United States Court of Appeals For the First Circuit

No. 23-1040

NANCY DER SARKISIAN,

Plaintiff, Appellant,

v.

AUSTIN PREPARATORY SCHOOL,

Defendant, Appellee.

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

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Gelpí, Selya, and Lynch, Circuit Judges.

Rory FitzPatrick, Kyle W. Cunningham, and Cetrulo LLP on brief for appellant. Jonathan R. Shank and Jackson Lewis P.C. on brief for appellee.

November 7, 2023 LYNCH, Circuit Judge. At the beginning of the 2019-2020

school year, Nancy Der Sarkisian, then sixty-nine years old and a

ninth-grade English teacher at Austin Preparatory School ("Austin

Prep"), began what she had told Austin Prep would be a four-week

leave of absence for hip surgery. When Der Sarkisian experienced

complications that required further surgery -- and which her doctor

anticipated would leave her incapacitated for an additional three

months -- Austin Prep extended her leave of absence. Der Sarkisian

then experienced even more complications that required even more

surgery. When Der Sarkisian's doctor told the school that she

would be unable to work with or without accommodations for an

additional three to six months, Austin Prep terminated her

employment and offered her the opportunity to reapply when she was

cleared to work.

Instead, Der Sarkisian brought claims for disability

discrimination in violation of Title I of the Americans with

Disabilities Act ("ADA") and Mass. Gen. Laws ch. 151B (Count I)

and for age discrimination in violation of Mass. Gen. Laws ch. 151B

(Count II). The U.S. District Court for the District of

Massachusetts granted summary judgment for Austin Prep on both

counts. Der Sarkisian v. Austin Preparatory Sch.,

(D. Mass. 2022). As to Der Sarkisian's disability

discrimination claims, the district court concluded that she had

failed to carry her burden to make out a prima facie case that she

- 2 - was a "qualified individual" under the ADA and thus had also failed

to do so under Mass. Gen. Laws ch. 151B. As to Der Sarkisian's

age discrimination claim, the district court concluded that Der

Sarkisian had failed to demonstrate a genuine dispute of material

fact as to whether Austin Prep's proffered reason for her

termination was pretextual. Der Sarkisian appeals. We affirm.

I.

A.

We recount the facts "in a light as favorable to [Der

Sarkisian] as the record will reasonably allow." Travers v. Flight

Servs. & Sys., Inc.,

(1st Cir. 2013).

Austin Prep is a private Catholic school in Reading,

Massachusetts. The school educates around 750 students a year

enrolled in grades six through twelve.

Der Sarkisian began working at Austin Prep in 1996 as a

sixth-grade substitute teacher. The school offered her a full-

time position as a sixth-grade English teacher later that year.

Der Sarkisian continued to teach English to various grades at

Austin Prep. When the events giving rise to this lawsuit occurred,

Der Sarkisian was assigned to teach ninth-grade English, a class

she had taught for the previous two years, in the fall of 2019.

For several school years up to and including the

2018-2019 school year, Austin Prep employed teaching staff under

the terms of an agreement with the Austin Prep Teachers'

- 3 - Association (the "APTA Agreement"). The APTA Agreement allowed

teachers to accumulate up to 110 days of unused sick leave and

separately provided for one year of unpaid "[e]xtended [l]eave"

for reasons including "personal health."

The APTA Agreement expired on August 31, 2019, and the

school adopted new policies in its place. Under the terms of the

new sick leave policy, employees could accumulate up to sixty-five

days of unused sick leave. The school also took out a long-term

disability insurance policy on behalf of its employees that paid

sixty percent of the employee's salary during a period of

disability after a ninety-day waiting period. After the APTA

Agreement ended, Austin Prep no longer had a policy of offering

one year of unpaid extended leave.

Just before the 2019-2020 school year began, Der

Sarkisian learned that she would need hip surgery. On August 4,

2019, Der Sarkisian emailed Sean Brennan, Assistant Head and Upper

School Head at Austin Prep, to tell him that she had scheduled her

surgery for September 5th, the third day of the 2019-2020 school

year at Austin Prep. Der Sarkisian stated that her "doctor said

that [she] should figure on being out of school for four weeks."

At the time, Der Sarkisian had accumulated the maximum of sixty-

five unused sick days.

Austin Prep granted Der Sarkisian a leave of absence

until October 2019 to recover from this surgery. Austin Prep

- 4 - retained Jonathan Bourdeau as a substitute teacher to cover Der

Sarkisian's ninth-grade English classes during her leave of

absence, which Austin Prep "expected to last for approximately

four weeks." Bourdeau "was retained on a per-diem basis, and did

not have a contract with Austin Prep for any extended period of

time." As such, Bourdeau could not count on sustained employment

with Austin Prep, nor could Austin Prep count on Bourdeau's

availability to cover Der Sarkisian's classes indefinitely.

On October 13, 2019, more than five weeks after her leave

of absence began, Der Sarkisian emailed Brennan and stated that a

complication from her initial surgery meant that "a bone in [her]

hip cracked." As a result a doctor "did a second surgery . . . to

repair the break and actually had to redo the hip replacement."

She described the experience as "a total nightmare" and stated

that "[t]he recovery [was] going to be much more difficult now

because [she] c[ould]n't put any weight on [her] right foot for 12

weeks." She stated that she was "in a critical care rehabilitation

hospital" where she "ha[d] therapy three times a day," that she

"ha[d] no idea how long [she would] be [t]here," and that she would

"[m]ost likely . . . be out for the first semester."

Der Sarkisian's doctor completed a Certification of

Health Care Provider for Employee's Serious Health Condition on

October 28, 2019, in support of her request for further leave. In

- 5 - that Certification, Der Sarkisian's doctor stated that she would

be "incapacitated" until January 5, 2020.

In a November 14, 2019, email, John Weber, Austin Prep's

chief financial officer, told Der Sarkisian that the school had

extended her leave of absence to January 6, 2020, and that she

would need to provide clearance from her doctor to return to work.

Weber also stated that Der Sarkisian would "reach the 90-day wait

period for [long-term disability benefits] on December 2, 2019,"

at which point Der Sarkisian "w[ould] have used 59 of [her] 65

available sick days." After using her remaining sick days, Der

Sarkisian "w[ould] not receive any pay from Austin Prep until the

first regular payroll date following [her] return to work." Der

Sarkisian responded on November 23, 2019, that she was "going to

file for [long-term disability benefits] because [she was] going

to be out of school longer than [she] had anticipated because of

the second surgery." Austin Prep continued to use Boudreau on a

per diem basis to teach Der Sarkisian's five classes.

Der Sarkisian had a third surgery on November 27, 2019.

On her portion of the long-term disability benefits application

form, which she dated November 26, 2019, Der Sarkisian originally

wrote "January 2020" as her expected return to work date and then

crossed out that date and wrote "unsure after 3rd surgery." Her

doctor completed his portion of that application on November 27,

- 6 - 2019, in which he stated that Der Sarkisian would have a "total

temporary disability" for "3-6 months" as of that date.

Der Sarkisian submitted her disability benefits

application to Austin Prep on December 4, 2019. In an email to

Weber the following day, Der Sarkisian stated that she would not

be back at Austin Prep in January 2020 because she had needed a

third surgery on November 27, 2019, after her doctor "found an

infection in the area where the hip replacement was done, so [she]

definitely w[ould] be out longer than [she] expected." She stated

that as part of her recovery she "ha[d] to do an intravenous

injection of antibiotics at home until at least February 7th" and

that she could not "seem to wake up from this 'nightmare.'"

Austin Prep sent Der Sarkisian's doctor an

"Accommodation Request Inquiry Form" in early December 2019. In

it, Austin Prep stated that Der Sarkisian had "requested an

accommodation [under the ADA] from [Austin Prep] in order to do

her job" and that the school was requesting information about

"whether there [wa]s a reasonable accommodation that would allow

[Der Sarkisian] to perform the essential functions of her job."

Austin Prep attached Der Sarkisian's job description to the form.

In his response, dated December 9, 2019, Der Sarkisian's

doctor stated that she was "substantially limited" in her ability

- 7 - to perform several "major life activities"1 and was unable to

"walk[], bend[], [use] stairs, squat[], lift[], [or] driv[e]." He

stated that this impairment would last "3-6 months." In response

to the question "What job function(s) is the employee having

trouble performing because of the limitation(s)?" Der Sarkisian's

doctor wrote "All." In response to the question "Do you have any

suggestions regarding possible accommodations to improve job

performance? If so, what are they?" Der Sarkisian's doctor wrote,

in full, "She should be on total temporary disability."

Weber called Der Sarkisian on December 26, 2019, and

stated that Austin Prep was terminating her employment effective

immediately. In a letter dated that day, Weber stated:

Having reviewed the Accommodation Request Inquiry Form dated December 9, 2019[,] completed by your medical provider, we understand that you are currently unable to work in any capacity. As you know, you have effectively been out of work since September 4, 2019. We also understand that you expect to continue to be unable to work for at least another three to six months. You have exhausted all available leave under the Family and Medical Leave Act and all available paid time off. The completed paperwork necessary to submit a claim for long term disability insurance benefits has been submitted on your behalf and accepted for review.

1 Der Sarkisian's doctor stated that Der Sarkisian was impaired in her ability to perform the following major life activities: "Caring for Self," "Performing Manual Tasks," "Sleeping," "Walking," "Standing," "Working," "Lifting," and "Bending."

- 8 - Unfortunately, [Austin Prep] has a growing need to fill your position, and we cannot provide an extended and continuing leave of absence with no set end date. As we discussed today, we are sorry that we are unable to continue to reserve your position and are severing your employment with Austin Prep effective on the date of this letter. When you are recovered and released to work, you are welcome to apply for any open positions for which you are qualified.

Der Sarkisian was sixty-nine years old when Austin Prep terminated

her.

B.

Der Sarkisian filed a complaint in the Massachusetts

Superior Court for Middlesex County on October 2, 2020, which

Austin Prep removed to the U.S. District Court for the District of

Massachusetts on November 13, 2020. Count I of Der Sarkisian's

complaint alleged discrimination on the basis of a disability in

violation of Title I of the ADA and Mass. Gen. Laws ch. 151B.2

Count II alleged discrimination on the basis of age in violation

of Mass. Gen. Laws ch. 151B, § 4.

After attempting mediation without resolution, the

parties did discovery. Austin Prep moved for summary judgment on

both counts on December 15, 2021. The district court heard

2 Count I alleges that Austin Prep's actions were a "[v]iolation of M.G.L. c. 151B § 1 and

." These are the definitional provisions of their respective statutes; neither provision prohibits conduct or establishes a cause of action. The district court construed Count I as alleging claims under Mass. Gen. Laws ch. 151B, § 4(16) and

.

- 9 - argument on Austin Prep's summary judgment motion on November 30,

2022.

The district court granted Austin Prep's motion as to

both counts in a Memorandum and Order dated December 6, 2022. Der

Sarkisian, 646 F. Supp. 3d at 178. As to Der Sarkisian's

disability discrimination claim, the district court held that

"regular attendance was an 'essential function' of Mrs. Der

Sarkisian's role" at the time she was terminated in December 2019.

Id. at 185. The court concluded that Der Sarkisian had not

satisfied her burden to demonstrate that a reasonable

accommodation existed that would have allowed her to perform this

essential function and thus that she could not make out a prima

facie case of discrimination based on a disability. Id. at 186-

87. As to her age discrimination claim, the district court held

that Der Sarkisian had failed to demonstrate a genuine dispute of

material fact as to whether Austin Prep's stated reason for her

termination was pretextual. Id. at 188-90.

This timely appeal followed.

II.

We review the district court's grant of summary judgment

de novo. Travers,

. Under Federal Rule of Civil

Procedure 56, a "court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and

- 10 - the movant is entitled to judgment as a matter of law." Fed. R.

Civ. P. 56(a).

A.

We begin with Der Sarkisian's claims for disability

discrimination under Title I of the ADA and Mass. Gen. Laws ch.

151B, § 4(16). "The Supreme Judicial Court of Massachusetts

[("SJC")] has indicated that federal case law construing the ADA

should be followed in interpreting the Massachusetts disability

law." Ward v. Mass. Health Rsch. Inst., Inc.,

, 33 n.2

(1st Cir. 2000). We "analyze claims under the ADA and under [Mass.

Gen. Laws ch. 151B] using the same framework." Jones v. Nationwide

Life Ins. Co.,

(1st Cir. 2012). Thus, "[a]lthough

we write in terms of the ADA, our comments apply with equal force

to [Der Sarkisian]'s claim under its state-law counterpart, Mass.

Gen. Laws. ch. 151B, § 4." Gillen v. Fallon Ambulance Serv., Inc.,

, 20 n.5 (1st Cir. 2002).

We evaluate Der Sarkisian's disability discrimination

claims under McDonnell Douglas's three-step burden-shifting

framework. Flaherty v. Entergy Nuclear Operations, Inc.,

(1st Cir. 2019). At step one, Der Sarkisian "has the

initial burden of establishing a prima facie case by showing that

[s]he (1) was disabled within the meaning of the ADA, (2) was a

'qualified individual,' and (3) was discharged in whole or in part

because of h[er] disability."

.

- 11 - Der Sarkisian's claims fail at step one because she has

not carried her burden to demonstrate at least a genuine issue of

material fact that she is a qualified individual, and thus we

proceed no further. "In order to be a 'qualified individual' under

the [ADA], the burden is on [Der Sarkisian] to show: first, that

she 'possess[es] "the requisite skill, experience, education and

other job-related requirements" for the position, and second,

[that she is] able to perform the essential functions of the

position with or without reasonable accommodation.'" García-Ayala

v. Lederle Parenterals, Inc.,

(1st Cir. 2000)

(third and fourth alterations in original) (footnote omitted)

(quoting Criado v. IBM Corp.,

(1st Cir. 1998)).

The parties agree that Der Sarkisian generally possesses the

requisite skills and qualifications; they dispute only whether she

has demonstrated that a reasonable accommodation would allow her

to perform the essential functions of her job.

The district court found that regular, in-person

attendance was an essential function of Der Sarkisian's job, Der

Sarkisian, 646 F. Supp. 3d at 184-85, and neither party disputes

that finding on appeal. Der Sarkisian argues she has carried her

burden to demonstrate that her request for a further extension of

her leave of absence would have allowed her to perform this

essential function and was facially reasonable. We disagree.

- 12 - First, Der Sarkisian incorrectly argues that the

"[d]istrict [c]ourt concluded, in effect, that the failure of Mrs.

Der Sarkisian and her physician to give a precise date for her

return rendered her accommodation request unreasonable per se."

Our review of the district court's opinion makes clear that the

district court did no such thing. According to the district court

opinion:

Mrs. Der Sarkisian correctly notes that accommodations in the form of leave requests "turn[] on the facts of the case." García- Ayala v. Lederle Parenterals, Inc.,

(1st Cir. 2000) (citation omitted). However, in these circumstances, an additional extension of leave was not a reasonable accommodation. Mrs. Der Sarkisian had not set a return date, and "[s]uch an open-ended request for additional leave is just the type of wait-and-see approach that has been rejected as giving rise to a triable issue on reasonable accommodation." Henry v. United Bank,

(1st Cir. 2012).

I recognize the First Circuit has held that some open-ended leave requests might be reasonable, but it has done so in distinguishable circumstances. García-Ayala,

(leave extension reasonable where employee provided specific return date, temporary workers filled employee's responsibility, and employer decided to terminate employee based purely on company policy); Criado v. IBM Corp.,

(1st Cir. 1998) (leave extension reasonable where evidence showed that "leave would be temporary and would allow her physician to design an effective treatment program," company provided 52 weeks of paid disability leave, and company acknowledged that allowing the employee to recover was

- 13 - "more profitable" than hiring and training a new employee).

In the context of teaching and related responsibilities of a school, other considerations are in play. Austin Prep wanted to ensure that its students had consistency with respect to their educators. Moreover, Austin Prep was understandably concerned that Mrs. Der Sarkisian's temporary replacement, Mr. Bourdeau, who did not have a formal contract with the school, would leave for a position elsewhere, thus exacerbating the burden of an open ended accommodation to the school's mission. Accordingly, on these facts, an additional period of leave without end date was not a reasonable accommodation.

Der Sarkisian, 646 F. Supp. 3d at 186 n.9 (alterations in

original).

Moreover, the district court correctly concluded that

Der Sarkisian has not carried her burden to demonstrate that her

request for a further leave of absence was facially reasonable.

Der Sarkisian's claims cannot survive summary judgment if she

cannot show, at a minimum, that her proposed accommodation "seems

reasonable on its face," US Airways, Inc. v. Barnett,

(2002) (citing Reed v. LePage Bakeries, Inc.,

(1st Cir. 2001)) -- that is, that it is "feasible for the

employer under the circumstances," Reed,

.

"Courts confronted with similar requests . . . have

concluded that such requests are not facially reasonable."

Echevarría v. AstraZeneca Pharmaceutical LP,

(1st Cir. 2017) (collecting cases). As the district court found,

- 14 - we have upheld such claims only under circumstances that

demonstrate the facial reasonableness of that request. See, e.g.,

García-Ayala,

(leave extension reasonable where

temporary workers were consistently available to fill employee's

responsibility and employer decided to terminate employee based

purely on company policy against leave of that type); Criado,

(leave extension reasonable where evidence showed that

"leave would be temporary and would allow her physician to design

an effective treatment program," company provided 52 weeks of paid

disability leave, and company acknowledged that allowing the

employee to recover was "more profitable" than hiring and training

a new employee). Der Sarkisian does not develop any argument for

why her request for a further extension of her leave was facially

reasonable that considers the school's need to provide continuity

and adequacy of instruction in all five of her English classes.

Nor does she argue that the school faced no risk from the

possibility that the substitute teacher who had filled her teaching

role would not continue on a per diem basis and the crisis that

would result if he left. Nor does she address the school's

legitimate concern with its inability to guarantee its ninth-grade

English students high-quality education from a full-time,

permanent instructor during the 2019-2020 school year as a result

of her leave.

- 15 - Der Sarkisian argues that Austin Prep's former policy of

offering 110 sick days and a year-long unpaid leave of absence

demonstrates the facial reasonableness of her request. Not so.

The record shows that Austin Prep had deliberately removed both

those policies before the school year at issue and instead offered

a disability insurance policy, from which Der Sarkisian received

benefits. This change -- and Der Sarkisian's assent thereto --

renders her argument meritless.

Der Sarkisian argues that she and Austin Prep "[1] could

have agreed that Mrs. Der Sarkisian would take an unpaid leave of

absence and return in September; . . . [2] could have agreed to

see where things stood with Mrs. Der Sarkisian's health after three

months, the short end of [her doctor's] estimate; . . . [or]

[3] could have discussed whether other faculty members could cover

her classes pending her return." Der Sarkisian did not raise these

arguments to the district court. In fact, at least one of these

newly raised proposed accommodations directly contradicts Der

Sarkisian's argument to the district court that "Austin Prep would

not have had to lower any of its employment standards or reallocate

any essential functions of her job to make other workers' jobs

more onerous in order to accommodate Mrs. Der Sarkisian." These

arguments are waived. See Iverson v. City of Bos.,

(1st Cir. 2006) ("This prophylactic rule requires litigants to

spell out their legal theories face-up and squarely in the trial

- 16 - court; if a claim is 'merely insinuated' rather than 'actually

articulated,' that claim ordinarily is deemed unpreserved for

purposes of appellate review." (quoting McCoy v. Mass. Inst. of

Tech.,

(1st Cir. 1991)).

Even if not waived, these newly raised proposed

accommodations fail. Der Sarkisian failed to develop any evidence

in the record that the belatedly argued "accommodations" would

have satisfied the school's need for instruction of her five

classes and its need to afford its students continuity and avoid

the risk of chaotic disruption. See Echevarría,

("[W]here a plaintiff fails to show facial reasonableness, summary

judgment for the defendant is appropriate."). Further, the school

was "not obligated to offer an 'accommodation' to an employee that

is contrary to medical advice." Jones v. Walgreen Co.,

, 108 n.3 (D. Mass 2011), aff'd,

(1st

Cir. 2012). And Der Sarkisian's proposal that other faculty --

who were already teaching full course loads and subjects other

than English -- should take on her teaching responsibilities is

unreasonable on its face. "[T]he law does not require an employer

to accommodate a disability . . . by reallocating essential

functions to make other workers' jobs more onerous." Richardson

v. Friendly Ice Cream Corp.,

(1st Cir. 2010)

(alteration in original) (quoting Mulloy v. Acushnet Co.,

(1st Cir. 2006)).

- 17 - Finally, because Der Sarkisian has not carried her

burden to demonstrate that a reasonable accommodation existed, we

need not address her argument that the school failed to engage in

an interactive process. Echevarría,

.

Because Der Sarkisian has not carried her burden to set

out a genuine issue of material fact on an essential element of

her prima facie case of disability discrimination, Austin Prep was

entitled to summary judgment on her ADA and Mass. Gen. Laws

ch. 151B disability discrimination claims.

B.

Der Sarkisian argues the district court also erred in

granting summary judgment for Austin Prep on her claim of age

discrimination under Mass. Gen. Laws ch. 151B. The SJC applies

the McDonnell Douglas burden-shifting framework to age

discrimination claims under Mass. Gen. Laws ch. 151B. See Abramian

v. President & Fellows of Harvard Coll.,

, 1084-85

(Mass. 2000). For the purposes of summary judgment no party

disputes steps one or two of this framework.3 Instead, Austin Prep

3 At step one, Der Sarkisian "has the burden to establish a prima facie case of discrimination by showing that '(1) [s]he is a member of a class protected by [Mass. Gen. Laws ch. 151B]; (2) [s]he performed [her] job at an acceptable level; (3) [s]he was terminated; and (4) [her] employer sought to fill the plaintiff's position by hiring another individual with qualifications similar to the plaintiff's."

at 1084 (quoting Blare v. Husky Injection Molding Sys. Bos., Inc.,

(Mass. 1995)). At step two, Austin Prep "can rebut the presumption" created by the prima facie case by "articulating 'a

- 18 - argues that Der Sarkisian cannot carry her step three burden to

"show that the reasons advanced by the employer for making the

adverse decision are not true" -- that is, that they are

pretextual. Id. at 1085. The district court concluded that Der

Sarkisian had not demonstrated that a genuine issue of material

fact existed as to pretext. We agree.

Der Sarkisian's pretext evidence consisted entirely of

three teacher comparators, all three of which the district court

rejected. Der Sarkisian, 646 F. Supp. 3d at 189-91. On appeal,

Der Sarkisian argues only that Austin Prep's "disparate treatment"

of one of these comparators -- Austin Prep science teacher Katy

Haughn -- "proves that Austin Prep discriminated against Mrs. Der

Sarkisian due to her age."

As the district court rightly recognized, no such

disparate treatment occurred. Id. at 189. The parties agree that

Haughn, who was thirty-eight years old at the time, began a leave

of absence due to a medical condition in the first semester of the

2019-2020 school year. The parties further agree that when "Ms.

Haughn's medical provider completed an Accommodation Request

Inquiry Form, which indicated that Ms. Haughn was unable to perform

any of the essential functions of her job with or without an

lawful reason or reasons for its employment decision [and] produc[ing] credible evidence to show that the reason or reasons advanced were the real ones." Id. (alteration in original) (quoting Blare,

).

- 19 - accommodation . . . Austin Prep terminated Ms. Haughn's

employment." As the district court stated, "Austin Prep treated

Ms. Haughn and Mrs. Der Sarkisian in exactly the same manner,

despite their differences in age."

Der Sarkisian develops no further argument on appeal in

defense of her age discrimination claim.

Because Der Sarkisian has not demonstrated a genuine

issue of material fact as to pretext, an essential element of her

claim under the SJC's application of the McDonnell Douglas

framework, Austin Prep was entitled to summary judgment on her age

discrimination claim under Mass. Gen. Laws ch. 151B.

III.

We affirm.

- 20 -