United States Court of Appeals

For the First Circuit

No. 20-1404

LISA M. O'ROURKE,

Plaintiff, Appellant,

v.

TIFFANY AND COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Kayatta, Selya, and Barron,

Circuit Judges.

Thomas More Dickinson, with whom Law Office of Thomas M. 

Dickinson and Kathleen M. Hagerty were on brief, for appellant.

Stacie B. Collier, with whom Aaron F. Nadich and Nixon Peabody 

LLP were on brief, for appellee. 

February 11, 2021
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KAYATTA, Circuit Judge. In early 2014, Lisa O'Rourke

took leave from Tiffany and Company under the Family and Medical 

Leave Act (FMLA), 29 U.S.C. § 2612, to undergo preventive surgery 

after learning that she was genetically predisposed to breast and 

ovarian cancer. Later that year, from mid-July to mid-August, 

Tiffany allowed her to take a second leave for a related surgery

even though she had exhausted her FMLA leave rights. In October 

2015, the following year, Tiffany's Vice President of 

Manufacturing, Wayne Howard, informed Tiffany's human resources 

department that he had decided to eliminate O'Rourke's position. 

Two days later, O'Rourke told human resources that she intended to

take FMLA leave in 2016. In November 2015, after a series of 

internal discussions and consultations with counsel, Tiffany went 

forward with Howard's prior decision to eliminate O'Rourke's 

position. As an alternative to termination, Tiffany offered 

O'Rourke a newly created, lower-level position with a lower salary. 

O'Rourke declined the new position, and Tiffany terminated her 

employment.

O'Rourke filed suit, alleging retaliation in violation 

of the FMLA, 29 U.S.C. § 2615(a), and disability discrimination in 

violation of the Americans with Disabilities Act (ADA), 42 U.S.C. 

§§ 12101-12213, and the Rhode Island Fair Employment Practices 
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Act, R.I. Gen. Laws § 28-5-7.1 The district court granted summary 

judgment in favor of Tiffany. After carefully considering on de 

novo review the record and briefs on appeal, as well as oral 

argument by counsel, we affirm for substantially the same reasons 

as those stated by the district court. See O'Rourke v. Tiffany & 

Co., C.A. No. 16-626 WES, 2020 WL 1492865 (D.R.I. Mar. 27, 2020).

The record contains no evidence that, when Howard 

decided to eliminate O'Rourke's position, he thought of her as 

impaired in any way or knew of her plan to take any leave in 2016.

The lack of such knowledge precludes any claim of disability 

discrimination or of FMLA retaliation due to her planned 2016 

leave. See Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 

306 (6th Cir. 2016) ("An employee cannot be subject to an adverse 

employment action based on his disability unless the individual 

decisionmaker responsible for [that adverse action] has knowledge 

of that disability."); Ameen v. Amphenol Printed Circuits, Inc., 

777 F.3d 63, 70 (1st Cir. 2015) (holding that a plaintiff "must 

show that the retaliator knew" about his FMLA-protected activity 

"[t]o demonstrate that he was fired in retaliation" for that 

activity (first quoting Medina–Rivera v. MVM, Inc., 713 F.3d 132, 

139 (1st Cir. 2013))).

1 Claims brought under the ADA and the Rhode Island statute

are generally analogous, so we analyze them as one. See Pena v. 

Honeywell Int'l, Inc., 923 F.3d 18, 27 n.6 (1st Cir. 2019).
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O'Rourke tries to argue that it was her prior, 2014 FMLA 

leave that motivated Howard to eliminate her position more than a 

year later. But, as the district court well explained, no 

reasonable jury could have so found. See O'Rourke, 2020 WL 

1492865, at *9–11; see also Benoit v. Tech. Mfg. Corp., 331 F.3d 

166, 175 (1st Cir. 2003) (rejecting a retaliation claim where the 

employee's protected conduct occurred "more than one year" before 

his termination). While O'Rourke asserts that Howard demonstrated 

a retaliatory animus when he referred to her second (non-FMLA) 

leave as "unfortunate," the context of Howard's comment belies 

that contention. Howard's boss had emailed him asking whether he 

supported a proposed merit bonus and pay increase for O'Rourke,

and Howard replied in relevant part:

I haven[]'t worked with [O'Rourke] yet, but 

based on what we have seen with planning, and 

the recent quick turnover of [one of 

O'Rourke's new hires], there are issues in my 

mind. However, I wasn’t here in 2013 so I 

don't want to be unfair, and [I] planned to 

evaluate her performance over the next few

months. Unfortunately, I heard last week that 

she will be out again in July for up to 6 

weeks. So, my thought was to sign the [bonus 

and pay increase] forms and speak to [her 

direct supervisor] about carefully evaluating 

her performance.

O'Rourke then received her bonus and pay increase, took her second 

leave, and returned to work without incident. Given this context, 

we see in Howard's email no implication of retaliatory animus. 
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O'Rourke also suggests that Howard began retaliating 

against her when he decided to reorganize her department in 2014, 

ultimately leading to her termination in 2015. However, she points 

to no admissible evidence that the 2014 reorganization was 

motivated by discriminatory or retaliatory animus, and she is 

unable to rebut Howard's testimony that the reorganization was 

intended to address longstanding issues with the planning function 

in her department. As such, she has not met her burden of 

demonstrating "a trialworthy issue" on whether Howard's stated 

reason for the reorganization "was but a pretext for retaliating 

against her for having taken protected FMLA leave." Henry v. 

United Bank, 686 F.3d 50, 56 (1st Cir. 2012). 

Finally, O'Rourke makes much of the fact that Tiffany's 

human resources department consulted counsel after learning of 

Howard's decision to eliminate her position and of her plan to 

take FMLA leave in 2016. But the chronology of these events 

defeats any inference of retaliation. And, in any event, "the 

prudent step of seeking a lawyer's advice is not the stuff on which 

a finding of [retaliatory] intent can be premised." Kouvchinov v. 

Parametric Tech. Corp., 537 F.3d 62, 68 (1st Cir. 2008). 

We therefore affirm the judgment of the district court.