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 
- 2 - 

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. 
- 3 - 

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 eightand-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 
- 4 - 

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 IncidentBased 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. 

3 For 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. 
- 5 - 

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. 

5 There 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 
- 6 - 

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. 
- 7 - 

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 
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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 
- 9 - 

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 lightduty 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 

 6 Appellees deny both that Audette asked for an accommodation 

in the meeting with Kety and that Chief Botieri suggested to 

Audette that she retire. 
- 10 - 

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. 
- 11 - 

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 
- 12 - 

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 
- 13 - 

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 

 8 We 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. 
- 14 - 

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 
- 15 - 

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). 
- 16 - 

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.
- 17 - 

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 dataentry 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 

 12 Audette, a patrol officer, specifically requested a seated 

data-entry position and did not request to be promoted to Records 
- 18 - 

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. 
- 19 - 

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 
- 20 - 

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, 
- 21 - 

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 

 13 Audette has not appealed the district court's decision on 

her age discrimination claim. 
- 22 - 

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. 
- 23 - 

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.