Brader v. Biogen Inc.

(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."

(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,

(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,

(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,

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.

(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."

(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,

(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.'"

(quoting Pérez-

Cordero,

). 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.'"

(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,

; 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,

. 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).

- 41 - 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,

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.

- 44 - 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,

), 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,

(quoting Pérez-Cordero,

). 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

- 47 - 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."

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."

(quoting Pérez-Cordero,

). 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

- 48 - 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,

. 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,

. 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,

, i.e., the "conduct [(his termination)] was directed

at him because of" his disability, Quiles-Quiles,

439 F.3d at 7

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,

; 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."

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."