII claim, the balance doubled under P.R. law; fees and costs) [plaintiff] . Outcome on Appeal: Affirmed [plaintiff]. Grounds: Evidence was sufficient to establish that the harassment was severe or pervasive, and that it was motivated by gender. Plaintiff testified that her supervisors made several gender-based comments to her, including "that what he had been taught was that women were supposed to do [] household chores"; "the person who ran this operation had to have balls to run the operation"; referring to a female executive as "jefecita," or "little boss"; stating that the operation had to be run by a man; generally referring to women as "brutas," or "dumbies"; and asking her if she was a "pendeja," a pejorative term used to refer to women. She also maintain Employer failed to establish its Faragher/Ellerth defense as a matter of law, where plaintiff complained in writing on two separate occasions, and testified that she ultimately had to quit her job in order to avoid the hostile situation. District court did not err in refusing to remit more of the employee's damages; $200,000 was supported by plaintiff's own testimony, and district court adequately weighed alternative sources of distress, absence of medical testimony or treatment and comparable verdicts in other cases. Court did not err in allowing plaintiff's counsel to refresh plaintiff's recollection with prior evaluations of her work under FRE612. No reversible error in failing to give corrective instructions on specific items of evidence that were not relevant to harassment claim.

Soto-Fonalledas v. Ritz-Carlton San Juan Hotel Spa & Casino, 640 F.3d 471, 112 FEP 275 (1st Cir. 2011). Panel: LYNCH, Boudin, Thompson. Claims on Appeal: Title VII, AD and P.R. law. Disposition Below: Arbitration compelled [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employer gave consideration for arbitration policy by agreeing to waive jurisdictional defenses and to arbitrate its own claims against the employee. Where contract provides ambiguously for remedies to be governed by "rules" of the employer, employee is not necessarily prevented from vindicating statutory rights; ambiguity must be resolved by arbitrator. Contract gave adequate notice that arbitration applied to discrimination claims.

Soto v. State Industrial Products, Inc., 642 F.3d 67, 24 A.D. Cases 774 (1st Cir. 2011). Panel: LYNCH, Souter, Stahl. Claims on Appeal: AD and P.R. law. Disposition Below: Order compelling discovery [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Continued employment is adequate consideration under Puerto Rican law to support an arbitration agreement. Local case law regarding non-competition agreements not analogous, as Puerto Rican law imposes special conditions on such contracts. FAA preempts special rules for arbitration agreements. P.R. Law 80 does not bar enforcement of arbitration agreements; it only creates right for severance pay. In any event, there was addition al consideration for the agreement, i.e., bilateral agreement to arbitrate. Argument that employee did not validly consent due to intimidation fails, because defense of intimidation applies only to Threatened injury to person or property. Any error in understanding document (because of weak English skills) not excusable. Contract not unconscionable owing to excessive fees, where fees were comparable to filing federal civil action, or because company can order arbitration to be moved to Ohio (which company did not invoke and forfeited during litigation).

Ríos-Colón v. Toledo-Dávila, 641 F.3d 1, 111 FEP 1571 (1st Cir. 2011). Panel: LEVAL, Lipez, Thompson. Claims on Appeal: Title VII and § 1983 Equal Protection discrimination (race). Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Failure to name actual employer (police department) in Title VII count was not a basis for dismissing complaint when claim was brought against supervisory employee named in his official capacity. District court failed to address the § 1983 claim separately, but complaint facially stated plausible claim (that he was relocated to job with materially poorer working conditions and fewer opportunities for overtime, that person who made decision recommended a less-qualified white employee for a more desirable position, that the same supervisor used racial slurs expressing an explicit anti-black bias).

Wilson v. Moulison North Corp., 639 F.3d 1, 111 FEP 1451 (1st Cir. 2011). Panel: SELYA, Boudin, Souter. Claims on Appeal: Title VII harassment (race). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: While employee promptly reported initial use of racial slurs to company president, there is no genuine issue of material fact that verbal reprimand warning was sufficient as a matter of law for initial violation. Progressive discipline is the norm in workplaces. Regarding subsequent harassment, which employee reported to lower-level supervisor (lead worker), there is no evidence that such reports actually put the employer on notice. Authority cannot be imputed either on de facto or delegated authority theory. No evidence that employer ever told plaintiff that he should report violations to the lead worker, rather than employees next-level supervisor or owner/president.

Baltodano v. Merck, Sharp & Dohme, 637 F.3d 38, 111 FEP 1099 (1st Cir. 2011). Panel: THOMPSON, Lipez, Leval. Claims on Appeal: P.R. law termination (national origin). P.R. tort, contract and statutory claims (not discussed here). Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Employee was deprived of material discovery concerning whether decision-maker had ever disciplined other managers for the same reasons as he did plaintiff. District court erred in not granting the Rule 56(f) motion, and entering summary judgment, without first compelling this discovery.

Rivera-Colón v. Mills, 635 F.3d 9, 111 FEP 737 (1st Cir. 2011). Panel: LEVAL, Torruella, Lipez. Claim: Title VII retaliation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Employee failed to establish that supervisors who suspended her were aware of her anonymous complaint of harassment, and her reassignment and termination were decided under a generally-applicable policy that covered a large number of employees.

Cintrón-Lorenzo v. Fondo Del Deguro Del Estado, 634 F.3d 1, 111 FEP 609 (1st Cir. 2011). Panel: SOUTER, Lynch, Stahl. Claims on Appeal: § 1983 equal protection. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Sexual harassment claim time-barred when most recent even was in 2003, years before the one-year limitations period. Filing of EEOC charge did not toll limitations period.

Ahern v. Shinseki, 629 F.3d 49, 110 FEP 1785 (1st Cir. 2010). Panel: SELYA, Lynch, Thompson. Claims on Appeal: 1. Title VII hiring (sex). 2. Title VII retaliation. 3. Title VII constructive discharge (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. Women complained that men were favored in hiring, but could not make out prima facie case because they themselves did not apply for any of the positions that were filled. 2. Plaintiffs complained to supervisor about alleged sex discrimination. Plaintiffs presented no genuine issue of material fact about adverse action; proposal to abolish four-day workweek, not carried out, was not adverse. Temporary delays in training and two-week reassignments to other duties not materially adverse. Absence from call list for one month explained by neutral fact that employees had been absent from work the month before and missed the opportunity to sign up, and also temporary so not materially adverse. Supposed loss of titles not documented in record. Moreover, most of the events lacked a temporal connection to the protected activity; several months had intervened. 3. Arguments below were waived when plaintiffs pursued a new theory on appeal. In any event, even if the supervisor proved difficult, no evidence that it was based on gender. Record fails to establish that behavior was so bad that resignation was the only reasonable alternative.

Faiola v. APCO Graphics, 629 F.3d 43, 23 A.D. Cases 1706 (1st Cir. 2010). Panel: STAHL, Boudin, Selya. Claims on Appeal: AD and Mass. state law termination and reasonable accommodation. Disposition Below: Summary judgment [defendant]. Outcome on Appeal: Affirmed [defendant]. Grounds: Salesperson suffering from dysthymia (low level depression) failed to show she was disabled under either statute. No evidence that employee was substantially limited in any major life activity. Inability to attend a conference due to anxiety not a restriction relating to a class or broad range of jobs. Also, not medically restricted from flying. (Reasonable accommodation claim would also fail because employee did not request accommodation, but merely suggested to supervisor that she might not be "up to" attending a sales conference because of personal problems.)

Sepúlveda-Villarini v. Dep't of Education, 628 F.3d 25, 23 A.D. Cases 1709 (1st Cir. 2010). Panel: SOUTER, Lynch, Selya. Claims on Appeal: ADA, P.R. law, and Rehabilitation Act reasonable accommodation. Disposition Below: Dismissal for failure to state a claim, Fed. R. Civ. P. 12(b)(6) [defendant]. Outcome on Appeal: Reversed [plaintiff]. Grounds: Allegations that two teachers with disabilities were denied reasonable accommodations when the district imposed a class minimum size - after a number of years where the plaintiffs had been accommodated with smaller class sizes - was sufficiently plausible to meet FRCP 12 standards, and did not require further explanation about "how" class size was significant.

Gómez-González v. Rural Opportunities, Inc., 626 F.3d 654, 110 FEP 1542 (1st Cir. 2010). Panel: RIPPLE, Boudin, Selya. Claims on Appeal: 1. Title VII (sex) and ADEA termination 2. ADA reasonable accommodation. ERISA 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 that plaintiff made out prima facie case, she raised no genuine issue of material fact about reason for termination (violating agency rules by setting up island checking account). Explanation did not change between termination letter and deposition of supervisor, as both concerned the opening of the account. Plaintiff's otherwise good employment record does not cast doubt on explanation, where her violation of rules was considered a serious breach warranting immediate termination. 2. Employer offered accommodations for back injury (allowed to work at home and one day of traveling a week); plaintiff failed to establish why proposed accommodation was unreasonable.

Melendez v. Autogermana, Inc., 622 F.3d 46, 110 FEP 832 (1st Cir. 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, 622 F.3d 17, 110 FEP 705 (1st Cir. 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., 585 F.3d 441 (1st Cir. 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 Below: Dismissal 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 Springfield, 561 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, but that 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 of linedistress 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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