Michele R. Freadman v. Metropolitan Property and Casualty Insurance Company

United States Court of Appeals
For the First Circuit
No. 06-1486
MICHELE R. FREADMAN,
Plaintiff, Appellant,
v.
METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lynch, Circuit Judges.
Edward J. Juel, with whom Law Offices of Edward J. Juel was on
brief, for appellant.
Susan R. Oxford, Attorney, with whom James L. Lee, Deputy
General Counsel, and Carolyn L. Wheeler, Acting Associate General
Counsel, were on brief, for U.S. Equal Employment Opportunity
Commission, amicus curiae.
Steven E. Snow, with whom Michael J. Murray and Partridge Snow
& Hahn LLP were on brief, for appellee.
April 18, 2007

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LYNCH, Circuit Judge. Michele Freadman brought this
action against her former employer, Metropolitan Property and
Casualty Insurance Company ("Metropolitan"), alleging violations of
the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-
12213, and Rhode Island state law. Freadman claimed that
Metropolitan (1) discriminated against her on the basis of a
protected disability, (2) failed to reasonably accommodate her
disability, and (3) retaliated against her for attempting to obtain
a reasonable accommodation.
The district court granted summary judgment to
Metropolitan, holding that Freadman failed to establish a prima
facie case on her claims. Freadman v. Metro. Prop. & Cas. Ins.
Co., No. 01-628, 2006 WL 346455, at *2-4, 6-7 (D.R.I. Feb. 14,
2006). Freadman now appeals the award of summary judgment.
We affirm summary judgment for Metropolitan on all of
Freadman's claims.
I.
We review the district court's grant of summary judgment
de novo, considering the facts and the reasonable inferences
therefrom in the light most favorable to the nonmoving party.
Guzmán-Rosario v. United Parcel Serv., Inc., 397 F.3d 6, 9 (1st
Cir. 2005).
Metropolitan hired Freadman in 1993 and promoted her to
manager in 1995. In March 1999, Freadman became ill with

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ulcerative colitis, and from March 1999 to July 1999, she took
medical leave for treatment of this condition. At the time,
Freadman reported to Assistant Vice President Robert Smith.
During her convalescence, Smith visited Freadman and
phoned her on several occasions. During these conversations,
Freadman and Smith discussed Freadman's need for "reasonable hours,
[fewer] last minute time driven assignments, work/life balance,
being able to exercise, [and] having adequate staff." Smith agreed
to Freadman's request for a better work/life balance and to make
changes; indeed, he told Freadman that she worked too hard.
Freadman returned to work in July 1999. She was
accommodated by being allowed to work part-time for the first
several weeks, even though such part-time work was not normally
available for managers.
Upon her return, Smith reassigned Freadman's training,
compliance, and performance enhancement duties to other employees
in an attempt to reduce her workload, as she had requested. Smith
also arranged for Freadman to take over a new project known as
"Ease of Doing Business" (EDB), which was headed by Smith's boss,
Chris Cawley. Although Smith did not request that she do so,
Freadman began working long hours again, including nights and
weekends. According to plaintiff, she needed to work such hours
because of the high-pressure assignments she received. Smith in
fact had previously told her on more than one occasion that "it

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would be okay [for her] to do a B job instead of an A job."
Freadman discounted that statement and did not discuss the matter
with him further.
Within approximately six months after her return to work,
Freadman received two salary increases in the amounts of $5,000 and
$4,700, for a total salary of $80,000. She received these raises
at the election of Smith, her supervisor. In February 2000, Smith
gave Freadman a rating of "5," the highest possible performance
rating, in her review. This rating was higher than the rating
Freadman had received before the onset of her illness. Freadman
was also selected in 2000 to participate in a program for the
development of high-performing, non-officer employees. Smith had
nominated her for the program.
In March 2000, one of Freadman's subordinates left
Metropolitan. Freadman spoke to Smith about replacing this
employee, noting that the subordinate was her "top performer."
Freadman explained that she was already working nights and weekends
on EDB, and she expressed her belief that she would not be able to
keep the project on track without impairing her health, unless she
could replace the departed employee. Although there was a company-
wide hiring freeze, Smith arranged for Freadman to hire a
replacement. Freadman hired someone to fill the position, and that
employee worked for Freadman through June 2000.

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Smith denies that Freadman ever told him that she was 1
sick prior to the June 9 presentation. He does, however, remember
a conversation in early June in which Freadman mentioned that she
was nervous about giving the June 9 presentation before CEO Rein
and the officer group. Smith says he responded by saying,
"Michele, you have been through this before, hang in there, you
will do great. Just stay calm; you will get through it."
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In May 2000, Metropolitan's CEO, Catherine Rein, asked
Freadman to give a high-profile presentation on EDB to the
Officers' Strategic Planning Group on June 9, 2000. Freadman was
under the supervision of Cawley, Smith's superior, for this
project, and Cawley had authority to make changes in her
presentation. In an e-mail dated May 31, 2000, Freadman asked
Cawley for his views on the presentation.
Freadman's ulcerative colitis became active again in June
2000. This led to an important conversation, the significance of
which is at issue in this appeal. Freadman stated that on June 2,
2000, she advised Smith that she was working too hard, and that she
"needed to take some time off because [she was] starting not to
feel well." Freadman also told Smith that "some of [her] symptoms
may be returning." According to Freadman, Smith responded by
saying, "Just get through the presentation on June 9. Take your
time off after. Keep it up. You're doing great. Everything is
going excellent."1
It is undisputed that Freadman was not any more explicit
than the words quoted. She did not explicitly request a
postponement of the June 9 presentation, which the CEO of the

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company had requested. She did not explicitly say that she wanted
time off before the June 9 presentation. She did not explicitly
state that her ulcerative colitis had returned and that she needed
to be accommodated immediately.
Further, it is undisputed that when Smith expressed
confidence in her and suggested she take time off after the
presentation, she did not say to him that she needed time off
before the presentation. Nor did she raise the topic again with
Smith or anyone else. Nor was there any physical manifestation
obvious to others that Freadman should not have been working
between June 2 and June 9.
After this litigation started, in an answer to an
interrogatory, Freadman explained that she "believed that [she]
could not take any time off as a result of this meeting with Mr.
Smith" because she would be "viewed as a complainer and a
liability." She alleges that she feared punishment and
retaliation. She did not, however, raise these concerns with
anyone at the company at any time.
On June 7, 2000, Cawley stopped by Freadman's cubicle to
look at Freadman's work on the June 9 presentation on EDB.
Freadman does not allege that her illness impaired her ability to
prepare for this meeting, or that it affected her ability to
request an accommodation on June 7. During the June 7 meeting,
Cawley was critical of the slides Freadman had prepared and told

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The parties dispute whether Freadman, in response to 2
Cawley's instruction that the presentation be shortened, tossed her
presentation on the desk in Cawley's direction and demanded that he
tell her what to remove, as defendant maintains. It is also
disputed whether Cawley specifically told Freadman to remove
breakout sessions from the presentation she had planned. We take
the evidence in Freadman's favor.
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her to shorten the presentation. Cawley was concerned about making
good use of the officers' time and wanted to leave half an hour for
the officers to talk about their products in light of the
presentation. Freadman asked Cawley what she should remove from
the presentation. Cawley responded that it was her job to decide
which slides to cut. Smith, who was present at this meeting, 2
testified that Cawley had suggested to Freadman that the
presentation had too many slides, that the individual slides were
too busy, and that Freadman needed to shorten the presentation and
simplify the slides. Lyndalu Pieranunzi, a Metropolitan employee
subordinate to Freadman who was present throughout the meeting,
confirmed that there had been a discussion about shortening the
presentation and streamlining the content. Pieranunzi also
testified that there was tension between Freadman and Cawley during
the meeting.
After the meeting with Freadman, Cawley reiterated to
Smith that Freadman's presentation was too busy and contained too
many slides. Later that night, Freadman telephoned Smith, who
advised her to shorten the presentation and clean up the slides, as
Cawley had suggested.

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On June 9, 2000, Freadman gave her presentation to the
Officers' Strategic Planning Group. Freadman had the officers
participate in breakout sessions, and the presentation was longer
than Cawley wanted. Due to time constraints, Cawley intervened and
ended the breakout sessions early. Freadman noted that Cawley was
upset when he shortened the presentation. Smith, who attended the
presentation, remembered the introduction going longer than he had
expected it would, based on the instructions Cawley had given
Freadman. Pieranunzi, who assisted Freadman on the day of the
presentation, testified that they "ran out of time."
Metropolitan's CEO, Rein, testified that she was
surprised that Freadman used breakout sessions at the strategic
planning meeting. Shortly after the presentation, Cawley explained
to Rein that he had instructed Freadman in advance of the
presentation not to hold breakout sessions.
On the next business day, June 12, 2000, Freadman went
into the office. Smith stopped by her cubicle that day and said,
"I thought you were going to take some time off." Freadman
responded that she was going to take the rest of the week off, and
that she would use some personal days as she was "not feeling
well." Smith agreed to this plan. Freadman worked at home for the
remainder of that week.
On June 12, Cawley told Smith that he "could not rely
upon [Freadman] to do what he told her to do at a high profile

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environment . . . [,] that he didn't want her to be the project
manager on something that would put her in that position," and that
she should be rotated into another position. Smith recommended
Freadman for a vacant position in the Desktop Life Cycle Management
Program, and Cawley accepted this recommendation.
After June 9, Cawley twice spoke with Metropolitan's Vice
President of Human Resources about rotating Freadman into a new
position. Cawley explained that Freadman had ignored his
instructions to alter her presentation and remove breakout sessions
from the agenda.
Freadman worked from home until June 26, 2000, an extra
week beyond the period upon which she and Smith had agreed. On
June 26, Freadman advised her administrative assistant that she
would again work from home that day, due to her illness. Later
that day, Smith called Freadman and told her she needed to come
into the office. Freadman responded that she was still feeling
sick, and she asked if she could come in the next day. According
to Freadman, Smith then said, "No, you have to come in the office
today. You have two choices. You go out on disability or you come
in the office. There's changes in the department that affect you."
Freadman went into the office on June 26 and met with
Smith. Smith advised her that her job function was being rotated,
and that she would now be working on the Desktop Life Cycle
Management Program under Richard Sitkus. Freadman would now be

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reporting to Joann Kraemer, a manager two levels below Smith.
Also, her new position was in a technical, not a management, area.
Freadman met with Sitkus, the head of her new project, and he
informed her that he was moving her cubicle closer to him so that
everyone on the team could be together. Freadman remained at work
for the rest of the day, and then took personal time off the next
two days. She was hospitalized on June 29, 2000, and was in and
out of the hospital for approximately ninety days for treatment of
her ulcerative colitis. Freadman never returned to her new
position.
II.
Freadman brought suit in December 2001 against
Metropolitan under the ADA and under state law. She alleged that
she had been discriminated against on account of her disability in
July 1999 when she was assigned to the EDB project, as well as in
June 2000 when she was assigned to the Desktop Life Cycle
Management Program. Freadman also claimed that Metropolitan failed
to provide reasonable accommodations around the time of her medical
leave in 1999 and during the recurrence of her illness in June
2000. Further, she alleged that Metropolitan retaliated against
her for requesting accommodations. Freadman also brought several
claims against Metropolitan for disability-related discrimination
in violation of state law. See Rhode Island Fair Employment
Practices Act (FEPA), R.I. Gen. Laws §§ 28-5-1 to -42; Rhode Island

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The magistrate judge noted that the ADA, FEPA, and 3
RICRIHA are similar statutes, and applied the analysis applicable
under the ADA to Freadman's state law claims.
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Civil Rights of Individuals with Handicaps Act (RICRIHA), id.
§§ 42-87-1 to -5. She sought declaratory and injunctive relief, as
well as compensatory and punitive damages, alleging that
Metropolitan's conduct caused her to suffer great physical injury
and pain of body, emotional distress, humiliation, indignity, and
economic losses.
After discovery, Metropolitan moved for summary judgment,
arguing that Freadman had failed to make out a prima facie case of
disparate treatment, failure to accommodate, or retaliation.
Metropolitan argued, inter alia, that Freadman's June 2, 2000 and
June 26, 2000 conversations with Smith did not constitute requests
for reasonable accommodations, that there was no causal connection
between Freadman's disability and the alleged adverse employment
action, and that in any event Freadman had failed to rebut
Metropolitan's evidence that the change in her duties was motivated
by legitimate business reasons.
The magistrate judge issued a report and recommendation
recommending that Metropolitan's motion for summary judgment be
granted. On plaintiff's disparate treatment claims, the magistrate
judge assumed that Freadman would be able to show that she suffered
from a disability within the meaning of the ADA and that she was 3
nevertheless able to perform the essential functions of her job

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With respect to plaintiff's July 1999 disparate treatment 4
claim, the magistrate judge found that plaintiff had not suffered
a materially adverse employment action.
The magistrate judge found that plaintiff had not met her 5
burden of showing that her requested accommodation in May 1999 was
reasonable. He additionally found that plaintiff could not show
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with or without a reasonable accommodation. The magistrate judge
also assumed, without deciding, that the change in plaintiff's
duties in June 2000 constituted a materially adverse employment
action. The magistrate judge found, however, that Freadman had 4
failed to present "any evidence which would enable a rational jury
to find that the reassignment of her duties in June 2000 was based,
either in whole or in part, on her alleged disability." Further,
the magistrate judge stated that a rational jury would not have
been able to find that Metropolitan's explanation for the change in
Freadman's duties in June 2000 was a pretext for disability
discrimination. On plaintiff's reasonable accommodation claims,
the magistrate judge again assumed that Freadman would be able to
demonstrate that she was disabled and that she was able to perform
the essential functions of her job with or without a reasonable
accommodation. The magistrate judge concluded, however, that
Freadman had not met her burden of showing that Metropolitan,
despite knowing of plaintiff's disability, failed to reasonably
accommodate it; in particular, he faulted plaintiff for not making
sufficiently direct and specific requests for accommodation in June
2000. Finally, on plaintiff's retaliation claims, the magistrate 5

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that Metropolitan had failed to accommodate a request in March
2000.
The magistrate judge noted that plaintiff could not 6
establish a prima facie case as to retaliation in July 1999 because
this change in Freadman's duties did not constitute a materially
adverse employment action.
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judge held that the change in Freadman's duties in June 2000 had
not been ordered in retaliation for any protected activity under
the ADA.6
Freadman objected to the magistrate judge's conclusions
regarding her disparate treatment, failure to accommodate, and
retaliation claims, but only with respect to events occurring in
June 2000.
The district court granted Metropolitan's motion for
summary judgment. The court agreed with the magistrate judge that
Freadman had failed to show causation on her prima facie case of
disparate treatment. Freadman, 2006 WL 346455, at *5-6. The court
also held that Freadman had failed on June 2 to articulate a
request that was linked to her disability or that was specific
enough to communicate a request for immediate leave. Id. at *2-3.
It further held that Freadman's request on June 26 to come into
work the next day also was insufficiently linked to her disability.
Id. at *4. Finally, the district court agreed with the magistrate
judge that Freadman's retaliation claims must fail because her
requests did not constitute protected activity. Id. at *6-7.
Freadman appeals from the grant of summary judgment.

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III.
Summary judgment is appropriate when "there is no genuine
issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law." Fed. R. Civ. P. 56©;
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
"Once the moving party avers the absence of genuine issues of
material fact, the nonmovant must show that a factual dispute does
exist, but summary judgment cannot be defeated by relying on
improbable inferences, conclusory allegations, or rank
speculation." Ingram v. Brink's, Inc., 414 F.3d 222, 228-29 (1st
Cir. 2005). We may affirm the grant of summary judgment on any
ground supported by the record. Estades-Negroni v. Assocs. Corp.
of N. Am., 377 F.3d 58, 62 (1st Cir. 2004).
A. ADA Disparate Treatment Claim
The ADA prohibits discrimination against "a qualified
individual with a disability because of the disability of such
individual in regard to . . . terms, conditions, and privileges of
employment." 42 U.S.C. § 12112(a).
We apply here the burden-shifting framework articulated
by the Supreme Court in McDonnell-Douglas Corp. v. Green, 411 U.S.
792, 802-05 (1973). See Higgins v. New Balance Athletic Shoe,
Inc., 194 F.3d 252, 264 (1st Cir. 1999); Dichner v. Liberty Travel,
141 F.3d 24, 29-30 & n.5 (1st Cir. 1998). If the plaintiff

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To satisfy the requirements of a prima facie case of 7
disparate treatment, a plaintiff must establish that (1) she
suffers from a disability or handicap, as defined by the ADA; (2)
she was nevertheless able to perform the essential functions of her
job, either with or without reasonable accommodation; and (3) the
defendant took an adverse employment action against her because of,
in whole or in part, her protected disability. Tobin v. Liberty
Mut. Ins. Co., 433 F.3d 100, 104 (1st Cir. 2005).
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establishes a prima facie case, the burden then shifts to the 7
defendant to "articulate a legitimate, non-discriminatory reason
for its employment decision and to produce credible evidence to
show that the reason advanced was the real reason." Tobin v.
Liberty Mut. Ins. Co., 433 F.3d 100, 105 (1st Cir. 2005). If the
defendant offers a legitimate, non-discriminatory reason, the
initial inference of discrimination evaporates, Mesnick v. Gen.
Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991), and the burden then
shifts back to the plaintiff to "proffer evidence to establish that
[the defendant's] non-discriminatory justification is mere pretext,
cloaking discriminatory animus," Tobin, 433 F.3d at 105. The
employer's burden of articulating a non-discriminatory reason is
only a burden of production, not a burden of persuasion; the burden
of proving unlawful discrimination rests with the plaintiff at all
times. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000); Dichner, 141 F.3d at 30.
Freadman argues that Metropolitan violated the ADA by
removing her from the EDB project on June 26. On appeal, she
asserts that the district court erred in holding that she did not

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establish a prima facie case of disability discrimination because
she failed to show causation. We bypass the prima facie case issue
because it is clear that plaintiff has not mustered enough evidence
for a reasonable jury to conclude that Metropolitan's stated reason
for her job rotation was pretextual. See Fennell v. First Step
Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996) ("On summary
judgment, the need to order the presentation of proof is largely
obviated, and a court may often dispense with strict attention to
the burden-shifting framework, focusing instead on whether the
evidence as a whole is sufficient to make out a jury question as to
pretext and discriminatory animus.").
Metropolitan says it removed Freadman from the EDB
project because of (1) her behavior during her June 7 meeting with
Cawley, (2) her unsatisfactory presentation to the Officers'
Strategic Planning Group, and (3) Cawley's resulting loss of
confidence in Freadman. It is undisputed that at the June 7
meeting, Cawley expressed concern over the length of Freadman's
presentation for June 9 and told her that he wanted it shortened.
It is also undisputed that Cawley, after the presentation,
concluded that Freadman had not shortened the presentation enough.
Freadman herself concedes that Cawley was upset when he ended the
June 9 presentation early because of its length. Further, it is
undisputed that Cawley told CEO Rein he had instructed Freadman in
advance of the presentation not to use breakout sessions, and that

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Freadman has not put forward any proof that Cawley's 8
stated dissatisfaction with her conduct was "inaccurate,
unbelievable, idiosyncratic, or misleading." Velázquez-Fernández
v. NCE Foods, Inc., 476 F.3d 6, 12 (1st Cir. 2007). Nor is this a
case where a decision maker is fed biased information by
discriminatory underlings. See Cariglia v. Hertz Equip. Rental
Corp., 363 F.3d 77, 85-88 (1st Cir. 2004).
-17-
Rein was surprised that Freadman had done so. There is no evidence
that the statement to Rein was motivated by discrimination. It is
also undisputed that after the presentation, Cawley told Smith and
the Vice President of Human Resources that a new position needed to
be found for Freadman because she had ignored his instructions.
Whether or not Freadman had explicitly been told to remove the
breakout sessions, there is no evidence that Cawley did not
genuinely believe that Freadman had violated his instructions, or
that his belief was motivated by discrimination. Based on this 8
evidence, it is clear that defendant met its burden of articulating
a legitimate, non-discriminatory reason for Freadman's job
rotation.
Plaintiff argues that Metropolitan's explanation was
pretext. She first points to the temporal relationship between her
June 2000 requests and her job rotation. Freadman cites Oliver v.
Digital Equip. Corp., 846 F.2d 103 (1st Cir. 1988), for the
proposition that the occurrence of an adverse employment action
"soon after" an employee engages in a protected activity is

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We discuss in the next section whether the June 2 9
conversation was indeed a protected request for a reasonable
accommodation.
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"indirect proof of a causal connection between the [adverse
employment action] and the activity." Id. at 110. 9
Timing may bear on the question of causation in a
retaliation claim, but we have also warned that a "narrow focus [on
timing may] ignore[] the larger sequence of events and also the
larger truth." Soileau v. Guilford of Me. Inc., 105 F.3d 12, 16
(1st Cir. 1997). Here, the larger sequence of events shows that
the company had accommodated Freadman's requests concerning her
ulcerative colitis. After her return from medical leave, she was
allowed to work part-time for several weeks, even though such work
was not normally available for managers. She also received two
salary increases shortly after returning to Metropolitan, and in
2000 she was selected to participate in a program for rising stars
at the company. Moreover, Freadman was allowed to hire a
replacement when one of her subordinates left Metropolitan, even
though there was a company-wide hiring freeze in effect. Also, the
company had given her a performance rating in early 2000 that was
higher than the rating she earned before the onset of her illness.
Further, the timing between the June 2 request for time
off and the June 26 job rotation does not support a finding of
pretext. There is uncontradicted evidence that the motivation for
the change in Freadman's responsibilities lay with Cawley's

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interactions with Freadman on June 7 and June 9 and his resulting
inability to trust her in a high-profile position. As for the June
26 request to work from home, this request cannot support a finding
of pretext because it occurred after the decision to remove
Freadman from the EDB project had been made.
The record as a whole demonstrates that the decision to
move Freadman into a new position was not causally linked either to
her disability or to her June 2000 conversations with Smith. See
Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25-26 (1st Cir.
2004) (finding that temporal proximity was sufficient to make out
a prima facie case, but affirming dismissal of claim because
plaintiff had failed to demonstrate pretext); Wright v. CompUSA,
Inc., 352 F.3d 472, 478 (1st Cir. 2003) ("[C]hronological proximity
does not by itself establish causality . . . ."); Soileau, 105 F.3d
at 16-17 (acknowledging that discharge occurred immediately after
request for accommodation, but concluding that "[t]he larger
picture undercuts any claim of causation").
Freadman also attempts to argue that Metropolitan's
reasons for removing her from the EDB project are pretextual
because Cawley failed to follow Metropolitan's disciplinary policy
-- that is, he did not counsel her about the purported misconduct
that led to her rotation. There is no evidence that if there was
a violation of the discipline policy it was motivated by
discrimination. Indeed, the claim that there was a violation is

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undercut by the fact that Metropolitan's policy does not require
counseling for "extreme cases[] such as insubordination." Given
his dissatisfaction with Freadman's presentation and his lack of
confidence in her ability to follow his instructions, Cawley
reasonably determined that Freadman's behavior qualified as an
"extreme case," and he was thus under no obligation to counsel
Freadman regarding her actions or her reassignment. The decision
to rotate Freadman into another position without providing
counseling "was within the bounds of [Metropolitan's] disciplinary
policy and raise[d] no inference of pretext." Colburn v. Parker
Hannifin/Nichols Portland Div., 429 F.3d 325, 337 (1st Cir. 2005).
There was nothing "idiosyncratic or questionable" about the
employer's decision. Gray v. New Eng. Tel. & Tel. Co., 792 F.2d
251, 256 (1st Cir. 1986) (quoting Loeb v. Textron, 600 F.2d 1003,
1012 n.6 (1st Cir. 1979)) (internal quotation marks omitted).
Freadman's disparate treatment claim fails as a matter of
law. See Ingram, 414 F.3d at 228-29 (noting that summary judgment
cannot be avoided by relying on improbable inferences or conclusory
allegations).
B. ADA Reasonable Accommodation Claims
On appeal, Freadman claims that Metropolitan failed to
accommodate her disability on two occasions -- June 2, before her

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The Equal Employment Opportunity Commission (EEOC) has 10
filed an amicus brief on Freadman's behalf, making the limited
argument that plaintiff made requests for time off and to work at
home, and that these constituted requests for accommodations under
the ADA as well as "protected activity" for purposes of the ADA's
anti-retaliation provision. While we agree with the EEOC that
under certain facts a request for time off or to work at home may
constitute a requested accommodation, Freadman's evidence fails to
establish that she made requests for reasonable accommodations
which were denied by the employer.
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presentation to the officers group, when she requested time off,
and June 26, when she asked to work at home for an additional day.10
The definition of discrimination under the ADA includes
"not making reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a
disability who is an applicant or employee, unless [the] covered
entity can demonstrate that the accommodation would impose an undue
hardship on the operation of the [entity's] business." 42 U.S.C.
§ 12112(b)(5)(A); see also Higgins, 194 F.3d at 264. In order to
survive a motion for summary judgment on a reasonable accommodation
claim, the plaintiff must "produce enough evidence for a reasonable
jury to find that (1) he is disabled within the meaning of the ADA,
(2) 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." Rocafort v. IBM Corp., 334 F.3d 115, 119 (1st
Cir. 2003).

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Different rules may apply in situations where a 11
disability prevents the employee from requesting an accommodation,
or where the need for an accommodation is obvious. See Reed, 244
F.3d at 261 n.7. That is not the case here. There is no evidence
to suggest, and plaintiff does not argue, that her colitis
prevented her from properly requesting an accommodation.
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1. June 2 Request
Freadman alleges that Metropolitan knew of her disability
yet failed to reasonably accommodate it after she told Smith that
she "needed to take some time off because [she was] starting not to
feel well" and that "some of [her] symptoms may be returning."
The ADA imposes liability for an employer's failure to
accommodate "known physical or mental limitations" of an employee.
42 U.S.C. § 12112(b)(5)(A) (emphasis added). Ordinarily, the
employer's duty to accommodate is triggered by a request from the
employee. Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st
Cir. 2001); see also 1 B. Lindemann & P. Grossman, Employment
Discrimination Law 313 (3d ed. 1996); 1 H. Perritt, Jr., Americans
with Disabilities Act Handbook § 4.17, at 121 (3d ed. 1997). That
is because "an employee's disability and concomitant need for
accommodation are often not known to the employer." Reed, 244 F.3d
at 261. Thus, the plaintiff has the burden of showing that she
"sufficiently requested the accommodation in question." Id. at 11
260. The employee's request (1) "must be 'sufficiently direct and
specific,'" and (2) "must explain how the accommodation requested
is linked to some disability." Id. at 261 (quoting Wynne v. Tufts

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Univ. Sch. of Med., 976 F.2d 791, 795 (1st Cir. 1992)); see also
Estades-Negroni, 377 F.3d at 64 (requiring request to be "express"
and "linked to a disability").
In addition to making a sufficient request concerning a
known limitation, the plaintiff must also show that the proposed
accommodation is reasonable -- that it "would enable her to perform
the essential functions of her job," and that "at least on the face
of things, it is feasible for the employer under the
circumstances." Reed, 244 F.3d at 259; see also US Airways, Inc.
v. Barnett, 535 U.S. 391, 401-02 (2002); Mulloy v. Acushnet Co.,
460 F.3d 141, 148 (1st Cir. 2006).
If the plaintiff can make these showings, the defendant
then has the opportunity to show that the proposed accommodation
would impose an undue hardship. Reed, 244 F.3d at 259; see also
Barnett, 535 U.S. at 402. We need not address the questions of
reasonableness or undue hardship because Freadman has failed to
show that her request for time off was for time off before the June
9 presentation.
As to the link between Freadman's request and her
disability, Freadman and the EEOC argue that there was sufficient
evidence for a jury to conclude that Metropolitan knew that
Freadman's June 2 request was related to her disability.
Metropolitan disputes this. The appropriate inquiry is whether
defendant knew or reasonably should have known that the reason for

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"Claims under Title I of the ADA and § 504 of the 12
Rehabilitation Act are analyzed under the same standards." Phelps
v. Optima Health, Inc., 251 F.3d 21, 23 n.2 (1st Cir. 2001).
-24-
Freadman's request was her disability. See Wynne, 976 F.2d at 795
(addressing a claim brought under Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794).12
We agree that there was sufficient evidence to create a
triable issue on the link between Freadman's June 2 request and her
disabling colitis. Taking the evidence in plaintiff's favor, Smith
knew that Freadman took medical leave from March 1999 to July 1999
in order to receive treatment for her colitis. While Freadman was
recovering, Smith acknowledged plaintiff's need for more reasonable
hours and a better work/life balance. Further, when one of
Freadman's subordinates left Metropolitan in March 2000, Freadman
notified Smith that she needed to hire a replacement or else risk
impairing her health. When Smith responded that there were
concerns that the home office was getting too big, Freadman
objected, "I'm basically killing myself to keep this [project] on
track, and I'm going to get sick again." Smith replied, "I know.
I know. All right. All right. Just [hire a replacement] quick."
This is not a situation, as in Soileau, where the employer's mere
knowledge of medical leave over three years prior was insufficient
to put it on notice of a present disability. 105 F.3d at 14, 16.
Freadman's accommodation claim nevertheless founders due
to her failure to produce evidence that would permit a jury to

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conclude that the employer was put on notice of a "sufficiently
direct and specific" request for her desired accommodation. She
argues it was clear that her request was to take time off starting
on June 2, rather than at some unspecified time. However, Freadman
told Smith that she "needed to take some time off because [she was]
starting not to feel well" (emphasis added). Plaintiff expressed
merely a need to take "some time off" without specifying when she
would need that time off. Freadman, who had better knowledge than
Smith of her condition and symptoms, had some burden to be specific
about the accommodation she required. See Reed, 244 F.3d at 260-
62; see also Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130,
1136-37 (7th Cir. 1996) (recognizing that liability for a failure
to accommodate claim may turn on whether "missing information is of
the type that can only be provided by one of the parties"). No
rational jury could conclude that Smith reasonably should have
known that Freadman was requesting time off before the presentation
on June 9. The employer has "no duty to divine the need for a
special accommodation" where the employee fails to make an adequate
request. Reed, 244 F.3d at 261.
Smith, in response to Freadman's request, reasonably
suggested that Freadman take time off after the presentation, only
a week later. To the extent plaintiff adequately requested time
off at some unspecified point in the future, defendant granted a
reasonable accommodation. If this was not what Freadman sought,

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The EEOC's interpretive guidance on Title I of the ADA, 13
29 C.F.R. pt. 1630, app., "'while not controlling upon the courts
by reason of [its] authority, do[es] constitute a body of
experience and informed judgment to which courts and litigants may
properly resort for guidance.'" Grenier v. Cyanamid Plastics,
Inc., 70 F.3d 667, 672 (1st Cir. 1995) (quoting Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 65 (1986)).
-26-
she could have clarified that she needed time off immediately. She
never did so.
There was no transgression of the employer's
responsibility to help determine what would constitute a reasonable
accommodation. The federal regulations implementing the equal
employment provisions of the ADA state:
To determine the appropriate reasonable
accommodation it may be necessary for the
covered entity to initiate an informal,
interactive process with the qualified
individual with a disability in need of the
accommodation. This process should identify
the precise limitations resulting from the
disability and potential reasonable
accommodations that could overcome those
limitations.
29 C.F.R. § 1630.2(o)(3). "Once a qualified individual with a
disability has requested provision of a reasonable accommodation,
the employer must make a reasonable effort to determine the
appropriate accommodation." Id. pt. 1630, app. § 1630.9. The 13
employer has an obligation upon learning of an employee's
disability to "engage in a meaningful dialogue with the employee to
find the best means of accommodating that disability." Tobin, 433
F.3d at 108. The employee also has an obligation: "The appropriate

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reasonable accommodation is best determined through a flexible,
interactive process that involves both the employer and the
[employee] with a disability." 29 C.F.R. pt. 1630, app. § 1630.9;
see also Calero-Cerezo, 355 F.3d at 24.
Here, there was an informal process. But Freadman failed
to be sufficiently specific, and Metropolitan granted the request
it thought had been made. Under the circumstances, Metropolitan
offered plaintiff a reasonable accommodation, and Freadman cannot
now argue that the company should have offered something different.
Cf. Webster v. Methodist Occupational Health Ctrs., Inc., 141 F.3d
1236, 1238 (7th Cir. 1998) ("An employee cannot refuse reasonable
accommodations during the interactive process . . ., and then after
dismissal suggest something different . . . .").
In a final attempt to salvage the June 2 reasonable
accommodation claim, Freadman -- but not the EEOC – argues that her
failure to clarify her request was excusable due to intimidation:
she believed she would be punished if she pursued her request for
time off. We reject plaintiff's proposition that employees who
make requests have no obligation to further clarify their needs
once the employer offers an accommodation the employee believes is
insufficient. There may well be instances in which an employee has
made a clear request, the employer has denied the accommodation or
offered an unsatisfactory accommodation, the employee has become
too intimidated to continue seeking a satisfactory accommodation,

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and the employer reasonably should have understood that dynamic.
This will depend on the particular facts of the case. Here,
plaintiff has not made a plausible, objective case of intimidation.
See Jacques v. Clean-Up Group, Inc., 96 F.3d 506, 515 (1st Cir.
1996); accord Beck, 75 F.3d at 1135-36. Before June 2,
Metropolitan had granted Freadman several months of time off for
treatment of her ulcerative colitis. The employer even made
exceptions to company work rules and hiring freezes. Moreover,
Smith had given Freadman two raises and a high performance
evaluation since her return from medical leave in 1999. Smith did
in fact reasonably respond to the request made of him. No
reasonable juror could find that there was intimidation so as to
excuse Freadman from clarifying her request. Summary judgment in
favor of Metropolitan on Freadman's June 2 reasonable accommodation
claim is appropriate.
2. June 26 Request
Freadman alleges that Metropolitan knew of her
disability, yet failed to reasonably accommodate it, when on June
26 she informed Smith that she was still feeling sick and then
asked if she could work from home an additional day. Smith's
response was, "No, you have to come in the office today. You have
two choices. You go out on disability or you come in the office.
There's changes in the department that affect you."

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Freadman has made no effort, however, to show that she 14
could have performed the essential functions of her job at home.
See Mulloy, 460 F.3d at 148; Kvorjak v. Maine, 259 F.3d 48, 55 (1st
Cir. 2001); Reed, 244 F.3d at 259; see also Feliciano v. Rhode
Island, 160 F.3d 780, 785 (1st Cir. 1998) ("The ADA does not
require an employer to accommodate a disability by foregoing an
essential function of the position or by reallocating essential
-29-
Freadman decided to go into the office rather than go out
on disability. She explained that "no one wants to go out on
disability unless . . . they absolutely have to," and she
additionally explained that "normally, you have to use a certain
number of sick days prior to going out on disability." Smith, for
his part, said that he had told Freadman, "[I]f you are not feeling
well, then you should consider taking, you know, [paid time off] or
going out on disability; if you are going to work, whether it's
from home or in the office, then you need to come in."
It is far from clear that any accommodation claim can be
maintained when an employee argues she should not, after having
taken unauthorized leave, be put to the choice of taking disability
leave or coming into the office to arrange working at home.
Further, Freadman does not claim to have suffered any particular
harm from going into the office on June 26.
If this claim is meant to color the June 2 accommodation
claim, it adds nothing. Metropolitan's response to the June 26
request was entirely reasonable.
If the claim is meant to demonstrate that Freadman was
entitled to work at home, it was still reasonable for the employer 14

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functions to make other workers' jobs more onerous.").
-30-
to have her come into the office to arrange that.
Summary judgment on the June 26 failure to accommodate
claim is affirmed.
C. ADA Retaliation Claim
Freadman alleges that her June 2 and June 26 requests for
accommodation constituted protected conduct, and that as a result
of these requests, she suffered an adverse employment action when
she was rotated out of the EDB project.
The ADA's retaliation provision states that "[n]o person
shall discriminate against any individual because such individual
has opposed any act or practice made unlawful by this chapter." 42
U.S.C. § 12203(a). Requesting an accommodation is protected
conduct for purposes of the ADA's retaliation provision. Wright,
352 F.3d at 478. An ADA plaintiff may assert a claim for
retaliation even if she fails to succeed on a disability claim.
Soileau, 105 F.3d at 16.
To establish a claim of retaliation, a plaintiff must
show that (1) she engaged in protected conduct, (2) she suffered an
adverse employment action, and (3) there was a causal connection
between the protected conduct and the adverse employment action.
Wright, 352 F.3d at 478; Calero-Cerezo, 355 F.3d at 25.
Plaintiff's retaliation claim fails. Even assuming that
Freadman engaged in protected conduct and suffered an adverse

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Plaintiff does not appeal from entry of summary judgment 15
on her FEPA and RICRIHA claims under Rhode Island law.
-31-
employment action, she has not shown a causal connection between
her June 2000 requests and her job rotation on June 26. No
reasonable juror could find that Freadman's June 2 conversation
with Smith had any bearing on Cawley's decision to change her job
responsibilities. Further, no causation can be established based
on the June 26 request to work from home, as this request occurred
after Cawley had made the decision to remove Freadman from the EDB
project. We affirm summary judgment for Metropolitan on Freadman's
retaliation claim.
IV.
For the reasons stated above, the district court's entry 15
of summary judgment for Metropolitan is affirmed. Costs are
awarded to defendant.

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