United States Court of Appeals For the First Circuit

No. 22-1061

LUPE STRATTON,

Plaintiff, Appellant,

v.

BENTLEY UNIVERSITY,

Defendant, Appellee.

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

[Hon. Denise J. Casper, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Lipez, Circuit Judges.

Helen G. Litsas, with whom Law Office of Helen G. Litsas was on brief, for appellant.

Gregory A. Manousos, with whom Jacob J. Thaler and Morgan, Brown & Joy, LLP were on brief, for appellee.

Steven John Winkelman, Attorney, with whom Gwendolyn Young Reams, Acting General Counsel, Jennifer S. Goldstein, Associate General Counsel, Anne Noel Occhialino, Acting Assistant General Counsel, and Nicolas Sansone, Attorney, were on brief, for the Equal Employment Opportunity Commission, amicus curiae.

August 15, 2024 LIPEZ, Circuit Judge. Lupe Stratton worked at Bentley

University from August 2016 to July 2018. She alleges that, during

her tenure, her supervisors discriminated against her because of

her gender, race, disability, and Guatemalan origin. After she

complained about that discrimination to Bentley's human resources

department, her supervisors placed her on a performance

improvement plan, which she claims was in retaliation for those

complaints. Stratton also contends that Bentley interfered with

her right to medical leave and failed to provide her with

reasonable accommodations for her disability. After two years on

the job, she felt her workplace was so intolerable that she had no

choice but to resign.

Stratton sued Bentley for employment discrimination

under a variety of federal and Massachusetts anti-discrimination

statutes. The district court entered summary judgment in

Bentley's favor on each of Stratton's claims. Though the court

evaluated Stratton's Title VII retaliation claim under an

incorrect legal standard, we nonetheless agree that each of

Stratton's claims fails to survive as a matter of law. We thus

affirm, taking the opportunity to clarify the relevant law

governing Title VII retaliation claims in our circuit.

I.

We recount the facts in the light most favorable to

Stratton, who was the non-moving party at summary judgment. See

- 2 - Ing v. Tufts Univ.,

(1st Cir. 2023).

A. Stratton's Employment at Bentley

Bentley University is a private academic institution in

Waltham, Massachusetts. The school features a User Experience

Center ("UXC" or "Center") that offers both academic coursework

and professional consulting services involving the interaction

between human psychology and technology platforms. As part of

Bentley's "Human Factors" graduate program, the Center's

educational component provides not-for-credit professional

development courses, such as the "UXC Certificate Program" and the

"UXC Boot Camp." Unlike traditional graduate-level classes, the

Center's educational programs have open enrollment and take place

on a compressed timeline, with some programs spanning only two

days. As a complement to its academic mission, the Center's

employees, students, and alumni also provide related for-profit

professional consulting services ("UXC Services") to third-party

clients.

In August 2016, Stratton began working as the Executive

Program Coordinator at the Center. In that role, she provided

marketing, program management, and business development support

for both the UXC Certificate Program and UXC Services. For the

UXC Certificate Program, Stratton would recruit students,

facilitate their courses, deal with the logistics of setting up

classrooms, develop marketing plans for the program, and keep track

- 3 - of the revenue necessary to meet the Center's goals. For UXC

Services, Stratton developed sales leads, controlled the Center's

social media presence, and managed marketing endeavors.

Stratton reported directly to William Gribbons and

William Albert, both of whom interviewed and hired her. At the

time, Gribbons was the Director of Bentley's "Human Factors"

graduate department, overseeing the broader graduate program as

well as the Center. Albert, as Executive Director of the Center,

was fully responsible for UXC Services and reported to Gribbons.

Gribbons supervised Stratton's work related to the educational

components of the Center while Albert supervised Stratton's work

for UXC Services.

It is undisputed that Stratton "complained about the

position's workload and believed the position was more than a one-

person job." Before offering her the job, Stratton's supervisors

told her the position was stressful. The position was previously

held by Gail Wessell, a white woman, and Janell Pace, a Black

woman. Both Wessell and Pace warned Stratton about the demanding

nature of the job, explaining to her that they had not experienced

it to be a one-person position. Wessell also noted that she had

complained to Bentley's human resources department about the

intense workload.1 Stratton asserts that at times she received

1 The record does not suggest when Wessell lodged these complaints.

- 4 - conflicting instructions from her two supervisors, such as when

they would identify different time-sensitive priorities for her

attention.

Bentley, by contrast, provides evidence that Stratton

lacked the productivity of her predecessors in that same role,

despite Stratton having more student workers to assist with her

tasks. Just months into her tenure at Bentley, Stratton's

supervisors exchanged emails with each other about Stratton's

less-than-satisfactory performance. For example, in a December

2016 email to Albert, Gribbons said he had been worried about

Stratton's efficiency for months because she often worked late

into the evening. A few months later, in March 2017, Gribbons

sent an email to Albert complaining that Stratton had spent nearly

double the marketing budget from the prior year only to have

lackluster enrollment in the Center's academic programs.

It is undisputed that Stratton received some positive

feedback during her time at Bentley, including statements by

Gribbons that Stratton's work was excellent. Still, Stratton's

supervisors provided increasingly negative feedback to her. In

October 2017, for instance, Albert informed Stratton that she

needed to be more responsive to email communications after she had

ignored some important inquiries. In the same message, Albert

asked Stratton to be more receptive to constructive criticism after

- 5 - some incidents in which Albert felt she had deflected blame onto

others.

Gribbons's treatment was harsher. Stratton testified

that Gribbons would express his frustrations in ways that she felt

were hostile and unprofessional. For example, Gribbons told

Stratton, in what she described as an aggressive and intimidating

tone, that she should "stop failing" because ever since she took

over the UXC Certificate Program he had "never seen such low

[attendance] numbers." These disparaging remarks, according to

Stratton, were not isolated events. She testified that Gribbons

was "constant[ly] berating [her for her] low numbers." When the

UXC Boot Camp had to be cancelled in March 2018 due to low

enrollment, Stratton testified that Gribbons demanded that

Stratton take full responsibility for the program's failure to

launch. When she declined to accept such blame, Stratton recalled

that Gribbons slammed his hand on his desk and told her that she

could not leave his office without agreeing to continue the

discussion another time.

B. Complaints to Human Resources

At some point on or before April 19, 2018, Stratton

reached out to David Hatch, the Senior Human Resources Partner at

Bentley, to discuss complaints she had about the workplace.2 The

2The record does not reveal a specific date on which Stratton began to make complaints of discrimination. But viewing the

- 6 - parties dispute the frequency and content of these complaints.

Stratton testified that, over time, she had numerous discussions

with Hatch about Gribbons's management style, the workload

expected of the position, and what Stratton considered to be a

discriminatory work environment. She told Hatch of several

instances where she felt that Gribbons and Albert made

discriminatory comments based on race and gender. As one such

example, Stratton told Hatch about a comment Gribbons made to

Stratton while the two of them were cleaning Pace's desk.

Gribbons, according to Stratton, questioned whether Brockton,

where Pace's children (Pace is a Black woman) attended school, had

an "actual" school district.3

Stratton also told Hatch that Gribbons had described

other female employees' job performance negatively, such as when

she heard him refer to an employee in another department as a

"dinosaur." In another instance, Stratton reported that Albert

record in a light most favorable to her, we can infer she raised these complaints on or before April 19, 2018. On that day, Hatch emailed Stratton a copy of Bentley's "Workplace Discrimination, Harassment and Bullying Policy." In that same email, Hatch also explained how Stratton could report concerns about harassment or bullying. Stratton later testified that she considered this remark to 3

be inappropriate. In her view, Gribbons "felt entitled to make such a comment in front of another person of color as if that was -- it was disparaging and demeaning."

- 7 - described the administrative duties assigned to a male student

worker as stereotypically "female responsibilities." Moreover,

Stratton noted that Gribbons and Albert described her job as

"different," in that she was "not similar to the staff at the UXC."

Beyond these specific examples, Stratton expressed to

Hatch more generally that Gribbons and Albert spoke to her in a

demeaning manner, reprimanded her for minor issues, and treated

her differently than other employees. Stratton never lodged a

written complaint involving these or other allegations of

discrimination.

During her deposition, Stratton recalled other instances

of alleged hostility. For example, Stratton testified that

Gribbons had engaged in "public humiliation" by reprimanding her

for using her computer during a staff meeting, even though other

co-workers were also using their computers during the meeting.

C. Requests for Leave and Accommodation

Stratton began experiencing chronic pelvic pain around

August 2017. In November 2017, she submitted a doctor's letter

to Bentley explaining that "[d]ue to a medical condition, Ms.

Stratton should not sit for long periods of time and would benefit

from working at home one or two days a week if needed." The letter

did not identify a specific medical condition underlying the

request to work from home. In response, Hatch asked for additional

information about Stratton's medical condition and provided

- 8 - Stratton with Bentley's policies for formally requesting an

accommodation or leave under federal and state law. Bentley's

policy states that "if the disability or need for the accommodation

is not obvious, Bentley will ask employees to provide supporting

documents from the employee's physician outlining the disability

and indicating that the disability necessitates a reasonable

accommodation."

On January 18, 2018, Stratton submitted a different

doctor's letter stating: "Lupe Stratton should attend physical

therapy for 2 days per week beginning January 18th, 2018 to April

18th, 2018. She will need to work [from] home for these 2 days

per week. She requires this for her medical condition." This

letter also did not reference a specific medical condition. A few

days later, on January 22, 2018, Stratton requested leave to attend

physical therapy appointments twice a week under the Family and

Medical Leave Act ("FMLA").

On February 5, 2018, Hatch informed Stratton in writing

that her request to work from home had been denied because Bentley

determined that such an accommodation would cause the Center "undue

hardship." Hatch explained to Stratton that Gribbons and Albert

had determined that her presence in the office was necessary to

service the daily needs of the Center and to manage certain events,

such as the UXC Bootcamp and the Face of Finance Conference. Hatch

further noted that her various requests to work from home did not

- 9 - specify her medical condition. Hatch told Stratton that, although

her remote work request had been denied, they would permit her to

work from different locations on campus so she could sit in a

position recommended by her doctor. These alternative locations

included the school library and the conference room adjacent to

her office, among other places. Stratton accepted this

accommodation and never expressed concerns with its effectiveness

in mitigating her pelvic pain.

Stratton's doctor sent Bentley medical documentation

specifying Stratton's condition on February 7, 2018. These

documents explained that Stratton suffered from chronic pelvic

pain starting in August 2017 and would benefit from sitting in

alternate positions (i.e., not a 90-degree angle) at work. The

following day, Bentley granted Stratton's request for leave to

attend medical appointments. Bentley's decision to deny

Stratton's remote work request, on the other hand, was not

revisited.

When Stratton initially began working in alternative

work locations, it was her understanding that she was not required

to notify her supervisors of where she was working on campus.

Gribbons and Albert, however, soon became frustrated with their

lack of knowledge of where Stratton was stationed. Shortly after

the arrangement was approved, Gribbons and Albert asked Stratton

to let them know where she was working on a given day. That

- 10 - information, Gribbons and Albert explained, would allow them to

have impromptu, in-person conversations with her when she was

unresponsive to emails during the workday.

D. Stratton's Performance Improvement Plan and Resignation

Still dissatisfied with Stratton's productivity,

Gribbons and Albert placed her on a performance improvement plan

on May 22, 2018. The plan, as described by Gribbons and Albert,

sought to identify specific work-related goals for Stratton.

Because Stratton was on a performance improvement plan, she was in

theory unable to apply for other positions internally at the school

under a Bentley policy. 4 The parties dispute whether the

performance improvement plan altered certain of Stratton's job

responsibilities at UXC, namely her performance goals and

administrative tasks. Stratton testified that, in discussing the

plan with her, Hatch said that she "was lucky that the only thing

that [Gribbons and Albert] did was to put [her] on a performance

plan" when she "could be fired for insubordination."5

4 We say in theory because Stratton in fact applied for a different position at Bentley, though she could not recall whether she submitted that application before or after the imposition of the performance improvement plan. In any event, there is no evidence the policy was enforced against Stratton, given that Bentley advanced Stratton to the final group of candidates for the new position. Stratton, however, withdrew her application before completing the hiring process. Also, Stratton did not know about this policy during her tenure. Indeed, her deposition testimony established that she believed she was "free to apply for other open positions at the university." 5 The record does not disclose the nature of this alleged

- 11 - In Stratton's June 2018 performance review, Gribbons and

Albert described areas that she "largely handled well," or where

her performance was "very strong" and "effective," such as her

ability to manage logistics during events. At the same time, the

review emphasized that Stratton failed to achieve certain goals

outlined in her performance improvement plan. For example,

Gribbons and Albert explained that Stratton still struggled with

responding to constructive criticism. The review also indicated

that Stratton disregarded numerous recommendations from Gribbons

regarding marketing strategies for the UXC Boot Camp.

Stratton resigned on July 9, 2018. She noted in her

exit interview that, during her tenure at Bentley, she felt

discriminated against based on her gender, national origin, and

religion. When asked if she had any specific examples, she wrote,

"no examples only Elizabeth," which Stratton later explained was

a reference to disparaging comments about Catholics made by a co-

worker.

E. The Litigation

In July 2019, after exhausting her administrative

remedies, Stratton filed this action against Bentley alleging

discrimination and retaliation in violation of Title VII of the

Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, and

insubordination.

- 12 - Chapter 151B of the Massachusetts General Laws ("Chapter 151B")

(Count I); violations of the FMLA,

(a),

2615(a)(1)(Counts II and III); disability discrimination in

violation of the Americans with Disabilities Act ("ADA"),

(Counts IV and V) and Chapter 151B (Count VI); and

retaliation for requesting a reasonable accommodation in violation

of Chapter 151B (Count VII).

The district court granted summary judgment for Bentley

on all of Stratton's claims. See Stratton v. Bentley Univ., No.

19-CV-11499-DJC,

, at *8 (D. Mass. Dec. 23, 2021).

Stratton then moved the district court to alter or amend its

judgment. The district court denied Stratton's motion. Stratton

now appeals those decisions by the district court.

II.

We review a district court's grant of summary judgment

de novo. Ferrari v. Vitamin Shoppe Indus.,

(1st

Cir. 2023). A party is entitled to summary judgment only when the

record reveals no genuine issue as to any material fact and

judgment is proper as a matter of law. Motorists Com. Mut. Ins.

v. Hartwell,

(1st Cir. 2022).

A. Title VII Claims

Title VII's primary objective is to ensure a workplace

where individuals are not discriminated against because of their

race, ethnicity, religion, or gender. See Burlington N. & Santa

- 13 - Fe Ry. Co. v. White,

(2006) [hereinafter

"Burlington Northern"]. The statute's "substantive provision"

makes it unlawful for an employer "to discriminate against any

individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's" protected

characteristics, or "to limit, segregate, or classify [its]

employees . . . in any way which would . . . adversely affect [an

individual's] status as an employee, because of such individual's"

protected characteristics. 42 U.S.C. § 2000e-2(a). A separate

"retaliation provision" makes it unlawful for an employer "to

discriminate against any of [its] employees . . . because [an

employee] has opposed any practice made . . . unlawful" under the

substantive provision. Id. § 2000e-3(a). Put broadly, Title

VII's substantive provision protects against discrimination based

on who one is (i.e., a member of a protected class) while the

retaliation provision protects what one does (i.e., engages in

protected conduct). See Burlington Northern,

.

1. Discrimination

Without direct proof of discrimination, Stratton must

satisfy the familiar burden-shifting framework outlined in

McDonnell Douglas Corp. v. Green,

(1973).

See Luceus v. Rhode Island,

(1st Cir. 2019).

Under that standard, Stratton must "establish a prima facie case

by showing that (1) she is 'a member of a protected class'; (2) she

- 14 - is 'qualified' for the job [from which she claims she was

constructively discharged]; (3) she has 'suffer[ed] an adverse

employment action at the hands of her employer'; and (4) there is

'some evidence of a causal connection between her membership in a

protected class and the adverse employment action.'"

(alteration in original) (quoting Bhatti v. Trs. of Bos. Univ.,

(1st Cir. 2011)). Once she has established a

prima facie case, the burden of production shifts to Bentley to

show a legitimate, nondiscriminatory justification for the adverse

employment action.

If Bentley produces such a justification,

it is entitled to summary judgment unless Stratton raises a genuine

issue of material fact that "the reasons offered by [Bentley] were

a pretext for discrimination."

(quoting Ray v. Ropes & Gray

LLP,

(1st Cir. 2015)). We assume that Stratton

meets the first two elements of a prima facie case, and we do not

address the fourth element as we find the third element of her

prima facie case -- the "adverse employment action"

requirement -- dispositive.

"An 'adverse employment action' is one that 'affect[s]

employment or alter[s] the conditions of the workplace[.]'"

Morales-Vallellanes v. Potter,

(1st Cir. 2010)

(alterations in original) (quoting Burlington Northern, 548 U.S.

- 15 - at 61-62).6 However, an employee's resignation constitutes an

"adverse employment action" only where the employee's working

conditions were so difficult that a reasonable person in her

position "would have felt compelled to resign." Marrero v. Goya

of P.R., Inc.,

(1st Cir. 2002) (quoting Alicea

Rosado v. Garcia Santiago,

(1st Cir. 1977)). In

that situation, the employer has "constructively discharged" the

employee. Id. at 27.7 The standard for a constructive discharge

is "an objective one, 'it cannot be triggered solely by an

employee's subjective beliefs, no matter how sincerely held.'"

Gerald v. Univ. of P.R.,

(1st Cir. 2013) (quoting

Roman v. Potter,

(1st Cir. 2010)). Instead,

6The Supreme Court recently explained in Muldrow v. City of St. Louis,

(2024), that a plaintiff need not show a "significant" change in working conditions resulting from a reassignment decision to make out a Title VII discrimination claim.

. Rather, a discrimination claim under Title VII only requires that the plaintiff show "some harm respecting an identifiable term or condition of employment."

However, Muldrow is not relevant to Stratton's Title VII discrimination claim given that Stratton resigned from her position. 7In her opening brief, Stratton asserts that the district court erred "when it limited its analysis of the Plaintiff's adverse employment action to her constructive discharge claim when in fact the record establishes that the Plaintiff offered other example[s] of adverse actions to support her claim." But Stratton has not identified which additional adverse actions are supported in the record, and this argument is therefore waived. See United States v. Zannino,

(1st Cir. 1990) (explaining that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived"). Accordingly, we review only Stratton's constructive discharge theory.

- 16 - "working conditions [must be] so unpleasant that 'staying on the

job while seeking redress [would have been] intolerable.'"

Marrero,

(second alteration in original) (quoting

Keeler v. Putnam Fid. Tr. Co.,

(1st Cir. 2001)).

Stratton argues that she was constructively discharged

because her work environment was intolerably hostile. Bentley,

in response, contends that Stratton's examples of hostility are

insufficiently egregious to satisfy the constructive discharge

test. The district court agreed with Bentley, reasoning that

Stratton was not constructively discharged because she "only

point[ed] to a handful of specific comments by Gribbons and Albert"

without "explain[ing] how any of th[o]se comments created an

objectively intolerable workplace." Stratton,

,

at *4. The district court therefore concluded that Stratton did

not experience an adverse employment action. See

We first address Stratton's assertion that she was

constructively discharged based on her bosses' disparagement. For

example, Gribbons and Albert described Stratton's job as

"different" and stated that she was "not similar to the staff at

the UXC." Stratton also felt that Gribbons made discriminatory

comments, such as when he questioned whether the Brockton School

District "was an actual school district" and when he referred to

another employee as a "dinosaur." In the same vein, Albert

critiqued Stratton's hiring of a male student worker, explaining

- 17 - that the role involved traditionally female responsibilities. In

another instance, Gribbons engaged in "public humiliation" by

reprimanding only Stratton for using her computer during a staff

meeting, even though others were using their computers.

These identified remarks may have been "insensitive,

unfair, or unreasonable," Ahern v. Shinseki,

(1st

Cir. 2010), but they do not show that Stratton was compelled to

leave an objectively intolerable workplace. See

(rejecting

constructive discharge theory based on a supervisor's

"divisiveness" and "generally disagreeable behavior"). Many of

the relevant remarks were not directed toward Stratton but were

said to, or about, her colleagues. The Brockton comment, for

instance, referred to the school district where Stratton's

predecessor had sent her children, while the "dinosaur" insult

described an employee in a different department. See Torrech-

Hernández v. Gen. Elec. Co.,

(1st Cir. 2008)

(noting an employer's use of the term "dinosaur," along with other

insults, did not establish a constructive discharge on their own).

Though some of the cited comments and incidents may speak

to Gribbons's reasonableness and temperament as a boss, Title VII

does not shield employees from these sorts of "ordinary slings and

arrows that workers routinely encounter in a hard, cold world."

at 50 (quoting De La Vega v. San Juan Star, Inc.,

(1st Cir. 2004)); see also Faragher v. City of Boca Raton,

- 18 -

(1998) (noting that Title VII does not protect

against "the ordinary tribulations of the workplace, such as the

sporadic use of abusive language, gender-related jokes, and

occasional teasing" (quoting Barbara T. Lindemann & David D. Kadue,

Sexual Harassment in Employment Law 175 (1992))). Nor does the

constructive discharge standard "guarantee a workplace free from

the usual ebb and flow of power relations and inter-office

politics." Suarez v. Pueblo Int'l, Inc.,

(1st

Cir. 2000); see also De La Vega,

(rejecting

constructive discharge claim based, among other things, on an

employer's reprimand of the plaintiff during a meeting with her

co-workers).

Beyond her supervisors' comments, Stratton briefly

raises other workplace grievances in attempting to satisfy the

constructive discharge test. Stratton argues, for example, that

her placement on a performance improvement plan was unfounded and

indicative of discrimination. She also takes issue with Hatch

saying she was "lucky" that Gribbons and Albert put her on a

performance plan when she could have been "fired for

insubordination."

These examples are similarly unavailing. It is true

that an employee may show a constructive discharge if she is told

"that she will be fired." Rivera-Rivera v. Medina & Medina, Inc.,

(1st Cir. 2018) (emphasis added). But Hatch simply

- 19 - conveyed that Stratton could be fired. Though Stratton feared the

performance improvement plan "set the stage" for her firing, an

"apprehension of future termination is insufficient to establish

constructive discharge." Torrech-Hernandez,

.8 And

even if the performance improvement plan "added to her already

demanding job responsibilities,"9 Stratton has not explained how

those tasks were beyond the reasonable expectations for her job.

See Suarez,

("An increase in work requirements that

does not surpass reasonable expectations will not suffice to

sustain a claim of constructive discharge."); see also Greenberg

v. Union Camp Corp.,

(1st Cir. 1995) (rejecting

constructive discharge claim where an employer required an

employee to spend two additional days a week making sales calls).

8 Many of our sister circuits have concluded that performance improvement plans, standing alone, do not establish a constructive discharge. See, e.g., Agnew v. BASF Corp.,

(6th Cir. 2002) ("[C]riticism in performance reviews and institution of performance improvement plans, alone, do not constitute objectively intolerable conditions."); Fischer v. Andersen Corp.,

(8th Cir. 2007) ("An employee is not constructively discharged when an employer merely implements a [performance improvement plan]."); Perret v. Nationwide Mut. Ins.,

(5th Cir. 2014) (rejecting argument that a performance improvement plan established a constructive discharge); Reynolds v. Dep't of Army,

(3d Cir. 2011) (same); Miller v. Batesville Casket Co.,

(2d Cir. 2009) (same); Saville v. Int'l Bus. Machs. Corp.,

(10th Cir. 2006) (same). 9 Stratton asserts, for example, that the performance improvement plan required her "to generate a certain number of new marketing leads by attending events outside of her regular work hours."

- 20 - Finally, Stratton argues that "her mental and physical

health deteriorated" because her "attempts to remedy the disparate

treatment were left unanswered." She believed, on that basis,

that "she had no other option but to leave her employment." But

the relevant question is not whether Stratton subjectively felt

compelled to resign. Instead, we must ask whether Stratton's

working conditions became so objectively intolerable "that a

reasonable person in her place would feel forced to resign."

Gerald,

(emphasis added). As we have explained,

the answer here is no.

Indeed, Stratton herself insists that -- despite these

supposedly intolerable work conditions -- she was able to perform

her job adequately throughout her tenure. And, amidst the tension

in her workplace, Stratton applied for a different position at

Bentley. Despite making it to the final round of candidates,

Stratton voluntarily withdrew her application. By declining this

alternate position, and instead choosing to stay at the UXC for

some time, Stratton undermined her assertion that her job was so

insufferable that she had no choice but to quit. See EEOC v.

Kohl's Dep't Stores, Inc.,

(1st Cir. 2014)

(rejecting a constructive discharge theory because the plaintiff

"actively disregarded" opportunities to resolve her job-related

complaints by, for example, refusing her employer's "offer[] to

discuss other work arrangements").

- 21 - In short, the circumstances identified by Stratton,

taken together or individually, do not show that Stratton's

experience at Bentley was so intolerable that a reasonable person

in her shoes would have felt compelled to resign. 10 Because

Stratton has not identified a cognizable adverse employment action

beyond her alleged constructive discharge, the district court

appropriately entered summary judgment against Stratton on her

discrimination claims brought under Title VII and Chapter 151B.

2. Retaliation

Stratton also asserts that Bentley retaliated against

her for complaining to the human resources department about

Gribbons and Albert's purported discriminatory conduct, citing in

particular her placement on a performance improvement plan.

Bentley counters that the performance improvement plan was

directly related to Stratton's unsatisfactory work performance,

well-documented by contemporaneous correspondence between her

10Stratton's discrimination claims under Chapter 151B similarly fail because "she does not argue that the two claims should be treated differently." Ponte v. Steelcase Inc.,

, 319 n.9 (1st Cir. 2014). Moreover, the Massachusetts Supreme Judicial Court typically "appl[ies] Federal case law construing the Federal anti-discrimination statutes in interpreting G.L. ch. 151B."

(quoting Wheatley v. Am. Tel. & Tel. Co.,

(Mass. 1994)); see also GTE Prods. Corp. v. Stewart,

, 169 (Mass. 1995) ("In order to amount to a constructive discharge, adverse working conditions must be unusually 'aggravated' or amount to a 'continuous pattern' before the situation will be deemed intolerable." (quoting Turner v. Anheuser-Busch, Inc.,

(Cal. 1994))).

- 22 - supervisors.

To succeed on her retaliation claim, Stratton must show

that "(1) she engaged in protected activity; (2) she suffered some

materially adverse action; and (3) the adverse action was causally

linked to her protected activity." Dixon v. Int'l Bhd. of Police

Officers,

(1st Cir. 2007). As in the substantive

discrimination context, the McDonnell-Douglas burden-shifting

framework applies to retaliation claims. That is, once a

plaintiff makes a prima facie case of retaliation, "the burden

swings to the defendant 'to articulate a legitimate, non-

retaliatory reason for its employment decision.'" Abril-Rivera

v. Johnson,

, 608 n.10 (1st Cir. 2015) (quoting Gerald,

). "If a defendant can do this then the burden

travels once more to the plaintiff to show that the reason is

pretext and that retaliatory animus was the real motivating

factor."

(quoting Gerald,

).

The district court granted summary judgment in Bentley's

favor on Stratton's retaliation claim for two reasons. First, the

court found that Stratton did not suffer a "materially adverse"

employment action. See Stratton,

, at *4. Second,

the court found that Stratton could not establish a "but-for"

causal connection between the purported retaliatory actions and

her complaints to Hatch.

. Though the causation prong

is ultimately dispositive here, we address both of the district

- 23 - court's holdings because our avoidance of the "materially adverse

action" prong would leave in place an untenable view of the

Burlington Northern retaliation standard. We therefore deem it

important to first address Stratton's argument that the district

court applied the wrong test for "materially adverse action."

(a) Materially Adverse Action

In Burlington Northern, the Supreme Court considered

whether Title VII's antiretaliation provision, like the

substantive provision, "confine[s] actionable [conduct] to

activity that affects the terms and conditions of employment."

. The Court answered in the negative.

Concluding that "Title VII's substantive provision and its

antiretaliation provision are not coterminous,"

, the

Court held that the retaliation provision "is not limited to

discriminatory actions that affect the terms and conditions of

employment,"

. Rather, it covers all "materially

adverse" actions, including those not directly related to an

employee's job.

. An action is "materially adverse,"

the Court explained, if it "could well dissuade a reasonable worker

from making or supporting a charge of discrimination."

The broader test for "materially adverse" retaliatory

conduct accounts for the linguistic differences between the

substantive provision and the retaliation provision in Title VII.

. Though the substantive provision contains terms that

- 24 - "explicitly limit the scope of that provision to actions that

affect employment or alter the conditions of the workplace," the

Court observed that "[n]o such limiting words appear in the

antiretaliation provision."

Nor would the statute's

objective be achieved if an employer could simply "retaliate

against an employee by taking actions not directly related to his

employment or by causing him harm outside the workplace."

.

Here, the district court did not assess whether

Bentley's alleged retaliatory acts could dissuade a reasonable

employee from complaining of discrimination. Instead, the court

incorrectly viewed Stratton's evidence of retaliation through a

narrower lens. As to her assertion that Gribbons and Albert

escalated their hostility toward her after she complained to Hatch,

the court held that Stratton did not show a level of harassment so

"severe or pervasive" that it "materially altered the conditions

of her employment." Stratton,

, at *4 (quoting

Noviello v. City of Bos.,

(1st Cir. 2005)). The

court further explained that Stratton's negative performance

reviews, increased job responsibilities, and performance

improvement plan were not materially adverse because none of those

actions imposed a "tangible negative consequence[] . . . like

being docked pay, benefits, or decreased job responsibilities."

- 25 - The Burlington Northern test is not so strict. To

start, the district court's "severe or pervasive" standard, while

appropriate for hostile work environment claims under Title VII's

substantive provision, see Meritor Sav. Bank, FSB v. Vinson,

(1986), does not apply to retaliation claims. Rather,

as many other circuits have now recognized, the Burlington Northern

"might-have-dissuaded" standard applies to "all Title VII

retaliation claims," Monaghan v. Worldpay US, Inc.,

(11th Cir. 2020) (per curiam), even those labeled as

"retaliatory hostile work environment" claims, Carr v. New York

City Transit Auth.,

(2d Cir. 2023).11

It is true that in Noviello v. City of Boston, a pre-

Burlington Northern case, we required retaliatory harassment to be

so "severe or pervasive" that it altered the conditions of the

victim's employment. Noviello,

. We also

acknowledge that we have continued to recite and apply Noviello's

"severe or pervasive" standard in some post-Burlington Northern

See also Poullard v. McDonald,

(7th Cir. 11

2016) (applying Burlington Northern standard to claim of retaliation in the form of harassment); Hawkins v. Anheuser-Busch, Inc.,

(6th Cir. 2008) ("As Burlington Northern made clear, . . . the tests for [discriminatory] harassment and retaliation are not coterminous."); Martinelli v. Penn Millers Ins.,

(3d Cir. 2008) (noting that "employees claiming retaliation by workplace harassment are no longer required to show that the harassment was severe or pervasive enough to constitute a violation of Title VII's anti-discrimination provision").

- 26 - retaliation decisions. See, e.g., Roman,

. In

other cases, while faithfully reciting the Burlington Northern

retaliation standard, we still incorporated elements of a

substantive discrimination analysis by requiring retaliatory

harassment to be "severe or pervasive enough to constitute

a . . . hostile work environment." Rivera-Rivera,

;

see also Alvarado v. Donahoe,

(1st Cir. 2012).

None of these post-Burlington Northern decisions citing Noviello,

however, directly involved the issue of Burlington Northern's

broader retaliation standard. On other occasions, we have

faithfully applied Burlington Northern's standard. See, e.g.,

Dixon,

("[T]he language of Title VII's retaliation

provision, unlike the discrimination provision, is not limited to

workplace conditions; it simply prohibits employers . . . from

discriminating broadly against employees . . . in retaliation for

their pursuit of discrimination claims."); Billings v. Town of

Grafton,

(1st Cir. 2008) (recognizing that

retaliation "need not relate to the terms or conditions of

employment").12 Given the muddled state of our case law on this

issue, we take the opportunity here to say, definitively, that

Noviello's standard in the retaliation context is no longer

12 We credit the helpful amicus brief from the Equal Employment Opportunity Commission in identifying this tension in our precedent.

- 27 - appropriate.13

Hence, as Burlington Northern's "might-have-dissuaded"

standard unequivocally applies to all Title VII retaliation

claims, the appropriate question here, if addressed, would be

whether Gribbons and Albert's actions would have dissuaded a

reasonable employee from making a complaint of discrimination.

See Burlington Northern,

; see also Billings,

n.13 ("Of course, retaliatory actions that are not

materially adverse when considered individually may collectively

amount to a retaliatory hostile work environment."). In answering

that question, we would have to keep in mind that retaliation need

not have "a dramatic impact" on a plaintiff's job or even "relate

to the terms or conditions of employment." Billings,

. And "intensification of [preexisting] harassment" can be

actionable as retaliation so long as it could dissuade a reasonable

employee from engaging in protected activity. Agusty-Reyes v.

Dep't of Educ.,

, 57 (1st Cir. 2010); see also Pérez-

Cordero v. Wal-Mart P.R., Inc.,

(1st Cir. 2011)

(reiterating that "the escalation of a supervisor's harassment on

Our repudiation of Noviello's retaliation standard need not 13

involve the full court. Though one function of en banc review is to "secure and maintain uniformity of the court's decisions," Fed. R. App. P. 35(b)(1)(A), a successor panel may, on its own, recognize that an intervening opinion of the Supreme Court cuts against the precedential value of a prior panel decision. Irving v. United States,

(1st Cir. 1998) (en banc).

- 28 - the heels of an employee's complaints about the supervisor is a

sufficiently adverse action to support a claim of employer

retaliation," even absent "a tangible employment detriment").

Each case must be decided on its own facts. Compare

Planadeball v. Wyndham Vacation Resorts, Inc.,

(1st Cir. 2015) (holding that Burlington Northern's standard was

satisfied where superiors "criticized [the plaintiff] about her

work performance, screamed at her in front of her colleagues, and

made multiple threats to fire her"), with Bhatti,

(explaining that Burlington Northern was not satisfied where

criticism of the plaintiff carried "no consequences"). Whether

the record in this case supports such assertions of retaliation is

another matter. We do not opine on whether Stratton furnished

enough evidence to establish the materially adverse action prong

because her retaliation claim ultimately fails for lack of

causation.

(b) Causation

Retaliation claims under Title VII and Massachusetts

state law require proof that the "protected activity was a but-

for cause of the alleged adverse action by the employer." Ing,

n.5 (quoting Theidon v. Harvard Univ.,

(1st Cir. 2020)). Unlike a substantive discrimination

claim, a retaliation claim cannot rest on evidence that a

plaintiff's protected activity was merely one of the employer's

- 29 - motivations for an adverse action. Univ. of Tex. Sw. Med. Ctr.

v. Nassar,

(2013) (distinguishing between the

"motivating-factor" and "but-for" causation standards). Put

simply, a plaintiff must show that their employer would not have

taken the adverse action but for a desire to retaliate.

. Such a standard protects against a poor-performing

employee shielding themselves from termination by the mere fact

that they engaged in protected conduct.

("Consider in

this regard the case of an employee who knows that he or she is

about to be fired for poor performance . . . . To forestall that

lawful action, he or she might be tempted to make an unfounded

charge of racial, sexual, or religious discrimination; then, when

the unrelated employment action comes, the employee could allege

that it is retaliation.").

Here, Stratton cannot satisfy the requirements of "but-

for" causation. It is true that an inference of causation may be

appropriate where there is close temporal proximity between

protected activity and an adverse action. Pomales v. Celulares

Telefónica, Inc.,

(1st Cir. 2006). However, such

an inference requires "proof that the decisionmaker knew of the

plaintiff's protected conduct when he or she decided to take the

adverse employment action."

Without evidence of a

decisionmaker's knowledge of the protected conduct, the adverse

action "could not have been caused by a desire to retaliate

- 30 - against" the plaintiff. Velazquez-Ortiz v. Vilsack,

(1st Cir. 2011).

Stratton did not complain of discrimination directly to

her supervisors, nor was it Hatch's idea to place Stratton on a

performance improvement plan. And no reasonable jury could

conclude that Hatch informed Gribbons or Albert of Stratton's

complaints about discrimination. Hence, there is a missing link

between Stratton's complaints to Hatch and the decision by Gribbons

and Albert to enroll her in a performance improvement plan.

Stratton conflates her complaints about Gribbons's management

style with her complaints accusing Gribbons of discrimination.14

Gribbons admits he was aware of the former -- and would even let

his own supervisor, Dean Moore, know when Stratton complained about

14We note that the district court, citing its own Local Rule 56.1 (D. Mass. 2023), declined to consider some evidence of retaliation because Stratton referenced such evidence only in her "Supplemental Statement of Facts." Stratton,

, at *1 n.1. Local Rule 56.1, as interpreted by the district court, does not contemplate the "submission of a separate statement of undisputed facts [by the opposing party]."

(alterations in original) (quoting Plourde v. Sorin Grp. USA,

, 81 (D. Mass. 2021)). We treat a district court's application of its local rules with deference, Carreras v. Sajo, García & Partners,

(1st Cir. 2010), and we have warned litigants to ignore those rules "at their peril." López-Hernández v. Terumo P.R. LLC,

(1st Cir. 2023) (quoting Mariani–Colón v. Dep't of Homeland Sec. ex rel. Chertoff,

(1st Cir. 2007)). Stratton, though citing her Supplemental Statement of Facts on appeal, does not challenge the district court's disregard of evidence identified only in her Supplemental Statement of Facts. We need not decide the correctness of this disregard, however, because even considering the full record, Stratton still cannot prevail on her claims.

- 31 - his management tactics. But as to the latter, Gribbons and Hatch

both made clear that the human resources department conveyed to

Gribbons only Stratton's complaints about her workload, not

Gribbons's alleged discrimination. Needless to say, Title VII's

retaliation provision does not protect an employee's right to make

run-of-the-mill complaints about their supervisor's management

style. Cf. Planadeball,

(noting that Title VII's

retaliation provision extends to "protected conduct," which

"refers to action taken to protest or oppose statutorily prohibited

discrimination" (quoting Fantini v. Salem State Coll.,

(1st Cir. 2009))). Though Stratton insists that Gribbons

knew of other employees who had made complaints about him to the

human resources department, nothing in the record suggests Gibbons

was aware of Stratton's concerns about discrimination.

We have described the burden of establishing a prima

facie case of retaliation as "light." DeCaire v. Mukasey,

(1st Cir. 2008) (quoting Mariani–Colón v. Dep't of

Homeland Sec. ex rel. Chertoff,

(1st Cir. 2007)).

Nevertheless, Stratton must still satisfy the requirements of a

nonmoving party in opposing summary judgment. Absent evidence

that Gribbons knew about Stratton's own complaints of

discrimination, no reasonable jury could conclude that Stratton's

protected conduct was the but-for cause of the purportedly adverse

actions taken by Bentley. Thus, summary judgment was

- 32 - appropriately entered in Bentley's favor because Stratton has not

satisfied the prima facie causation requirement of her Title VII

retaliation claim.15

B. FMLA Claims

The FMLA was enacted to help workers "balance the demands

of the workplace with the needs of families," among other purposes.

See

(b)(1). The statute provides several

substantive rights to employees, including the right to take leave

for medical reasons.

§ 2612(a)(1). As relevant here, the

FMLA entitles an "eligible employee . . . to a total of 12

workweeks of leave during any 12-month period . . . [b]ecause of

a serious health condition that makes the employee unable to

perform the functions of the position of such employee." Id.16

This sort of FMLA leave "may be taken intermittently or on a

reduced leave schedule when medically necessary." Id.

§ 2612(b)(1). To protect these rights, the FMLA and its

associated regulations make it unlawful for an employer to, among

Because a prima facie case of retaliation under Chapter 15

151B is identical to Title VII, Stratton also cannot prevail on her retaliation claims under Massachusetts law. See Theidon,

(citing Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C.,

(Mass. 2016)). A "serious health condition," in this context, "means an 16

illness, injury, impairment, or physical or mental condition that involves -- (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider."

(11).

- 33 - other things: (1) "interfere with, restrain, or deny the exercise

of or the attempt to exercise" any FMLA right ("interference

claims" or "substantive claims"),

§ 2615(a)(1); or (2)

"discriminat[e] or retaliat[e] against an employee . . . for

having exercised or attempted to exercise FMLA rights"

("retaliation claims"),

(c); see also

(a)(2).

We have recognized that, in some cases, interference and

retaliation claims will overlap. See Colburn v. Parker

Hannifin/Nichols Portland Div.,

(1st Cir. 2005)

("The term 'interference' may, depending on the facts, cover both

retaliation claims and non-retaliation claims." (citations

omitted)). Generally, interference claims ask whether an employer

"provided its employee the entitlements set forth in the FMLA,"

Hodgens v. Gen. Dynamics Corp.,

(1st Cir. 1998),

or, in some cases, whether an employer "discourag[ed]" its employee

from exercising rights guaranteed under the FMLA, see

at 160

n.4 (quoting

(b)). Retaliation claims, on the

other hand, typically assert that an employer took an adverse

action against its employee because that employee exercised, or

attempted to exercise, rights guaranteed by the FMLA. See

Colburn,

. The practical consequence is this:

unlike FMLA interference cases, "[i]n an FMLA retaliation case,

the employer's intent –- i.e., why the employer fired or acted

- 34 - against the employee –- matters." Carrero-Ojeda v. Autoridad de

Energía Eléctrica,

(1st Cir. 2014); see also

Colburn,

("To meet his or her burden in an

interference with substantive rights claim, a plaintiff need only

show, by a preponderance of the evidence, entitlement to the

disputed leave; no showing as to employer intent is required.").

Here, Stratton claims that Bentley both interfered with

her right to take leave under the FMLA and that Bentley retaliated

against her for taking such leave.

1. FMLA Interference

Stratton contends that her supervisors interfered with

her right to FMLA leave by subjecting her to an escalation of

hostile treatment once she requested FMLA leave. Those actions,

Stratton argues, discouraged her from exercising her FMLA rights.

The district court rejected Stratton's interference claim because:

(1) her request for leave was approved once she submitted the

required documentation, and (2) Stratton ultimately used that FMLA

leave to attend each of her medical appointments. Stratton,

, at *5.

Even assuming that, as Stratton argues, the district

court incorrectly dismissed her FMLA interference claim based on

the fact that she eventually received approval for FMLA leave, see

Ziccarelli v. Dart,

(7th Cir. 2022), Stratton's

claim fails because, put simply, nothing in the record suggests

- 35 - Bentley "discouraged" her from taking FMLA leave at all. See,

e.g., Quinn v. St. Louis Cnty.,

(8th Cir. 2011);

Diamond v. Hospice of Fla. Keys, Inc.,

(11th

Cir. 2017). To the contrary, Bentley approved Stratton's request

for FMLA leave within days and with no apparent opposition once

she submitted the required documentation. 17 Because Stratton

requested leave to address a serious health condition, the FMLA

allowed Bentley to request a certification from her health care

provider stating, among other things, "the probable duration of

the condition." See

(a), (b)(2). Bentley's

request for further information was thus not "so discouraging that

it interfered with appellant's right to leave under the FMLA."

Sherrod v. Phila. Gas Works,

(3d Cir. 2003) (no

interference where employer initially denied leave due to

employee's lack of proper notice but ultimately granted leave once

properly apprised of employee's eligibility).

Unlike in cases where decisionmakers or human resources

representatives discouraged employees from taking FMLA leave,

Stratton has pointed to no direct evidence that her supervisors

had a problem with her attending medical appointments. See, e.g.,

Stratton requested FMLA leave on January 22, 2018. 17 In response, Bentley requested additional documentation. Stratton filed the necessary documents to support her leave request on February 7, 2018, and Bentley approved that request for intermittent leave on February 8, 2018. As noted, Stratton was placed on a performance improvement plan on May 22, 2018.

- 36 - Preddie v. Bartholomew Consol. Sch. Corp.,

(7th

Cir. 2015) (sufficient interference where employer threatened an

employee with "repercussions" if he "took off again" to care for

his child); McFadden v. Ballard Spahr Andrews & Ingersoll, LLP,

(D.C. Cir. 2010) (sufficient interference where a

human resources representative told employee it was "going to be

a problem" if she missed work to care for her husband). Though

Stratton generally asserts she was subject to "an escalation of

hostile treatment" after taking FMLA leave,18 she provides no sense

of when these alleged acts of hostility occurred or what

specifically they entailed. See Villeneuve v. Avon Prod., Inc.,

(1st Cir. 2019) (explaining that a plaintiff

"cannot defeat a summary-judgment motion with 'conclusory

allegations' or 'unsupported speculation'" (quoting Medina-Muñoz

v. R.J. Reynolds Tobacco Co.,

(1st Cir. 1990))); cf.

Ziccarelli,

(concluding that there was sufficient

evidence of a link between a supervisor's alleged discouragement

and the plaintiff's decision not to take his remaining FMLA leave).

Separately, Stratton claims that Bentley denied "her

FMLA request[s] to work from home." Though her precise contention

is somewhat unclear, Stratton seems to argue that her requests to

This assertion provides an example of the potential overlap 18

between interference claims and retaliation claims, as discussed previously. See Colburn,

.

- 37 - work from home were in fact requests for leave under the FMLA.

However, Stratton has not developed any argument for why her

requests to work from home implicate the leave provisions of the

FMLA, a particular necessity in light of out-of-circuit precedent

rejecting such an application of the FMLA.19 She has therefore

forfeited any such claim. See Zannino,

.

In sum, the district court properly entered summary

judgment for Bentley on Stratton's FMLA interference claim, not

only because Bentley approved her requested leave but also because

the record contains no evidence that Bentley discouraged Stratton

from requesting leave in the first place.

2. FMLA Retaliation

Stratton also contends that Gribbons and Albert

retaliated against her because she requested and took FMLA-

authorized leave. As evidence, Stratton points to her placement

on a performance improvement plan three and a half months after

Bentley approved her request for leave.

To make out a prima facie case of FMLA retaliation, an

employee must show: "(1) she availed herself of a protected FMLA

right; (2) she was 'adversely affected by an employment decision,'

19 See, e.g., Anderson v. McIntosh Constr., LLC,

(6th Cir. 2015); Taylor-Novotny v. Health All. Med. Plans, Inc.,

(7th Cir. 2014). We also note that this court has taken a similar position in an unpublished opinion. See Garland-Gonzalez v. Universal Grp., Inc., No. 19-1998,

, at *1 (1st Cir. July 1, 2024) (per curiam).

- 38 - and (3) 'there was a causal connection between [her] protected

conduct and the adverse employment action.'" Carrero-Ojeda,

(alteration in original) (quoting Orta-Castro v. Merck,

Sharp & Dohme Química P.R., Inc.,

(1st Cir.

2006)). Where, as here, direct evidence of retaliation does not

exist, courts apply the same McDonnell Douglas burden-shifting

framework described above. See Colburn,

.

In rejecting Stratton's FMLA retaliation claim, the

district court explained that Stratton had no evidence of causation

other than the temporal proximity between her use of FMLA leave

and the imposition of the performance improvement plan, the

purported retaliatory action. Stratton,

, at *5-

6. The district court, reasoning that "[c]hronological proximity

does not by itself establish causality," concluded that Stratton

could not make out a prima facie case for her FMLA retaliation

claim.

(alteration in original) (quoting Ramírez

Rodríguez v. Boehringer Ingelheim Pharm., Inc.,

(1st Cir. 2005)).

Unlike the district court, we assume without deciding

that Stratton established a prima facie case of FMLA

retaliation -- i.e., that (1) she availed herself of a protected

FMLA right, (2) her performance improvement plan was a sufficiently

- 39 - adverse action,20 and (3) a causal link connects these events. See

Ameen v. Amphenol Printed Circs., Inc.,

(1st Cir.

2015). As for its nondiscriminatory justification, Bentley claims

that Stratton was placed on a performance improvement plan because

her supervisors held a long-standing perception of her poor job

performance. We thus focus on Stratton's obligation to show

pretext, the final stage of the McDonnell Douglas framework.

The evidence Stratton cites is inadequate to show that

Gribbons and Albert's perception of her poor job performance was

a pretext to retaliate against her for using FMLA leave. Stratton

relies on the simple fact that she was enrolled in a performance

improvement plan three and a half months after her FMLA leave was

approved -- seemingly suggesting that this chronological gap is

sufficiently brief to render the connection between the two events

obvious. To be sure, a "very close temporal proximity,"

Germanowski v. Harris,

(1st Cir. 2017) (alteration

and internal quotation marks omitted) (quoting Sánchez-Rodríguez

v. AT&T Mobility P.R., Inc.,

(1st Cir. 2012)), may

be sufficient to "meet the relatively light burden of establishing

20 Stratton also argues that, once she took FMLA leave, Gribbons and Albert became increasingly hostile toward her. However, we focus only on Stratton's performance improvement plan as the relevant adverse action because, as discussed above, Stratton's evidence of such increased hostility is far too conclusory and vague to create a genuine dispute of fact. See Villeneuve,

.

- 40 - a prima facie case of retaliation," DeCaire,

(quoting Mariani–Colón,

).21 However, the temporal

proximity identified here cannot meet the ultimate burden of

proving an employer was motivated by discrimination. Cf. Carrero-

Ojeda,

("But while temporal proximity is one factor

from which an employer's bad motive can be inferred, by itself, it

is not enough -- especially if the surrounding circumstances

undermine any claim of causation.").

Here, undisputed evidence establishes that Gribbons and

Albert had raised concerns about Stratton's performance well

before she requested FMLA leave in January 2018. As early as

December 2016, only four months after hiring Stratton, Gribbons

told Albert via email that he "continue[d] to worry about

[Stratton's] use of time." Indeed, contemporaneously recorded

email exchanges memorialized Gribbons and Albert's negative

perception of Stratton's performance long before Stratton

We have held that certain amounts of time may be too long 21

to satisfy the causation element of a prima facie case. See, e.g., López-Hernández,

(four and a half months insufficient to establish causation); Pena v. Honeywell Int'l, Inc.,

(1st Cir. 2019) ("The gap of four months, on its own, is not 'very close' for establishing causality."); Ahern,

("[A] gap of several months cannot alone ground an inference of a causal connection between a complaint and an allegedly retaliatory action."). Given our focus on the final stage of the McDonnell Douglas framework, we do not opine on whether the three and a half months between Bentley's approval of Stratton's FMLA leave and her placement on a performance improvement plan is too long to create an inference of causation for her prima facie case.

- 41 - requested leave. See Hodgens,

(holding that a

plaintiff failed to show an employer's well-documented

nondiscriminatory justification was pretextual).

By contrast, Stratton does not identify in the record

any "negative comments, complaints, or expressions of reluctance

by [Stratton's] superiors or co-workers about her FMLA leave-

taking." Carrero-Ojeda,

. Put simply, Stratton

was not "an employee with an unblemished record and steady

performance who, shortly after requesting FMLA leave, [wa]s

[subjected to an adverse employment action] by her employer without

explanation." Germanowski,

. Though Stratton

provides evidence suggesting that her workload was so heavy it was

impossible to manage during the standard workday, any unfairness

in the perception of her performance by her supervisors is

immaterial. The key point is that Stratton identifies nothing in

the record that puts in dispute the perception of her supervisors,

justifiable or not, that her performance was lacking before she

requested or took FMLA leave. See Carrero-Ojeda,

-

21 (no retaliation where the alleged retaliatory animus pre-

existed the plaintiff's attempt to take FMLA leave); Germanowski,

(explaining that a plaintiff's FMLA claim, as

alleged, lacked causation in part due to "an emotionally fraught

and longstanding dispute between the employer and the employee"

pre-dating the request for FMLA leave).

- 42 - In short, although we depart from the district court's

focus on Stratton's prima facie case, we conclude that no rational

jury could ultimately find that Gribbons and Albert's

justification for enrolling Stratton in a performance improvement

plan was a pretext to retaliate against her for taking FMLA-

protected leave. We thus affirm the district court's entry of

summary judgment as to Stratton's FMLA retaliation claim.

C. Disability Discrimination Claims

Stratton next claims her supervisors fostered a hostile

work environment based on her disability in violation of the ADA.22

She also asserts that Bentley failed to accommodate her disability

in violation of the ADA and Massachusetts General Laws Chapter

151B.23 In assessing both claims, we assume without deciding that

As we have done for nearly two decades, we assume without 22

deciding that a plaintiff may raise a disability discrimination claim based on a hostile work environment theory under the ADA. See, e.g., Quiles-Quiles v. Henderson,

, 5 n.1 (1st Cir. 2006); Colón–Fontánez v. Mun. of San Juan,

, 43–44 (1st Cir. 2011); Murray v. Warren Pumps, LLC,

, 86 n.1 (1st Cir. 2016); see also Barton v. Clancy,

, 20 n.7 (1st Cir. 2011) ("The SJC has not specifically confirmed that Massachusetts recognizes a claim for a hostile work environment based on handicap under ch. 151B, § 4(16)."). In so doing, we note that "[e]very other circuit to decide the question has held that it is possible to bring an ADA claim for a hostile environment." Ford v. Marion Cnty. Sheriff's Off.,

(7th Cir. 2019) (collecting cases). Stratton's First Amended Complaint also raises a disability 23

discrimination claim based on the ADA Amendments Act of 2008 (Count V) and a retaliation claim based on Massachusetts General Laws Chapter 151B (Count VII). However, she develops no distinctive argument concerning these claims on appeal.

- 43 - Stratton's pelvic pain qualifies as a disability.

1. Hostile Work Environment

To prevail on her hostile work environment claim,

Stratton agrees she must show that (1) she belonged to a protected

class (in this context, that she was a qualified individual with

a disability); (2) she was subjected to unwelcome harassment;

(3) the harassment was based on her disability; (4) the harassment

was sufficiently severe or pervasive so as to alter the conditions

of her employment and create an abusive work environment; (5) the

harassment was both objectively and subjectively offensive, such

that a reasonable person would find it hostile or abusive and

Stratton in fact perceived it to be so; and (6) that some basis

for employer liability has been established. See O'Rourke v. City

of Providence,

(1st Cir. 2001) (listing elements

for hostile work environment claim in the Title VII context); see

also Murray,

(importing elements from a Title VII

hostile work environment claim into the ADA context).24

24The parties appear to agree that the principles guiding hostile work environment claims in the Title VII context are generally applicable to hostile work environment claims under the ADA. See 1 Janet Arterton & Gary Phelan, Disability Discrimination in the Workplace § 2:18 (2023) ("Assuming that a hostile work environment claim is cognizable under the ADA, an employee must follow the methodology already established by the Supreme Court in the parallel area of Title VII litigation."); see also Ford,

("The claim's legal basis is simple: Congress wrote the ADA using the language of Title VII, and Title VII recognizes hostile work environment claims.").

- 44 - In granting summary judgment in Bentley's favor on

Stratton's disability-based hostile work environment claim, the

district court explained, among other reasons, that Stratton did

not identify "any comments or conduct related to her asserted

disability." Stratton,

, at *6. We agree with

that assessment. Stratton cannot satisfy the third element of a

hostile work environment claim because she offers no evidence that

her supervisors' reported comments were based on or even related

to her disability, i.e., her pelvic pain.25 To state the obvious,

not one of the identified remarks mentions her disability, or

anyone's disability, for that matter. Cf. Quiles-Quiles,

(holding that relentless ridicule from superiors who

"frequently mention[ed] [the plaintiff's] disability" established

hostile work environment based on disability). And, as previously

mentioned, several comments were not even about her. Nor has

Stratton made any effort to establish that any of these comments

were made after she disclosed her disability. Stratton simply

assumes that these "snide comments" establish a discriminatory

environment without providing the "surrounding details to place

the remarks in context." Murray,

(rejecting

25As described above, Gribbons made negative remarks about the Brockton School District, publicly reprimanded Stratton about her laptop usage, and referred to another employee as a "dinosaur." In addition, Gribbons and Albert both described Stratton's job as "different" and noted that she was "not similar to the staff at the UXC."

- 45 - disability-based hostile work environment claim where supervisor

told plaintiff that he "could work faster" and "accomplish more"

if he spent more time at the shop).

Of course, discrimination sometimes operates in subtle

ways and a hostile work environment may encompass disability-based

harassment that does not explicitly reference a person's

disability. See O'Rourke,

("[H]arassment that is

not overtly sexual is nonetheless actionable under Title VII,"

just as "conduct that is not explicitly racial in nature may, in

appropriate circumstances, be considered along with more overtly

discriminatory conduct in assessing a Title VII harassment claim."

(quoting Landrau–Romero, 212 F.3d at 614)). But even with every

inference drawn in Stratton's favor, no reasonable jury could find

any connection between the alleged harassment and Stratton's

disability. See Ríos–Jiménez v. Principi,

(1st

Cir. 2008) (affirming grant of summary judgment because plaintiff

failed to produce evidence that any hostile conduct "was related

to her alleged disability"). Accordingly, the district court

correctly entered summary judgment in favor of Bentley as to

Stratton's hostile work environment claim.

2. Failure to Accommodate

The parties appear to agree that Stratton brought a

failure to accommodate claim under both the ADA and Chapter 151B.

The ADA and Chapter 151B each prohibit discrimination based on

- 46 - disability or handicap, respectively.

;

Mass. Gen. Laws ch. 151B, § 4(16).26 Under both statutes, an

employer is required to provide an employee with a known disability

a reasonable accommodation that will enable her "to perform the

essential functions of [her] job" unless the accommodation would

cause the employer undue hardship. Godfrey v. Globe Newspaper

Co.,

(Mass. 2010) (citing Mass. Gen. Laws ch.

151B, § 4(16)); Murray,

(applying the same standard

to ADA claims). To prevail on her failure-to-accommodate claim,

Stratton must show that: "(1) [s]he is disabled within the meaning

of the [applicable statute], (2) [s]he was able to perform the

essential functions of the job with or without a reasonable

accommodation, and (3) [the defendant], despite knowing of [the

plaintiff]'s disability, did not reasonably accommodate it."

Freadman v. Metro. Prop. & Cas. Ins. Co.,

(1st

Cir. 2007) (fourth and fifth alterations in original) (quoting

Rocafort v. IBM Corp.,

(1st Cir. 2003)); accord

Alba v. Raytheon Co.,

, 522 n.9 (Mass. 2004) (noting

26Chapter 151B is the "Massachusetts analogue" to the ADA, Sensing v. Outback Steakhouse of Fla., LLC,

(1st Cir. 2009), and "[t]he Supreme Judicial Court of Massachusetts has indicated that federal case law construing the ADA should be followed in interpreting the Massachusetts disability law," Ward v. Mass. Health Rsch. Inst.,

, 33 n.2 (1st Cir. 2000). Accordingly, we analyze claims under the ADA and Chapter 151B using the same framework and use the terms "disability" and "handicap" interchangeably. See Sarkisian v. Austin Preparatory Sch.,

(1st Cir. 2023).

- 47 - that, under Massachusetts law, a failure-to-accommodate claim also

requires proof that "as a result of th[e] refusal [to accommodate],

[the plaintiff] suffered some harm").

The district court held that Stratton could not satisfy

the third element of her claim, the failure to provide a reasonable

accommodation. The court explained that Bentley provided Stratton

with a reasonable alternative accommodation in February 2018 by

allowing her to work in other on-campus buildings. See Stratton,

, at *7. Stratton, by her own admission, was able

to work in those buildings without sitting at a 90-degree angle,

thus helping to relieve her pelvic pain. On that basis, the

district court determined that Bentley had neither rejected a

request for a reasonable accommodation nor caused Stratton any

harm. See

In challenging the district court's reasoning, Stratton

first argues that Bentley should be liable for denying her request

to modify her schedule in November 2016 and her request to work

from home in November 2017. These prior denials, Stratton argues,

triggered Bentley's liability under the ADA and Chapter 151B even

if Bentley ultimately provided a reasonable accommodation in

February 2018. Separately, Stratton asserts that, once she

started working in other on-campus buildings, Albert reprimanded

her for utilizing the alternative accommodation and not being

present in the office. She thus questions whether Bentley ever

- 48 - actually accommodated her disability. We address each of these

arguments in turn.

(a) Stratton's 2016 and 2017 Requests

In arguing that Bentley denied her requests for

accommodation in 2016 and 2017, Stratton both mischaracterizes the

record and misstates the requirements of a reasonable

accommodation claim. With respect to her November 2016 request,

Stratton allegedly "approached Albert to address her concerns

about her workload and schedule because it was inflicting negative

effects on her physical and mental health and for which she

received medical treatment." This brief conversation does not

constitute a request for a reasonable accommodation. For one,

Stratton expressly waived the argument that she requested an

accommodation for a mental health condition. See Mot. to Compel

Hr'g Tr. at 13:21-23 ("This is not our case here, we do not have

a mental health disability alleged by the plaintiff.");

("If there's any mental health disability, certainly that

would -- that would change the whole scope of the waiver analysis,

if that was the disability she was in fact alleging. She is not

alleging that."). And with respect to her physical disability,

Stratton told her doctor that her pelvic pain began in August

2017 -- nearly a year after this alleged conversation occurred.

However, even assuming Stratton began experiencing

pelvic pain before the November 2016 conversation, it would not

- 49 - make a difference. That is because Stratton's request for a

schedule change based on her workload's "negative effects on her

physical and mental health" was far too generalized to trigger

Bentley's relevant responsibilities. See Murray,

("[W]e set aside those portions of [the plaintiff's] deposition

testimony that only broadly suggest requests for accommodation.").

Typically, an employer's obligation to make a reasonable

accommodation arises only when an employee provides a

"sufficiently direct and specific" request for the needed

accommodation. Tobin v. Liberty Mut. Ins.,

(1st

Cir. 2009) (quoting Reed v. LePage Bakeries, Inc.,

(1st Cir. 2001)); see also Ocean Spray Cranberries, Inc. v.

Mass. Comm'n Against Discrimination,

, 271 n.21

(Mass. 2004) ("[F]or an employee's actions to constitute a request

for accommodation, they must make the employer aware that the

employee is entitled to and needs accommodation. Specifically,

the request must let the employer know that the employee is a

qualified handicapped person . . . ."). 27 "At the least, the

request must explain how the accommodation requested is linked to

some disability." Reed,

.

27"Different rules may apply in situations where a disability prevents the employee from requesting an accommodation, or where the need for an accommodation is obvious." Freadman,

n.11. Stratton's pelvic pain falls under neither of those exceptions.

- 50 - Stratton's vague assertion that her workload had

"negative effects on her health" makes no mention of pelvic pain,

or any sort of disability for that matter. Hence, Bentley had "no

duty to divine the need for a special accommodation" based on

Stratton's general request for a reduced workload in November 2016.

Id.; see also Estades-Negroni v. Assocs. Corp. of N. Am.,

(1st Cir. 2004) (rejecting failure-to-accommodate claim

where plaintiff asked for a reduced workload without expressly

tying the request to her depression).

Stratton's November 2017 request to work from home,

though more specific than her request for a schedule change,

similarly failed to identify a particular disability necessitating

accommodation. That request was accompanied by a brief letter

from her doctor stating that, "[d]ue to a medical condition, Ms.

Stratton should not sit for long periods of time and would benefit

from working at home one or two days a week if needed." In

response, Hatch informed Stratton that Bentley's ADA policy

required her to provide more information related to the nature of

her disability. Yet Stratton's next letter from her doctor, dated

January 18, 2018, still provided no information about her

condition. That letter simply stated that Stratton "will need to

work [at] home" so she could attend physical therapy "for her

medical condition."

We have rejected similarly vague requests for

- 51 - accommodation in prior cases. Our decision in Jones v. Nationwide

Life Insurance Co.,

(1st Cir. 2012), for example,

involved a manager at an insurance company, Mark Jones, who lived

with brachial plexus palsy -- a condition causing chronic pain in

Jones's left arm.

. After Jones broke his left shoulder

in a fall, he underwent several surgeries and took morphine and

oxycodone to manage the pain.

He unsuccessfully asked his

supervisor for more time to complete a job-related licensing exam

because his "recent medical condition and resulting treatment

impacted [him] more than [he] would care to admit."

.

Specifically, Jones noted that his aggressive treatment plan,

including his prescription painkillers, made him unable to

concentrate on the exam material.

In rejecting his failure-

to-accommodate claim, we explained that Jones's email, despite

being "direct and specific in its request for an extension of

time," failed to link his requested accommodation to brachial

plexus palsy, his disability at issue in the litigation.

; see also Reed,

(rejecting failure-to-

accommodate claim where plaintiff did not inform her supervisors

that her anger management problems were due to bipolar disorder).

The same is true here. Stratton's reference to an

unnamed medical condition does not entitle her to an accommodation.

She needed to link the requested accommodation to a disability,

not merely invoke vague references to medical conditions or unnamed

- 52 - medical treatments. See Jones,

(noting an employee

must provide their employer more than mere "notice of a condition"

but also explain the "causal connection" between the asserted

disability and the requested accommodation (quoting Barbara T.

Lindemann & Paul Grossman, Employment Discrimination Law 880 (4th

ed. 2007))); see also Miceli v. JetBlue Airways Corp.,

(1st Cir. 2019) ("[A] request must illuminate the linkage

between the requestor's disability and the requested

accommodation."). After all, it would be difficult for an

employer to discuss potential accommodations without having a more

specific idea of the employee's disability.

Though not a requirement in every case, employers may

need to "initiate an informal, interactive process" with employees

seeking accommodations for a disability.

(o)(3).28 Stratton claims that Bentley "failed to engage

in a meaningful and interactive dialogue regarding her requested

reasonable accommodations." As we have explained, however, prior

to February 2018, none of Stratton's requests put Bentley on notice

28 Though we have explained that the ADA "sometimes" requires employers to "engage in an interactive process" when an employee requests a workplace accommodation, Kohl's,

(quoting Enica v. Principi,

(1st Cir. 2008)), our circuit "does not regard an employer's participation in the interactive process as an absolute requirement under the ADA,"

at 132 n.5. We instead "resolve the issue on a case-by-case basis."

(quoting Kvorjak v. Maine,

(1st Cir. 2001)).

- 53 - that she was seeking a reasonable accommodation for any specific

disability. Thus, this argument "fails for the same reasons as

articulated above: the employer's duty to enter into an interactive

process typically must be triggered by a sufficient request for

accommodation, as with the employer's more general duty to

accommodate." Reed,

n.11.

(b) The Reasonableness of Stratton's Accommodation

Finally, Stratton argues that the accommodations Bentley

did provide her with in response to her February 2018 request were

insufficient. It is undisputed that, as recommended by Stratton's

doctor, Bentley allowed her to work in alternative locations around

campus where she would not have to sit at a 90-degree angle.

Stratton argues, however, that this accommodation was "interfered

with" because Albert "reprimanded her for utilizing this

accommodation and not being present in the office." As a general

proposition, there is force to that argument: "once an employer

agrees to provide a particular accommodation, it must act

reasonably in implementing said accommodation." Enica v.

Principi,

(1st Cir. 2008). If an employer

reprimands an employee for using an approved accommodation, the

implementation of that "accommodation" would hardly be reasonable.

Yet Stratton's position is unsubstantiated by the

record. Gribbons and Albert simply asked where Stratton was

working on campus, and they reprimanded her only when she refused

- 54 - to provide that information.29 Bentley explained that Gribbons

and Albert needed to know Stratton's location on campus because

she was occasionally unresponsive to time-sensitive email

inquiries. In those situations, Gribbons and Albert needed some

other way to communicate with Stratton -- such as walking to the

nearby conference room or library for a face-to-face conversation.

Though Stratton may have preferred to not disclose where she was

working on campus, Bentley was not obligated to accommodate such

a preference because it was unrelated to her claimed disability.

See Orta-Castro, 447 F.3d at 112–13 (rejecting failure-to-

accommodate claim because employee's office relocation request was

unrelated to that employee's depression).

It is worth reproducing what Stratton identifies as the 29

"reprimand" at issue from her June 2018 performance review: Furthermore, since the late winter or early spring [Stratton] often worked in other locations around campus, without letting me know of where she was sitting. Normally this is not a big issue if it occurs once in a while. However, this has been very frequent in the last few months. This prevents us from easily having informal discussions. I simply request that she notifies me of her location when working in another location. By knowing her location we could more easily have brief in-person conversations. I am also open to making her work space better suited to her needs. (Emphasis added.) This comment from Gribbons and Albert reveals that the problem was Stratton's lack of transparency as to where she was working, not whether she could work in those alternative locations.

- 55 - In sum, the district court correctly entered summary

judgment against Stratton with respect to her failure-to-

accommodate claim.30

III.

For the foregoing reasons, we affirm the district

court's grant of Bentley's motion for summary judgment on all

counts and the district court's denial of Stratton's motion to

amend or alter the judgment.31

So ordered.

30We affirm the district court's grant of summary judgment as to Stratton's failure-to-accommodate claim under both the ADA and Chapter 151B. See Sensing,

. 31We review a district court's denial of a motion to amend or alter the judgment for abuse of discretion. Perez v. Lorraine Enter., Inc.,

(1st Cir. 2014). Stratton contends that the district court's denial of her motion to amend the judgment was erroneous because the court's "grant of summary judgment was infected with numerous prejudicial errors of law and fact." Given our affirmance of the district court's summary judgment decision, the district court did not abuse its discretion in denying Stratton's motion to amend or alter that judgment.

- 56 -