United States Court of Appeals For the First Circuit

No. 20-1495

MARGARET BENSON,

Appellant-Plaintiff,

v.

WAL-MART STORES EAST, L.P.,

Appellee-Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge]

Before

Howard, Chief Judge, Thompson, Circuit Judge, and Gelpí, District Judge.

Guy D. Loranger for appellant. Katherine I. Rand, with whom Daniel R. Strader and Pierce Atwood LLP were on brief, for appellee.

September 15, 2021

 Of the District of Puerto Rico, sitting by designation. GELPÍ, District Judge. This case, in federal court on

the basis of diversity of citizenship,

(a)(1)(c),

involves ambiguous job requirements, unclear expectations, and

continuous miscommunications between appellant Margaret Benson

("Benson") and appellee Wal-Mart Stores East, L.P. ("Wal-Mart").

Based on our review of the district court record, we conclude the

disputed factual evidence as adduced and the fair inferences

therefrom reasonably support a case for disability discrimination

under the Maine Human Rights Act and for retaliation under the

Maine Whistleblower Protection Act and the Maine Human Rights Act.

Therefore, for the reasons explained below, we reverse the grant

of summary judgment and remand for further proceedings consistent

with this opinion.

I. Standard of Review

We review the district court's grant of summary judgment

in favor of Wal-Mart de novo. United States ex rel. Jones v.

Brigham & Women's Hosp.,

(1st Cir. 2012). Summary

judgment is proper if Wal-Mart can demonstrate that "there is no

genuine dispute as to any material fact and that [it] is entitled

to judgment as a matter of law." Fed. R. Civ. P. 56(a). At this

stage of the proceedings, we construe the record and all reasonable

inferences from it in favor of the party opposing the summary

judgment motion, Benson. Martínez v. Novo Nordisk Inc.,

(1st Cir. 2021) (citing Rodríguez-Cardi v. MMM Holdings,

- 2 - Inc.,

(1st Cir. 2019)). Notwithstanding, "[e]ven

in employment discrimination cases where elusive concepts such as

motive or intent are at issue, summary judgment is appropriate if

the non-moving party rests merely upon conclusory allegations,

improbable inferences, and unsupported speculation." Brandt v.

Fitzpatrick,

(1st Cir. 2020) (quoting Ray v. Ropes

& Gray LLP,

, 116–17 (1st Cir. 2015)).

We present below all undisputed facts, relying both on

the district court's opinion and order as well as the parties'

proposed statements of uncontested facts that are properly

supported by evidence on the record. Reeves v. Sanderson Plumbing

Prod., Inc.,

(2000) (noting that under Rule 56,

"the court should review the record as a whole"). Any genuinely

disputed material fact shall also be detailed therein, where it is

relevant to either party's argument.

II. Background

Benson's story is complicated, involving multiple

lawsuits, countless medical appointments, and a series of Wal-Mart

administrators. In order to provide the reader all relevant

information in a comprehensible manner, we begin with an overview

of the events that led to this case and then turn to a more detailed

description of the testimony, as needed.

- 3 - A. Overview

In February 2013, Benson began her employment at the

Wal-Mart store in Windham, Maine, as a cashier. In October 2014,

Benson—at the time a grocery reclamation associate—suffered a

piriformis injury while at work.1 The injury prevented her from

working and she took a leave of absence. Initially, Wal-Mart

refused to acknowledge her injury was "work-related," but

eventually agreed that it was and offered Benson a Temporary

Alternative Duty (TAD) position that she accepted. Benson worked,

apparently without incident from June 2015 when she returned, until

April 2016 when she took another leave of absence to cope with the

side effects of treatment for her injury.

Around the same time, in March 2016, Benson, through

counsel, filed an action against Wal-Mart in the United States

District Court claiming discrimination for failure to accommodate

related to this workplace injury. Benson v. Wal-Mart Stores E.,

L.P., No. 16-cv-114 (DBH),

(D. Me. June 23, 2017)

("Benson I"). Ultimately, the district court in that case entered

summary judgment for Wal-Mart. The legal analysis in that case

has no bearing upon the case before us, but, as we will discuss

1 The piriformis is a "muscle that arises from the front of the sacrum, passes out of the pelvis through the greater sciatic foramen, is inserted into the upper border of the greater trochanter of the femur, and rotates the thigh laterally." Merriam-Webster's Medical Desk Dictionary 640 (2005).

- 4 - later, Benson cites Benson I as motivation for Wal-Mart's alleged

retaliation.

On October 14, 2016, with her first lawsuit still

pending, Benson returned to work in another TAD position, as a

People Greeter. Generally, People Greeters would welcome

customers when they arrived at the store, provide front-end

security, ensure customer safety in the greeting area, respond to

electronic surveillances alarms, and provide customers with

directions. On the days when Benson was scheduled to work, her

assigned shift time was from 6:00 a.m. to 2:00 p.m. It was the

practice of the store to have at least one People Greeter scheduled

each day for each entrance while the store was open. If a People

Greeter was absent, Wal-Mart tended to not replace them, so those

functions went unfilled.

Upon Benson's return to work, two things happened that

are important to her current claims. First, Benson informed

management at the Windham store that she would continue to have

regularly scheduled medical appointments for her work-related

injury. In response, Nancy Little, a Wal-Mart store supervisor,

assured her that "as long as [she] gave her notice [to the store's

Personnel Coordinator] of when the time frame was, that they would

take care of it and make [her] schedule fit accordingly." Second,

Benson also learned of Wal-Mart's Attendance/Punctuality

Policy-Maine ("Attendance Policy"), which had changed since Benson

- 5 - took a leave of absence earlier in the year.2 With those facts in

mind, we turn to the details of Wal-Mart's Policy and Benson's

efforts to comply with them while attending to her health needs.

B. Wal-Mart's Attendance Policy

The Attendance Policy, effective October 2016 and

applicable to Benson's claims, provides that it is understandable

that employees "may have to miss work on occasion. However,

regular and punctual attendance is a required and essential

function of each associate's job." The Attendance Policy expressly

states that "excessive absences or incomplete shifts" may result

in termination. It further points out that "[w]hen possible, [an

employee] should schedule time off in advance to avoid negatively

affecting other associates, customers, and the company."

The Policy additionally states that "[a]n unauthorized

absence may result from arriving late or leaving early, as well as

missing entire scheduled shifts."3 The Attendance Policy

2 The record is murky on how Wal-Mart informed employees of the Attendance Policy, but, at her deposition, Benson discussed her impressions and understanding of the policy and appears to have acknowledged that she understood it was in place when she returned to work. Also, Benson does not dispute that she knew the Attendance Policy was in effect in October 2016. Separately, all agree that the Attendance Policy was amended from the policy under which Benson had previously worked. The record does not contain great detail about the previous policy and the parties do not argue that the fact of a change is relevant to Benson's case here. 3 The Attendance Policy assigns: 1 "occurrence" for a full-day

- 6 - specifically defines "unauthorized absences" as "any time [an

employee is] away from a scheduled shift for a reason that is not

[a]uthorized or approved by [a] supervisor or manager, unless [the

employee] use[s] an income replacement benefit (such as PTO [or

Paid Time Off], Sick Time or Personal Time)." Too many

unauthorized absences could result in an employee being fired.

On the other hand, the Attendance Policy also provides

a list of absences that are considered "authorized," and,

therefore, per the Policy, need not be "approved by [a] supervisor

or manager."4 Among those were "[w]orkers' compensation" absences.

The "Responsibility to Notify Management" section of the

Attendance Policy specifies that an employee "must make every

effort to report absences or late arrivals (tardies) at least one

hour prior to [the] scheduled start time, unless it would be

unreasonable to expect [the employee] to report the absences due

absence; .5 of an "occurrence" for a late arrival and early departures of between 10 and 120 minutes, and 1 occurrence for a late arrival or early departure of more than 120 minutes. Each "unauthorized" absence or instance of tardiness therefore results in a partial "occurrence" or one or more "occurrences." If an associate accumulates nine or more "occurrences" in a rolling six-month period, through any combination, the employee "will be subject to termination." It is unclear from the text of the Attendance Policy whether 4

those absences needed to be approved prior to their occurrence. As we will discuss, Benson and some Wal-Mart employees have different opinions as to whether the Policy requires pre-approval or mere eventual approval.

- 7 - to circumstances outside of [the employee's] control." To notify

management of an absence or late arrival, an employee must report

by either calling a designated 1-800 number or using the "Wal-Mart

One" website.5 Benson understood, as she had discussed with

Wal-Mart's management, that she could either provide verbal notice

or make store management aware—via a written note—of her workers'

compensation related absences. The term "workers' compensation,"

which is central to Benson's case, is not defined in the Attendance

Policy.6

The Windham store manager, Susan Bradstreet

("Bradstreet" or "Manager Bradstreet"), interpreted "workers'

compensation" to refer to "leaves of absence" authorized by

Wal-Mart's third-party leave administrator for incapacity due to

a workers' compensation related injury and/or time an associate

was required to miss work in order to attend a medical appointment

or receive treatment for a work-related injury. Manager Bradstreet

did not consider time missed beyond that required to attend a

medical appointment in connection with a workers' compensation

5Benson considered the "Wal-Mart One" website to be confusing and noted that it did not offer a category for workers' compensation absences or tardies. 6 As discussed later, Benson proposed to the district court as an additional fact (though it reads more like an argument) that "workers' compensation" extended to missing work due to an illness caused by medication prescribed as treatment of a workers' compensation injury.

- 8 - injury to be authorized under the Attendance Policy. Manager

Bradstreet expected associates who missed work due to a workers'

compensation medical appointment to be able to produce

documentation of such appointment upon request.7 Also, Bradstreet

expected associates to schedule workers' compensation appointments

during times when they were not scheduled to work; and, when this

was not possible, to only miss so much of their shifts as necessary

to travel, attend, and return from the appointment. On the other

hand, Benson stated that Wal-Mart did not inform her that she

should either schedule her appointments at times when she was not

scheduled to work or only miss time necessary for traveling to and

from a workers' compensation medical appointment.

Kathy Burns-Egan, the store's Personnel Coordinator,

("Coordinator Burns-Egan") was specifically asked, during a

deposition for this litigation, whether an absence, due to

complications in connection with medication for a work-related

injury, would be excused under the Attendance Policy as a "workers'

compensation" absence. Coordinator Burns-Egan responded that she

"would not be able to answer that [because she] really [did not]

know." Coordinator Burns-Egan acknowledged during her deposition

"not remember[ing]" or "recall[ing]" whether the Windham store had

7 It is unclear from the record how this was communicated, if at all, and this information was not written in the Attendance Policy.

- 9 - any specific policy that employees must follow when notifying

management about absences relating to a workers' compensation

injury, but noted that it "[s]eems like there should have been

[one]." When asked if she was aware of any written policy

requiring any additional written verification with regard to

workers' compensation absences or tardies, Coordinator Burns-Egan

responded that "I don't recall it written. However, it was

expected, so I'm not sure if it was written somewhere besides on

[the Attendance Policy]."

C. Benson's Absences

Once Benson returned to work as a People Greeter,

attendance issues allegedly persisted. According to Wal-Mart's

records, between October 14, 2016, and December 12, 2016, Benson

was absent, left early, or arrived late to work on twelve

occasions.8 Benson missed a full—day shift on October 18, October

20, October 21, October 28, November 5, November 7, November 12,

and November 28. She left more than 120 minutes early from her

scheduled shifts on November 3, November 17, November 26, and

December 8, 2016. In its internal recording system, Wal-Mart coded

these absences, at least initially, as "unauthorized" under the

Attendance Policy.

8For purposes of clarity, we shall refer to all absences (full or partial) including late or early arrivals as "absences" rather than "occurrences" as they are described in the Attendance Policy.

- 10 - According to Benson, she partially or entirely missed a

shift due to medical appointments to treat her work-related injury

on October 18 and 20 as well as November 3 and December 8. On

October 21 and 28 and November 5, 7, 12, 26, and 28, she missed

her entire shift or left early due to illness or "bad reactions"

(mostly upset stomach) caused by medications prescribed for her

work-related injury. As to the November 17th absence, the parties

stipulated that Benson used "vacation time."

Regarding the October 18 and 20 absences, Wal-Mart

agrees that Benson informed store management of her appointments

ahead of time. Regarding the November 3 and December 8 absences,

Benson contends she gave notice to management prior to her

appointment, but Wal-Mart disputes this fact. The record reflects

that Benson gave advance notice for the November 3 absence, but

did not provide notice for the December 8 absence. On December 8,

Benson had arrived to work on time but left early and missed four

hours of work time for a one-hour medical appointment. At the

time, Benson had not offered Wal-Mart an explanation for this

departure and, at her deposition in this case, could not explain

why she missed four hours of work.

As to the October 21 and 28 and November 5, 7, 12, 26,

and 28 absences, Benson stated during her deposition that she gave

notice to management prior to each one. Wal-Mart contests that

she followed the proper procedure for notifying these absences and

- 11 - whether she, in fact, gave advance notice for missing her shift or

leaving early. Wal-Mart also states that Benson informed

management that the absences were related to having the flu.

Benson clarified in her deposition testimony that the November 5

absence was not because she had the flu but rather because of a

"bad reaction" to medication prescribed for her workers'

compensation injury.

Overall, Wal-Mart does not dispute, for the purposes of

summary judgment, that the reasons Benson eventually provided for

these absences were true (i.e., Wal-Mart does not contest that

Benson did indeed attend a chiropractor appointment when she

claimed she did). However, Wal-Mart argues that, at the time of

Benson's termination, management considered the absences to be

"unauthorized," because Benson had not properly notified store

management of the reason for an absence, because Benson never

submitted proper documentation of treatment for her work-related

injury, or because the proffered reason for an absence had not met

the Attendance Policy criteria for an excused absence.

D. Communication with Benson about Absences

On December 12, 2016, Manager Bradstreet first noticed,

while reviewing all associates' absences, that Benson had an

"excessive number of occurrences" since returning to work in

October 2016. Bradstreet arranged to meet with Benson to discuss

these absences. According to Bradstreet, the purpose of the

- 12 - meeting was to give Benson the opportunity to provide a

satisfactory explanation for her absences. If Benson did not

provide a satisfactory explanation, Manager Bradstreet would have

proceeded to terminate her for violating the Attendance Policy.

Benson was absent from most of her shifts that week and, hence,

the two were unable to meet.

The next week, on December 17, 2016, Benson and Manager

Bradstreet finally met. Benson explained that nearly all absences

upon returning in October 2016 were due to her workers'

compensation injury. She attributed the absences from December 12

and 16 to her car breaking down as result of a snowstorm. The

record reflects that Benson requested and was approved to use PTO

time on these dates. As to the December 15 absence, Benson

explained that she had a medical appointment related to her

workers' compensation injury. Wal-Mart contests whether she gave

prior notice about the appointment.

Manager Bradstreet prepared a memorandum on December 17,

2016, following her meeting with Benson. In it, she noted they

had discussed Wal-Mart's Attendance Policy because Benson seemed

to be confused about how to properly notify workers' compensation

absences. The memorandum also details that Benson expressed

concern about receiving "mixed messages" from her workers'

compensation attorney and Wal-Mart's management about required

expectations when informing supervisors about an absence due to a

- 13 - workers' compensation medical appointment. When Bradstreet asked

Benson to provide medical documentation to support these absences,

she indicated she could not do so during the meeting because her

documentation was at home. At the meeting, Benson further

complained about several aspects of how Wal-Mart was generally

handling issues concerning her workers' compensation injury.

Specifically, Manager Bradstreet detailed in the memorandum that:

She complained about not being [able] to go [to] physical therapy because [Wal-Mart] would not approve it even though their independent doctor recommended she go. She has been waiting since June for therapy. She complained about her medication and not being able to get it filled however, when she takes it[,] it causes her to "lose control of her bowels and crap her pants" so she [cannot] be at work.

The memo continues that after Benson expressed this frustration,

Bradstreet informed her that "going forward she needs to

communicate to a member of management when she has appointments

for [workers' compensation] ahead of time as soon as she is aware

of the appointment." She also stressed that, when calling in,

Benson "needs to speak to a member of management about why she is

not at work that day." Bradstreet stated, in a sworn statement

prepared for this litigation, that in light of Benson's

explanation, Bradstreet held off terminating her.

During her deposition, Benson was asked to review and

comment on Manager Bradstreet's memorandum. Benson recalled

- 14 - feeling "very uneasy" during the meeting because she got "constant

smirks" and "reactions" for not "saying what [Bradstreet] wanted."

Benson acknowledged not being able to provide precise answers as

to each absence since she did not have her absence sheet in front

of her. She further explained that to avoid giving Bradstreet

"false information," she instead gave Bradstreet permission to

contact her workers' compensation attorney who had documentation

for each medical appointment. As to complaining about the handling

of her workers' compensation injury, Benson did not remember her

exact words, but recalled generally expressing that the company

"kept delaying me with everything." Benson explained that she

"couldn't get a straight answer" about workers' compensation

questions out of anyone from management; specifically, how to time

clock "the way [they] wanted." Finally, Benson indicated that,

following this meeting, she still did not understand what

information store management required from her or if they were

going to request information through her attorney. Benson

expressed that after the meeting, she felt that "pretty much

. . . the harassment started."

E. More Communication and Harassment Allegations

On December 20, 2016, Benson sent an e-mail to Manager

Bradstreet asking her to provide the dates on which Wal-Mart marked

Benson as absent or tardy, so that Benson could further investigate

the matter. This e-mail was in response to Bradstreet's inquiry

- 15 - regarding Benson's medical records during the December 17 meeting.

After receiving the list of absences and tardies, Benson prepared

a list identifying the reason for each absence and sent it to her

workers' compensation attorney. Benson expected that her workers'

compensation attorney would forward this list to Wal-Mart's legal

counsel and believed this did happen. The record lacks clear

evidence about what action Benson's attorney took or what happened

to this particular list.

Benson's meeting with Bradstreet and subsequent

communication did not change the attendance issues. By early

January 2017, Benson had missed a full shift on January 3 and

arrived late on January 5. According to the record, Benson

informed Wal-Mart—via e-mail and after the fact—that the January

3 absence was because of "bad reactions" to medication prescribed

for the workers' compensation injury and that on January 5 she was

absent because of a workers' compensation medical appointment.

On January 9, Coordinator Burns-Egan spoke to Benson

about her January 5 absence. Benson explained that her doctor had

ordered additional testing after her January 5 appointment, which

caused her to be late. She also informed management about an

upcoming medical appointment on January 13 and that, due to the

appointment, she expected to arrive late to work. On January 13,

2017, upon arriving to the store after the appointment, Benson

sent an e-mail to Bradstreet and Coordinator Burns-Egan stating

- 16 - that: "Today I gave Kathie a copy of my M[-]1 form from Dr. Parris

and asked for assistance in my time as there was an error. I

punched in at 9:23, went to lunch at 9:25 and returned from lunch

at 10:24. This is in all relation to workers' comp injury."9 The

"error" of which Benson speaks appears to be the coding of absences

as "unauthorized" where Benson thought the absences ought to be

authorized. In response to the message, Coordinator Burns-Egan

and Manager Bradstreet met with Benson in-person and discussed her

late arrivals. The record contains divergent versions as to what

precisely occurred in the meeting.

According to Benson, she was following "Wal-Mart's

protocol" and not going to work until after her medical appointment

(at 8:30 a.m.) although her shift was scheduled two hours before

the same (at 6:00 a.m.). Benson testified that Bradstreet was

"very nasty," "rude," and even "screamed" at her. At all times,

Benson insisted that she always followed the store's notice

protocol.

According to Bradstreet, she asked Benson whether Benson

was paid to sit on a couch from 6:00 a.m. to 7:30 a.m., even though

she was scheduled to work. Benson responded that it "cost too

9 An "M-1" form is a "Diagnostic Medical Report" completed by medical providers treating those with injuries sustained at work, whose treatment is covered by workers' compensation. The "M-1" form is required by the Maine Workers' Compensation Board. See 39-A M.R.S.A. § 208.

- 17 - much in gas" to go to work first, then to her medical appointment,

and return to work, so she stayed home and "got ready" for work,

per her attorney's instructions. When the meeting concluded,

Bradstreet expressed to Benson "significant concern" regarding her

absences and how she was missing more days than necessary. As a

result, the January 5 and 13 absences were coded as "conditional

status" pending Benson's production of medical documentation,

presumably meaning these absences were conditionally authorized.

On January 19, Benson and Bradstreet met again to further

discuss Benson's absences and medical documentation. The next

day, Benson sent an e-mail to Market Human Resources Manager Wayne

Gottwald ("HR Manager Gottwald") and Coordinator Burns-Egan

indicating that:

Because of the work injury and because of the actions that were taken by Susan Bradstreet numerous times yesterday, January 19th, I am feeling more and more that I am feeling harassed. If you need a further explanation, I or my attorney can respond. The harassment needs to stop. It is illegal and unfair.

In their depositions, HR Manager Gottwald and Coordinator

Burns-Egan each admitted that an e-mail of this nature, according

to Wal-Mart's policy, would have required immediate action and

would have initiated an investigation into any possible acts of

discrimination or retaliation. HR Manager Gottwald explained that

if he had been made aware of this e-mail, he would have had the

responsibility to gather facts, provide these to Wal-Mart's ethics

- 18 - team, and render a determination if further investigation was

needed. However, the record contains no evidence that anyone at

Wal-Mart actually took action concerning Benson's discrimination

complaint. At their depositions, neither HR Manager Gottwald nor

Coordinator Burns-Egan recalled receiving this e-mail. Similarly,

Manager Bradstreet said she was unaware of the e-mail until the

day her deposition was taken as part of discovery in this case.

F. More Absences and Benson's Firing

On January 26, 2017, Benson arrived late to work because

of a medical appointment related to her workers' compensation

injury. On or about this date, she submitted a medical form

indicating that she could only work every other day because of her

workers' compensation injury. On January 31, 2017, Wal-Mart

adjusted Benson's schedule so that she would work only every other

day, consistent with her doctor's restriction.

On February 8, 2017, Benson was absent from her shift.

Using the web-based platform, she informed the store that she would

miss work due to a snowstorm. Benson requested her absence to be

covered by her PTO, which appears to be permitted by the Attendance

Policy's terms. In her deposition, Benson stated that because she

had to shovel snow that day, her workers' compensation injury was

aggravated.

On February 10, 2017, Benson arrived late for work due

to a workers' compensation medical appointment. On this occasion,

- 19 - she did not provide advance notice, but rather gave Coordinator

Burns-Egan the medical record of her appointment upon her arrival.

On February 16, 2017, Benson was absent from her shift. She says

that, using the web-based call-in procedure, she reported that

said absence was due to snow.

Manager Bradstreet consulted with HR Manager Gottwald

regarding Benson's termination. He declined to support the

termination and instead referred the decision to Wal-Mart's legal

counsel because of her previous lawsuit, Benson I. Specifically,

HR Manager Gottwald testified that: "I was asked if I would be

willing to support terminating her because she had exceeded the

absence number that was allowed by the company. And as I also

recall, I did not approve the termination at that time." When

asked why he did not approve the termination, he stated that

"[b]ecause it was in the hands of the legal team and it was not my

decision to make." Furthermore, when questioned who made the

decision to terminate Benson, HR Manager Gottwald explained that

"I believe it was made at the legal level either -- I don't know

if it was made by the [Wal-Mart] attorney or the home office

corporate attorney."

On February 18, 2017, Wal-Mart terminated Benson. In

the "Separation Notice" Manager Bradstreet documented the alleged

basis for the termination as follows:

- 20 - Margaret has been repeatedly asked to communicate absences and tardies to store management. She has chosen not to do this. She is being terminated for 21 attendance exceptions; policy allows for 9.

G. District Court Proceedings

Following her termination, in November 2018, Benson sued

Wal-Mart in state court alleging disability discrimination and

retaliation under Maine state law. Benson argued that, pursuant

to the Maine Human Rights Act ("MHRA"), 5 M.R.S. § 4572, Wal-Mart

discriminated against her based on medical disability and

terminated her because of a workers' compensation injury. She

further asserted that her firing occurred in retaliation for

engaging in activities protected under the Maine Whistleblower

Protection Act ("MWPA"),

(1)(B),

and related provisions of the MHRA.

Following removal of the case to federal district court,

discovery, and motions practice, the district court issued an order

granting summary judgment in Wal-Mart's favor concluding that

Benson "failed to generate a genuine issue of material fact

concerning the first element of her disability discrimination

claim." Benson v. Wal-Mart Stores East, L.P. ("Benson II"), No.

19-cv-41 (LEW),

, at *6 (D. Me. Apr. 3, 2020).

Specifically, regarding the disability discrimination claim, the

district court ruled that Benson's argument suffered from a "fatal

flaw" because she failed to show she is a "qualified individual"

- 21 - under MHRA.

. To arrive at this conclusion, it analyzed

whether she could "perform the essential functions of her job" and

if not, whether "she identified any reasonable accommodation that

would enable her to perform those functions[.]"

The district

court held that the "need for attendance [was] self-evident" and,

thus, an essential function of the People Greeter job, and that

there was no evidence to support any reasonable accommodation that

would have allowed Benson to attend work.

. As to the

retaliation claim, the district court concluded Benson failed to

adduce sufficient proof to show causation between the proffered

protected activities and her termination and whether Wal-Mart's

explanation for Benson's termination was pretextual.

.

This appeal followed.

III. Discussion

On appeal, Benson posits that the district court erred

in finding, as a matter of law, that she was not a " qualified

individual" under MHRA and failed to establish the elements of her

retaliation claim, pursuant to MHRA and MWPA. We begin with

addressing whether summary judgment was appropriate on Benson's

disability discrimination claim and then turn to her retaliation

claims.

A. Disability Discrimination

The MHRA provides that "[t]he opportunity for an

individual to secure employment without discrimination because of

- 22 - . . . physical or mental disability . . . is recognized as and

declared to be a civil right."

.

The Maine Law Court recognizes that "[f]ederal law guides [its]

construction of the MHRA." Cookson v. Brewer Sch. Dep't,

(Me. 2009); see also Kelley v. Corr. Med. Servs., Inc.,

, 115 n.12 (1st Cir. 2013) ("[D]isability-related

claims under the MHRA are construed and applied along the same

contours as the [Americans with Disabilities Act (ADA)]")

(internal quotation marks and citations omitted).

In cases such as the present, the plaintiff must

establish a prima facie case of discrimination, and, if satisfied,

the burden shifts to the defendant to articulate a legitimate,

non-discriminatory reason for the action. Ultimately, the

plaintiff must come forward with evidence of pretext.

See Collazo-Rosado v. U.P.R.,

(1st Cir. 2014).

1. Prima Facie Case of Discrimination

Mirroring the ADA, to establish a prima facie case of

disability discrimination under MHRA, Benson must show that: "(1)

[she] has a disability; (2) [she] is otherwise qualified, with or

without reasonable accommodations, to perform the essential

functions of [her] job; and (3) [her] employer adversely treated

[her] based in whole or in part on [her] disability." Daniels v.

Narraguagus Bay Health Care Facility,

(Me. 2012).

This stage of the case is not supposed to be burdensome. Lockridge

- 23 - v. Univ. of Me. Sys.,

(1st Cir. 2010) (noting

that prima facie discrimination inference requires only a "modest"

showing); Simas v. First Citizens' Fed. Credit Union,

(1st Cir. 1999) (noting that initial prima facie requirements

are not especially "onerous" (quoting Brennan v. GTE Gov't Sys.

Corp.,

(1st Cir. 1998))).

There is no dispute that Benson has a disability

(required by the first element) and that she was eventually fired

(the adverse treatment from the third element). The central

question, the parties and the district court agree, is about the

second element—is Benson qualified for the job? Pursuant to the

MHRA, a "qualified individual with a disability" is defined as "an

individual with a physical or mental disability who, with or

without reasonable accommodation, can perform the essential

functions of the employment position that the individual holds or

desires."

(8-D). We thus focus

our analysis on whether attendance is an "essential function[]" of

the People Greeter job and then turn to whether Benson can perform

that function with a "reasonable accommodation."

Is Attendance an Essential Function of the Job?

An essential function is "fundamental" to the position

in question. Sepúlveda-Vargas v. Caribbean Rests., LLC,

(1st Cir. 2018) (quoting Kvorjak v. Maine,

(1st Cir. 2001)). "The term does not include 'marginal' tasks,

- 24 - but may encompass 'individual or idiosyncratic characteristics' of

the job."

(quoting Ward v. Mass. Health Res. Inst., Inc.,

(1st Cir. 2000)). When determining whether a function

is "essential," we consider factors such as the written

requirements or description of the job and the consequences of not

requiring the function.

(n)(3); accord Ward,

. We are not tasked with second-guessing an

employer's legitimate business judgment about what is required of

its employees, but we will consider whether the employer actually

enforces this requirement of its employees or merely pays it lip

service during litigation. See Gillen v. Fallon Ambulance Serv.,

Inc.,

(1st Cir. 2002); see also Jones v. Walgreens

Co.,

(1st Cir. 2012) (noting that courts give a

"significant degree of deference to an employer's own business

judgment" about the necessities of a given job). Of particular

relevance here, we have noted that regular attendance "is an

essential function of any job." Colón-Fontánez v. Municipality of

San Juan,

(1st Cir. 2011) (internal quotation marks

omitted); accord EEOC v. Ford Motor Co.,

(6th

Cir. 2015) ("That general rule—that regularly attending work

on-site is essential to most jobs, especially the interactive ones—

aligns with the text of the ADA.").

Benson argues the record permits the conclusion that

regular attendance is not an essential function of the People

- 25 - Greeter job, which is all Benson would need at this stage of the

litigation to survive summary judgment. In support of this

argument, Benson notes that, in its briefing before the district

court, Wal-Mart only cited two facts in support of the idea that

attendance is an essential function of this job: (1) Wal-Mart only

scheduled one People Greeter to work at each entrance at a time

and (2) therefore, if that People Greeter was absent, the People

Greeter's tasks went unfulfilled. Benson contends that these

related facts are disputed and are insufficient as matter of law

to support a holding that regular attendance is not an essential

function of this job. Further, as Benson sees it, Wal-Mart

submitted no evidence of "written job descriptions, consequences

of not requiring the function, work experience of past incumbents,

and work experience of current incumbents," Ward,

(citing

(n)(3)), without which the district

court could not properly analyze the essential-function question

using those factors we have found to be important.

As to Benson's first argument, there is a difference

between an "essential job" and an "essential function" of a given

job. Wal-Mart may not consider the People Greeter position as an

"essential job," as some parts of the record reflect that the

position often went unfilled, but this does not imply that

"attendance" fails to be an "essential function" of this job. Even

if Wal-Mart scheduled more than one People Greeter to work at each

- 26 - entrance, as Benson says it did, that, on its own, appears to show

that Wal-Mart valued having People Greeters present in the store,

necessitating attendance. Benson's second argument, that there

was no evidence that Wal-Mart considered attendance to be an

essential function of the People Greeter role, is similarly

unsupported by the record. This claim ignores the text of the

Attendance Policy which says that "regular and punctual attendance

is a required and essential function of each associate's job."

See Jones,

; see also

(n)(3).

Above all, Benson cannot perform any of the functions

of a People Greeter outside of the hours or location assigned by

Wal-Mart and so, showing up is an essential function of that job.

See Ward,

; see also Tyndall v. Nat'l Educ. Ctrs.,

Inc. of Cal.,

(4th Cir. 1994) (holding that

attendance during assigned class times is an essential function of

job as a teacher).

Can Benson Perform the "Essential Function" of Attendance with a Reasonable Accommodation?

Having determined that attendance is an essential

function of the People Greeter position, we consider whether Benson

could perform that function (that is, attend work) with a

reasonable accommodation. The ADA requires an employer "to make

'reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a disability

- 27 - who is an applicant or employee, unless [the employer] can

demonstrate that the accommodation would impose an undue hardship

on [its] operation of the business.'" Ortiz-Martínez v. Fresenius

Health Partners, PR, LLC,

(1st Cir. 2017)

(quoting

(b)(5)(A)). To prevail in her claim,

Benson bears the burden of showing that (1) she has made a

sufficient request of accommodation, (2) the accommodation would

enable her to perform the essential functions of her job, and (3)

the accommodation is facially reasonable. Echevarría v.

AstraZeneca Pharm. LP,

(1st Cir. 2017).

There is no credible debate that Benson requested an

accommodation. Upon her return from leave in October of 2016,

Benson informed management that she would have regularly scheduled

medical appointments for her work-related injury and Supervisor

Little told Benson that "as long as [she] gave her notice [to the

store's Personnel Coordinator] of when the time frame was, that

they would take care of it and make [her] schedule fit

accordingly."

Nor is there any reasonable argument that authorizing

some absences or tardiness would not enable Benson to show up the

rest of the time. Wal-Mart argues that Benson fails to show "that

[accommodating] her poor attendance would make it possible for her

to heal, to adjust her medication in order to better control her

pain, or to accomplish anything else that would enable her to come

- 28 - to work as scheduled." This, however, misses the point of Benson's

sought accommodation, which is akin to a modified work schedule

where she is excused from working when her disability necessitates

treatment. Indeed, a modified work schedule is a classic

reasonable accommodation, considered by the ADA.

(9)(B).

The decisive factor ultimately is whether Benson's

requested accommodation is "facially reasonable." See Echevarría,

. Wal-Mart makes an understandable point that it

needs People Greeters to show up in order to do their jobs and

that Benson cannot always do that. However, more persuasive than

Wal-Mart's arguments on appeal is Wal-Mart's own Attendance

Policy, which says that any tardiness or absence related to

workers' compensation is permitted. Further, the Attendance

Policy also explicitly considers any missed time due to a

"reasonable accommodation" to be permitted as well.

Mindful that the prima facie case is not difficult to

make out, we conclude that Benson has done enough and so the burden

shifts to Wal-Mart to articulate a legitimate non-discriminatory

reason for Benson's termination.

2. Legitimate Non-Discriminatory Reason and Pretext

Benson appears to agree that Wal-Mart's proffered reason

for her termination—excessive unexcused absences—is, on its face,

a legitimate non-discriminatory reason for her firing. She argues

- 29 - that this reason is pretextual, positing that if her absences were

authorized by the terms of the Attendance Policy, and, thus, she

indeed complied with the written and unwritten Attendance Policy,

then her termination for excessive unexcused absences was

pretextual.

"[T]here is no mechanical formula for finding pretext."

Che v. Mass. Bay Transp. Auth.,

(1st Cir. 2003)

(quotation marks and citations omitted). However, we have noted

that "[o]ne way to show pretext is through '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 with or without the additional evidence

and inferences properly drawn therefrom infer that the employer

did not act for the asserted non-discriminatory reasons.'"

Billings v. Town of Grafton,

, 55–56 (1st Cir. 2008)

(citations and alteration omitted). The record contains enough

facts (however disputed) that make summary judgment inappropriate

on these claims.

Benson puts forward evidence that most of her absences

should have been coded as "authorized" because they were related

to her workers' compensation injury and further followed what she

understood to be Wal-Mart's policy for notifying management of

- 30 - such absences. Two grey areas in the record support Benson's

pretext argument and preclude summary judgment for Wal-Mart.

First, it is at best unclear as to whether an illness

and side-effects from medications prescribed for treating a

workers' compensation injury could be excused under the Attendance

Policy. As per Coordinator Burns-Egan's deposition testimony,

this material fact can neither be confirmed or denied. When

questioned about the matter, Coordinator Burns-Egan responded that

she "would not be able to answer that [because she] really [did

not] know" if an illness related to side-effects from a workers'

compensation injury medications would be excused under the

Attendance Policy. Whether store management even understood the

contours of the policy upon which it based its termination of

Benson is hence disputed.

Second, the record is, at best, murky as to whether

Benson was indeed aware of Wal-Mart's unwritten job expectations,

if they existed at all, regarding documentation of worker's

compensation treatment or obtaining permission from management

before missing a shift. Similarly, as per Coordinator Burns-Egan's

deposition testimony, she did "not remember" nor "recall" whether

the Maine Windham store had a particular policy as to this material

fact, even though she acknowledged that "there should have been

[one]."

- 31 - The record as a whole inures to Benson's benefit, helping

her point out the "implausibilities, inconsistencies,

incoherencies, or contradictions," Billings,

, in

Wal-Mart's proffered reason for her termination. It is impossible

to unequivocally conclude that Wal-Mart internally established

that Benson in fact exceeded the store's allowed number of

authorized absences, which casts enough doubt in Benson's favor.

Viewing all of these facts in the light most favorable

to Benson, the record contains enough to generate genuine issues

of material fact insofar as the reason proffered for Benson's

termination being pretextual. This is all Benson needs at this

point.

3. Inapplicability of Maine Caselaw Precedent: Carnicella

As a final matter, we differ from the district court's

reliance on Carnicella v. Mercy Hosp.,

(Me. 2017).

In Carnicella, the plaintiff had explicitly requested leave and

further extensions to said leave as a means to recover from an

injury before returning to work. The Maine Law Court held that

the only accommodation requested in Carnicella, leave of absence,

was unreasonable as a matter of law because, at the time, the MHRA

contemplated a defense that an employer could discharge an employee

with disabilities who could not perform the duties of the

- 32 - employment. Carnicella, 168 A.3d at 774.10 As a result, this

rendered any additional leave as an unreasonable accommodation

under Maine law.

In this case, there are genuine issues of material facts

as to whether Benson, who had a disability and requested a

reasonable accommodation for it, could indeed perform the duties

of her job. Thus, the statutory defense invoked in Carnicella, at

this stage of the proceedings, is inapplicable. Moreover, if these

factual disputes were to be resolved in Benson's favor, then the

record shows that she understood what an authorized leave of

absence implied because she had requested the same before returning

to work on October 2016. On this occasion, she knowingly did not

10The MHRA was amended in 2019 to add "leaves of absence" to the list of accommodations in the statutory definition of "reasonable accommodation." 2019 Me. Legis. Serv. Ch. 464 (H.P. 1216) (L.D. 1701) (WEST). Although this amendment became law after the present case was filed, it bears no weight in our analysis. Following the fundamental rule of statutory construction, the Maine Law Court has held that "all statutes will be considered to have a prospective operation only, unless the legislative intent to the contrary is clearly expressed or necessarily implied from the language used." Morrill v. Me. Tpk. Auth.,

(Me. 2009) (citing Terry v. St. Regis Paper Co.,

(Me. 1983)). Similarly, the Supreme Court has held that "[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly" and thus "'the principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.'" Landgraf v. USI Film Products,

(1994) (citing Kaiser Aluminum & Chem. Corp. v. Bonjorno,

(1990) (Scalia, J., concurring)). Neither of the exceptions detailed by the Maine Law Court are present here.

- 33 - request leave, as defined under the Attendance Policy, in relation

to her workers' compensation injury. Her reasonable

accommodation, as explained above, was not for a request of

"intermittent leave" as Wal-Mart advanced. The record does not

contain evidence that Benson ever made such a request as Wal-Mart

so characterized.11

B. Retaliation

Under both MHRA and MWPA, Benson has to establish that:

(1) she engaged in protected activity; (2) she suffered a

materially adverse action or was adversely affected, and (3) there

was a causal connection between the protected activity and the

adverse action. See Brady v. Cumberland Cty.,

(Me. 2015); Ramsdell v. Huhtamaki, Inc.,

(D. Me. 2014). When reviewing Maine MWPA claims, we

"collapse the more intricate McDonnell Douglas framework and, in

a seamless inquiry, 'recognize any evidence that the employer had

a lawful reason for the adverse action taken against the employee,

and any evidence that the proffered reason is merely a pretext.'"

We note that it seems contradictory that Wal-Mart on the 11

one hand argues that Benson was required to make a "direct and specific" request for leave of absence to comply with the Attendance Policy, yet also averred before the courts that leave of absence was not a "reasonable accommodation" under Maine law. We disavow Wal-Mart's "attempt[] to eat [its] cake and have it, too." State St. Bank & Tr. Co. v. United States,

(1st Cir. 1963). - 34 - Theriault v. Genesis HealthCare LLC,

(1st Cir.

2018) (quoting Brady,

).

The case law and the parties agree that the causation

element is the center of the dispute. Under the Maine-specific

causation paradigm, "[t]o demonstrate a causal link sufficient to

defeat a summary judgment motion" on a retaliation claim, Benson

must make a sufficient evidentiary showing that her protected

activity "was a substantial, even though perhaps not the only,

factor motivating her dismissal." Id. at 349; see also Caruso v.

Jackson Lab.,

(Me. 2014).

As previously discussed, in this case, the district

court concluded that none of the actions Benson raised, if

considered as protected activity, were causally connected to her

termination. Benson II,

, at *7-8. We disagree

and hold that the facts viewed in the light most favorable to

Benson could lead a reasonable factfinder to conclude that Benson's

first employment discrimination lawsuit, the January 20 e-mail

complaining of harassment, and her late January request for a

reasonable accommodation of a modified schedule could have been

"substantial" factors motivating her dismissal.

When we view the facts and inferences in the light most

favorable to Benson's legal theory, several facts line up in her

favor. First, the timing of the January e-mail and request for a

modified schedule does not fare well for Wal-Mart. As Benson tells

- 35 - it, Bradstreet screams at her for missing work in mid-January,

Benson complains of this harassment and requests a modified

schedule in the weeks after that, and then, by mid-February, she

is fired. On its own, the temporal proximity between the January

e-mail and accommodation request and Benson's February 18

termination is sufficient to make out a prima facie case, but the

inference is even stronger alongside HR Manager Gottwald's

complete inaction in response to Benson's harassment claim. See

Clark Cty. Sch. Dist. v. Breeden,

(2001)

(explaining that "temporal proximity must be 'very close' to

satisfy evidence of causality in prima facie case of retaliation);

Soileau v. Guilford of Me., Inc.,

(1st Cir. 1997)

(noting "the larger sequence of events" for the causation element).

Rather than initiate some sort of investigation as required by

Wal-Mart protocols, Gottwald elected not to act, even in the face

of Bradstreet, the alleged harasser, attempting to fire Benson,

her alleged victim.

Benson's first lawsuit, filed nearly one year prior to her

termination, may be too remote to demonstrate any causation, but

the inference from the January events is too strong to ignore,

especially when dealing with as low a bar as a prima facie case.

These pieces together are enough for Benson to make out a prima

facie case. See Soileau,

; accord Oliver v. Digital

- 36 - Equip. Corp.,

(1st Cir. 1988) (considering the

entire sequence of events for causation questions).

The January 20 e-mail is also critical. The district court

relied on Pomales v. Celulares Telefónica, Inc.,

(1st

Cir. 2006), to support its reasoning that because the

decisionmaker, Manager Bradstreet, was unaware of the e-mail, it

could not be considered as the "but-for" cause of Benson's firing.

The record, however, contains evidence indicating Bradstreet was

not the only decisionmaker in Benson's termination process.

Manager Bradstreet consulted HR Manager Gottwald, one of the

recipients of the January 20 e-mail that complained about

harassment.12 HR Manager Gottwald recommended the matter be

referred to Wal-Mart's legal team, who, according to HR Manager

Gottwald, ultimately made the final decision to terminate Benson.

In short, whether or not Bradstreet knew of the contents of the

e-mail is not fatal to Benson at this stage.

Benson testified that she included HR Manager Gottwald on 12

the e-mail complaining about Manager Bradstreet. Though Gottwald could not recall whether he had received the e-mail, Benson testified that she had sent it to him. Whether HR Manager Gottwald read the e-mail or not is a matter of credibility best suited for a jury. See Ahmed v. Johnson,

(1st Cir. 2014) ("Determining which view more accurately reflects reality requires factfinding and credibility judgments that are properly the task of a jury."); United States v. Sepúlveda-Hernández,

(1st Cir. 2014) ("[I]t is the jury's role—not the role of an appellate court—to determine the weight to be given to a witness's testimony and to assess the witness's credibility.").

- 37 - With the prima facie case in Benson's favor, we move on to

the legitimate non-discriminatory reason and pretext aspects of

the claim. Because we have already concluded that Benson can

sustain an argument that Wal-Mart's proffered reason for her

termination was pretextual, we need not go any further.

IV. Conclusion

For the foregoing reasons, we reverse the district

court's judgment entered on April 3, 2020, and remand for further

proceedings consistent with this opinion. Costs awarded to Benson.

- 38 -