United States Court of Appeals For the First Circuit
No. 19-1961
KIRSTIE TRAHAN,
Plaintiff, Appellant,
v.
WAYFAIR MAINE, LLC,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Howard, Chief Judge, Selya and Lynch, Circuit Judges.
Brett D. Baber, with whom Lanham Blackwell & Baber was on brief, for appellant. Katharine I. Rand, with whom Daniel R. Strader and Pierce Atwood LLP were on brief, for appellee.
April 21, 2020 SELYA, Circuit Judge. This disability discrimination
case requires us to hold steady and true the balance between the
important workplace protections that Congress has put in place for
disabled employees and the ancient right of employers to discipline
(or even discharge) employees, whether or not disabled, for
violations of clearly established, neutrally applied conduct
rules. At a granular level, the case pits plaintiff-appellant
Kirstie Trahan, a military veteran who suffers from post-traumatic
stress disorder (PTSD), against her former employer, defendant-
appellee Wayfair Maine, LLC (Wayfair). The district court entered
summary judgment in favor of Wayfair, and Trahan now appeals.
After careful consideration, we affirm.
I. BACKGROUND
Because the district court granted summary judgment
against Trahan, we rehearse the facts in the light most favorable
to her, consistent with record support. See Suzuki v. Abiomed,
Inc., 943 F.3d 555, 557 (1st Cir. 2019). Trahan was the victim of
a sexual assault while serving in the United States Army and, as
a result, was diagnosed with PTSD. She received a medical
discharge in September of 2010. From and after her Army discharge,
she has received regular outpatient treatment and has taken
medications for her condition. When Trahan suffers acute PTSD
episodes, she flashes back to the initial trauma that she
experienced and has difficulty in perceiving reality.
- 2 - Trahan's mental health counselor explained that her
triggers for PTSD flashbacks "by nature are unpredictable and
atypical" and, thus, impossible "to eliminate" entirely. Some
common triggers include feelings of "losing control" and "being
ganged up on." The counselor also observed that Trahan exhibits
cognitive distortions and emotional dysregulation, during which
she experiences difficulty grasping reality and controlling her
emotional responses.
Trahan worked various jobs (including jobs in call
centers) after her medical discharge from the Army. In August of
2017, Wayfair hired her as an employee, specifically, as a sales
and service consultant at its call center in Bangor, Maine. That
position entails providing customer service over the telephone.
The call center has an open floorplan in which consultants sit in
"very close proximity to one another." Consultants work on teams
and, thus, are obliged to work collaboratively. The company's
General Rules of Conduct (the Conduct Rules) require employees to
treat one another professionally and cooperatively. Offending
employees were discharged for unprofessional interactions (such as
emotional outbursts and fits of anger) with colleagues. In
September of 2017 — the time frame relevant to this case — Wayfair
neither permitted employees to work from home nor had the
technological capabilities to support such an arrangement.
- 3 - Trahan did not disclose her PTSD to Wayfair when she was
hired. The first two weeks of her employment consisted of
classroom training with more than a dozen of her fellow trainees.
During this period, Trahan felt excluded by some of her new
colleagues, especially a "tight-knit" group that included Ashley
McDonald and Brianna Ireland.
The trainees were moved to the sales floor for "nesting"
before being assigned to permanent teams. During this phase of
their training, the trainees took calls from customers with support
from veteran employees known variously as floorwalkers and nesting
coaches. Trahan came to believe that her co-workers were making
fun of her. She complained to her nesting coach, Thoma Noddin,
that she felt as though her peers were creating "a clique
environment," adding that the environment made her "feel very
similar to how [she] felt . . . in the Army" and that it was
"affecting certain things to come out in [her] life" — things that
she preferred to avoid.
On one occasion during the September training, Trahan
sought assistance with her work. A floorwalker knelt at her
workstation and suggested a solution. Trahan perceived the
floorwalker's tone as overbearing and became uncomfortable when he
touched her arm. After stating that she was losing patience with
him and could not remain in his presence, she abandoned her
workstation and then experienced a PTSD episode in the privacy of
- 4 - a bathroom stall. She told Noddin that the episode had triggered
a PTSD flashback, but she did not say anything further to suggest
that she was using the term "PTSD" in a clinical (rather than
casual or colloquial) manner.
On September 20 — before being assigned to a permanent
team — Trahan directed a comment toward McDonald. Ireland
interjected herself into the exchange, and Trahan admonished
Ireland not to be "ignorant." Trahan then threw her headset and
slammed down her phone. As a result of the conflict, Trahan felt
triggered: she began to sweat, lost awareness of what was
happening, and blacked out from a PTSD flashback. She later
explained that she interpreted Ireland's tone as "demeaning" and
vaguely recalled uttering the word "bitches."
When her flashback subsided, Trahan messaged her
manager, Joseline Belanger, insisting that she wanted to move to
her permanent assignment as soon as possible.1 Ireland reported
the altercation with Trahan to her manager, Haley Mannion.
Belanger and Mannion approached a third manager, Kristie Foster,
who brought the situation to the attention of the site manager,
Peter Boudreaux. Boudreaux ordered Foster to investigate.
1Trahan variously refers to "permanent assignment," "permanent desk," and "permanent team." She apparently uses these terms interchangeably to describe the same request. We follow her lead.
- 5 - Foster and Mannion met with Ireland and obtained her
version of the altercation. Thereafter, Foster and Belanger met
with Trahan and told her that they were investigating what had
happened on the floor. Trahan said that Ireland had "snapped at
her" but did not elaborate. Trahan added that she was "sick of
the 'clique,'" which she claimed was "always talking about her"
and was composed of a "bunch of bitches." Trahan reiterated her
desire to move to a different desk or a different team in order to
minimize her interactions with Ireland.
During this meeting, Trahan appeared physically closed
off: she crossed her arms, faced the wall, and rolled her eyes
repeatedly. Foster gauged this behavior to be rude and
unprofessional. Trahan later testified that she was in the midst
of a panic attack, and her behavior was the result of learned
coping mechanisms. Even so, she did not indicate to the managers
either that she had a disability or that it was then manifesting
itself. After the meeting, Trahan had another flashback while
seated in her car.
Foster and Mannion next met with McDonald, who largely
confirmed Ireland's account. Foster continued on, interviewing
Noddin and the floorwalker who had skirmished with Trahan earlier
that month. Later that day, the human resources manager (Jonie
Dunivan) returned after a brief absence from the workplace and
took charge of the investigation.
- 6 - Dunivan, accompanied by Foster and Belanger, met with
Trahan and informed her that she was suspended until September 22,
pending further investigation. During this conversation, Trahan
again referred to her co-workers as "bitches." Trahan says that
she felt attacked and outnumbered and found Dunivan "snappy and
snarky." Foster retrieved Trahan's personal effects from Trahan's
workstation before escorting her out of the call center. Shortly
thereafter, Trahan texted an uninvolved co-worker, indicating that
she had called Ireland a "little bitch" and representing that she
anticipated "get[ting] shafted because of this whole thing."
Dunivan continued her investigation. Late that
afternoon, she and Boudreaux concluded that Trahan's employment
should be terminated. Even by Trahan's own description of events,
she had violated the Conduct Rules, which require employees to
"treat everyone in a professional manner — that is, with respect,
integrity, courtesy and a cooperative attitude." In addition,
Dunivan gave weight to Trahan's "pattern of unprofessionalism and
rudeness." It was agreed that Dunivan would contact Trahan the
following day to fire her. Up to this point, no one had described
the altercation as a manifestation of a PTSD episode.
Dunivan departed from the office at around 5 p.m. that
evening. Approximately half an hour later, Trahan left her a
voicemail. In the voicemail, Trahan stated: "I forgot to tell
you today that the reason I did ask for that transfer . . . out of
- 7 - that situation is because I am a veteran with severe PTSD and how
those girls were treating me was causing triggers to come out in
me." She offered to provide documentation of these facts.
The first time that Dunivan learned of Trahan's PTSD was
when she retrieved the voicemail on September 21. Dunivan returned
Trahan's call that afternoon. She expressed skepticism that the
incident could have triggered a PTSD flashback, questioned the
extent of Trahan's disability, and requested access to Trahan's
medical records. Dunivan tried to impress upon Trahan that the
incident was "very serious." When Trahan asked whether she was
being fired, Dunivan equivocated and told her instead that the
investigation remained open.
In the same conversation, Trahan asked to be moved away
from Ireland and McDonald. Although Dunivan understood this
request to be linked to Trahan's disability, she did not understand
it to be a request for an accommodation. Although Dunivan does
not recall it, Trahan says that she also mentioned the possibility
of working from home.
Dunivan next called her supervisor to "confirm[] [she]
had . . . support to proceed with the termination." The following
day, she called Trahan and discharged her. No one else was
disciplined with respect to the incident.
In due season, Trahan repaired to the federal district
court and sued Wayfair for disability discrimination under the
- 8 - Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213,
and the Maine Human Rights Act, Me. Stat. tit. 5, §§ 4551-4634.
She claimed that she was wrongfully discharged based on her PTSD,
and that Wayfair used her violation of its Conduct Rules as a
pretext for cashiering her. Trahan also claimed that Wayfair
failed to accommodate her disability, as required by law.
Following a period of pretrial discovery, Wayfair moved
for summary judgment. Trahan opposed the motion, but the district
court granted it. See Trahan v. Wayfair Me., LLC, No. 1:18-cv-
00209-LEW, 2019 WL 4246678, at *5 (D. Me. Sept. 6, 2019). Trahan
responded by filing a timely notice of appeal. In her briefing,
Trahan challenges only the entry of summary judgment on her ADA
claims. Consequently, we do not discuss the district court's entry
of summary judgment on her state-law claims.
II. ANALYSIS
We review a district court's entry of summary judgment
de novo, viewing the facts in the light most congenial to the
nonmovant and drawing all reasonable inferences to that party's
behoof. See Potvin v. Speedway LLC, 891 F.3d 410, 413-14 (1st
Cir. 2018). We will affirm only when the record demonstrates "that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a); see Summers v. City of Fitchburg, 940 F.3d 133, 137 (1st
Cir. 2019). A plaintiff opposing a properly documented summary
- 9 - judgment motion must carry "the burden of producing specific facts
sufficient to deflect the swing of the summary judgment scythe."
Hannon v. Beard, 645 F.3d 45, 48 (1st Cir. 2011) (quoting Mulvihill
v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003)).
With this foundation in place, we turn to Trahan's
assignments of error. First, though, we set out the analytic
framework that governs her claims. We then move to Trahan's
contention that the district court erred in entering summary
judgment against her on her claim of discriminatory discharge.
Finally, we examine Trahan's contention that the district court
erred in entering summary judgment against her on her failure-to-
accommodate claim.
A. The Analytic Framework.
We begin with bedrock. "Congress enacted the ADA 'to
provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with
disabilities.'" Gray v. Cummings, 917 F.3d 1, 14 (1st Cir. 2019)
(quoting 42 U.S.C. § 12101(b)(1)). Under the ADA, a covered
employer — such as Wayfair — is forbidden from "discriminat[ing]
against a qualified individual on the basis of disability in regard
to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment." 42 U.S.C.
§ 12112(a). The ADA defines discrimination on the basis of
- 10 - disability to include "limiting, segregating, or classifying a[n]
. . . employee in a way that adversely affects the opportunities
or status of such . . . employee because of" her disability. Id.
§ 12112(b)(1). For this purpose, an adverse employment action
includes both discharging an employee, see 29 C.F.R.
§ 1630.4(a)(1)(ii), and failing to make reasonable accommodations
for an employee's disability, see US Airways, Inc. v. Barnett, 535
U.S. 391, 396 (2002) (citing 42 U.S.C. § 12112(b)(5)(A)).
In this case, the familiar McDonnell Douglas framework
is in play. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04 (1973); Higgins v. New Balance Athletic Shoe, Inc., 194
F.3d 252, 264 (1st Cir. 1999). Under that framework, the employee
bears the burden of making out a prima facie case of
discrimination. See Miceli v. JetBlue Airways Corp., 914 F.3d 73,
81 (1st Cir. 2019). If the employee clears this low hurdle, a
rebuttable presumption of discrimination arises, and the burden
shifts to the employer to advance a legitimate, nondiscriminatory
reason for its actions. See Mancini v. City of Providence, 909
F.3d 32, 39 (1st Cir. 2018). This is merely a burden of production;
the burden of persuasion remains throughout with the employee.
See Miceli, 914 F.3d at 81-82. So long as the employer satisfies
its second-stage burden by proffering a non-discriminatory reason
for the adverse employment action, the employee — at the third
stage of the analysis — must show that the employer acted not for
- 11 - the stated reason but, rather, because of the plaintiff's
disability. See id.
B. Discriminatory Discharge.
Against this backdrop, we turn to Trahan's claim of
discriminatory discharge. In this vein, Trahan asserts that she
raised a genuine issue of material fact as to whether Wayfair
discriminated against her by terminating her employment on the
basis of her disability. Wayfair responds that it decided to
terminate Trahan's employment based on her breach of the Conduct
Rules before it learned of her PTSD; that regardless of when it
learned about Trahan's PTSD, Trahan nonetheless failed to make out
a prima facie case sufficient to satisfy her burden at the first
stage of the McDonnell Douglas framework; and that, at any rate,
Trahan's misconduct justified her dismissal notwithstanding her
disability.
Each of Wayfair's three lines of defense is colorable,
but we have no need to analyze them all. We start — and finish —
with the third line of defense, taking no view as to the merits of
Wayfair's other lines of defense.
In undertaking this inquiry, we go directly to the third
stage of the McDonnell Douglas framework. We assume, favorably to
Trahan, that she satisfied her first-stage burden by making out a
prima facie case of discriminatory discharge. She is, therefore,
entitled to the benefit of "a presumption of discrimination."
- 12 - Gillen v. Fallon Ambul. Serv., Inc., 283 F.3d 11, 30 (1st Cir.
2002). So, too, the second stage of the McDonnell Douglas
framework is not in issue: Trahan readily acknowledges that
Wayfair satisfied its second-stage burden by articulating a
nondiscriminatory reason for her discharge (that the company was
simply enforcing its Conduct Rules). See Raytheon Co. v.
Hernandez, 540 U.S. 44, 53 (2003) (explaining that "proffer of
. . . neutral . . . policy plainly satisfie[s]" employer's
obligation at second stage of McDonnell Douglas inquiry); Miceli,
914 F.3d at 82 (determining that employer satisfied second-stage
burden of production by alleging "that it terminated the
appellant's employment in accordance with its clearly delineated
and neutrally applied corporate policy").
Focusing on the third stage of the McDonnell Douglas
framework — whether Wayfair acted with discriminatory intent — the
record reveals that Trahan's misconduct was patent. Trahan admits
that she called two of her co-workers (Ireland and McDonald)
"bitches." To compound the matter, she repeated in her subsequent
meeting with management that they were a "bunch of bitches." What
is more, her other actions — such as rolling her eyes, throwing
her headset, and slamming down her phone — were undisputed and
plainly warranted Wayfair's determination that Trahan had acted
unprofessionally.
- 13 - It cannot be gainsaid that acting unprofessionally and
in a disrespectful manner transgressed the Conduct Rules. In
short, Trahan committed fireable misconduct, and Wayfair must
prevail at the third stage of the McDonnell Douglas framework
unless Trahan — who adduced no direct evidence that Wayfair acted
with an intent to discriminate on the basis of her disability —
can show that Wayfair's ostensible reliance on this misconduct as
the predicate for her dismissal was a sham, that is, a pretext for
discrimination. See Raytheon Co., 540 U.S. at 51-52; Gillen, 283
F.3d at 30 n.11.
Trahan tries to travel down this road. She mounts a
claim of pretext and asserts that she was disciplined differently
than nondisabled employees. To this end, she submits that her
misconduct was punished more severely than that of comparable
Wayfair employees. In other words, Wayfair was not enforcing the
Conduct Rules uniformly.
The record belies Trahan's assertion of pretext. To
begin, Trahan admits that she was not the only call center employee
discharged "due to unprofessional interactions with coworkers" and
that "no employee . . . received discipline short of termination
due to an emotional outburst or fit of anger" in the workplace.
Thus, Trahan's assertion of a lack of disciplinary uniformity
hinges on her contention that she was "treated differently than
non-disabled co-workers who arguably violated" the Conduct Rules
- 14 - in other (analogous) ways. This contention does not withstand
scrutiny.
In support of her contention, Trahan alleges that
Wayfair did not discipline employees "for using the company chat
system to make fun of others," for making her feel uncomfortable,
and for using profanity on the sales floor. She also alleges that,
in the aftermath of the September 20 incident, Wayfair did not
discipline Ireland for "snapp[ing]" at her. As we explain below,
Trahan is comparing plums to pomegranates.
"'Reasonableness is the touchstone' when considering
comparators in a disparate treatment case; that is, 'while the
plaintiff's case and the comparison cases that [s]he advances need
not be perfect replicas, they must closely resemble one another in
respect to relevant facts and circumstances.'" Ray v. Ropes &
Gray LLP, 799 F.3d 99, 114 (1st Cir. 2015) (quoting Conward v.
Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999)). It follows
that an employee claiming differential treatment must show that
those with whom she seeks to be compared "engaged in the same
conduct without such differentiating or mitigating circumstances
that would distinguish their conduct or the employer's treatment
of them for it." Perkins v. Brigham & Women's Hosp., 78 F.3d 747,
751 (1st Cir. 1996) (quoting Mitchell v. Toledo Hosp., 964 F.2d
577, 583 (6th Cir. 1992)).
- 15 - Here, the most closely analogous instances do not
advance Trahan's cause. It is uncontroverted that Wayfair fired
other employees when it learned that they had indulged in emotional
outbursts in the workplace or given vent to fits of anger there.
Trahan tries to make an end run around these comparators
by pointing to other types of behavior. She says that some
employees freely used the chat system to make fun of people,2 got
away with exhibiting snappiness, and used profanity on the sales
floor without facing disciplinary consequences. These situations,
however, are not fairly comparable to the misconduct that Trahan
committed.
With respect to the chat system, Trahan stated that she
"saw [her] name" (but no other words) and believed the chat was
making fun of her. As a result of the chat and other behavior
that she attributed to what she termed the "clique" — a reference
to Ireland, McDonald, and their friends — she felt "uncomfortable."
But Trahan offers nothing in the way of a factual basis to support
her belief that the chat made fun of her. Speculation is no
substitute for proof. See Lang v. Wal-Mart Stores E., L.P., 813
F.3d 447, 460 (1st Cir. 2016). It follows that speculation
unsupported by facts is manifestly inadequate to stave off summary
2 For what it may be worth, Wayfair was not oblivious to possible misuse of the chat system. The record shows that a Wayfair floorwalker addressed appropriate use of the chat system at a meeting held shortly after the chat to which Trahan adverts.
- 16 - judgment. See id. (explaining that "a party cannot ward off
summary judgment with 'proffers that depend . . . "on arrant
speculation, optimistic surmise, or farfetched inference"'"
(alteration in original) (quoting Fragoso v. Lopez, 991 F.2d 878,
887 (1st Cir. 1993))).
To cinch the matter, the alleged chat-room abuse is
totally unproven; Trahan offers no particulars concerning what
offending words may have been said. On this sparse record, the
alleged chat-room hijinks are not fairly comparable to Trahan's
misconduct. Making colleagues feel uncomfortable is far from
ideal, but the conduct that makes a colleague experience discomfort
may or may not be unprofessional. Much depends both on
idiosyncratic circumstances and on subjective feelings, and Trahan
describes no specific misconduct that is on par with her own.
Next, Trahan seeks to compare Ireland's snapping at her
on September 20 with Trahan's own misconduct. She complains that
Ireland was not punished, let alone fired, for this behavior. What
she leaves out, however, is that (even on Trahan's own telling)
Ireland neither swore at anyone nor engaged in unprofessional
behavior over and beyond her snapping. Although Dunivan
acknowledged in the abstract that one co-worker snapping at another
would be inappropriate workplace behavior, snapping at someone is
not on all fours with cursing co-workers in the throes of a heated
encounter. An employer's response to employee conduct that is
- 17 - "different in kind" cannot form the basis for an inference of
pretext. Ramos-Santiago v. WHM Carib, LLC, 919 F.3d 66, 74 (1st
Cir. 2019).
As a final riposte, Trahan suggests that many of her
peers "would swear on the floor" yet were not disciplined. But
nothing about this amorphous suggestion undermines Wayfair's
statement that it "has zero tolerance for co-workers directing
curse words toward peers or customers in any type of aggressive
manner." Trahan has not pointed to any facts in the record that
call Wayfair's "zero tolerance" policy into question. And merely
uttering profane expressions on the sales floor without directing
the profanity at any particular individual is inherently different
from directing epithets at co-workers. The former, while not to
be encouraged, simply does not sink to the level of the latter.
Swearing at someone and swearing in general are distinct enough
phenomena to be treated disparately. See Perkins, 78 F.3d at 751.
The bottom line is that Trahan's so-called comparator
evidence is insufficient to show that any of the situations about
which she complains "closely resemble[d]" the misconduct for which
she was fired. Ray, 799 F.3d at 114 (quoting Conward, 171 F.3d at
20). The critical difference is that Trahan's misconduct was far
more blameworthy than that of any co-worker she identified. Trahan
called her co-workers "bitches" in the course of a turbulent
workplace incident that involved throwing and slamming things.
- 18 - Moreover, she doubled down on the epithet during a later meeting
with management. Given these qualitative distinctions, her
attempted comparisons are unreasonable, and, thus, fail to create
a genuine issue of material fact. See Conward, 171 F.3d at 20-
22; Perkins, 78 F.3d at 751.
In a last-ditch effort to salvage her pretext argument,
Trahan says that Dunivan's harsh questioning regarding her PTSD
demonstrates that Wayfair acted with discriminatory intent. The
very case Trahan cites for this proposition, though, undermines
her effort. See Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,
116-17 (1st Cir. 2013). In Kelley, we concluded that an employee
presented evidence sufficient to support a "reasonable inference"
of discriminatory animus when the employee and supervisor had a
months-long "history of disability-based conflict." Id. at 111-
12, 116-17. Kelley stands in stark contrast to the case at hand.
Here, Dunivan and Trahan had only one conversation in which Dunivan
questioned Trahan's disability — a conversation that occurred on
the very same day that Dunivan first learned of it. Both the
timing and the solitary nature of the conversation here readily
distinguish this case from Kelley, especially since "there is
little to no evidence suggesting that" Trahan's firing was based
on "an unlawful motive." Id. at 117. After all, the "ADA is not
a license for insubordination at the workplace," Reed v. LePage
Bakeries, Inc., 244 F.3d 254, 262 (1st Cir. 2001), and Trahan's
- 19 - emotional outburst on September 20 plainly demonstrated her breach
of Wayfair's Conduct Rules.
Nothing more need be said. On this record, no reasonable
factfinder could conclude that Wayfair's stated reason for
discharging Trahan was pretextual. Consequently, the district
court did not err in entering summary judgment against Trahan on
her discriminatory discharge claim.
C. Failure to Accommodate.
Trahan's remaining claim is that Wayfair discriminated
against her by not accommodating her PTSD. She posits that Wayfair
failed to accommodate her disability in two specific ways: not
moving her desk assignment and not permitting her to work from
home. Trahan adds that, with an accommodation, she could have
performed the essential functions of her job as a sales and service
consultant.
The district court ruled that Trahan's communications
with her employer were not "request[s] for a workplace
accommodation" because, even if granted, they would not "make
[Trahan] more capable of" fulfilling her duties as a sales and
service consultant. Trahan, 2019 WL 4246678, at *3-4. In the
court's view, Trahan's accommodation requests amounted to no more
than "an excuse for her past transgression." Id. at *4. We
examine this ruling through the statutory prism.
- 20 - The ADA provides that unlawful discrimination includes
an employer "not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified"
employee. US Airways, Inc., 535 U.S. at 396 (emphasis in original)
(quoting 42 U.S.C. § 12112(b)(5)(A)). Thus, to survive summary
judgment on a failure-to-accommodate claim, an employee must
furnish evidence that she was disabled within the meaning of the
ADA; that she was a qualified individual; and that her employer
knew about her disability yet neglected to accommodate it. See
Pena v. Honeywell Int'l, Inc., 923 F.3d 18, 31 (1st Cir. 2019);
Higgins, 194 F.3d at 264.
In the case at hand, the first element is not in dispute.
The parties stipulated that Trahan suffers from PTSD, and Wayfair
concedes that she was disabled within the meaning of the ADA by
reason of her PTSD.
Like the first element, the second element need not
detain us. We assume, for argument's sake, that Trahan established
that she was a qualified individual and, therefore, satisfied her
burden with respect to the second element. So, too, we assume
arguendo that Wayfair knew of Trahan's disability when she made
what she characterizes as her accommodation requests.3 With these
3 The parties expend considerable energy discussing which individual at Wayfair had to have knowledge of Trahan's PTSD and when such knowledge was acquired (relative to the date when the adverse employment decision was made and the date when that
- 21 - assumptions in place, all that remains is to determine whether
Trahan's proposals constituted reasonable accommodation requests.
A reasonable accommodation is a change in workplace
conditions that would enable an employee to perform the essential
functions of her job. See 29 C.F.R. § 1630.2(o)(1)(ii). Such an
accommodation, though, must be feasible for the employer. See
Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 90 (1st Cir. 2012);
Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 23 (1st Cir.
2004). Typically, reasonable accommodations include such things
as job restructuring, modified work schedules, reassignment to
vacant positions, and the like. See 42 U.S.C. § 12111(9)(B);
Calero-Cerezo, 355 F.3d at 23. The reasonableness of any proposed
accommodation, including its feasibility, must be assessed on a
case-by-case basis. See Calero-Cerezo, 355 F.3d at 23.
Even though reasonableness necessarily depends on the
circumstances of a given case, some general principles apply. For
instance, "[a] requested accommodation that simply excuses past
misconduct is unreasonable as a matter of law." McElwee v. County
of Orange, 700 F.3d 635, 641 (2d Cir. 2012). After all, the ADA
does not oblige an employer to accommodate an employee's disability
retroactively. See DeWitt v. Sw. Bell Tel. Co., 845 F.3d 1299,
1316 (10th Cir. 2017) (explaining that overlooking past misconduct
decision was effectuated). For simplicity's sake, we bypass this quagmire and give Trahan the benefit of the doubt.
- 22 - is not within the realm of reasonable accommodations);
Schaffhauser v. UPS, Inc., 794 F.3d 899, 902, 906 (8th Cir. 2015)
(upholding rejection of accommodation request made after
employee's racist comment). In this case, Trahan made both of the
proposals that she seeks to classify as accommodation requests
after committing the fireable misconduct that prompted her
discharge. Where, as here, an accommodation request follows
fireable misconduct, it ordinarily should not be viewed as an
accommodation proposal at all. See Jones, 696 F.3d at 90 (stating
that "[w]hen an employee requests an accommodation for the first
time only after it becomes clear that an adverse employment action
is imminent, such a request can be 'too little, too late'" (quoting
Reed, 244 F.3d at 262 n.9)); see also U.S. Equal Emp. Opportunity
Comm'n, EEOC-CVG-2003-1, Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the Americans with
Disabilities Act 36 (2002) ("Since reasonable accommodation is
always prospective, an employer is not required to excuse past
misconduct even if it is the result of the individual's
disability."). Such a request is better understood as a plea
either for forgiveness or for a second chance. See DeWitt, 845
F.3d at 1316 (concluding that "excusing workplace misconduct to
provide a fresh start/second chance to an employee whose disability
could be offered as an after-the-fact excuse is not a required
accommodation under the ADA" (emphasis in original) (quoting
- 23 - Davila v. Qwest Corp., 113 F. App'x 849, 854 (10th Cir. 2004)));
Hill v. Kan. City Area Transp. Auth., 181 F.3d 891, 894 (8th Cir.
1999) (explaining that employee who made after-the-fact request
was not seeking accommodation but, rather, seeking "a second chance
to better control her treatable medical condition").
Here, Trahan — like the plaintiff in Jones — made the
request for a seat reassignment in a conversation with Dunivan
"only after it bec[ame] clear that an adverse employment action
[was] imminent."4 696 F.3d at 90. By the same token, she first
mentioned the possibility of working from home after she had been
suspended. Given the timing of the requests, implementing them
would have required forgiveness of her fireable misconduct and a
fresh start at Wayfair. Nothing in the ADA demands that an
employer accord an employee — even an employee with a disability
— such a second chance. See DeWitt, 845 F.3d at 1316.
In all events, Trahan's requested accommodations were
not reasonable. For this purpose, reasonableness requires, among
other things, that the employee demonstrate that her proposal would
be effective to allow her to perform the essential functions of
her job. See, e.g., Jones, 696 F.3d at 90 ("One element in the
4 Messages that Trahan sent to an uninvolved co-worker during the afternoon of September 20 indicated that she was already aware of the potential severity of the consequences of her outburst. Her messages stated that she was "pretty sure [she was] going to get shafted because of this whole thing" and that she was "probably going to get in trouble."
- 24 - reasonableness equation is the likelihood of success." (quoting
Evans v. Fed. Express Corp., 133 F.3d 137, 140 (1st Cir. 1998))).
Neither of Trahan's proposals clears this bar.
First, nothing about the request to move to a permanent
desk or team away from Ireland and McDonald inspired confidence in
Trahan's ability to comport herself in accordance with Wayfair's
Conduct Rules. Trahan admits that sales and service consultants
"work collaboratively insofar as they frequently interact with
each other about their work and rely upon each other" for
assistance and information. She further admits that consultants
"work on teams and work closely together in team meetings, group
coaching sessions, and trainings." Seen in this light, it is
apparent that the requested team-reassignment accommodation lacks
feasibility.
Trahan's triggers were diverse and unpredictable, and
commonly included the feeling of "losing control" and of "being
ganged up on." Given the nature of these triggers, there is no
grounding for a reasonable inference that joining a different team
in a different space would have enabled Trahan to behave more
collaboratively or professionally. Teams, by their nature,
require members to cede some control, and people, by their nature,
do not always agree. Thus, Trahan cannot support her assertion
that she could have fulfilled her duties as a Wayfair sales and
service consultant on any other team, as she still would have had
- 25 - to work collaboratively with others who could trigger her at any
time.
Nor was working from home a reasonable accommodation.
Undisputed record evidence shows that at the time Trahan was
cashiered, Wayfair did not offer work from home opportunities in
Maine because it lacked the technological capabilities to support
such an arrangement. Trahan acknowledges this reality but rejoins
that she learned during training that Wayfair was in the process
of developing a work-from-home program. She adds that Wayfair
began offering such opportunities "the month after" she was
discharged.
As we have said, determinations of reasonableness in
this context must be made on a case-by-case basis. See Calero-
Cerezo, 355 F.3d at 23. At the relevant time, Wayfair did not
employ sales and service consultants working from home. Wayfair
was not required, as part of a reasonable accommodation, to hold
Trahan's request in abeyance and let her remain in place pending
the availability of a work-from-home program. It follows
inexorably that this proposed accommodation was not reasonable in
September of 2017 — the month in which the accommodation was
requested and in which Trahan's employment was terminated.
At the expense of carting coal to Newcastle, we add that
Trahan has not explained how her work-from-home proposal would
have equipped her to follow Wayfair's Conduct Rules. Trahan
- 26 - offered no evidence, beyond her own assertion, to satisfy her
burden of establishing that working from home would have enabled
her to perform her job in accordance with Wayfair's reasonable
expectations. As said, some of Trahan's PTSD triggers were
inherently unpredictable and could occur anywhere. Although
working from home may have involved fewer interactions with co-
workers, it would not have eliminated those interactions entirely;
Trahan still would have been a member of a larger sales and service
organization and subject to supervision. Her PTSD triggers were
likely to reappear in Wayfair's team-oriented environment whether
Trahan was working from the call center or from her own residence.
And despite the absence of problems with customers during the
handful of weeks that she worked for Wayfair, Trahan — whose
disability manifested itself (at least in part) by a difficulty in
perceiving reality — gave the company no reason to believe that
she could proceed professionally if a customer's call triggered
her PTSD.
Trahan has one last shot in her sling. She asseverates
that any record deficiencies regarding the reasonableness of her
proposed accommodations are "due to Wayfair's failure to engage in
an interactive process." Refined to bare essence, she submits
that Wayfair opted to fire her rather than engage in a discussion.
We agree that a request for an accommodation may spark
an employer's duty to engage in an interactive dialogue with a
- 27 - disabled employee. See id. But liability for failure to engage
in an interactive process depends on a finding that the parties
could have discovered and implemented a reasonable accommodation
through good faith efforts. See Jones, 696 F.3d at 91. Here,
however, the record contains no evidence sufficient to ground a
reasonable inference that further dialogue between Trahan and
Wayfair was likely to have led to such an outcome. Her attempt to
invoke the interactive process is, therefore, futile. See id.
That ends this aspect of the matter. We discern no error
in the district court's entry of summary judgment for Wayfair on
Trahan's failure-to-accommodate claim.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
- 28 -