Brader v. Biogen Inc. ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1268
MARK BRADER,
Plaintiff, Appellant,
v.
BIOGEN INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lynch, Lipez, and Thompson,
Circuit Judges.
Jeremy Y. Weltman, with whom Matthew F. Renna and Hermes,
Netburn, O'Connor & Spearing P.C. were on brief, for appellant.
Jonathan R. Shank, with whom Jeffrey S. Brody and Jackson
Lewis P.C. were on brief, for appellee.
December 18, 2020
THOMPSON, Circuit Judge. Plaintiff-appellant Dr. Mark
Brader appeals the district court's award of summary judgment to
his former employer, defendant-appellee Biogen, Inc., on his
claims of disability discrimination and retaliation in violation
of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213(2009) ("ADA"), and its Massachusetts analog, Mass. Gen. Laws ch.
151B, § 4 ("Chapter 151B").1 Relevant to the instant appeal, the
district court found that certain alleged discriminatory treatment
Brader experienced during his employment fell outside the
applicable statute of limitations and no equitable exceptions to
the limitations period applied. See Brader v. Biogen Inc., 362 F.
Supp. 3d 25, 38-40 (D. Mass. 2019). After whittling the timeline
of alleged actionable conduct to events that occurred within the
limitations period, the district court concluded, as is relevant
to our work on appeal, that the undisputed material facts did not
raise a reasonable inference of employment discrimination under
federal or state law. Seeing no reversible error, we affirm.
I. GETTING OUR FACTUAL BEARINGS
We rehearse the facts in the light most favorable to
Brader (the nonmovant), resolving all reasonable inferences in his
favor, consistent with record support. See Maldonado-Cátala v.
1 The district court also dismissed Brader's state common
law claim for negligent infliction of emotional distress. Brader
is not challenging this aspect of the district court's summary
judgment ruling on appeal.
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Municipality of Naranjito, 876 F.3d 1, 4, 8 (1st Cir. 2017) (citing
Alfano v. Lynch, 847 F.3d 71, 74 (1st Cir. 2017)); Murray v. Warren
Pumps, LLC, 821 F.3d 77, 82 (1st Cir. 2016) (citing Henry v. United
Bank, 686 F.3d 50, 54 (1st Cir. 2012)). As a full-throated telling
of Brader's factual assertions is necessary to understanding his
claims on appeal and our resolution thereof, we beg the reader's
patience as we plow ahead.
Biogen is a pharmaceutical company that develops,
markets, and manufactures therapies for people living with serious
neurological, autoimmune, and rare diseases. Biogen's employees
are governed by the company's Values in Action Code of Business
Conduct, Non-Discrimination and Non-Harassment Policy, and its
Americans with Disabilities Act Non-Discrimination and
Accommodation Policy, which together memorialize Biogen's
commitment to maintaining a harassment, discrimination, and
retaliation free work environment.2
Brader, a pharmaceutical scientist by trade, worked for
Biogen from October 8, 2007 until his termination on November 6,
2015. At all times relevant to this appeal, Brader was employed
as a principal scientist within Biogen's Protein Pharmaceutical
Development ("PPD") group, i.e., a group that develops new drug
2 Biogen has also implemented a Global Investigations
Protocol, which sets forth procedures for reporting,
investigating, and disciplining employee misconduct.
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candidates for Biogen. Brader reported to Dr. Andrew Weiskopf,
one of PPD's directors. Weiskopf, in turn, reported to Jessica
Ballinger, the Senior Director responsible for PPD. Ballinger's
supervisor, Dr. Alphonse Galdes, served as the Senior Vice
President of the Technical Development department.
Nearly seven years into his employment at Biogen, on or
around June 30, 2014, Brader experienced what he has described as
an "acute mental episode." Because the events leading up to and
surrounding Brader's mental health crisis provide the landscape
for our review of his claims on appeal, that's where we begin our
recap of relevant events.
A. Brader's June 2014 Presentation and Performance Review
On June 18, 2014, Brader presented his research on
"recent advances in the measurement and interpretation of protein
conformational stability" at a routine PPD meeting attended by
senior management. Brader viewed his presentation as an important
opportunity for his career because he believed he was being
considered for a mid-year promotion to director in the "June/July
[2014] time frame."3
3 According to his previous performance evaluations,
Brader was considered a "solid" employee, who had made "outstanding
contributions" to PPD's advancement of new technologies.
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Handwritten notes from Brader's employee file,4 dated
September 2, 2014, suggest that he was on a mid-year "promotion
list" compiled on or around June 16, 2014,5 and that a "promotion
meeting" convened by Galdes took place on June 19, 2014 (the day
after Brader's presentation).6
On the same day as Galdes' promotion meeting, Dr. Mariana
Dimitrova (a director in PPD) sent an email to Brader's immediate
supervisor, Weiskopf, and PPD's senior director, Ballinger, in
which she expressed concerns about Brader's presentation and
underlying research. In her email, Dimitrova criticized the
accuracy, complexity, and impact of Brader's research, and she
suggested that his presentation did not align with PPD's vision,
4 The handwritten notes were penned by Andrea Sinclair
(PPD's designated HR professional at the time) during a
conversation with PPD senior management prior to Brader's return
to work after medical leave (which we'll discuss in detail later).
5 The record does not indicate who composed the promotion
list, nor does it contain the identities of other PPD employees
who, like Brader, were being considered for a mid-year promotion.
6 The record does not divulge any information about
Galdes' agenda for the meeting or the meeting's other attendees.
The record also does not indicate whether Galdes (or anyone else)
made a decision regarding Brader's mid-year promotion prospects on
that day. At best, Biogen asserts (and Brader disputes) that PPD
senior management, including Galdes and Ballinger, decided not to
promote Brader at some point after his PPD presentation on June
18, 2014 and prior to his acute mental health episode on or around
June 30, 2014. Ballinger testified that Brader was not promoted
during Biogen's mid-year promotion process in 2014 because he had
not yet "demonstrated his capability in a director level." The
record does not specify whether (or when) Biogen told Brader about
its 2014 decision not to promote him.
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platform, and "core capabilities." Weiskopf emailed in response
that he agreed with "much of" Dimitrova's concerns and promised to
"share his thoughts" with Brader during their one-on-one mid-year
performance meeting scheduled for the next day.
As planned, Weiskopf and Brader met to discuss the
latter's evaluation. During the meeting, Weiskopf leveled
criticism at Brader's presentation to PPD. Weiskopf called the
presentation "terrible" and denounced the "harmful" and
inappropriate "views and agenda" espoused therein. As Brader tells
it, Weiskopf did not provide any "constructive" feedback during
their hour-long meet-up; instead, he intentionally "taunt[ed]"
Brader with "nonsensical" criticism of his presentation. Because
Brader felt there was "no good reason" for Weiskopf's harsh
critique, he left their meeting feeling confused and upset.
A few days later, on June 24, 2014, Brader emailed
Weiskopf to express his concerns about the feedback he had
received. Brader stated that he did not understand why Weiskopf
had an issue with the "views and agenda" underlying his "clearly
technical presentation." Brader also described Weiskopf's
feedback as "troubling" and abnormal by Biogen's standards. He
then requested another one-on-one meeting with Weiskopf so he could
better understand Weiskopf's perspective. Brader noted, in
addition, that he would be reaching out to Ballinger (Weiskopf's
direct supervisor) for "help" as well. Weiskopf obliged Brader's
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meeting request, and the pair agreed to convene again a couple
days later.
According to Brader, during the follow-up meeting on
June 26, 2014, Weiskopf again called his presentation "terrible"
and also "insult[ing]," which Brader believed was "inappropriate."
Nevertheless, the next day, Brader thanked Weiskopf via email for
meeting with him again and stated that he planned to ask Ballinger
for feedback "soon."
Then, on Sunday, June 29, 2014, Brader emailed Weiskopf
again, seeking "a few minutes" of his time in order to resolve
what Brader described as the "feedback matter." Weiskopf suggested
that Brader meet him in his office during business hours the next
morning. Less than ten minutes after emailing Weiskopf, Brader
sent a separate email to Ballinger with the subject line "utmost
importance and private." In the body of his email, Brader reported
that he and Weiskopf had had a "very robust conversation" about
his mid-year performance evaluation, and he asked whether
Ballinger was able to meet with him the next day to provide her
perspective on Weiskopf's feedback. Brader concluded his email to
Ballinger by stating that he could perhaps resolve the "whole
'misunderstanding'" by deploying his "Ghandi"-like conflict
management skills.
Several hours later, Brader (coincidentally) ran into
Ballinger on a walking path in their shared neighborhood. Brader
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and Ballinger paused their respective walks to catch up with one
another on life outside of work. According to Ballinger, as their
conversation progressed, she became concerned that something was
off about Brader. Ballinger testified that Brader was
uncharacteristically "stressed," "agitated," and "not himself."
Later that night, Ballinger responded to Brader's email request
for a meeting from earlier that day. She explained to Brader that
she was aware of his discussions with Weiskopf and presumed there
was a "big misunderstanding." She agreed to meet with Brader on
Monday, June 30, 2014, and she advised him not to stress about
Weiskopf's feedback in the meantime. Ballinger forwarded her email
correspondence with Brader to Weiskopf along with a recommendation
that they also meet given Brader's "strangely written" email.
Ballinger testified that Brader's odd behavior and email prompted
her to alert HR when she returned to work on Monday.
B. Brader's Safety Concerns
On Monday morning, June 30, 2014, Brader went to
Weiskopf's office as scheduled to rehash his objections to
Weiskopf's criticism. This time around, according to Brader, he
demanded that Weiskopf "stop harassing" him and objected to
Weiskopf's "inappropriate and untruthful criticism" of his
presentation. Weiskopf purportedly disagreed with Brader's
characterization of his conduct and feedback. At some point during
the meeting, Brader excused himself and returned a few minutes
- 8 -
later with two colleagues7 because (pursuant to his deposition
testimony) he "didn't feel safe," believing Weiskopf was
"deliberately targeting" and humiliating him as part of a
"malicious personal issue or vendetta."8 Brader also testified
that he was concerned for his physical safety because of Weiskopf's
"body language," "hostile persona," and unwillingness to change
his opinion on Brader's presentation.9
Ballinger, as requested, met Brader later that day at a
Starbucks on Biogen's campus.10 Brader denounced Weiskopf's
7 At his deposition, Brader identified these colleagues as
"Olivia Henderson and Pinky," and he asserted that Biogen knew
their identities, but never interviewed them. As best we can tell,
we never hear from these two colleagues in discovery, so the record
is silent as to their take on what they observed during this
meeting between Brader and Weiskopf and silent as to whether Biogen
ever reached out to them.
8 Brader testified further that Weiskopf treated him
differently than he did other Biogen employees in one-on-one
meetings. When asked to elaborate, Brader stated: "What was
different is that his criticism of me and the issues that he
insisted on discussing with me were clearly preposterous and
absurd." In addition, given Weiskopf's perceived "hostile" and
irrational attitude during meetings with Brader, Brader surmised
that his supervisor was deliberately humiliating and antagonizing
him in order to provoke him into an "angry response."
9 The record does not indicate whether Weiskopf was
deposed and contains no evidence from which we can discern
Weiskopf's take on his communications with Brader during the
relevant time period. Regardless, as we have explained, we recite
the undisputed material facts in the light most favorable to
Brader, the nonmoving party.
10 To prepare for her meeting with Brader, Ballinger
(unbeknownst to Brader) reached out to Sinclair (PPD's assigned HR
professional) for guidance. According to Ballinger, Sinclair was
concerned for Ballinger's safety and advised her against meeting
- 9 -
criticism as having "cross[ed] the line" into harassment
territory. He then made a "formal complaint that [Weiskopf's]
conduct toward [him] violated Biogen's harassment policy."
According to Brader, Ballinger did not seem to be taking his
expressed complaint seriously.
Ballinger's account of their meeting differs markedly
from Brader's: he appeared, she recalled, "physically agitated"
and "fidget[y]," and his speech was "jumbled." Although Ballinger
had trouble deciphering what she described as Brader's "word
salad," she believed Brader repeatedly said he had safety concerns
and great ideas. Ballinger testified, however, that Brader didn't
provide any pertinent details about his ideas, safety concerns, or
Weiskopf's criticism. Based on the information she received from
Brader (to the extent she could discern it), she struggled to
understand why he felt unsafe at work.
Toward the end of their hour-long conversation, Brader
handed Ballinger a crumpled piece of paper containing his
indecipherable handwritten notes. Before they went their separate
ways, Ballinger suggested that Brader contact Biogen's Employee
Assistance Program ("EAP") regarding his safety concerns and
handed him an information sheet about the program's resources.
with Brader in person. Sinclair eventually took the lead on
crafting Biogen's internal strategy for communicating with and
supporting Brader over the next two days.
- 10 -
After their meeting, Ballinger contacted Sinclair to discuss
Brader's grievances and her observations about his behavior.
Ballinger testified that she was afraid for Brader's wellbeing.
That evening, Brader sent Ballinger, Weiskopf, and
Sinclair increasingly incoherent emails in which he expressed his
frustration with Weiskopf's feedback, declared that he was not
safe at work, and demanded to speak to HR about his concerns as
soon as possible. In her responsive email, Ballinger urged Brader
to contact the EAP's 24/7 confidential hotline about his safety
issues and recommended he work from home the next day. She also
noted that HR (i.e., Sinclair) would be reaching out to him
directly. In a separate email to Brader, Sinclair proposed that
Brader utilize the EAP hotline to speak to someone that night, and
she encouraged him to work from home the next day.11 Sinclair also
offered to call Brader again so that she could hear more about
what was troubling him.
Working from home late that night and well into the next
day, July 1, 2014, Brader sent numerous unintelligible and rambling
emails to his colleagues and supervisors, including Galdes
(Ballinger's boss), in which he complained about Weiskopf's
criticism, stated that he did not feel safe, and revealed his
11Unbeknownst to Brader, given his behavior, Sinclair,
Ballinger, and others requested that security suspend Brader's
access to Biogen's campus on July 1, 2014. Campus security also
was asked to prevent Brader from entering any Biogen buildings.
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burgeoning concerns about his mental health. During a respite
from his email campaign, Brader spoke with Sinclair over the phone.
Given her role as PPD's HR person, Sinclair was responsible for
overseeing HR's response to Brader's safety remonstrations.
Brader testified that, at some point in his conversation with
Sinclair, he made a "formal complaint of harassment against Dr.
Weiskopf" and a complaint against Ballinger for being dismissive
of his concerns regarding Weiskopf's harassment. Brader claims he
told Sinclair that Weiskopf and Ballinger had violated Biogen's
"core values: honesty, integrity and respect for others." Brader
says Sinclair refused to acknowledge that he was formally
complaining about violations of Biogen policy during their call.
According to Sinclair's contemporaneous handwritten
notes from her July 1, 2014 phone conversation with Brader, he
implored Sinclair to: (1) send an email to Biogen's CEO; (2) make
sure Ballinger spoke to Weiskopf; and (3) survey PPD employees
about their experiences in the group.12 Notwithstanding Brader's
assertions during their call, Sinclair testified she was not able
to ascertain the basis of Brader's safety-at-work fears. Before
12 Sinclair's notes indicate (without elaboration) that
Brader complained about Weiskopf's ineffective feedback and
failure to "do the right thing." The notes also say Brader accused
Ballinger and Weiskopf of calling him "crazy," and Ballinger and
Dimitrova of "kicking a guy when he's down." In addition, as best
we can discern from the notes, Brader told Sinclair he had been
experiencing mental health issues since at least February 2014.
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the end of their conversation, Sinclair encouraged Brader to
contact the EAP about his safety worries. Again.
Later that day, Brader's wife called Sinclair to thank
her for giving Brader information on Biogen's EAP, and explained
that Brader had been hospitalized. Brader began a medical leave
of absence from Biogen that day.
On July 7, 2014, from a hospital bed, Brader emailed
George Scangos (Biogen's CEO), Weiskopf, Galdes, at least five
other Biogen employees, and his wife. The email's subject line
was "Oliver and the trouble with Death Stars -email#00." Brader
stated in the body of the email that he was scared and needed help
escaping a "medium security mental hospital" where he was receiving
treatment at the time. Brader also shared his desire to "Fix
What's Wrong with PPD." The email made no mention of Weiskopf's
inappropriate feedback or Ballinger's alleged failure to take his
complaints seriously.
Between June 30 and July 7, 2014, Sinclair, Weiskopf,
and Ballinger had several in-person meetings, teleconferences, and
email exchanges about how to respond to Brader's safety concerns.
In addition, Galdes, unspecified members of Biogen's in-house
legal team, and campus security discussed Biogen's strategy for
ensuring that Brader did not harm himself or others on Biogen's
campus. There is no indication that Biogen initiated a formal
internal investigation into Brader's complaints of harassment
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against Weiskopf at any point.13 When asked whether Biogen's
policies required her to conduct an investigation under the
circumstances presented, Sinclair testified that Brader's "unique"
situation required (at minimum) that HR communicate with Brader's
supervisors, the EAP, legal, and campus security (which Sinclair
did).14
C. Brader's Medical Leave: July 2014 - October 2014
In 2014, Biogen had a procedure in place to handle
employee medical leaves that was overseen by a third-party vendor.
Such was the case on July 1 when Brader began his leave following
the onset of his acute mental health episode. So, as Biogen tells
it, because of this firewall protocol, PPD senior management,
including Weiskopf, Ballinger, and Galdes, never received any
information from Brader's healthcare providers regarding his
medical condition or what caused it.
Biogen's HR department did get one direct update on
Brader's health condition after his leave began. On July 20, 2014,
13 Sinclair testified that, during the relevant time
period, HR personnel were tasked with determining whether to refer
an employee's complaint to "employee relations" for an
investigation.
14 According to Biogen's Non-Discrimination and Non-
Harassment Policy, Biogen pledges to "respond promptly to all
reported complaints and conduct an investigation in a fair and
expeditious manner." Investigations "may include an interview
with the person filing the complaint and with witnesses, if
appropriate," as well as an interview with the employee "alleged
to have committed the" misconduct.
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Brader's wife (unprompted by anyone at Biogen) emailed Sinclair
and Weiskopf to pass along Brader's diagnosis and prognosis. She
explained the doctors believed he had contracted an "infection"
and, consequently, suffered an "acute reaction to the medications"
he was prescribed after back surgery in April 2014. Ms. Brader
expressed relief that Brader's condition was "temporary."
On September 10, 2014, Brader's healthcare provider
completed the Healthcare Provider Disability and Accommodation
Questionnaire Biogen sent to the Braders for completion. The
provider described Brader's condition as a non-permanent physical
or mental impairment that began "following back surgery" in April
2014. When asked to explain Brader's impairment, his provider
wrote: "[Brader] currently is limited in his ability to
concentrate, focus on tasks, interact confidently [with] co[-]
workers." Even so, the provider indicated that Brader would not
require any job accommodations upon his return to work and could
perform his job with "no restrictions expected." Brader claims
that he sent the completed questionnaire to Heather-Lee Brown, an
HR professional at Biogen. There is no indication in the record
that Brader's supervisors reviewed the questionnaire or learned
any information from providers regarding his medical condition at
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any time relevant to this appeal or from Brader following his
"Death Star" email.
D. Brader's Return to Biogen in October 2014
In October 2014, Brader returned to work on a part-time
schedule (at his request). Brader did not ask for or receive any
other accommodation or changes to the conditions of his employment
at Biogen upon his return. Accordingly, his position, primary
responsibilities, supervisor, and compensation were the same as
before. Relevant here, however, Brader learned that a research
project he once led in collaboration with Avia Biosystems, Inc.
had been reassigned to another team while he was out on leave, and
he would not be involved in the project going forward. Moreover,
Brader's post-doctoral student had been tasked with taking over at
least part of Brader's responsibilities on the Avia project.
Brader's next several months at Biogen (between November
2014 and February 2015) were without incident relevant to this
appeal, according to the record. Importantly, Brader does not
allege that he was harassed by Weiskopf or felt unsafe at work,
nor does he claim he experienced any other discriminatory or
retaliatory acts during this time.
E. The Crystallization Project
By March 2015, Brader was exploring a "crystallization
concept" he believed would help accelerate Biogen's drug
manufacturing process while reducing production costs. In a March
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16, 2015 email, Brader asked Ballinger whether her boss, Galdes,
would be willing to "convene a director-level staff meeting" in
which he could share "provocative/transformative technology
ideas." Ballinger responded by asking Brader to let her and
Weiskopf review it first and provide guidance on next steps.
On April 3, 2015, Brader sent an email to Galdes,
Ballinger, and others (but not Weiskopf) regarding his desire to
lead a conversation on "new innovative possibilities" for protein
crystallization. Several days later, on April 7, 2015, Brader
emailed Weiskopf and Ballinger seeking their internal support for
his "highly novel" crystallization concept. Brader asked that
Weiskopf and Ballinger "champion" his research proposal by
allowing him to lead a discussion at a "director-level forum" and
draft a white paper regarding his research. Weiskopf, in his
responsive email, stated that Brader's crystallization concept was
"innovati[ve]," but expressed concern with Brader's approach to
soliciting support for this research proposal. Weiskopf asked
Brader not to share his proposal with senior leaders outside of
PPD (as Brader had done on April 3, 2015)15 until after he and
Brader could meet one-on-one.
Brader testified that at some point in April 2015 he
complained to Ballinger about Weiskopf's "disingenuous" response
15Weiskopf purportedly disagreed with Brader's decision to
announce his nascent crystallization concept via email to Galdes
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to his crystallization concept. Brader purportedly told Ballinger
that Weiskopf had admonished him for "trying too hard" at work and
asking too many questions in meetings and presentations.
Anyway, Brader was given the greenlight to present his
work on the crystallization concept to directors in Biogen's
Strategic Innovation group on June 2, 2015.16 By the end of July
2015, Biogen's Strategic Innovation group had expressed interest
in helping Brader develop a research strategy for the
crystallization concept. Ballinger though, citing concerns about
Biogen's financial stability and the Technical Development
department's budget and priorities at the time, advised Brader via
email to seek guidance from the business development team before
taking additional action on his research proposal.
F. Brader's 2015 Mid-year Review
The approach of July 2015 meant it was time for Brader
to receive his mid-year, written performance evaluation from
Weiskopf. In it, Weiskopf wrote, as part of his overall assessment
of Brader, that Brader's "project goals and results" were on track.
He noted, however, that there were documented concerns about
Brader's "behavior." Unidentified peers and stakeholders had
and others without first seeking Weiskopf's or Ballinger's
approval.
16 Weiskopf was copied on the email invitation to Brader's
presentation, but it is not clear from the record whether he
attended.
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observed Brader being "dismissive" and "confrontational" in
response to suggestions and feedback he received in group meetings.
In addition, according to his evaluation, although the
crystallization concept initially was well-received, Brader was
experiencing difficulty moving the project forward due to a "clear
disconnect" between his objectives and stakeholders' expectations.
Brader testified that Weiskopf's criticism of the crystallization
concept was "disingenuous" given Weiskopf's lack of professional
expertise on the subject matter, and he also stated that Weiskopf's
criticism owed to "professional jealousy" and "desire to take undue
credit" for Brader's work.
On July 31, 2015, Brader, again ascending the corporate
food chain, emailed Ballinger to complain about Weiskopf's
"performance expectations" and failure to foster a supportive
environment; although he did "not question[] the veracity of
[Weiskopf's] feedback," he did question Weiskopf's "consistency in
communicating and administering clear goals and expectations with
metrics of success associated with them." Brader explained that
Weiskopf's reasons for criticizing his "poor performance" and
"ineffective scientific leadership" were poorly articulated and
his expectations for Brader lacked clarity. He asked for
Ballinger's help ensuring that Weiskopf was "held accountable for
his feedback" and the expectations he set for his reports.
Ballinger eventually responded to Brader's email, encouraging him
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to work with Weiskopf to find a constructive resolution of their
issues "on both sides." Then, in response to an August 11, 2015
email from Brader containing suggestions on how Weiskopf could
improve his "managerial effectiveness," both Ballinger and
Weiskopf responded, with Weiskopf stating he was "committed to
working together with [Brader] to help him be successful and to
strengthen [their] working relationship." Additionally, Ballinger
met with Brader on September 29, 2015, and listened to his
complaints about his 2015 mid-year review, which he described as
inaccurate. Brader did not raise harassment or discrimination
allegations as the motivator for the "inaccuracies."
G. Brader's Termination and Aftermath
Meanwhile, back on August 6, 2015, Galdes, as part of
Biogen's company-wide reduction-in-force (known internally as
Gemstone) received instructions to compile a list of employees to
lay off from the Technical Development department.17 Gemstone was
part of a larger internal effort by Biogen to restructure and
redefine its priorities as a company. According to Biogen,
Gemstone's objectives included: eliminating positions that did
17 Galdes was part of a small team across Biogen's
departments that helped coordinate a major restructuring of the
company in 2015. The team -- made up of twenty people out of an
eight-thousand-person worldwide workforce -- included other senior
vice presidents at Biogen and representatives from HR. The record
does not indicate who, in particular, directed Galdes to identify
employees from his department for termination.
- 20 -
not reflect an investment in Biogen's critical priorities;
consolidating duplicative work streams; and redefining employee
roles and responsibilities.
By no later than September 9, 2015, Galdes had decided
to recommend Brader for termination along with twenty-four other
employees from PPD and other groups within the Technical
Development department. Brader alleges he was the only principal
scientist on the Gemstone list. Galdes testified that, at the
time, he believed Brader was an appropriate candidate for the
reduction-in-force because Biogen was no longer prioritizing and
investing in the "Blue Sky" innovation work that Brader was
responsible for in PPD.18 Moreover, based on his conversations
with Brader and his understanding of Biogen's priorities post-
restructure, Galdes believed that Brader's exploration of novel
methodologies for protein crystallization was "speculative and
would take a long time to prove." For similar reasons, Galdes
also decided to include Brader's post-doctoral research student in
the upcoming layoffs. In reaching this decision to terminate
Brader, says Galdes, one that was his alone for the PPD group, he
18 Pursuant to Brader's self-reporting on his 2015 mid-year
evaluation, new technology advancement and innovation represented
15% of Brader's work, and, as Brader described it, his remaining
responsibilities were divided up as follows: support Biogen's
existing "subvisible particle" projects (35%); supervise post-
doctoral student (25%); manage external technology projects and
collaborations (15%); and provide biophysical support for existing
products (10%).
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did not consult Weiskopf and Ballinger or inform them of his
decision until it was being implemented.19 He also testified he
did not consider Brader's "health issue" in June 2014 in reaching
his decision. He was not aware that Brader had (or has) an ongoing
mental health issue.20
In October 2015, Biogen laid off approximately 11% of
its workforce (approximately 880 employees) as part of the Gemstone
restructuring. Brader learned that he would be part of the
reduction-in-force on October 22, 2015. When his employment ended
on November 5, 2015, Brader filed a written complaint of workplace
"bullying" and "retaliation" with Biogen's HR department.
After Brader's termination, Biogen continued to work on
protein crystallization, and Brader's workstream was assigned to
an employee who Brader says spent approximately 20% of his time on
the project. Then, three months after Brader left Biogen, Biogen
advertised new positions seeking candidates with crystallization
experience to serve as either a senior engineer or a post-doctoral
19 Because Galdes initially considered adding Ballinger to
the Gemstone list, it was especially important for him to keep her
in the dark on the process. Ultimately, Galdes decided to
transition Ballinger into a different role (as opposed to
terminating her).
20 Galdes testified he was aware Brader had experienced a
"health issue" in late June and early July 2014. However, Sinclair
told him in early July (based on information from Ms. Brader) that
Brader's behavior was caused by "meningitis" resulting from
Brader's surgery in April 2014. Galdes therefore believed Brader's
condition in June and July 2014 was temporary.
- 22 -
student. Brader and Biogen dispute whether Brader was qualified
for either of these positions.
On December 23, 2015, Brader filed an employment
discrimination and retaliation complaint against Biogen with the
Massachusetts Commission Against Discrimination ("MCAD"). After
receiving approval from MCAD, Brader filed suit against Biogen in
Massachusetts Superior Court on April 7, 2016. A month later,
Biogen removed the case to the U.S. District Court for the District
of Massachusetts. According to the district court's generous
reading of Brader's complaint, he alleges (in broad strokes) that
Biogen discriminated and retaliated against him because of his
disability -- including by failing to promote him, reassigning the
Avia project, failing to investigate his complaints, permitting
Weiskopf's incessant criticism to go unchecked, and terminating
him -- in violation of the ADA and Chapter 151B.
Biogen filed a motion for summary judgment on all claims
on October 20, 2017. The district court favorably assumed for the
purpose of its review that Brader was a disabled (or handicapped)
person protected under ADA and Chapter 151B during the limitations
period. See Brader, 362 F. Supp. 3d at 42. The district court
reasoned, however, that any discriminatory and/or retaliatory
employment practices that Biogen committed prior to "spring of
2015" fell outside the applicable statute of limitations for
Brader's claims, and concluded that no equitable exception
- 23 -
applied. Id. at 37. In other words, the district court found
Brader's claims were time-barred to the extent they were premised
upon alleged conduct that occurred in 2014. When the dust settled
on what remained of the record, the district court determined that
the undisputed material facts did not raise a reasonable inference
that Biogen discriminated or retaliated against Brader because of
his disability. Id. at 44-45. This timely appeal ensued.
II. STANDARD OF REVIEW
Our review of the district court's grant of summary
judgment is de novo. See Murray, 821 F.3d at 83 (citing Henry,
686 F.3d at 54). "A moving party is to be spared a trial when
there is no genuine issue of any material fact on the record and
that party is entitled to judgment as a matter of law." Id.
(citing Fed. R. Civ. P. 56(a)). To avoid "the swing of the summary
judgment scythe," the nonmoving party must adduce specific facts
showing that a trier of fact could reasonably find in his favor.
See Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir.
2003). The nonmovant cannot rely on "conclusory allegations,
improbable inferences, and unsupported speculation." Medina-Muñoz
v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
III. DISCUSSION
Brader is appealing the district court's grant of
summary judgment against his ADA and Chapter 151B claims. As best
we can discern, Brader advances two distinct disability-based
- 24 -
discrimination claims: (A) a discriminatory discharge claim
alleging that Biogen wrongfully terminated Brader on the basis of
his disability, with Biogen's stated reasons for the termination
being pretextual; and (B) a claim of disability harassment under
a hostile work environment theory alleging a pattern of adverse
employment actions taken against him that, in the aggregate,
constituted a hostile work environment that culminated in and
included his eventual termination.21
21 To the extent Brader is asking us to consider a challenge
that he suffered retaliatory action for having reported
disability-based discrimination to HR and his supervisors, we put
an end to that notion right off the analytical bat: Brader has
not identified or developed an argument regarding any missteps
underlying the district court's dismissal of that claim.
To have made a retaliation case, Brader would have needed
to prove: "(1) []he engaged in protected conduct; (2) []he was
subjected to an adverse employment action; and (3) the adverse
employment action is causally linked to the protected conduct."
Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 94 (1st Cir.
2018) (citing Noviello v. City of Boston, 398 F.3d 76, 88 (1st
Cir. 2005)). The district court explained that even if Brader had
established protected conduct (and it wasn't sure he had), he had
failed to present any evidence to demonstrate the requisite causal
connection between that conduct and his termination. Brader, 362
F. Supp. 3d at 44-45. Now on appeal, Brader still doesn't point
to any evidence that would close this loop or demonstrate how the
district court erred in concluding otherwise. Brader drops
mentions of "retaliation" in his brief but does nothing more to
advance developed argumentation on that claim. See Rodríguez v.
Municipality of San Juan, 659 F.3d 168, 175-76 (1st Cir. 2011)
(deeming waived arguments offered with no citations or analysis,
explaining, "[s]ure, he uses some buzzwords and insists that the
judge stumbled in ruling on these claims[, b]ut he provides neither
the necessary caselaw nor reasoned analysis to show that he is
right about any of this"); United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990) (urging that litigants are required to develop
their own arguments rather than "leaving the court to do counsel's
work").
- 25 -
And as to those claims, after careful review of the
record, we conclude the district court did not err in determining
Brader's discrimination charges fail. Before we lay out the
specifics of Brader's discrimination claims, a few preliminary
basics of the ADA -- and Chapter 151B, the Massachusetts analog
law -- are helpful for context. "The ADA prohibits an employer
from discriminating against an otherwise qualified individual
based on a real or perceived disability." Murray, 821 F.3d at 83
(citing 42 U.S.C. §§ 12112, 12102; 29 C.F.R. § 1630.2). When a
plaintiff brings suit advancing ADA claims, he or she "bears the
burden of presenting evidence to establish each element under the
particular theory of disability discrimination alleged." Id. For
its part, Massachusetts has similar prescriptions.22 See Mass.
22 Specifically, the Massachusetts antidiscrimination
statute makes it unlawful for employers to "refuse to hire, rehire
or advance in employment or otherwise discriminate against,
because of his handicap, any person alleging to be a qualified
handicapped person . . . ." Mass. Gen. Laws ch. 151B, § 4(16).
The statutory definitions of "disability" under federal law and
"handicap" under Massachusetts law are virtually identical.
Compare 42 U.S.C. § 12102(2) (defining "disability," in relevant
part, as "a physical or mental impairment that substantially limits
one or more major life activities of such individual") with Mass.
Gen. Laws ch. 151B, § 1(17) (defining "handicap" as "a physical or
mental impairment which substantially limits one or more major
life activities"). The Massachusetts Supreme Judicial Court
("SJC") consistently applies federal law in evaluating disability
discrimination and retaliation claims. Cherkaoui v. City of
Quincy, 877 F.3d 14, 24 (1st Cir. 2017).
Notwithstanding similarities in the statutes' text, we
have recognized that the SJC has on occasion underscored the
critical distinctions between Chapter 151B and the ADA. See, e.g.,
Dahill v. Police Dep't of Bos., 748 N.E.2d 956, 963–64 (Mass. 2001)
- 26 -
Gen. Laws ch. 151B, § 4(16); see also Murray, 821 F.3d at 83
(collecting cases). In addressing Brader's appellate arguments,
we evaluate the ADA claims alongside the state-law claims (our
assessments of Brader's federal and state-law claims often
overlap). Cherkaoui, 877 F.3d at 24 (applying federal case law in
a discrimination case where "material differences" between the ADA
and Chapter 151B were not relevant to the plaintiff's claims); see
also Murray, 821 F.3d at 83.
A. Wrongful Discharge Discrimination Claim
Brader claims that Biogen terminated him because of his
disability, and Biogen's stated reasoning for the termination is
pure pretext designed to mask its discriminatory animus. Because
Brader has not proffered direct evidence of a discriminatory
discharge, we invoke the familiar three-step burden-shifting
scheme outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-07 (1973). "At the first stage of this framework, the
appellant bears the burden of showing a prima facie case of
discrimination." Miceli v. JetBlue Airways Corp., 914 F.3d 73, 81
(1st Cir. 2019) (citing Gannon v. City of Boston, 73 N.E.3d 748,
756 (Mass. 2017)). Here the prima facie case requires a showing
that Brader has a disability; that he was "nonetheless qualified
(declining to adopt federal jurisprudence in evaluating Chapter
151B disability discrimination claim concerning a "correctable"
impairment). But Brader does not identify any such critical
distinctions relevant to our review of the instant appeal.
- 27 -
to perform the essential functions of the job, with or without
reasonable accommodation; and that, despite the foregoing," Biogen
discharged him. Id. (citing Verdrager v. Mintz, Levin, Cohn,
Ferris, Glovsky & Popeo, P.C., 50 N.E.3d 778, 793 (Mass. 2016)).
At step two in the analysis, the burden of production shifts to
Biogen, which must proffer a legitimate reason for terminating
Brader. See Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 470
(1st Cir. 2010). Biogen's proffered reason must be one "which, on
its face, would justify a conclusion that the plaintiff was let go
for a nondiscriminatory motive." Dávila v. Corporación De P.R.
Para La Difusión Pública, 498 F.3d 9, 16 (1st Cir. 2007). If
Biogen provides such a reason in this case, "the McDonnell Douglas
framework disappears and the sole remaining issue is
discrimination vel non." Ray v. Ropes & Gray LLP, 799 F.3d 99,
113 (1st Cir. 2015) (quoting Cham v. Station Operators, Inc., 685
F.3d 87, 93 (1st Cir. 2012)). To avoid the summary judgment scythe
at step three of the analysis, Brader must "show by a preponderance
of the evidence that [Biogen's] proffered reason is pretextual and
that the actual reason for the adverse employment action is
discriminatory." Johnson v. Univ. of P.R., 714 F.3d 48, 54 (1st
Cir. 2013) (citing Lockridge, 597 F.3d at 470).
Although we proceed with caution and restraint when
considering summary judgment motions where, as here, issues of
motive and intent must be resolved, see Oliver v. Digital Equip.
- 28 -
Corp., 846 F.2d 103, 109 (1st Cir. 1988), the nonmoving party must
proffer more than "conclusory allegations, improbable inferences,
and unsupported speculation" for his claims to survive, Coll v. PB
Diagnostic Sys., Inc., 50 F.3d 1115, 1121 (1st Cir. 1995) (quoting
Medina–Muñoz, 896 F.2d at 8).
We assume favorably to Brader that he established a prima
facie case of disability discrimination (in shorthand -- disabled,
qualified, discharged) in violation of the ADA and Chapter 151B,
thereby surmounting step one of the McDonnell Douglas framework.
Turning to step two, the burden of production shifts to
Biogen to articulate a legitimate, nondiscriminatory reason for
terminating Brader in November 2015. On appeal, Brader says Biogen
fell short on this requirement, while Biogen contends that it met
its burden by demonstrating that it terminated Brader as part of
a company-wide reduction-in-force that impacted 11% of its
employees. For support, Biogen relies upon the deposition
testimony of Galdes (the sole decisionmaker responsible for
Brader's termination) in which he clearly explained that he
selected Brader because Biogen was no longer prioritizing the "Blue
Sky" innovation work on which Brader primarily focused. We agree
with Biogen -- this evidentiary proffer was sufficient to allow a
jury reasonably to conclude that Biogen's stated reason for
terminating Brader was legitimate.
- 29 -
With that, the burden of production shifts back to Brader
to prove Biogen's stated reason for terminating him is pretextual.
To meet his step-three burden, Brader "must offer 'some minimally
sufficient evidence, direct or indirect, both of pretext and of
[Biogen's] discriminatory animus.'" Pearson v. Mass. Bay Transp.
Auth., 723 F.3d 36, 40 (1st Cir. 2013) (quoting Acevedo-Parrilla
v. Novartis Ex-Lax, Inc., 696 F.3d 128, 140 (1st Cir. 2012)).
"[M]ere questions regarding [Biogen's] business judgment are
insufficient to raise a triable issue as to pretext." Id. (first
alteration in original) (quoting Acevedo-Parrilla, 696 F.3d at
140) (affirming grant of summary judgment when employer's "merely
questionable behavior" did not constitute minimally sufficient
evidence of pretext). But "[p]retext can be shown by such
weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons for
its action that a reasonable factfinder could rationally find them
unworthy of credence and hence infer that the employer did not act
for the asserted non-discriminatory reasons." Adamson v.
Walgreens Co., 750 F.3d 73, 79 (1st Cir. 2014) (quoting Gómez–
González v. Rural Opportunities Inc., 626 F.3d 654, 662-63 (1st
Cir. 2010)). "[I]n assessing pretext, [our] focus must be on the
perception of the decisionmaker, that is, whether the employer
believed its stated reason to be credible." Vélez v. Thermo King
de P.R., Inc., 585 F.3d 441, 452 (1st Cir. 2009) (quoting Azimi v.
- 30 -
Jordan's Meats, Inc., 456 F.3d 228, 246 (1st Cir. 2006)) ("We
understand that it is not enough for a plaintiff merely to impugn
the veracity of the employer's justification; [s]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 and unlawful motive of discrimination." (internal
quotation marks and brackets omitted)).
Here, as his proffered evidence of pretext, Brader
points to perceived inconsistencies between Biogen's reasons for
terminating him and its actions after he was laid off, such as the
record evidence indicating that Biogen continued to develop his
novel crystallization concept after he was terminated and that,
three months after Brader's departure, Biogen posted two positions
for an engineer and post-doctoral student with crystallization
experience. In addition, Brader argues the innovation work that
purportedly landed Brader on Galdes' termination list made up only
15% of his job. Brader says in light of these perceived
inconsistencies, Biogen's actions are evidence of pretext, and the
undisputed material facts cast doubt on the veracity of Biogen's
reasoning for terminating him.
Biogen says Brader's pretext argument amounts to nothing
more than subjective speculation unsupported by the evidence and
can be reduced to Brader's disagreement with Biogen's business
rationale for including Brader on the Gemstone list.
- 31 -
Even viewing the record in the light most favorable to
Brader, we conclude it is clear that he has not tendered sufficient
evidence from which a reasonable jury could infer that
discriminatory animus was a motivating factor in his termination
as part of Biogen's reduction-in-force.
Much of Brader's argument takes aim at the fact that
Biogen advertised two crystallization-experience-required jobs in
the wake of his departure -- according to Brader, that shows Biogen
still needed Brader's skills. But this take is flawed. For one
thing, even if Biogen determined there was no business case for
Brader's role on the crystallization project and other innovation-
related projects, Biogen's decision to reallocate resources to
such projects after Brader's termination, without more, does not
raise a reasonable inference of discriminatory animus. See, e.g.,
Lewis v. City of Boston, 321 F.3d 207, 216 (1st Cir. 2003) ("Merely
demonstrating that, as a result of the reduction in force, the
employer consolidated positions or allocated duties of discharged
employees to other existing employees does not itself raise a
reasonable inference that the employer harbored discriminatory
animus toward any one employee."). Indeed, Biogen not only
underwent a reduction-in-force, but also it undertook an entire
rethinking of its business strategy. Plus, we note that Brader
was not singled out for inclusion on the Gemstone list, but rather
his post-doctoral student also was terminated as part of Biogen's
- 32 -
reduction-in-force and new take on business strategy and company
priorities. Where, as here, courts are "faced with employment
decisions that lack a clear discriminatory motive," we "'may not
sit as super personnel departments, assessing the merits -- or
even the rationality -- of employers' nondiscriminatory business
decisions.'" Rodríguez-Cardi v. MMM Holdings, Inc., 936 F.3d 40,
48-49 (1st Cir. 2019) (quoting Mesnick v. Gen. Elec. Co., 950 F.3d
816, 826 (1st Cir. 1991)). "We are left, then, with the sort of
'criticisms of [an employer's] decision making process' attendant
to a reduction-in-force that 'fail to reveal any hidden animus
. . . .'" Dunn v. Trs. of Boston Univ., 761 F.3d 63, 74 (1st Cir.
2014) (alteration in original) (quoting Sullivan v. Liberty Mut.
Ins. Co., 825 N.E.2d 522, 542 (Mass. 2005)).
What's more, Galdes testified that the positions posted
(a senior manufacturing engineer, not a research scientist; and a
temporary co-op student) after his departure were not similar to
Brader's position. In fact, there is no evidence that the post-
reduction-in-force hiring was geared towards the same type of
crystallization work Brader had pursued. And furthermore, Galdes
explained, Brader was not qualified for the posted senior engineer
position since, to the best of Galdes' knowledge, Brader is not an
engineer and has no experience "milling small molecules" (as was
required for the senior engineer position). Our review of the
record reveals Brader provided no independent, contradictory
- 33 -
evidence from which a jury could reasonably surmise otherwise,
i.e., that Biogen's posted positions for a senior engineer and a
post-doctoral student were substantially similar to the position
Brader held and that he was qualified to fill these positions. To
the extent Brader points to his own declarations of qualifications,
he fails to explain why that would be so.
As to Brader's proposition that his innovation work
constituted only 15% of his job (so using that part of his job to
justify his termination must have been pretextual), this argument
is at odds with the record evidence. Galdes testified that he
never saw the 2015 mid-year evaluation breaking down Brader's self-
described work percentages, and thus he did not take it into
consideration when he concluded Brader would be on the Gemstone
list. Again, Brader points to no evidence which contradicts
Galdes' assertions. And to the extent that Brader believes
spending only 15% of his time on this innovative work (as opposed
to another Biogen employee devoting 20% of his or her time to the
same work) demonstrates a sham justification, this, too, fails to
move the evidentiary needle -- all it shows, at most, is that
Biogen shuffled allocation of duties amidst the restructuring, and
that on its own cannot give rise to an inference of discriminatory
animus or pretext. See Lewis, 321 F.3d at 216.
With respect to Brader's insistence that Galdes not only
knew about Brader's disability, but also clearly harbored a
- 34 -
disability-based discriminatory animus that drove him to include
Brader on the Gemstone list, yet again, Brader simply hasn't done
the evidentiary legwork to show that Galdes considered Brader to
be disabled such that a jury could infer Galdes' discriminatory
animus prompted him to terminate Brader. Yes, Galdes was Cc'd on
some of the emails Brader sent during his mental break, so Galdes
was generally aware of the mental health incident Brader
experienced in June 2014. But from there, the evidence shows that
Brader's wife explained to Sinclair that Brader's mental health
incident was only a temporary one -- a message she passed along to
Galdes in July 2014 -- and there is nothing in the record to show
Galdes believed it was not temporary. Plus, Brader never held
himself out as disabled upon his return to work, nor did he make
any mention of an ongoing disability or request accommodation for
a disability. So there is no evidence that Galdes considered
Brader to be disabled, rather than believing the mental health
issue was temporary, and Galdes, as the appellate record supports,
didn't take that temporary mental health issue into account when
he made his termination decision. Furthermore, Galdes testified
that he consulted with neither Weiskopf nor Ballinger (recall
operation Gemstone was the well-kept secret of twenty Biogen
employees worldwide) regarding his decision to terminate Brader
(such that he might have learned about any potential ongoing
disability issues that way), and there's no evidence to suggest
- 35 -
otherwise. Remember: as sole decisionmaker, Galdes is our focus.
See, e.g., Vélez, 585 F.3d at 452 (emphasizing that a reviewing
court's focus is on the decisionmaker's perception, i.e., whether
that decisionmaker thought the stated reason for a given employment
action was a credible one). There's simply nothing to go on here
that would allow a factfinder to infer discriminatory animus as
driving Galdes' decision-making.
In the end, Brader's arguments simply fail. Of course
he's not wrong that it is a "factfinder's job to . . . weigh the
evidence," but it is axiomatic that his case would not reach a
jury unless he first showed "some minimally sufficient evidence"
of pretext and a discriminatory animus, and trying to raise a
triable issue on the topic of pretext cannot be accomplished by
advancing "[m]ere questions" focusing on Biogen's "business
judgment." Pearson, 723 F.3d at 40 (quoting Acevedo-Parrilla, 696
F.3d at 140). Brader cannot just "impugn the veracity of
[Biogen]'s justification" -- he needed to point us to "'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 [Biogen]'s real
[and unlawful] motive' of discrimination." Azimi, 456 F.3d at 246(third alteration in original) (quoting Mesnick, 950 F.2d at 824);
see also Vélez, 585 F.3d at 452.
Brader has not successfully navigated these
fundamentals. Rather, Brader's efforts to demonstrate pretext can
- 36 -
be reduced to subjective disagreements with Biogen's business
judgment relative to its reduction-in-force decisions. Without a
supportable discriminatory motive in the record, as we wrote
earlier, we "may not sit as super personnel departments, assessing
the merits -- or even the rationality -- of employers'
nondiscriminatory business decisions." Rodríguez-Cardi, 936 F.3d
at 48-49 (quoting Mesnick, 950 F.2d at 825). Brader has given us
only "the sort of 'criticisms of [an employer's] decision making
process' attendant to a reduction-in-force that 'fail to reveal
any hidden animus.'" Dunn, 761 F.3d at 74 (quoting Sullivan, 825
N.E.2d at 542). Overall, since Brader did not proffer evidence
from which a reasonable jury could infer that Galdes (and, by
extension, Biogen) harbored discriminatory animus against him, he
has not satisfied his burden of production as to pretext under the
McDonnell Douglas framework.
Meanwhile, Brader's Chapter 151B claims are also subject
to the McDonnell Douglas burden-shifting framework, Ray, 799 F.3d
at 113 n.8, with one applicable distinction; "Massachusetts is a
pretext only jurisdiction," Bulwer v. Mount Auburn Hosp., 46 N.E.3d
24, 33 (Mass. 2016) (quoting Blare v. Husky Injection Molding Sys.
Boston, Inc., 646 N.E.2d 111, 116 (Mass. 1995)), so a plaintiff,
to survive summary judgment, "need only present evidence from which
a reasonable jury could infer that 'the [employer's] facially
proper reasons given for its action against him were not the real
- 37 -
reasons for that action,'" id. (quoting Wheelock Coll. v. Mass.
Comm'n Against Discrimination, 355 N.E.2d 309, 315 (Mass. 1976)).23
For the reasons just explained, Brader's proffered evidence of
pretext does not satisfy this burden.
B. Brader's Disability Harassment Claim:
A Hostile Work Environment
That leaves Brader's other disability discrimination
claim -- he was harassed based on his disability in violation of
the ADA and Chapter 151B by virtue of the hostile work environment
he was forced to endure, and which led to and included his eventual
termination. As we'll explain shortly, Brader points in part to
some untimely conduct to support this claim. And so, in the
analysis that follows, we assess the interplay between his efforts
to sidestep statute-of-limitations issues and his hostile work
environment claim. See Morgan, 536 U.S. at 120 ("[A] court's task
is to determine whether the acts about which an employee complains
are part of the same actionable hostile work environment practice,
and if so, whether any act falls within the statutory time
period.").
We have said that a plaintiff may demonstrate an ADA
violation by establishing that an employer required him or her to
23 In other words, Massachusetts law differs from federal
law in that plaintiffs do not need to establish both discriminatory
animus and pretext; they just need to show pretext. See Bulwer,
46 N.E.3d at 33.
- 38 -
work in a hostile or abusive environment on account of their
disability. See Murray, 821 F.3d at 86 and n.1 (collecting cases
and generally recognizing disability-based hostile work
environment claims under the ADA). To successfully make out this
hostile work environment claim, "a plaintiff must show harassment
'sufficiently severe or pervasive so as to alter the conditions of
[his] employment and create an abusive work environment.'"
Maldonado-Cátala, 876 F.3d at 10 (quoting Pérez-Cordero v. Wal-
Mart P.R., Inc., 656 F.3d 19, 27 (1st Cir. 2011)). "The challenged
conduct must be 'both objectively and subjectively offensive, such
that a reasonable person would find it hostile or abusive and the
plaintiff in fact did perceive it to be so.'" Id. (quoting Pérez-
Cordero, 656 F.3d at 27). We are mindful that we "must mull the
totality of the circumstances, including factors such as the
'frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interfere[d] with an
employee's work performance.'" Id. (quoting Noviello, 398 F.3d at
92); see also Faragher v. City of Boca Raton, 524 U.S. 775, 787-
88 (1998); O'Rourke v. City of Providence, 235 F.3d 713, 729 (1st
Cir. 2001).
Critically, "[t]he harassment also must stem from an
impermissible motivation." Maldonado-Cátala, 876 F.3d at 10; see
also id. at 10 n.11 (citing Ponte v. Steelcase Inc., 741 F.3d 310,
- 39 -
320 (1st Cir. 2014)); Murray, 821 F.3d at 86; Quiles-Quiles v.
Henderson, 439 F.3d 1, 7-8 (1st Cir. 2006) (explaining that "an
employee claiming harassment must demonstrate that the hostile
conduct was directed at him because of a characteristic protected
by a federal anti-discrimination statute"). We remind, a plaintiff
like Brader "bears the burden of presenting evidence to establish
each element under the particular theory" alleged under the ADA.
Murray, 821 F.3d at 83. And our role in all of this is to determine
if the plaintiff has put forth sufficient evidence "to distinguish
between the ordinary, if occasionally unpleasant, vicissitudes of
the workplace and actual harassment." Noviello, 398 F.3d at 92.
In Massachusetts, the continuing violation doctrine can
apply to Chapter 151B claims if a plaintiff establishes that "at
least one discriminatory act occurred" within the 300-day
limitations period; the alleged discriminatory act must have a
"substantial relationship to the alleged untimely discriminatory
acts"; and the earlier violations were such that they "did not
trigger [the plaintiff's] awareness and duty to assert his rights."
Ocean Spray Cranberries, Inc., 808 N.E.2d at 266-67.
The general principles laid out, we now turn to a
critical procedural stumbling block which impedes Brader's claims
-- the statute of limitations -- since whether and how Brader
surmounts this obstacle dictates our analysis of his hostile work
- 40 -
environment claim.24 Both the ADA and Chapter 151B instruct that
plaintiffs (like Brader) may "maintain a civil action only if
[they] have filed a timely complaint with the Massachusetts
Commission Against Discrimination." Christo v. Edward G. Boyle
Ins. Agency, Inc., 525 N.E.2d 643, 644 (Mass. 1988) (citing Mass.
Gen. Laws ch. 151B, § 9). Chapter 151B requires that an MCAD
complaint be filed within 300 days of the alleged unlawful
employment practice. See Mass. Gen. Laws ch. 151B, § 5. Here,
the 300-day limitations period applies to Brader's federal and
state-law discrimination claims. Brader doesn't dispute this, nor
does he contest the district court's conclusion that the alleged
discriminatory acts committed by Biogen in 2014, viewed in
isolation, are time-barred. With that, he concedes that certain
of the alleged adverse actions (failure to promote, removal from
the Avia project, Weiskopf's 2014 criticism, and HR's failure to
investigate) are not actionable on their own under the ADA or
Chapter 151B. See Morgan, 536 U.S. at 109 (explaining that any
24 There are other procedural requirements, too -- for
example, before bringing claims under the ADA, Brader needed to
(and did) first "file an administrative claim with the EEOC or
with a parallel state agency before a civil action may be brought."
Thornton v. United Parcel Serv., Inc., 587 F.3d 27, 31 (1st Cir.
2009); see Rivera-Diaz v. Humana Ins. of P.R., Inc., 748 F.3d 387,
389 (1st Cir. 2014) (citing 42 U.S.C. §§ 12117(a); 12203(a))
(explaining that the procedural requirements for filing suit under
the ADA are set forth in Title VII of the Civil Rights Act).
Administrative exhaustion is "a prerequisite to the commencement
of suit" under the ADA. Bonilla v. Muebles J.J. Alvarez, Inc.,
194 F.3d 275, 277 (1st Cir. 1999).
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unlawful but untimely employment practice will not be actionable
on its own). We explain, all the while mindful of the important
"base-line rule . . . that time limitations are important in
discrimination cases, and that federal courts therefore should
employ equitable tolling sparingly." Bonilla, 194 F.3d at 278;
see also Morgan, 536 U.S. at 113-14 (quoting Baldwin Cty. Welcome
Ctr. v. Brown, 466 U.S. 143, 152 (1984) (per curiam) ("Procedural
requirements established by Congress for gaining access to the
federal courts are not to be disregarded by courts out of a vague
sympathy for particular litigants.")).
In trying to persuade us the statute of limitations does
not slam the door on certain claims, Brader directs us to the
continuing violation doctrine, which provides that "a plaintiff
may obtain recovery for discriminatory acts that otherwise would
be time-barred so long as a related act [(often called an
'anchoring act')] fell within the limitations period." Maldonado-
Cátala, 876 F.3d at 9 (quoting Tobin v. Liberty Mut. Ins. Co., 553
F.3d 121, 130 (1st Cir. 2009)); see also Quality Cleaning Prod.
R.C., Inc. v. SCA Tissue N. Am., LLC, 794 F.3d 200, 205 (1st Cir.
2015) (observing that, "[a]s long as a related act falls within
the limitations period, the doctrine allows a lawsuit to be delayed
in cases -- such as hostile work environment claims -- in which a
course of 'repeated conduct' is necessary before 'a series of
wrongful acts blossoms into an injury on which suit can be
- 42 -
brought'" (quoting Ayala v. Shinseki, 780 F.3d 52, 57 (1st Cir.
2015)); see also Noviello, 398 F.3d at 86 (observing that the
related "anchoring act" must "substantially relate[] to earlier
[untimely] incidents of abuse"). So a litigant who wants the
continuing violation doctrine to apply to untimely conduct must
establish a timely and related anchoring act to which the untimely
conduct can be tethered.
We've described hostile work environment claims "as the
classic example of a continuing violation," Maldonado- Cátala, 876
F.3d at 9, since they "cannot be said to occur on any particular
day" because "the actionable wrong is the environment, not the
individual acts that, taken together, create the environment,"
Tobin, 553 F.3d at 130 (quoting Ledbetter v. Goodyear Tire & Rubber
Co., 550 U.S. 618, 638 (2007), overturned by statute (Jan. 29,
2009)). See Morgan, 536 U.S. at 117 (observing that "the entire
hostile work environment encompasses a single unlawful employment
practice"). "[A]ll of the 'component acts' alleged in a hostile
work environment claim may be considered in determining liability
even if they occurred outside the limitations period." Maldonado-
Cátala, 876 F.3d at 9. In truth, this equitable doctrine is not
really "about a continuing [violation], but about a cumulative
violation." Quality Cleaning, 794 F.3d at 205 (emphases added)
(quoting Limestone Dev. Corp. v. Vill. of Lemont, Ill., 520 F.3d
- 43 -
797, 801 (7th Cir. 2008) (Posner, J.)).25
Here's the bird's-eye view of how these principles
converge for our analytical purposes: most of Brader's complained-
of conduct will be "off limits unless [he] can surmount the time-
bar for actions that occurred" in 2014 since, as we just explained,
we can consider Biogen's alleged 2014 behavior "only if at least
one of the incidents that occurred" during the limitations period
(an anchoring act) "constitutes part of the same hostile work
environment as the alleged wrongful conduct that preceded that
date." Maldonado-Cátala, 876 F.3d at 10.
Brader points to a pattern of adverse employment actions
by Biogen, or, as he calls it, the "pinprick after pinprick" that
added up to the "cumulative effect" of "intolerable work
conditions": Biogen's failure to promote him, its decision to
remove him from the Avia project,26 its failure to investigate his
safety and harassment complaints in violation of internal policy,
25Indeed, the idea of it being a "continuing violation" is
quite the misnomer since "unlawful discrimination . . . is often
a cumulative process rather than a one-time event discrimination"
-- "[t]he first instance of . . . offensive words or actions may
be too trivial to count as actionable harassment, but if they
continue they may eventually reach that level and then the entire
series is actionable." Limestone, 520 F.3d at 801 (citing Morgan,
536 U.S. at 117).
26In his brief, Brader acknowledges that as a practical
matter, the reassignment of the Avia project was a reasonable move
given Brader's absence. But ultimately, he views his removal as
part of a grander Biogen scheme to get rid of him because of his
disability.
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Weiskopf's ongoing harassment, and his eventual termination in
2015. To Brader's thinking, a jury could reasonably view Biogen's
"hostile," discriminatory conduct as part of a "linked,"
"prolonged and compelling pattern of mistreatment" constituting
one employment practice, all of which was substantially related to
his discrimination-fueled termination. Indeed, all of these
component acts, says Brader, added up to a hostile work environment
that culminated in his wrongful discharge.
Here, to support his hostile work environment claim,
Brader complains about two categories of timely, anchoring,
abusive conduct driven by disability-based discriminatory animus
towards him: (1) Weiskopf's criticisms and alleged harassment in
2015; and (2) Brader's November 2015 termination. But our careful
review of the record tells us that this conduct lacks evidentiary
support that would permit a jury to conclude either that the
alleged anchoring acts are substantially related to the prior
incidents Brader complains of (i.e., that the conduct was part of
a pattern), Noviello, 398 F.3d at 86, or that it constituted
"'severe or pervasive' harassment that 'alter[ed] the conditions
of his employment and create[d] an abusive work environment'
extending into the relevant time period," Maldonado-Cátala, 876
F.3d at 11 (quoting Pérez-Cordero, 656 F.3d at 27), or that the
alleged anchoring-act harassment "stem[med] from an impermissible
motivation," id. at 10, i.e., that Brader was subjected to this
- 45 -
"hostile conduct" because of his disability, Quiles-Quiles, 439
F.3d at 7-8.
Take Brader's claims regarding Weiskopf and the role he
is alleged to have played in creating the hostile work environment
Brader alleges. The timely 2015 Weiskopf conduct at issue involves
(1) Weiskopf's criticism of Brader's crystallization project and
(2) his overseeing of Brader's mid-year review. The evidence
Brader relies on to support his harassment claim on this front
comes from his deposition testimony regarding his 2015
interactions with Weiskopf. Brader testified that Weiskopf had a
disingenuous response to Brader's crystallization proposal,
rebuked him for asking too many questions in meetings, and failed
to set clear expectations for Brader in advance of the 2015 mid-
year review.
For starters, Brader's generic complaints about
Weiskopf's criticisms and his effectiveness as a supervisor do not
rise to the level of "sufficiently severe or pervasive so as to
alter the conditions of [his] employment." Maldonado-Cátala, 876
F.3d at 10 (quoting Pérez-Cordero, 656 F.3d at 27). While we do
not doubt Brader felt harassed, even as we look to the "totality
of the circumstances," Brader offers no evidence as to how,
exactly, any of Weiskopf's behavior actually constituted
harassment in that it impacted his working conditions in such a
way that could be reasonably viewed by a jury as being carried out
- 46 -
in a severe or pervasive fashion. See id. For example, consider
Weiskopf's criticism of Brader's crystallization project, which
Brader says Weiskopf lacked the expertise to judge. Importantly,
Brader, at the time the criticism was leveled, pegged Weiskopf's
negative critique not on disability animus but on professional
jealousy or Weiskopf's desire to take undue credit for Brader's
work. But even Weiskopf's criticism was tempered with praise; he
acknowledged Brader's concept as innovative. Brader fails to
explain why Weiskopf taking issue with Brader's methods of
soliciting support for his new project or his request that Brader
not share the concept outside of PPD until Weiskopf and Brader
discussed it one-on-one could be reasonably viewed as harassment.
Same goes for Weiskopf's purported admonitions to Brader for asking
too many questions in meetings and generally "trying too hard."
Brader has not shown how Weiskopf's conduct here falls outside the
boundaries of valid, supervisory critique. Plus, in the end,
Brader got what he wanted -- permission to present his
crystallization project. So, to repeat, it is entirely unclear
how this episode of Weiskopf criticism, alone or in conjunction
with the other events complained of, could objectively constitute
harassment or how it impacted Brader's work conditions.
The same is true of Weiskopf and the 2015 performance
review installment in this saga. Brader was upset that his
performance review included some unfavorable feedback (recall that
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some peers and stakeholders had described Brader being
"dismissive" and "confrontational" in response to suggestions and
feedback he received in group meetings). But again, Brader hasn't
shown us how this amounted to harassment rather than Weiskopf
simply doing his job: Brader even seemed to acknowledge as much
when, in a meeting he requested to complain about Weiskopf's
treatment of him, he told Ballinger he did "not question[] the
veracity of [Weiskopf's] feedback," he just took issue with
Weiskopf's "consistency in communicating and administering clear
goals and expectations with metrics of success associated with
them." At no point did Brader express concerns about harassment.
So once again, this conduct, alone or in conjunction with other
conduct, does not reasonably amount to harassing conduct
"sufficiently severe or pervasive so as to alter the conditions of
[his] employment." Id.We similarly fail to see any evidence showing that this
conduct is not only subjectively offensive (as Brader says it was),
but also objectively so, "such that a reasonable person would find
it hostile or abusive." Id. (quoting Pérez-Cordero, 656 F.3d at
27). In fact, yet again, there's no evidence that Weiskopf's
alleged harassment of Brader amounted to anything other than
Weiskopf levying criticisms and voicing concerns as he performed
his duties as a supervisor; rather, at most, these are "minor
instances of employment skirmishes" that "cannot ground [Brader]'s
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hostile work environment claims." Murray, 821 F. 3d at 87; see
also Colón-Fontánez v. Municipality of San Juan, 660 F.3d at 17,
44-45 (1st Cir. 2011) (finding no hostile work environment when
complained-of interactions were "brusque and even uncivil," but
incidents were episodic rather than frequent, and upsetting but
not severe).
All told, Brader simply hasn't adduced sufficient
evidence to show that Weiskopf's supervisory behavior amounted to
anything other than that: a supervisor doing the "appropriate and
necessary duties of [his] job[]." Murray, 821 F. 3d at 87.
And if all that wasn't enough, Brader has fallen short
on a different but critical aspect of what he needed to show to
square this so-called Weiskopf "harassment" away as anchoring
conduct: "the [alleged] harassment also must stem from an
impermissible motivation." Maldonado-Cátala, 876 F.3d at 10. But
Brader does not connect any evidentiary dots as to how Weiskopf's
conduct tends to show Weiskopf harbored any disability-based
discriminatory animus whatsoever towards Brader. For instance,
Brader does not direct us to competent record evidence of the kind
we sometimes see in other employment discrimination claims of
Weiskopf hurling disability-based invectives at Brader, see, e.g.,
Murray, 821 F.3d at 87 (pointing to evidence of a variety of snide
comments, such as "a younger person could do the task very easily,"
in an effort to support disability harassment claim); Quiles-
- 49 -
Quiles, 439 F.3d at 4 (proffering evidence that, among other
things, supervisors called the appellant "'crazy' on a daily basis"
and "'joked' . . . about the fact that [appellant] saw a
psychiatrist and took medication for his condition"), nor does he
argue that Weiskopf is guilty of such ubiquitous, disability-
driven attacks in support of his harassment claim.
As for Weiskopf's management style to which Brader took
offense, keep in mind, as Brader tells it, Weiskopf was ill-
tempered towards Brader before he showed any signs of a mental
disability: recall Weiskopf's harsh critique of Brader's June 18,
2014 PPD presentation to senior management predated any evidence
of manifestations of Brader's mental health issue. We have
consistently acknowledged in similar employment dispute cases that
"[t]oiling under a boss who is tough, insensitive, unfair, or
unreasonable can be burdensome," but even to the extent Weiskopf
fit this bill, Brader hasn't shown that he behaved that way due to
discriminatory animus -- and "generally disagreeable behavior and
discriminatory animus are two different things." Ahern v.
Shinseki, 629 F.3d 49, 59 (1st Cir. 2010); see also Noviello, 398
F.3d at 92 (emphasizing our court's role in distinguishing "between
the ordinary, if occasionally unpleasant, vicissitudes of the
workplace and actual harassment").
So, in sum, Brader has not proffered minimally
sufficient evidence from which a jury could infer that his alleged
- 50 -
harassment by Weiskopf was so severe or pervasive that it altered
his work conditions and fostered an abusive environment in the
limitations period, nor did he adduce evidence showing that the
harassment owed to an impermissible motivation. Murray, 821 F.3d
at 83, 86; Maldonado-Cátala, 876 F.3d at 10. These showings not
made, the conduct cannot anchor the untimely conduct Brader wants
us to consider under the continuing violation doctrine as part of
his hostile work environment claim.
That sorted, we turn to the remaining limitations period
conduct that Brader wants to deem the anchoring hostile work
environment conduct such that he can use the continuing violation
doctrine to sweep the untimely acts up into his claim: his
November 2015 termination.
We know from our earlier wrongful termination discussion
that Biogen articulated what we concluded were legitimate, non-
discriminatory reasons for including Brader in the reduction-in-
force. In the hostile work environment claim, though, Brader says
his termination takes on a different role as the final (timely)
act of harassment that is "substantially related" to all the other
component acts of his hostile work environment (failure to
investigate, Weiskopf's 2014 harassment, and so on).
Remember Brader's burden here: we can consider the
- 51 -
untimely misbehavior by Biogen only if the termination,27 as the
anchoring act, is indeed substantially related to the other
conduct, "constitut[ing] part of the same hostile work environment
as the alleged wrongful conduct that preceded" it, and if it
"stem[med] from an impermissible motivation," Maldonado-Cátala,
876 F.3d at 10, i.e., the "conduct [(his termination)] was directed
at him because of" his disability, Quiles-Quiles, 439 F.3d at 7-
8.
Putting aside the requirement that the termination must
be shown to be part of the same pattern constituting a hostile
work environment as the 2014 instances of misconduct by Biogen
(and we're not convinced Brader has shown any of those instances
to be at all related either to his termination or shown any of
those instances to be related to one another), our earlier wrongful
discharge analysis dispensed with Brader's position that he has
offered sufficient evidence to show that his termination (a
decision made by an independent actor without consulting others,
remember) owed to and "stem[med] from" the disability-related
discriminatory animus he says it did. Maldonado-Cátala, 876 F.3d
at 10; Quiles-Quiles, 439 F.3d at 7-8. As such, the termination
cannot serve as an anchoring act for the untimely conduct, meaning
the continuing violation doctrine is not in play here either, and
27 No one disputes that Brader's termination altered the
conditions of his employment.
- 52 -
we cannot consider the untimely conduct. We need say no more.
In winding down our analysis, we stress that our
jurisprudence identifies that "'[t]he accumulated effect' of
behaviors that individually fall short may, taken together,
constitute a hostile work environment." Maldonado-Cátala, 876
F.3d at 12 (quoting O'Rourke, 235 F.3d at 729). But to sway us on
this "accumulated effect" phenomenon, Brader needed to show not
only that the timely behavior contributed to a hostile work
environment, but also that the timely harassment was driven by
some impermissible motivation (here, disability-related
discriminatory animus). See, e.g., id. at 10. Brader hasn't
proffered sufficient evidence to permit a finding that any of this
timely conduct was part of a hostile work environment stemming
from disability-related discriminatory animus. And indeed,
because Brader (the nonmoving party) carries the burden of
persuasion on his claims, he needed to martial "'specific facts,
in suitable evidentiary form,' sufficient to limn a trialworthy
issue." Lawton v. State Mut. Life Assur. Co. of Am., 101 F.3d
218, 223 (1st Cir. 1996) (quoting Morris v. Govt. Dev. Bank, 27
F.3d 746, 748 (1st Cir. 1994)). Failure to do so "allows the
summary judgment engine to operate at full throttle." Id. The
intended goal of summary judgment "is to pierce the boilerplate of
the pleadings and assay the parties' proof in order to determine
whether trial is actually required." Id. at 222 (quoting Wynne v.
- 53 -
Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992)). So
it is here: Brader has not met his burden to produce competent
evidence showing that the timely 2015 work conditions he faced
amounted to harassment on the basis of the improper motivations he
alleges. Id. at 223.
IV. WRAP UP
That, as they say, is that. The district court
appropriately concluded that Brader had not produced sufficient
evidence to survive summary judgment on his claims. We affirm its
grant of summary judgment against Brader. Each side will bear its
own costs.
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