Audette v. Town of Plymouth ( 2017 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 15-2457
    MICHELLE AUDETTE,
    Plaintiff, Appellant,
    v.
    TOWN OF PLYMOUTH, MA; PLYMOUTH POLICE DEPARTMENT;
    CHIEF MICHAEL E. BOTIERI, in his official and individual
    capacity; CAPTAIN JOHN ROGERS, in his official and individual
    capacity; ROBERTA KETY, in her official and individual capacity,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. William G. Young, U.S. District Judge]
    Before
    Torruella, Lipez, and Barron,
    Circuit Judges.
    Timothy M. Burke, with whom Jared S. Burke and Law Offices of
    Timothy M. Burke, were on brief for appellant.
    Evan C. Ouellette, with whom Leonard H. Kesten, Deidre Brennan
    Regan, and Brody, Hardoon, Perkins & Kesten, LLP, were on brief
    for appellee.
    May 26, 2017
    LIPEZ, Circuit Judge.            Appellant Michelle Audette, a
    police patrol officer1 in Plymouth, Massachusetts, appeals from
    the entry of summary judgment for the Town of Plymouth ("Town"),
    the Plymouth Police Department ("Department"), and a number of the
    Town's and the Department's employees.            Audette claims that she
    suffered   discrimination    in    violation      of    the   Americans      with
    Disabilities    Act   ("ADA"),    42   U.S.C.   §§     12101-12213,    and    its
    Massachusetts    state-law   corollary,       Massachusetts     General      Laws
    chapter 151B § 4, when the defendants failed to accommodate her
    request for transfer to another position in the Department after
    she sustained an on-the-job injury.           Audette further alleges that
    she suffered illegal retaliation when she attempted to assert her
    rights under the ADA and that she suffered discrimination on the
    basis of her gender in violation of Massachusetts law.                We affirm
    the district court's rejection of these claims.
    I.
    The following facts are undisputed, except as noted.
    A. Audette's Ankle Injuries
    Audette began her career as a patrol officer for the
    Plymouth Police Department in 1986.           While working on October 4,
    2010, she sustained the first of two on-the-job injuries to her
    1 The Plymouth Police Department's official title for the
    position is "patrolman," but we opt to use the gender-neutral term
    "patrol officer" throughout this opinion.
    - 2 -
    right ankle.   These injuries led to visits to many doctors, two
    surgeries, and rounds of physical therapy.       To this day, she has
    yet to fully recover.
    Audette's doctors have prescribed physical limitations
    to her movement in order to aid in her recovery. These limitations
    have varied at times, but include: strictly sedentary work, shorter
    working shifts (four or six hours, rather than the typical eight-
    and-a-half), working in an "air-cast" boot, working with the use
    of crutches, limited standing or walking to forty-five minutes out
    of every hour, and limited bending.         According to the Plymouth
    Police   Department's   "Rules   and   Regulations"   manual,   a   patrol
    officer's duties include patrolling by foot and in a vehicle,
    responding to emergencies, providing services on an emergency
    basis, aiding individuals who are in danger of physical harm,
    preserving crime scenes, and apprehending criminal offenders.
    Since the initial injury, Audette's limitations have prevented her
    from fulfilling her standard responsibilities as an active patrol
    officer, except for a brief period between August 2011 and January
    2012, when she sustained a second on-the-job injury to the same
    ankle.
    Nevertheless, the Plymouth Police Department continues
    to employ Audette as a patrol officer.       When doctors' limitations
    on her working conditions have permitted, Audette has received
    full-time pay for working part-time shifts in a light-duty capacity
    - 3 -
    as a station officer.2      When her doctors' limitations have not
    allowed her to work as a station officer, Audette has been afforded
    full pay while taking "injured on duty" ("IOD") leave.3                The
    Department has also granted her other accommodations not available
    to   other   patrol   officers,   including    an   elevator   key   and   a
    designated, convenient parking spot.
    B. The Department's National Incident-Based Reporting System
    Like many police departments across the nation, the
    Plymouth Police Department participates in the National Incident-
    Based Reporting System ("NIBRS").           NIBRS is an incident-based
    reporting system used by law enforcement agencies to collect and
    report data on crimes.    Local, state, and federal agencies compile
    and maintain data in NIBRS as part of their records management
    responsibilities.       Ordinarily,   two     Department   employees   are
    2
    The Department's station officer works behind the front desk
    at the Plymouth police station and can be assigned various tasks
    such as assisting civilians who come to the station to file
    complaints, filling out various forms, assisting with booking
    procedures and fingerprinting, assisting dispatch when necessary,
    coordinating overtime assignments for other officers, and
    conducting prisoner cell checks at the station.
    3For example, Audette was briefly placed on paid IOD leave
    after her first ankle injury when her doctor limited her to
    strictly sedentary work, because the station officer position --
    though a light-duty position involving limited movement --
    requires some amount of standing and walking. Audette was also
    placed on paid IOD leave for one week when one of her doctors
    required her to use crutches, due to the Department's policy of
    prohibiting on-duty officers' use of crutches.
    - 4 -
    responsible for NIBRS data: the Department's Records Sergeant,4
    who oversees all records maintenance, including NIBRS, and a
    civilian clerical worker.        In July 2012, the Records Sergeant was
    also       assisted   by   Detective    Robert   Morse,   who   oversaw   the
    Department's evidence management responsibilities.                After the
    Records Sergeant announced his retirement in September 2012, Morse
    temporarily took over NIBRS oversight responsibilities.
    In May 2013 -- when Audette was out of work due to her
    first ankle surgery -- Morse announced that he would retire.              On
    May 30, 2013, patrol officer Benjamin Dexter returned to work after
    sustaining an injury, and he was placed on full-time light duty.
    Plymouth Police Chief Michael Botieri assigned Dexter to train
    with Morse and assist in getting "caught up" with the NIBRS
    records.      By October 6, the Department had sufficiently caught up
    with its backlog, and Dexter was reassigned as a station officer
    for the remainder of his light-duty status.           The Department never
    appointed another patrol officer on light duty to assist with the
    NIBRS data outside of Dexter's four-month assignment in 2013.5             In
    4
    The Records Sergeant's duties also include managing the
    Department's   Records  Division,   maintaining  and   processing
    Department records, ensuring compliance with public records laws,
    supervising clerical staff, and responding to public records
    requests.
    5There was one other occasion on record in which an
    officer -- though a sergeant and not a patrol officer -- was
    assigned to assist with NIBRS maintenance. During the summer of
    2012, Sergeant Christopher Butler suffered an injury and was placed
    on light duty. The only light-duty position within the Department
    - 5 -
    November 2013, Dexter returned to active-duty status as a patrol
    officer, and Sergeant Michael Ferazzi was appointed as the new
    Records Sergeant and became responsible for NIBRS oversight.
    C. Audette's Accommodation Request
    Audette underwent ankle surgery in June 2013.          Later
    that summer her doctor issued a note stating that she could return
    to work on October 21.      The only limitation the doctor placed on
    Audette was "walking/standing based on symptoms."          On October 9
    -- three days after Officer Dexter had been reassigned from NIBRS
    data maintenance to station officer -- Audette delivered a letter
    to   Chief    Botieri   titled   "Reasonable    [Accommodation],"   which
    requested that she be allowed to work the NIBRS data-entry position
    to which Dexter had been assigned.         We quote the letter in full:
    I am requesting a "Reasonable [Accommodation]"
    as I would like to return to work and feel
    that I can be a productive member of this
    Police Department.
    Following a very extensive and [painful] ankle
    injury I am currently in the healing process
    after receiving [surgery].    I have recently
    received a [Doctor's] note allowing for me to
    return to work on October 21, 2013.        The
    physical limitations are for 4 hours, with
    walking and standing limited to symptoms. As
    I continue with my Physical Therapy I find
    that my symptoms vary day to day.
    available for sergeants is "Shift Commander." Because another
    employee was already assigned to work as a shift commander -- and
    to avoid having two employees assigned to the same task -- Sergeant
    Butler was instead assigned to assist in updating the Department's
    NIBRS logs.    Sergeant Butler was removed from light duty and
    returned to his active duty position by November of 2012.
    - 6 -
    I recently became aware that a nontraditional
    "Light Duty" assignment had been offered to
    another Officer and that this assignment is
    currently vacant.      This assignment was
    utilized to aid in keeping the [NIBRS]
    records/stats up to date. This assignment is
    mainly sitting while reading and completing
    data on a computer.
    I am [hopeful] this same opportunity could be
    extended to me. Being assigned to a seated
    position would allow me to feel productive as
    well as continue to heal and gain greater
    strength as I move towards returning to work
    full duty.
    Chief Botieri met with Audette and told her that the
    non-traditional data-entry assignment to which her letter referred
    had   been   completed   and   that   the   only   light-duty   assignment
    available for patrol officers was the station officer position
    that she had intermittently worked before her surgery.          He sent an
    email to Audette on October 18 confirming this information, which
    also stated that "[i]f an assignment does become available and the
    work is within your limitations[,] I will notify you."
    Despite not receiving the accommodation she requested,
    Audette returned to work as scheduled on October 21, 2013, and she
    continued to work as a station officer until September 2014, when
    she took time off for her second ankle surgery.         After the second
    surgery, Audette again returned to work as a station officer in
    April 2015 under her doctor's order that she work in a light-duty
    capacity for four hours per day with "limited bending," and she
    - 7 -
    has continued to work in that position.          At no point has Audette
    been assigned responsibilities that conflict with any doctor's
    orders.     Nor has she ever indicated to Chief Botieri or anyone
    else in the Department that she is unable to perform her assigned
    duties
    D. Audette's Disciplinary Proceedings
    At an early stage during Audette's medical ordeal, some
    events     occurred   that   underlie     her   retaliation   and   gender
    discrimination claims.       On the evening of November 24, 2011, one
    of Audette's fellow officers got into an off-duty altercation at
    a bar in downtown Plymouth.        As a result, the patrol officer
    contacted Audette, as his union vice-president, and officer Ray
    Reid, his union steward, seeking assistance in getting placed into
    an alcohol treatment facility for police officers in Brattleboro,
    Vermont.    The following day -- when Reid was off-duty but Audette
    was on-duty -- they went to the patrol officer's house for about
    an hour-and-a-half.     After meeting with the patrol officer, Reid
    agreed to transport him to the alcohol treatment facility, and
    Audette told Reid that she would inform the Department about what
    had occurred and that the patrol officer would be out sick while
    at the treatment facility.     When Audette left her patrol to attend
    to her colleague at his home around 10:00 a.m. that morning, she
    notified a dispatcher that she would be "tied up" for a while.
    Audette left her coworker's home at 11:30 a.m. but did not inform
    - 8 -
    anyone in the Department about what had occurred there, or that
    the coworker was on his way to the Vermont facility, until sometime
    between 1:49 - 3:00 p.m. that afternoon.
    On April 17, 2012, Audette met with the Town's Human
    Resources Director, Roberta Kety, to discuss Audette's return to
    work at the Department after sustaining her second ankle injury.
    Audette alleges that as a result of this meeting, Kety informed
    Chief Botieri that Audette had complained about how she had been
    treated by the Department and that she had asked for a reasonable
    accommodation, including, but not limited to, a sedentary light-
    duty position.       Three days after meeting with Kety, Audette met
    with Chief Botieri, and he broached the topic of Audette's early
    retirement.6
    A few days after their initial meeting, Audette again
    met   with   Chief   Botieri,   who    stated   that   there   was   an   "open
    discipline issue" regarding her handling of the incident at her
    fellow patrol officer's home, though Chief Botieri chose not to
    resolve the issue at that time.         At some point during the next two
    weeks, Audette was given the option of taking a suspension or
    receiving a letter of reprimand as a result of the disciplinary
    6Appellees deny both that Audette asked for an accommodation
    in the meeting with Kety and that Chief Botieri suggested to
    Audette that she retire.
    - 9 -
    incident.7     On May 2, 2012, Chief Botieri issued a letter of
    reprimand to Audette that stated she had violated multiple rules
    of professional conduct, including engaging in "conduct unbecoming
    of an officer" and "neglect of duty."     The letter stated that it
    would be subject to review and removal from her personnel file
    within one year if she was involved in no other disciplinary
    incidents during that period.
    Rather than signing the letter of reprimand, Audette
    opted for a disciplinary hearing.    After the disciplinary hearing,
    there was a finding that Audette had violated the Department's
    rules and regulations, and she received a new letter of reprimand
    on May 23.     The second letter was identical to the first, except
    that it stated it would remain in Audette's personnel file for up
    to two years, rather than one.      The letter of reprimand was the
    only disciplinary action taken against Audette for the incident,
    and it did not affect her rank, pay, or duties as a patrol officer.
    Audette filed a demand for arbitration challenging the
    reprimand letter.    In December 2013 the police officers' union --
    on Audette's behalf -- entered into a settlement agreement with
    the Town of Plymouth and Chief Botieri.    The settlement agreement
    stated that the Town would "not rely on the reprimand for any
    7 Chief Botieri asserts that suspension was never on the table
    as a disciplinary option, but Captain John Rogers stated in his
    deposition that he believed Audette was given a choice between
    suspension and a letter of reprimand.
    - 10 -
    future employment related purpose," that the Town would remove the
    letter from Audette's file, that the settlement agreement did not
    constitute an admission of any party, and that the "execution of
    [the] agreement shall constitute a waiver of any action arising
    under either contract or statute with regard to the issuance of
    the    reprimand."         Because     the   letter       had   not   been   removed
    immediately from Audette's personnel file, despite the settlement
    agreement,    Chief    Botieri       sent    a   letter    to   the   Town's    Human
    Resources Department on May 29, 2014, notifying it that the letter
    should have been removed, and he instructed the department to do
    so.
    E. Procedural History
    In    August     2014,     Audette       filed     a     complaint    in
    Massachusetts state court alleging a failure to accommodate under
    the    ADA   and     the    Rehabilitation        Act      (Counts    I   and     II);
    discrimination      based    on   an    "actual      handicap,"       a   "perceived
    handicap," and a "record of handicap" under Massachusetts law
    (Counts III, IV, and V); gender and age discrimination under
    Massachusetts law (Counts VI, VII, VIII, and IX); intentional
    infliction of emotional distress (Count X); and conspiracy (Count
    XI).    Defendants removed the action to federal court and filed a
    motion for summary judgment in September 2015.
    After a hearing, the district court granted summary
    judgment for the defendants, stating that Audette had "failed to
    - 11 -
    raise a genuine issue of material fact as to her being a qualified
    disabled individual, able to perform the essential functions of a
    patrol   officer,   so   her   disability    discrimination   claims   must
    fail."     It also found that she failed to raise "genuine and
    material   issues   of   fact"   regarding    her   other   discrimination
    claims, noting that she had "not submitted admissible evidence
    sufficient for a jury to infer that she has suffered an adverse
    employment action because of either [her age or gender]." Finally,
    it concluded that she failed to establish a prima facie case for
    all of her remaining claims.       Audette timely appealed.
    II.
    Summary judgment is appropriate where "the pleadings,
    depositions, answers to interrogatories, and admissions on file,
    together with affidavits, if any, show that there is no genuine
    issue as to any material fact and that the moving party is entitled
    to judgment as a matter of law."      Mulloy v. Acushnet Co., 
    460 F.3d 141
    , 145 (1st Cir. 2006) (quoting Fed. R. Civ. P.                 56(c)).
    "Material facts" are those which "might affect the outcome of the
    suit under the governing law," and an issue is "genuine" if there
    is evidence that would allow a reasonable jury to find for the
    non-moving party.        
    Id. (quoting Seaboard
    Sur. Co. v. Town of
    Greenfield, 
    370 F.3d 215
    , 218-219 (1st Cir. 2004)).
    Although we construe the factual record in the light
    most favorable to the non-moving party -- here, Audette -- we need
    - 12 -
    not consider "conclusory allegations, improbable inferences, [or]
    unsupported speculation."      
    Id. (quoting Carroll
    v. Xerox Corp.,
    
    294 F.3d 231
    , 237 (1st Cir. 2002)). We review the district court's
    grant of summary judgment de novo, 
    id., and "[w]e
    may affirm
    summary judgment 'on any basis apparent in the record,'" Jones v.
    Nationwide Life Ins., 
    696 F.3d 78
    , 86 (1st Cir. 2012) (quoting
    Chiang v. Verizon New Eng. Inc., 
    595 F.3d 26
    , 34 (1st Cir. 2010)).
    III.
    A. Disability and Handicap Discrimination Claims
    The ADA prohibits employers from discriminating against
    a "qualified individual" -- defined as "an individual who, with or
    without   reasonable   accommodation,    can    perform   the   essential
    functions of the employment position that such individual holds or
    desires" -- on the basis of disability.8        42 U.S.C. §§ 12111(8),
    12112(a); Lang v. Wal-Mart Stores East, L.P., 
    813 F.3d 447
    , 454
    (1st Cir. 2016).   Failing to provide reasonable accommodations for
    a   qualified   employee's   known   physical   or   mental   limitations
    constitutes discrimination, unless an employer can demonstrate
    8We have noted in the past that Massachusetts's handicap
    discrimination statute, Massachusetts General Laws chapter 151B,
    §4, is "nearly identical" to the ADA. 
    Mulloy, 460 F.3d at 154
    (1st Cir. 2006).     Other than a "gloss" that the Massachusetts
    workers' compensation statute potentially places on Massachusetts
    General Laws chapter 151B § 4, which is not at issue in this case,
    we analyze the statute in exactly the same manner as the ADA. 
    Id. at 154-55.
    - 13 -
    that such an accommodation would impose an undue hardship.9                       
    Lang, 813 F.3d at 454
    ; 42 U.S.C. § 12112(b)(5)(A).
    To prevail at the summary judgment stage on a typical
    claim        of   failure   to    accommodate,        a    plaintiff   must    present
    sufficient evidence indicating "that (a) she is disabled within
    the   ADA's        definition;    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."                    
    Lang, 813 F.3d at 454
    .
    However, the burden for the employee at the second step
    of the inquiry changes slightly when an employee becomes disabled,
    can no longer perform the essential functions of her job, and
    requests as an accommodation a transfer or complete reassignment
    of duties.          Instead of addressing the essential functions of her
    current position, an employee must demonstrate that she can perform
    the essential functions of the position she desires.10                        Moreover,
    9
    We have noted that in a reasonable accommodation case, the
    burden is first on the employee to demonstrate that a proposed
    accommodation would enable her to perform the essential functions
    of her job and that the proposed accommodation, on the face of
    things, appears feasible for the employer.     See Reed v. LePage
    Bakeries, Inc., 
    244 F.3d 254
    , 259 (1st Cir. 2001).         If the
    plaintiff carries this initial burden, the employer has the
    opportunity to demonstrate that the actual costs of the facially
    feasible accommodation in fact create an undue hardship. 
    Id. The Supreme
    Court approvingly cited Reed's framework in U.S. Airways,
    Inc. v. Barnett, 
    535 U.S. 391
    , 401-02 (2002).
    10
    Because the ADA definition of "qualified individual"
    includes the ability to perform the essential functions of the job
    that the individual "holds or desires," a disabled employee seeking
    - 14 -
    the employee must demonstrate that there is an actual vacant
    position to which she can transfer.    
    Lang, 813 F.3d at 456
    .   "An
    employer is not required by the ADA to create a new job for an
    employee, nor to re-establish a position that no longer exists."
    Phelps v. Optima Health, Inc., 
    251 F.3d 21
    , 27 (1st Cir. 2001);
    see also 
    Lang, 813 F.3d at 456
    .
    a transfer is a "qualified individual," so long as she can perform
    the essential functions of the vacant position -- with or without
    a reasonable accommodation -- even if she can no longer perform
    the essential functions of her current position.            Indeed,
    "reassignment to a vacant position" is explicitly listed among the
    reasonable accommodations offered by the ADA.            42 U.S.C.
    § 12111(9)(B); 
    Barnett, 535 U.S. at 397
    . This understanding of a
    "qualified individual" accords with one of the purposes of the
    ADA -- accommodating disabled employees who can no longer perform
    the essential functions of their current job, with or without a
    reasonable accommodation, by allowing them to transfer to a vacant
    position whose essential functions they can perform.       See H.R.
    Rep. No. 101-485, pt. 2, at 63 (1990) ("If an employee, because of
    disability, can no longer perform the essential functions of the
    job that she or he has held, a transfer to another vacant job for
    which the person is qualified may prevent the employee from being
    out of work and [the] employer from losing a valuable worker.");
    see also 29 C.F.R. pt. 1630 App. § 1630.2(o); S. Rep. No. 101-116,
    101 Cong., 129-30 (1989); Stacy M. Hickox, Transfer as an
    Accommodation: Standards from Discrimination Cases and Theory, 
    62 Ark. L
    . Rev. 195, 196-201 (2009). Indeed, a number of our sister
    circuits have held that the ADA requires such an interpretation.
    See, e.g., Cravens v. Blue Cross & Blue Shield of Kan. City, 
    214 F.3d 1011
    , 1016-18 (8th Cir. 2000) (holding that the ADA requires
    an   employer   to  consider   reassigning   an   individual   with
    disabilities where the individual can no longer perform the
    essential functions of her current position); Burns v. Coca-Cola
    Enters., 
    222 F.3d 247
    , 256 (6th Cir. 2000) (same); Smith v. Midland
    Brake, Inc., a Div. of Echlin, Inc., 
    180 F.3d 1154
    , 1162 (10th
    Cir. 1999) (same); Aka v. Wash. Hosp. Ctr., 
    156 F.3d 1284
    , 1301
    (D.C. Cir. 1998) (same); Gile v. United Airlines, Inc., 
    95 F.3d 492
    , 498 (7th Cir. 1996) (same).
    - 15 -
    The parties agree that Audette has presented evidence
    that she is disabled within the ADA definition, and there is no
    dispute      that    Audette    is    unable     to   fulfill    the    duties     and
    responsibilities of an active patrol officer.11                 But Audette argues
    that the ADA entitles her to transfer to a clerical position
    maintaining NIBRS data.
    In an attempt to prove that such a vacancy existed,
    Audette      cites    Chief     Botieri's        testimony      that    NIBRS      data
    maintenance is a "lot of work," "takes a lot of time," and that at
    certain points the Department was "several months behind" in
    logging all of its data.              This testimony demonstrates only that
    the Department had fallen behind on its record-keeping obligations
    and   that    additional       help   was   occasionally     used      to   ease   the
    Department's backlog.            It does nothing to establish that the
    Department had a vacancy that Audette could have filled.
    She next argues unpersuasively that the "time frames"
    clearly demonstrate that there was a vacant NIBRS data-entry
    position available.        Although the Department temporarily assigned
    an injured patrol officer, Officer Dexter, to assist with NIBRS
    data entry during the summer that Audette underwent her first ankle
    11
    Each of Audette's many physicians has consistently stated
    that she is unable to perform tasks beyond the light-duty station
    officer assignment, and none of them have been able to predict
    when she might recover to a point in which she could return to her
    active patrol officer duties, with or without a reasonable
    accommodation.
    - 16 -
    surgery,    the       Department     determined      that   it    had     sufficiently
    "caught up" on the project by early fall, reassigning Dexter to
    work as a station officer on October 6.                 Audette did not request
    a transfer to the position until three days after the Department
    eliminated the temporary position, and no patrol officer has
    subsequently been assigned to such a position.
    In a final attempt to prove that a vacancy existed,
    Audette    points      to    the    Department's     hiring      of   a   new     Records
    Sergeant    --    a    position     that     was   vacant   at    the     time    of   her
    accommodation request -- one month after her request for a data-
    entry position was denied.              As we 
    noted, supra
    , the Department
    tasks two people with working on NIBRS data maintenance -- a
    civilian clerical worker and the Department's Records Sergeant.
    But the Records Sergeant's duties are much broader than the
    exclusive data-entry tasks that Audette requested to perform.                          The
    Records    Sergeant      oversees      all    Department    records       (not    merely
    NIBRS), supervises civilian clerical staff, and responds to public
    records requests.           Audette cannot persuasively argue that that the
    appointment       of     a    new    Records       Sergeant,      with      the    broad
    responsibilities of this position, constitutes evidence that the
    Department failed to consider her for a vacant NIBRS data-entry
    position.12       Since      Dexter's      transition   out      of   the   data-entry
    12Audette, a patrol officer, specifically requested a seated
    data-entry position and did not request to be promoted to Records
    - 17 -
    position on October 6, 2013, no one other than the Records Sergeant
    and the civilian clerical worker has been assigned to work on the
    NIBRS log.
    In short, Audette has "offered no evidence that there
    were any [NIBRS data-entry] vacancies when she asked for an
    accommodation, and it was her burden to show as much."        
    Lang, 813 F.3d at 456
    .     Thus, the district court correctly entered summary
    judgment on her ADA and Massachusetts General Laws chapter 151B,
    § 4 handicap discrimination claims.
    B. Retaliation Claim
    Audette's initial complaint did not outline a claim for
    ADA retaliation.     Her only claim filed under the ADA, Count I,
    cites the entire statute and states that defendants "failed to
    reasonably accommodate Plaintiff's disability, failed to engage in
    an interactive process to properly and reasonably address her
    serious health concerns, and as a result she was subject to adverse
    employment    actions   by   means   of   Defendants[']   discriminatory
    Sergeant. Some of our sister circuits have held that the ADA does
    not require an employer to promote a disabled employee as a
    reasonable accommodation.    See, e.g., McBride v. BIC Consumer
    Prods. Mfg. Co., 
    583 F.3d 92
    , 98 & n.4 (2d Cir. 2009); see also 29
    C.F.R. pt. 1630, App. § 1630.2(o) ("[A]n employer is not required
    to promote an individual with a disability as an accommodation.").
    We have not faced this question ourselves, and need not comment
    upon it here, except to note that even if Audette's request could
    have been construed as a request to be promoted to Records
    Sergeant, she has proffered no evidence to demonstrate that she
    was qualified for the position.
    - 18 -
    conduct and other retaliatory and unfair treatment."               (emphasis
    added).    Appellees argue that this reference to "other retaliatory
    and unfair treatment" is not substantial enough to constitute a
    claim of ADA retaliation.
    We need not decide whether Audette's passing reference
    to   "retaliatory     and     unfair   treatment,"    buried   within    the
    complaint's     failure-to-accommodate        claim,     constitutes      an
    independent cause of action that she could have pursued as a
    companion to her principal ADA claim.         In her memoranda filed in
    opposition    to    summary     judgment,   Audette    addressed    no   ADA
    retaliation claims. The only accusations of retaliation she argued
    on summary judgment were in reference to her gender discrimination
    claim and an intentional infliction of emotional distress claim
    that is not before us on appeal.        Even if we were able to glean an
    ADA retaliation claim from Audette's complaint, she certainly
    waived such a claim during the summary judgment proceedings.             See
    Schneider v. Local 103 I.B.E.W. Health Plan, 
    442 F.3d 1
    , 3 (1st
    Cir. 2006) (per curiam) ("Even an issue raised in the complaint
    but ignored at summary judgment may be deemed waived." (quoting
    Grenier v. Cyanamid Plastics, Inc., 
    70 F.3d 667
    , 678 (1st Cir.
    1995))).
    C. Gender Discrimination Claim
    When examining an employment discrimination claim under
    Massachusetts General Laws chapter 151B, the Supreme Judicial
    - 19 -
    Court of Massachusetts uses the familiar McDonnell Douglas burden
    shifting analysis.         Sensing v. Outback Steakhouse of Fla., LLC,
    
    575 F.3d 145
    , 154 (1st Cir. 2009); see also McDonnell Douglas Corp.
    v. Green, 
    411 U.S. 792
    , 802-04 (1973).                Under this analysis, a
    plaintiff must first present a prima facie case of employment
    discrimination.       If    she    succeeds,    the   burden   shifts    to   the
    defendant to present evidence of a legitimate, non-discriminatory
    reason for the employment action taken against the plaintiff.
    Goncalves v. Plymouth Cty. Sheriff's Dep't, 
    659 F.3d 101
    , 105 (1st
    Cir. 2011).   If the defendant provides such a reason, the burden
    shifts back to the plaintiff to prove by a preponderance of the
    evidence   that     the    defendant's     purported      reason   was   merely
    pretextual.   
    Id. We begin
    and end with Audette's prima facie case for
    gender discrimination.        To establish a prima facie case in this
    context, Audette must provide evidence that (1) she is a member of
    a protected class, (2) she suffered from an adverse employment
    action, (3) discriminatory animus, and (4) a causal linkage between
    the   discriminatory      animus    and   the   adverse   employment     action.
    Lipchitz v. Raytheon Co., 
    751 N.E.2d 360
    , 368 (Mass. 2001); cf.
    Ray v. Ropes & Gray LLP, 
    799 F.3d 99
    , 113 (1st Cir. 2015) (employees
    claiming denial of promotion on basis of gender must demonstrate
    that they are (1) a member of a protected class, (2) qualified for
    the position sought, (3) suffered an adverse employment action,
    - 20 -
    and (4) the position remained open or was filled by a person with
    similar qualifications).    The district court found that Audette
    failed to provide "any admissible evidence sufficient for a jury
    to infer that she has suffered an adverse employment action because
    of either her [gender or age]."13   We agree.
    Citing our decision in Bhatti v. Trs. of Bos. Univ., 
    659 F.3d 64
    , 73 (1st Cir. 2011), the district court indicated that
    Audette had suffered no adverse employment action because she could
    point to no "tangible consequences" of Chief Botieri's reprimand
    letter.    Appellees,   unsurprisingly,   agree   with    the   district
    court's assessment and note that the letter issued to Audette did
    not affect her salary, grade, or any other objective terms of her
    employment or working conditions.   Conversely, Audette argues that
    a formal letter of reprimand subjecting her to a period of enhanced
    discipline and charging her with engaging in "conduct unbecoming
    an officer" and "neglect of duty" constitutes serious reputational
    harm that rises to a "tangible consequence."
    If Audette's story concluded with the issuance of the
    reprimand letter, she might well have a point.       However, rather
    than accepting a letter of reprimand, Audette sought arbitration
    and, as a result, entered into a settlement agreement in which the
    Town agreed to remove the letter from her file.          While the Town
    13Audette has not appealed the district court's decision on
    her age discrimination claim.
    - 21 -
    stated that "it will not rely on the reprimand for any future
    employment related purpose," Audette's representatives agreed that
    the settlement agreement "shall constitute a waiver of any action
    arising under either contract or statute with regard to the
    issuance of the reprimand." In light of the settlement agreement's
    explicit waiver provision, Audette may not point to the reprimand
    letter as the basis of an adverse employment action for her
    Massachusetts     General   Laws   chapter    151   gender   discrimination
    claim.14
    Audette proposes a second adverse employment action --
    that    Chief   Botieri   intimidated   her    by   making   repeated,   yet
    unfulfilled, threats to suspend her for her conduct.             Appellees
    respond that Audette failed to raise this argument in the district
    14
    We also note that even if the settlement agreement's waiver
    provision had not foreclosed this aspect of Audette's gender
    discrimination claim, she faces a second obstacle. In order to
    demonstrate discriminatory animus in this context, Massachusetts
    law requires Audette to demonstrate that "she was treated
    differently from another person, known as a comparator, who was
    not a member of her protected class, but who otherwise was
    'similarly situated.'" Trs. of Health and Hosps. of City of Bos.
    v. Mass. Comm'n Against Discrimination, 
    871 N.E.2d 444
    , 450 (Mass.
    2007) (quoting Matthews v. Ocean Spray Cranberries, Inc., 
    686 N.E.2d 1303
    , 1310 (Mass. 1997)). Audette has failed to proffer
    evidence of another Department employee whose circumstances were
    "substantially similar to [Audette's] 'in all relevant aspects'
    concerning the adverse employment decision."          
    Id. (quoting Dartmouth
    Review v. Dartmouth College, 
    889 F.2d 13
    , 19 (1st Cir.
    1989)). If anything, evidence in the record demonstrates that no
    such "similarly situated" employee existed, since the only other
    employee involved in the incident at issue, Reid, was off-duty,
    while Audette was on-duty.
    - 22 -
    court and that we should not consider this argument for the first
    time on appeal.   We agree.     "[I]n the absence of extraordinary
    circumstances -- and none exist in this case -- 'legal theories
    not raised squarely in the lower court cannot be broached for the
    first time on appeal.'"   B&T Masonry Constr. Co., Inc. v. Pub.
    Serv. Mut. Ins. 
    382 F.3d 36
    , 40 (1st Cir. 2004) (quoting Teamsters
    Union v. Superline Transp. Co., 
    953 F.2d 17
    , 21 (1st Cir. 1992)).
    Moreover, even if Audette had preserved the issue for appeal, she
    faces a second barrier.   Her only evidence of the threats comes
    from her unverified civil complaint, which cannot be considered
    for summary judgment purposes.     See Geshke v. Crocs, Inc., 
    740 F.3d 74
    , 78 n.3 (1st Cir. 2014) ("[U]nverified allegations in a
    complaint are not evidence.")
    Because Audette has provided no admissible evidence of
    an adverse employment action, she has failed to establish a prima
    facie claim of gender discrimination.
    Affirmed.
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