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

took leave from Tiffany and Company under the Family and Medical

Leave Act (FMLA),

, 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,

(a), and disability discrimination in

violation of the Americans with Disabilities Act (ADA),

, and the Rhode Island Fair Employment Practices

- 2 - 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,

(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.,

(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.,

(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.,

(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.,

, 27 n.6 (1st Cir. 2019).

- 3 - 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,

, at *9–11; see also Benoit v. Tech. Mfg. Corp.,

(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.

- 4 - 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,

(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.,

(1st Cir. 2008).

We therefore affirm the judgment of the district court.

- 5 -