Lang v. Wal-Mart Stores East, L.P. , 813 F.3d 447 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1543
NICOLE LANG,
Plaintiff, Appellant,
v.
WAL-MART STORES EAST, L.P.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Landya McCafferty, U.S. District Judge]
Before
Torruella, Lynch, and Thompson,
Circuit Judges.
Carole C. Cooke, with whom Heidi A. Nadel and Todd & Weld LLP
were on brief, for appellant.
Christopher B. Kaczmarek, with whom Jennifer M. Duke and
Littler Mendelson, P.C. were on brief, for appellee.
March 2, 2016
THOMPSON, Circuit Judge.
OVERVIEW
Nicole Lang once worked for Wal-Mart Stores East, L.P.
While there, she claimed a disability arising from her "pregnancy
status," though she insisted that she could perform the essential
functions of her job with a reasonable accommodation. Seeing
things differently, Wal-Mart refused her accommodation request.
And then, later on, Wal-Mart terminated her.
Lang eventually sued, claiming violations of the federal
Americans with Disabilities Act (popularly known as the "ADA") and
the New Hampshire Civil Rights Act. After discovery, the district
judge granted Wal-Mart summary judgment on all claims. The judge's
fairly-lengthy ruling failed to convince Lang. But for reasons we
explain later, we think that summary judgment is called for — which
leads us to affirm.
HOW THE CASE GOT HERE
Taking all disputed facts in the light most sympathetic
to Lang (as the party opposing summary judgment), see Soto–Padró
v. Pub. Bldgs. Auth., 675 F.3d 1, 2 (1st Cir. 2012), we believe
the competent summary-judgment evidence tells the following tale.
Sometime in July 2010, Lang became an "unloader" at Wal-
Mart's distribution center in Raymond, New Hampshire. An unloader
(as the name implies) unloads merchandise hauled to the center in
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tractor trailers. Wal-Mart's job-description form says that the
"essential functions" of an unloader include "unloading freight
from trailer manually or with power equipment." But the form also
adds that "[m]ov[ing], lift[ing], carry[ing], and plac[ing]
merchandise and supplies weighing up to 60 pounds without
assistance" are "physical activities . . . necessary to perform
one or more essential functions of this position." Asked at her
deposition whether Wal-Mart "expected [her] to be able to lift
. . . up to 65 pounds" by herself, Lang said "yes." That jibes
with this statement by the center's distribution manager, who said
that unloaders are required to "lift[] merchandise or supplies
weighing up to 60 pounds without assistance."
Wal-Mart randomly assigns unloaders to trailers —
usually one unloader per trailer, about 20 unloaders per shift —
in a way so that the "oldest" trailer gets unloaded first.1 Some
freight — typically freight weighing more than 65 pounds
(furniture, for instance) — is labeled "team lift," meaning the
1 Lang suggests that "[t]he trucks were assigned by a supervisor
or another associate who would go through the stack, look at it,
and then hand Lang the assignment he wanted her to have." But
that claim is not inconsistent with a randomized-assignment
policy. And to the extent that her deposition or affidavit could
be understood as disputing the randomized-assignment policy, it is
mere speculation without sufficient personal knowledge about the
policy — which is not enough to forestall summary judgment. See
Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd's of
London, 637 F.3d 53, 56 (1st Cir. 2011).
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assigned unloader needs to have another unloader (and possibly
more) help out. Most freight has no label or marks indicating its
weight, however. So unloaders often do not know the freight's
weight before lifting it, though the record is uncontested on the
point that the great majority of freight weighs more than 20
pounds.
Unloaders occasionally use forklifts and other power
equipment to unload some trailers — like when the trailers have
merchandise stacked on pallets. We say "occasionally use" and
"some trailers" for several reasons. One is that cargo frequently
shifts in transit, breaking the pallets and forcing unloaders to
remove items by hand. A second is that if an unloader spills cargo
while using power equipment, she would then have to pick up the
spilled cargo by hand. A third is that many vendors try to pack
as much merchandise into the trailers as humanly possible, the
result being that many trailers — including what the parties call
"RBD" trailers — have cargo stacked from floor to ceiling. And
unloaders must unload these trailers by hand, a time-consuming
process, to be sure. All and all, according to the unrebutted
affidavit of the operations manager at this Wal-Mart center, about
"70% of the trailers require some degree of manual labor to unload
them."
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In late September 2010 — about two months after becoming
an unloader — Lang learned that she was pregnant. Her doctor told
her on October 7 not to lift anything over 20 pounds. Convinced
that her bosses at Wal-Mart would have a problem with a 20-pound
restriction, Lang asked the doctor if "we [could] just hold off on
the note." The doctor said okay — but added, "don't lift" anything
over 25 pounds.
A week or two later — still in October 2010 — Lang told
her manager, Brian Hug, about the pregnancy and the lifting
restriction. Hug was "excited" to hear about the pregnancy
("excited" is the word Lang used in her deposition). Hug asked
her if she had a doctor's note, to which she answered "no." Lang
did not ask Wal-Mart to accommodate her condition at that time.
Instead she kept on doing her regular unloader duties, including
lifting — though she later recalled getting more RBD trailers than
usual to unload, and she sometimes had to ask other unloaders to
help her.
On November 7, 2010, Lang pulled a muscle lifting a
heavy, unmarked box. As for which muscle, she said in her
interrogatory answers that she had pulled a "groin muscle"; later
at a deposition she said that she had pulled a muscle in her
"uterus"; and still later in court papers she said again that she
had pulled a "groin muscle." Anyway, Lang told Hug about the pull
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that day, November 7. Hug brought her to the center's first-aid
office. And someone from Wal-Mart's human-resource department —
Bridget Ronaghan — drove Lang home, though Ronaghan made a point
of telling her that her "pregnancy was a liability" and that she
should ask for leave under the federal Family Medical Leave Act
("FMLA"). Lang's doctor told her to take some Excedrin, soak in
a tub, and ice the injured area.
Lang felt "fine" (her word) the next day. But Wal-Mart
told her to take the day off. That same day, November 8, Lang's
husband — also a Wal-Mart employee — asked the human-resource
manager, Andrea Rose, if Lang could get reassigned to a less-
demanding post (sweeper, cleaner, etc.) or if she could just unload
non-RBD trailers with a forklift. Rose refused, saying "if I had
to accommodate [her], I'd have to accommodate the rest."
After talking with a lawyer at the New Hampshire
Commission for Human Rights ("NHCHR," for short), Lang formally
asked Wal-Mart for an accommodation near the end of November 2010.
On the request-for-accommodation form, she listed "pregnancy" as
her "condition or impairment." And the medical questionnaire
filled out by her doctor said that she could not lift more than 20
pounds. As for an accommodation, Lang asked Wal-Mart to either
assign her to "trailers that don't need to be unloaded by hand,"
or to give her a "job that doesn't deal with lifting over 20
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pounds." But Wal-Mart said no, concluding that her pregnancy "is
considered temporary" and so "not eligible for an accommodation."
Wal-Mart also added that the lifting restrictions imposed by her
doctor "prevent [her] from performing the essential functions" of
her job. Lang did two things in response: First, she asked for
permission from Wal-Mart to take FMLA leave of absence through
June 18, 2011. And even though she would exhaust her FMLA leave
rights by the end of December 2010, Wal-Mart approved the full
leave amount. Second, while on leave, she filed a charge of
discrimination with the NHCHR, alleging (as relevant here) that
Wal-Mart had discriminated against her because of her "pregnancy
status" and had failed to reasonably accommodate her "medical
disability." Rose knew about Lang's NHCHR complaint, Lang tells
us, though she does not tell us what the NHCHR did with her
discrimination charge.
Lang gave birth to a son on June 15, 2011. After taking
a six-week maternity leave, she returned to work as an FID
Processor (Wal-Mart had given her unloader position to someone
else). Her new job required her to (a) use a forklift to bring
pallets of cargo to designated areas; (b) scan and label the cargo
boxes; and (c) then put the boxes on a conveyor belt. Supervisors
kept "eyeing" her as she did her FID-Processor duties, however,
like she was doing "something wrong" — conduct that made her feel
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"uncomfortable." Adding to her belief that Wal-Mart was
"targeting" her, some higher-ups there (a) saw her talking to an
associate at work and told her not to speak with other workers;
(b) occasionally had her repeat tasks, e.g., re-dusting an area
she had already dusted — though she conceded that sometimes the
request made sense, like the time someone from corporate was coming
to visit and her bosses wanted everything to look clean; and
(c) took days to finally approve her request for extra time so
that she could use her breast pump during breaks.
In mid-November 2011, Lang hurt her arm while putting a
box on the conveyor belt. She told a supervisor about what had
happened. And the supervisor asked whether she was "joking."
Another Wal-Mart manager brought her to the hospital, where a
doctor diagnosed her with a pinched ulnar nerve, gave her a brace,
and told her to ice her arm and take ibuprofen. Consistent with
its workers' compensation procedure, Wal-Mart gave Lang a
"temporary alternative duty" assignment (involving dusting), which
would allow her to work while she recovered — if she could not
return to her regular job after 90 days, Wal-Mart would place her
on workers' compensation.
About a month later, in December 2011, Lang still had
arm pain. So human-resource manager Rose — without consulting
Lang — placed her in another temporary alternative duty position,
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this one involving label sorting. According to Lang's deposition,
Rose "felt like if she extended my [light duty] that I'd keep my
income."
Lang and her husband had long wanted to move to Florida.
And Rose had known about the couple's wish to move there since at
least November 2011. In February 2012, Lang's husband asked for
and received a transfer to a Wal-Mart distribution center in the
Sunshine State. Wal-Mart, though, apparently had a policy
prohibiting persons on temporary alternative duty assignments from
transferring — meaning Rose's unilateral decision extending Lang's
assignment effectively blocked Lang's ability to transfer to
Florida with her husband. Lang then got permission to take an
unpaid two-week leave from work to receive medical care for her
arm injury. And with that leave in place, the Langs moved to
Florida at the end of February.
Around this time Lang received notice that her claim for
workers' compensation was (in all capital letters) "hereby denied
by employer or [insurance] carrier." "No causal relationship to
employment" was the reason listed, though the notice added that
"extent of disability [was] questionable." Denise Kondor's name
appears on the form, on the line provided for "Authorized
Representative." And National Union Fire Insurance Company is
listed as the "Insurance Carrier." Lang's affidavit stated that
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Kondor worked as a claims adjuster for a company called "Sedgwick"
and that "Sedgwick" had "denied my workers' compensation request."
Lang, however, points us to nothing in the record explaining
whether she ever contested the denial of her workers' comp claim.
Jumping to April 2012, we see that Rose, relying on
corporate policy, asked Lang to submit medical documentation to
support the leave. But Lang had trouble finding a Florida
physician willing to treat her and sign the Wal-Mart-required
forms, because the carrier would not acknowledge liability for her
medical bills. So Wal-Mart extended her leave to August 13, 2012,
to give her more time to locate a doctor. Rose, though, had no
sympathy for Lang, telling her that she (Lang) had put herself in
this position. After Lang failed to submit the necessary forms by
the August deadline, Wal-Mart terminated her, with Rose processing
the termination as a "voluntary quit" — which, Rose later
confirmed, made Lang "eligible for re-hire by Wal-Mart."
Disappointed, Lang sued Wal-Mart in New Hampshire
federal court. Pertinently, she alleged that Wal-Mart had failed
to accommodate her disability arising "from her pregnancy status,"
in violation of the ADA. She also alleged that Wal-Mart had
discriminated against her because of her disability and had
retaliated against her because of her accommodation request and
her NHCHR complaint, all in violation of New Hampshire law.
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Following discovery — during which Lang filed an
affidavit saying in part that "[t]he only essential functions of
the Unloader position that [she] could not perform had to do with
weight" — Wal-Mart asked the judge for summary judgment on all
claims. Lang opposed, conceding that "Wal‐Mart's job description
for Unloader requires an employee to have the ability to move,
lift, carry and place merchandise and supplies of up to a maximum
of 60 pounds without assistance," but insisting that Wal-Mart
should have reasonably accommodated her by placing her "in another
suitable position."
Hoping to nail Lang's essential-functions argument down,
the judge said during argument on the motion that "moving, lifting,
etc., up to 60 pounds without assistance" is "an undisputed
description" of the job's "essential function[s]." So, the judge
added, turning to Lang's lawyer, "[y]ou're saying make some
accommodation which would enable [Lang] to perform this 60-pound
weight limit, but what you're essentially saying is she can't lift
anything more than 20 pounds." Lang's lawyer responded,
"[c]orrect." "[T]hat takes it into a totally different type of
job," the judge pointed out. "Perhaps," Lang's attorney said,
though she faulted Wal-Mart for not engaging in an interactive
process to come up with an accommodation. And Lang's lawyer
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stressed a little later that "the job description is not in
dispute."2
The judge later issued a thorough opinion jettisoning
Lang's ADA failure-to-accommodate claim because (in the judge's
view) the record did not establish that (a) Lang had a disability
within the ADA's meaning; that (b) she could perform the job's
essential functions, either with or without a reasonable
accommodation — "[i]t is undisputed," the judge wrote, that lifting
items "weighing up to 60 pounds was an essential function" of her
job and that she "submitted paperwork from her doctor indicating
that she could not lift items weighing more than 20 pounds"; or
that (c) her requested accommodations were reasonable. And since
Lang had not put enough in the record to show either that she had
been disabled under the ADA or that she could perform essential
job functions, the judge knocked out the state-law discrimination
claim too. Wrapping up, the judge concluded that the summary-
judgment materials did not establish either that there was a causal
connection between her protected conduct (her reasonable-
accommodation request and NHCHR complaint) and Wal-Mart's adverse
action (terminating her) or that Wal-Mart's rationale for her
2 Lang has a different lawyer on appeal, by the way.
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termination was pretextual — which led the judge toss out her
state-law retaliation claim as well.
Lang later asked the judge to reconsider the summary-
judgment ruling. Once again conceding — as the judge had found —
"that lifting 60 pounds was an essential function of [her] job as
an Unloader," Lang claimed that the judge had botched matters in
two ways: first, by relying on caselaw predating critical
amendments to the ADA's "disability" definition, and, second, by
overlooking that Wal-Mart had never devised a suitable
accommodation through an "interactive process" with her. But the
judge stuck to her guns, ruling that the ADA amendments did not
affect her summary-judgment conclusion and that Wal-Mart had no
obligation to engage in an interactive process because Lang did
not have an ADA disability. Lang then appealed to us.
SUMMARY-JUDGMENT STANDARD
We give de novo review to the judge's grant of summary
judgment, drawing all reasonable inferences in Lang's favor and
affirming if no "genuine dispute as to any material fact" exists
and Wal-Mart merits judgment as a matter of law. See Fed. R. Civ.
P. 56(a); see also Collazo–Rosado v. Univ. of P.R., 765 F.3d 86,
92 (1st Cir. 2014). Because our review is de novo, we can affirm
on any ground appearing in the record — including one that the
judge did not rely on. See, e.g., Collazo–Rosado, 765 F.3d at 92.
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ADA CLAIM
The ADA forbids a covered employer (which all agree Wal-
Mart is) from discriminating against a "qualified individual," see
42 U.S.C. § 12112(a), relevantly defined as a person "who, with or
without reasonable accommodation, can perform the essential
functions" of her job, see id. § 12111(8). Failing to reasonably
accommodate a disabled person is a form of disability
discrimination, of course. See, e.g., Faiola v. APCO Graphics,
Inc., 629 F.3d 43, 47 (1st Cir. 2010). And — as the judge correctly
noted — to survive an adverse summary judgment on a failure-to-
accommodate claim, a plaintiff must point to sufficient evidence
showing that (a) she is disabled within the ADA's definition; that
(b) she could perform the job's essential functions either with or
without a reasonable accommodation; and that (c) the employer knew
of her disability, yet failed to reasonably accommodate it. See,
e.g., Rocafort v. IBM Corp., 334 F.3d 115, 119 (1st Cir. 2003).
Lang and Wal-Mart spar over every prong. But we begin
— and end — with the essential-functions issue (i.e., we assume
without deciding that Lang had an ADA disability), noting that
while the employer bears the burden of showing that a fought-over
job function is essential, see Ward v. Mass. Health Research Inst.,
Inc., 209 F.3d 29, 35 (1st Cir. 2000), the employee bears the
burden of showing that she could perform that function, even if
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only with some reasonable accommodation for her disability, see
Jones v. Walgreen Co., 679 F.3d 9, 17 (1st Cir. 2012).
Recall how Wal-Mart's job-description form lists
"unloading freight from trailer manually or with power equipment"
as an unloader's essential job function, and then adds that
"[m]ov[ing], lift[ing], carry[ing], and plac[ing] merchandise and
supplies weighing up to 60 pounds without assistance" are "physical
activities . . . necessary to perform one or more essential
functions of this position." Without evincing any sense of irony,
Lang blasts the judge for concluding that manually lifting up to
60 pounds is an essential job function for an unloader — as she
now sees things, an unloader's essential function is not manually
lifting items weighing up to 60 pounds but getting cargo off
trailers, a task one can do by hand or with power equipment.
We see irony because (as we have taken pains to
emphasize) Lang's lawyer told the district judge and opposing
counsel — not once, not twice, but three times (in the summary-
judgment opposition, during argument on the motion, and in the
motion for reconsideration) — that no one disputes that lifting up
to 60 pounds without assistance is (repeat, is) an essential job
function; statements, remember, that came after Lang had answered
"yes" to a deposition question about whether Wal-Mart expected her
to lift "up to 65 pounds" on her own. Representations like the
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ones made by Lang's lawyer — "an officer of the court" — are
"solemn undertaking[s], binding on the client." Genereux v.
Raytheon Co., 754 F.3d 51, 58 (1st Cir. 2014) (quoting CCM Cable
Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d 618, 622 (1st Cir.
1995)). And once made, neither the lawyer nor her "clients can
complain when the trial court takes them at their word." Id. at
59. The bottom line, then, is that team Lang cannot forsake its
earlier concessions, switching "horses midstream" to offer an
entirely new take on the essential-functions issue — a take that
is completely inconsistent with her earlier position. See id.
Citing National Association of Social Workers v.
Harwood, Lang notes that we can choose to consider an argument not
raised below; the choice is totally up to us, meaning she has no
entitlement to that bonanza, and only in "extraordinary"
circumstances — "few and far between" — will we relax the time-
tested raise-or-waive rule. See 69 F.3d 622, 627-28 (1st Cir.
1995) (deciding a "new" issue that was (among other things) of
constitutional importance, threatened a miscarriage of justice if
not considered, and lent itself to satisfactory decision on the
existing record without any need for further fact development).
Nothing about our situation screams "extraordinary" — what with
Lang's lawyer having conceded below at every turn that lifting up
to 60 pounds without help is an essential job function. And that
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means that Lang's case plainly falls within the general raise-or-
waive rule, not within the seldom-seen exception to it. See id.
Shifting gears, Lang claims that a jury, given all the
evidence, could fairly conclude that she could have performed
essential unloader functions had Wal-Mart reasonably accommodated
her either by (a) assigning her only to trailers that did not
require unloading by hand or by (b) transferring her to a vacant
position that did not require her to lift up to 60 pounds. And
she criticizes the judge for ruling otherwise. But we think the
judge got it right.
As we just discussed, lifting up to 60 pounds manually
is — on this record and at this stage — an essential function for
unloaders. So Lang's first proposed accommodation — excusing her
from manual lifting — is a non-starter, and for a simple reason.
What she really wanted was for Wal-Mart to excuse her from having
to perform an essential function. But under the ADA, an employer
is not required to accommodate an employee by exempting her from
having to discharge an essential job function. See, e.g.,
Richardson v. Friendly Ice Cream Corp., 594 F.3d 69, 81 (1st Cir.
2010); see also Mulloy v. Acushnet Co., 460 F.3d 141, 153 (1st
Cir. 2006) (explaining that a proposed accommodation that
"redefin[ed]" an employee's job description is "per se
unreasonable").
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As for her other suggested accommodation — reassigning
her to a vacant position that did not require her to lift up to 60
pounds — Lang offered no evidence that there were any vacancies
when she asked for an accommodation, and it was her burden to show
as much. See Phelps v. Optima Health, Inc., 251 F.3d 21, 27 (1st
Cir. 2001) (noting that a "[r]easonable accommodation may include
reassignment to a vacant position," and stressing that the employee
"bears the burden of proof in showing that such a vacant position
exists" (internal quotations and citations omitted)). Lang begs
to differ on whether she met her burden, pointing out two things.
For openers, she notes that her affidavit named three
women whom Wal-Mart transferred to less labor-intensive positions
after they had become pregnant. Wal-Mart protests that this is
all hearsay evidence — and one cannot fend off summary judgment
with inadmissible hearsay, Wal-Mart reminds us. See, e.g., Dávila
v. Corporación De P.R. Para La Difusión Pública, 498 F.3d 9, 17
(1st Cir. 2007) (stressing that "[i]t is black-letter law that
hearsay evidence cannot be considered on summary judgment"). But
even putting the hearsay question aside, we agree with the judge
that the affidavit is not enough to stave off summary judgment.
That is because Lang's affidavit did not mention the specific
circumstances of the transfers — the document said nothing about
the essential functions of the jobs in question, the timing of the
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trio's transfers, the availability or not of a similar job when
Lang made her accommodation request, etc. And absent information
of this sort, the affidavit could not help create a fact issue
about whether — to quote Lang's brief — "a transfer would have
been feasible" for her.
Next, Lang plays up how Wal-Mart placed her in a less
physically-demanding position — the FID-Processor position — when
she returned from maternity leave. But that is not enough for her
to get to a jury on this issue, because she presented no evidence
that Wal-Mart had an open FID-Processor job (or any other light-
duty job) when she made an accommodation request, eight months
earlier — and employers like Wal-Mart are not obliged to create a
job opening so a disabled employee can work. See Phelps, 251 F.3d
at 27.
In a last ditch effort to save her ADA claim, Lang argues
that we must reverse the grant of summary judgment, because Wal-
Mart did not engage in an "interactive process." Sure, an
employee's accommodation request can "sometimes" trigger a duty on
the employer's part to talk with the employee, with the goal of
finding a way to reasonably accommodate her disability. See, e.g.,
EEOC v. Kohl's Dep't Stores, Inc., 774 F.3d 127, 132 (1st Cir.
2014). But here is the problem for Lang: the "omission" of an
interactive process "is of no moment if the record forecloses a
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finding" that the employee could do the essential "duties of the
job, with or without reasonable accommodation," see Kvorjak v.
Maine, 259 F.3d 48, 53 (1st Cir. 2001) — which, for reasons already
given, is the case here. Thus Lang's interactive-process argument
comes up short.
The net result of all this is that because Lang failed
to create a trialworthy issue as to whether she could have
performed an essential function of her job — manually lifting up
to 60 pounds — with or without a reasonable accommodation, the
judge rightly granted summary judgment to Wal-Mart on the ADA
claim.
So on to the state-law claims we go.
STATE-LAW CLAIMS
Reader Alert
As we mentioned a few pages ago, Lang also brought state-
law claims of unlawful disability discrimination and retaliation
against Wal-Mart, see N.H. Rev. Stat. Ann. §§ 354-A:7
(discrimination), 354-A:19 (retaliation) — claims that the judge
likewise booted out on summary judgment. Lang asks us to reverse.
But before weighing in, we must make a short detour to make a
couple of observations.
The parties — who fight like mad on most issues —
actually do agree on a few things. Like the judge, they assume
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that because Lang essentially seeks to craft her state-law
discrimination and retaliation claims from indirect evidence, a
federal court must analyze these claims using the burden-shifting
regime devised by our Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973) — more on this regime later.
Like the judge, they also assume that New Hampshire and federal
courts apply McDonnell Douglas the same way. And like the judge,
they assume that the prima-facie elements for discrimination and
retaliation claims are the same under state and federal law — more
about these elements in a bit. Anyhow, these are all legally-
intricate issues, involving a dizzying array of jargon-filled
statutes (with the federal and state statutes not always matching
up word for word) and caselaw.3 And we wonder whether state and
federal law perfectly align on every issue. Still, following the
judge's and the parties' lead, we too will assume — without holding
— that New Hampshire law is as they say it is.
With these words of caution, we trudge on.
Burden-Shifting Explained
Under the McDonnell Douglas regime, Lang must first
establish the prima-facie elements for both discrimination and
3 Deciding what New Hampshire's disability statute requires is a
state-law statutory-interpretation question, naturally — but it is
a question neither party raises.
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retaliation (we will say what those elements are shortly). See In
re Seacoast Fire Equip. Co., 777 A.2d 869, 872 (N.H. 2001). If
she does, Wal-Mart must offer a legitimate, nondiscriminatory
reason for the complained-about action. See id. And if Wal-Mart
satisfies its burden, Lang must then show that the reason is
pretextual, see id. — though "a reason cannot be proved to be
[pretextual] unless it is shown both that the reason was false,
and that [a prohibited criterion] was the real reason," see St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).4 On this
last point, we see that
[t]he factfinder's disbelief of the reasons put forward
by the [employer] (particularly if disbelief is
accompanied by a suspicion of mendacity) may, together
with the elements of the prima facie case, suffice to
show intentional discrimination. Thus, rejection of the
[employer's] proffered reasons will permit [, though not
compel,] the trier of fact to infer the ultimate fact of
intentional discrimination, and . . . no additional
proof of discrimination is required.
In re Seacoast Fire Equip. Co., 777 A.2d at 873 (quoting St. Mary's
Honor Ctr., 509 U.S. at 511) (all but the first alteration in
original).
4 See also Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120
F.3d 328, 335 (1st Cir. 1997) (quoting St. Mary's Honor Ctr.);
Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir. 1991)
(stating that "[i]t is not enough for a plaintiff merely to impugn
the veracity of the employer's justification; he must elucidate
specific facts which would enable a jury to find that the reason
given is not only a sham, but a sham intended to cover up the
employer's real motive" (internal quotations omitted)).
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Time to roll up our sleeves and delve into the
discrimination and retaliation issues.
Discrimination
Proceeding (as we said we would) on the arguendo
assumption that Granite State disability-discrimination law
parallels federal law, we take the prima-facie elements as argued
to us: i.e., that Lang (at step one in the McDonnell Douglas
analysis) must show that (a) she was disabled as defined by the
ADA; that (b) she was qualified to do the essential functions of
her job with or without a reasonable accommodation; and that
(c) she suffered an adverse-employment action "in whole or in part
because of [her] disability." See Jones v. Nationwide Life Ins.
Co., 696 F.3d 78, 86 (1st Cir. 2012).
"The simplest way to decide a case is often the best,"
we have noted. Stor/Gard, Inc. v. Strathmore Ins. Co., 717 F.3d
242, 248 (1st Cir. 2013) (quoting Chambers v. Bowersox, 157 F.3d
560, 564 n.4 (8th Cir. 1998) (R. Arnold, J.)). And that is true
here: Zeroing in on prima-facie element (b), we easily conclude
that Lang's discrimination claim fails because, as we have already
seen, the summary-judgment record does not show that she could
perform the essential function of her job — manually lifting up to
60 pounds — with or without a reasonable accommodation. In other
words, what we have said about her ADA claim disposes of her
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discrimination claim at the first step of McDonnell Douglas (a.k.a,
the prima-facie step) — so we need not run through the rest of the
burden-shifting test.
One state-law claim down, one to go.
Retaliation
Again indulging the judge's and the parties' assumption
that New Hampshire law on retaliation claims like Lang's mirrors
federal law, we take the prima-facie requirements as presented to
us (without of course suggesting whether this is — or is not — an
accurate statement of state law): i.e., that Lang must show that
(a) she engaged in protected activity; that (b) a materially-
adverse action by the employer followed; and that (c) a causal
link exists between the two. See Calero-Cerezo v. U.S. Dep't of
Justice, 355 F.3d 6, 25 (1st Cir. 2004).5
To simplify matters we assume for argument's sake that
Lang established a prima-facie case — i.e., that (a) her
accommodation request and NHCHR filing constitute protected
activity; that (b) her termination qualifies as an adverse-
employment action (termination is the adverse-employment action of
which she complains); and that (c) a causal link connects these
events. And we assume too that Wal-Mart, in turn, offered a
5 Calero-Cerezo is the case the judge quoted and Lang relies on.
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legitimate, nonretaliatory reason for the termination — i.e., her
failure, despite repeated requests, to provide the required
medical papers to support her leave (she does not really challenge
the idea that a failure of that sort could constitute an above-
board reason for the termination).
So, having assumed without deciding that Lang satisfied
the first step of McDonnell Douglas (establishing a prima-facie
case of retaliation) and that Wal-Mart satisfied the second step
(providing a permissible, nonretaliatory reason for the
termination), we are left with the third step and the question of
pretext. To reach trial on her retaliation claim, Lang must show
that Wal-Mart's given reason for the termination amounted to a
pretext for unlawful retaliation — bearing in mind (as we said)
that "a reason cannot be proved to be 'a pretext for [retaliation]'
unless it is shown both that the reason was false, and that
[retaliation] was the real reason." St. Mary's Honor Ctr., 509
U.S. at 515 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450
U.S. 248, 258 (1981)).
In trying to show this, Lang does not deny that Wal-
Mart's stated reason had a basis in fact: she concedes — or at
least does not contest — that she never turned over the requested
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documents, a violation that is a terminable offense.6 And she does
not argue that Wal-Mart treated similarly-situated violators of
similarly-serious work rules differently, keeping them — but not
her — on the payroll.7 Instead she contends that a jury could
infer pretext and retaliatory termination in either of two ways —
or both:
The first way is fairly complicated, involving several
parts. Bear with us now, please, as we go through them.8
 Part 1 — Wal-Mart either denied her workers' comp claim on
its own or pushed the carrier to deny it.
 Part 2 — Wal-Mart extended Lang's light-duty assignment,
forcing her to take an unpaid leave so that she could transfer
to Florida with her husband (Wal-Mart, she reminds us, had a
policy of not transferring employees on light duty).
6 Cf. Mesnick, 950 F.2d at 824 (declaring that "[i]n assessing
pretext, a court's focus must be on the perception of the
decisionmaker, that is, whether the employer believed its stated
reason to be credible" (internal quotations and citation
omitted)); id. at 828-29 (holding that statutes banning
"retaliation for exercising rights guaranteed by law" do not, for
example, "'clothe the complainant with immunity for past and
present inadequacies'" or for "'unsatisfactory performance'"
(quoting Jackson v. St. Joseph State Hosp., 840 F.2d 1387, 1391
(8th Cir. 1988))).
7 Cf. García v. Bristol–Myers Squibb Co., 535 F.3d 23, 31 (1st Cir.
2008) (noting that one can show pretext "by producing evidence
that [the] plaintiff was treated differently from similarly
situated employees").
8 Fyi: The quotes to come are from her brief.
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 Part 3 — Wal-Mart insisted that she have a Florida doctor
fill out forms to verify the need for the leave, even though
no doctor would treat her "work-related injury" and sign the
required forms, all because the carrier had refused to
"acknowledge its liability for her medical bills" (given the
claim denial).
 Part 4 — Having "created a situation that Lang could not
escape from," Wal-Mart then used her failure to send the forms
as a pretext for "fir[ing] an annoying employee who asserted
her rights under the ADA too often."
For simplicity, we will refer to this as the "Wal-Mart-contrivance
theory."
The second way is more straightforward. As Lang sees
it, comments by Rose and Ronaghan (discussed again below) reveal
animus, giving rise to an inference that Wal-Mart came up with a
phony explanation for the termination — that retaliation was the
real reason behind Wal-Mart's decision. For convenience, we will
refer to this as the "improper-comments theory."
Though we give Lang points for creativity, her arguments
just do not work.
Wal-Mart-Contrivance Theory
It should go without saying — but we say it anyway —
that a party cannot ward off summary judgment with "proffers that
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depend . . . 'on arrant speculation, optimistic surmise, or
farfetched inference.'" See Fragoso v. López, 991 F.2d 878, 887
(1st Cir. 1993) (quoting Kelly v. United States, 924 F.2d 355, 357
(1st Cir. 1991)). Yet that is all Lang gives us here.
Take the denial of her workers' comp claim (part 1 of
her multipart theory). Lang's thesis is that Wal-Mart — driven by
retaliatory rage — nixed that claim on its own or in concert with
the carrier. For evidence of this theory, she points to one of
her answers to interrogatories, which states that Rose spoke "one
on one" with Lang's doctor and with the claims adjuster. Surely,
she argues, these chats show that something sinister was afoot
during the workers' comp process — which (as she tells it) suggests
that (a) Wal-Mart had it in for her ever since her accommodation
request and NHCHR filing and that (b) Wal-Mart pounced on her
failure to file the required forms to mask its illegal motive for
getting rid of her.
The stumbling block for Lang is that she highlights no
evidence on what the participants talked about during those "one
on one[s]" — she, for instance, directs us to no discovery (e.g.,
a deposition of Rose) that pins down whether what Rose said was
sinister (goading the adjuster or the carrier into denying Lang's
claim) or benign (giving the adjuster Lang's basic employment info,
like when she started working for Wal-Mart and what her job duties
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were). What Lang hopes to do is to close a chasmal gap between
her retaliation theory and proffered facts by floating the sinister
possibility. But to escape summary judgment, she must deal in
what is "probable," not just in what is "possible"; "[s]imply
allowing for a possibility" — our cases say — "does not make it
more likely than not that the possibility happened." See Tropigas
de P.R., Inc., 637 F.3d at 58. At best for Lang, her interrogatory
answer about the tête-à-têtes may "fuel speculation" that Wal-
Mart's Rose might have pushed the carrier to deny the workers'
comp claim (which, again, is one of Lang's hunches for what might
have happened), but that is "insufficient" to establish a triable
issue for the jury, see id. — after all, and as we have already
pointed out, a litigant like Lang "who bears the burden of proof
on an issue cannot defeat summary judgment by relying on
speculation about the facts," Cahoon v. Shelton, 647 F.3d 18, 27
n.6 (1st Cir. 2011); see also Tobin v. Fed. Express Corp., 775
F.3d 448, 452 (1st Cir. 2014) (emphasizing that "[s]peculation
about mere possibilities" will not stop summary judgment). So
despite Lang's best guesswork, the denial of her workers' comp
claim does not allow a jury to make a rational, nonconjectural
finding that Wal-Mart's given reason for her termination was a
pretext for retaliation. See generally Curran v. Dep't of Justice,
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813 F.2d 473, 477 (1st Cir. 1987) (holding that "[g]uesswork" has
"no place" in the summary-judgment "calculus").
Now consider Rose's decision to extend Lang's light-duty
work (part 2 of her multipart theory). That decision suggests
illegal animus on Wal-Mart's part because Rose made that call
solely to stop Lang from transferring to the Everglade State — or
so the argument goes. But in her deposition, Lang herself said
that she thought Rose believed that "if she extended my [light
duty]" then "I'd keep my income," which is hardly suggestive of a
forbidden motive — at least Lang spends no time explaining how it
is. Ultimately, Lang's inability to highlight "definite" and
"competent" evidence supporting this aspect of her animus theory
proves to be her undoing. See Mesnick, 950 F.2d at 822 (declaring
that "[o]n issues where" the summary-judgment opponent "bears the
ultimate burden of proof," she "must present definite, competent
evidence to rebut the motion"); see also Pérez v. Lorraine Enters.,
Inc., 769 F.3d 23, 29-30 (1st Cir. 2014) (ditto).
With parts 1 and 2 of the Wal-Mart-contrivance theory
out of the way, Lang's entire multipart argument falls like a house
of cards. Enough said on that.
Improper-Comments Theory
Unfortunately for Lang, her improper-comments theory
does not hold together, either. Start with Ronaghan's comment —
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that Lang's "pregnancy was a liability" and that she should "apply
for FMLA" leave (leave that she did apply for and get, for what it
is worth): Ronaghan made this comment in November 2010, while
Lang got terminated in August 2012. And Lang never explains how
a statement that preceded her termination by nearly two years has
any value in support of her retaliation charge. On top of that,
there is no evidence that Ronaghan played a part in the termination
decision — Lang speculates that Ronaghan could have "influence[d]
the decisionmaker (Rose) because [Ronaghan] worked in the human
resources department with Rose," but more than speculation of this
sort is required to save her from summary judgment. See, e.g.,
Cahoon, 647 F.3d at 27 n.6; Medina-Munoz v. R.J. Reynolds Tobacco
Co., 896 F.2d 5, 8 (1st Cir. 1990) (making clear that "conclusory
allegations, improbable inferences, and unsupported speculation"
cannot block summary judgment). Consequently Ronaghan's remark
cannot give rise to an inference that Wal-Mart's termination reason
was a pretext hiding a retaliatory motive.
Nor can Rose's comments — that (a) "[i]f I had to
accommodate you [Lang], I'd have to accommodate the rest" and that
(b) Lang had put herself in the position of being unable able to
find a doctor to sign the required forms: Again, the record does
not show that Lang was a "qualified individual" with a disability,
i.e., one who could have performed the essential functions of her
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job with or without a reasonable accommodation. And Lang never
convincingly explains why statement (a) — basically expressing
worry that accommodating one nonqualified person may require Wal-
Mart to accommodate others — shows that Wal-Mart's termination
explanation was merely a pretext disguising retaliatory animus.
So too with statement (b): she never persuasively explains why
Rose's putting-yourself-in-that-position comment is sufficient
proof that Wal-Mart's termination rationale camouflaged illegal
retaliation, given how the Langs did voluntarily move to Florida
while Lang's health and job status were still very much up in the
air.
With that and at long last, we affirm the grant of
summary judgment on the retaliation claim.
WINDUP
Having reviewed Lang's claims with care, we uphold the
entry of summary judgment for Wal-Mart.
Affirmed.
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