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Date: 01-30-2019
Case Style:
Lauren Miceli v. Jetblue Airways, Corp.; Mathew Bourgeois
Case Number: 18-1345
Judge: Selya
Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)
Plaintiff's Attorney: Christopher J. Trombetta
Defendant's Attorney: Samantha K. Abeysekera
Description:
Plaintiff-appellant Lauren Miceli
sued her quondam employer, JetBlue Airways Corp. (JetBlue), for
handicap discrimination and retaliation under Massachusetts state
law.1 The appellant alleges that JetBlue fired her due to her
disability and not (as JetBlue maintains) because she flouted
company policy on unexcused absences. She also alleges that
JetBlue retaliated against her for filing a complaint with the
Massachusetts Commission against Discrimination (MCAD). The
district court granted summary judgment in JetBlue's favor. See
Miceli v. JetBlue Airways Corp., No. CV 16-12032, 2018 WL 1524539,
at *6 (D. Mass. Mar. 28, 2018). Critical to the court's assessment
was the appellant's failure to use measures provided by JetBlue
enabling an employee to challenge a suspension or termination.
See id. at *5.
The appellant assigns error. Even when viewing the
record in the light most favorable to the appellant, we detect no
probative evidence of discrimination or retaliation.
Consequently, we affirm.
1 The appellant's complaint named Mathew Bourgeois, JetBlue's
inflight service manager, as a co-defendant. The parties and the
district court have treated JetBlue and Bourgeois as a unit. For
ease in exposition, then, we refer to JetBlue as if it were the
sole defendant and appellee. Our decision, of course, binds all
parties.
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I. BACKGROUND
We rehearse the facts "in the light most agreeable to
the plaintiff, consistent with record support," Kouvchinov v.
Parametric Tech. Corp., 537 F.3d 62, 65 (1st Cir. 2008), and then
recount the travel of the case. We reserve "more exegetic detail
for our analysis of the issues on appeal." Harrington v. Aggregate
Indus. Ne. Region, Inc., 668 F.3d 25, 28 (1st Cir. 2012).
Beginning in 2006, JetBlue employed the appellant as an
inflight crew member, based in the Boston area. When hired, the
appellant was given access to an employee handbook (the Blue Book),
which outlined, inter alia, JetBlue's policies on attendance,
leave, and reasonable accommodation. As her employment
progressed, the appellant began to suffer from health issues.
While on duty in the fall of 2014, she experienced an ear injury.
The following spring, she was diagnosed through JetBlue's thirdparty
employee assistance program with post-traumatic stress
disorder (PTSD) and depression. The appellant sought and obtained
leave with respect to these conditions under the Family and Medical
Leave Act (FMLA), 29 U.S.C. § 2601.
In administering its FMLA program, JetBlue contracts
with a third-party administrator, Metropolitan Life Insurance
Company (MetLife). JetBlue's protocol channels all matters
regarding FMLA approval to MetLife. In order to obtain FMLA leave
based on an illness of her own, a crew member is required to
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furnish MetLife with substantiating documentation from her health
care provider (including a "Certificate of Health Care Provider"
form). Unless such leave is granted, absences are denoted in the
crew member's schedule as "unavailable for assignment" (UNA).
Under JetBlue's dependability guidelines policy, limned
in a Blue Book supplement, UNA absences are assigned category codes
and point values. The accrual of points within a twelve-month
period triggers five stages of progressive guidance, culminating
in an employment review upon the accumulation of twelve points.
Such a review may result in the crew member's termination.
Starting in the fall of 2014, the appellant began to
accrue UNA absences, which she traces to her health conditions.
On February 7, 2015, she received an initial progressive guidance
based on the accrual of six dependability points. In mid-March,
the appellant (upon submission of documentation from her health
care provider) was pre-approved for intermittent FMLA leave of one
occurrence per month in increments of one day. The appellant
received continued progressive guidance on May 28, 2015, for
reaching eight dependability points. During the accompanying
meeting, the appellant lamented that many of her UNA absences from
March to April (which exceeded her approved FMLA allotment) should
have been excused as FMLA leave. She also met with a supervisor
to vent her frustration with what she perceived as a skeptical and
condescending tone in the progressive guidance meeting. Over a
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month later, the appellant followed up on this discussion by
sending an email memorializing her complaints.
On June 18, 2015, the appellant submitted amended
documentation in hopes of extending the approved increments of her
intermittent FMLA leave from one day per occurrence to five days
per occurrence. MetLife acceded to this request. Meanwhile, the
appellant continued to accrue unexcused absences. On July 17,
2015, she received a final progressive guidance (the penultimate
warning) based on her accrual of ten dependability points. The
appellant alleges that she submitted documentation from her health
care provider in late July indicating that several of her unexcused
absences from March and May were related to her PTSD and/or her
depression. She urged unsuccessfully that these absences should
be recoded as FMLA occurrences.
In the summer of 2015, the appellant was hospitalized
several times due to mental health issues. She claims that she
notified both JetBlue and MetLife of her hospitalization and that
she requested FMLA and short-term disability leave by July 30,
2015. MetLife asked for substantiating documentation, which the
appellant subsequently provided. The appellant furnished
documentation of hospitalization commencing on August 6, 2015, and
her leave was approved from that date forward. Even so, an absence
two days prior to this date was coded as UNA despite the fact that
the appellant appears to have been hospitalized on that date. This
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unexcused absence brought the appellant's total dependability
points to twelve, thus exposing her to suspension, employment
review, and possible dismissal.
The appellant notified JetBlue on November 2, 2015, that
she had filed a complaint with the MCAD — a complaint alleging
that JetBlue had discriminated against her on the basis of her
handicap in violation of Chapter 151B of the Massachusetts General
Laws. On November 17 (two days after the appellant returned from
her approved disability leave), JetBlue suspended her. On December
15, JetBlue, citing the appellant's numerous unexcused absences,
terminated her employment.
Chapter 151B entitles complainants to bring a civil
action in a state court "at the expiration of ninety days after
the filing of a complaint with the commission . . . but not later
than three years after the alleged unlawful practice occurred."
Mass. Gen. Laws ch. 151B, § 9. The appellant filed a timely suit
in the Suffolk Superior Court, alleging not only discrimination
but also that JetBlue had retaliated against her for filing the
MCAD complaint. Noting diversity of citizenship and the existence
of a controversy in the requisite amount, JetBlue removed the suit
to the federal district court. See 28 U.S.C. §§ 1332(a), 1441.
Near the completion of discovery but after the expiration of the
deadlines set for amending the pleadings, see Fed R. Civ. P. 16(b),
the appellant sought to add an FMLA breach count. The district
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court denied her motion to amend and likewise denied her motion
for reconsideration.
In due course, JetBlue moved for summary judgment. See
Fed. R. Civ. P. 56(a). The appellant opposed the motion, but the
district court granted it. See Miceli, 2018 WL 1524539, at *6.
This timely appeal ensued.
II. ANALYSIS
The appellant assigns error to the district court's
entry of summary judgment with respect to her state-law claims of
both handicap discrimination and retaliation.2 She also assigns
error to the denial of her motion to amend her complaint. We
address these claims of error sequentially.
A. Summary Judgment.
We review the grant of summary judgment de novo. See
Noviello v. City of Bos., 398 F.3d 76, 84 (1st Cir. 2005). Summary
judgment is warranted if the record, construed in the light most
flattering to the nonmovant, "presents no genuine issue as to any
material fact and reflects the movant's entitlement to judgment as
a matter of law." McKenney v. Mangino, 873 F.3d 75, 80 (1st Cir.
2017), cert. denied, 138 S. Ct. 1311 (2018). When a plaintiff
2 Massachusetts state law refers to an individual's "handicap"
rather than her "disability" — the term favored by the Americans
with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. Since there
is no substantive difference between the two terms, see Ocean Spray
Cranberries, Inc. v. MCAD, 808 N.E.2d 257, 263 n.6 (Mass. 2004),
we use them interchangeably.
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opposes summary judgment, she bears "the burden of producing
specific facts sufficient to deflect the swing of the summary
judgment scythe." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15,
19 (1st Cir. 2003). For this purpose, she cannot rely on
"conclusory allegations, improbable inferences, acrimonious
invective, or rank speculation." Ahern v. Shinseki, 629 F.3d 49,
54 (1st Cir. 2010).
1. Discriminatory Discharge. In Massachusetts, it is
unlawful for an employer:
. . . to dismiss from employment or refuse to
hire, rehire or advance in employment or
otherwise discriminate against, because of his
handicap, any person alleging to be a
qualified handicapped person, capable of
performing the essential functions of the
position involved with reasonable
accommodation, unless the employer can
demonstrate that the accommodation required to
be made to the physical or mental limitations
of the person would impose an undue hardship
to the employer's business.
Mass. Gen. Laws ch. 151B, § 4(16). Massachusetts law supplies the
substantive rules of decision in this diversity suit. See Sanders
v. Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016). That state's
highest court, the Supreme Judicial Court (SJC), "look[s] to the
Federal cases decided under the ADA as a guide to the
interpretation of [chapter] 151B." Russell v. Cooley Dickinson
Hosp., Inc., 772 N.E.2d 1054, 1061 n.5 (Mass. 2002). The SJC,
however, is not bound by federal interpretations of the ADA in
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construing chapter 151B. See Mass. Elec. Co. v. MCAD, 375 N.E.2d
1192, 1198 (Mass. 1978). Indeed, the SJC has, on occasion,
departed from federal law in the area of disability discrimination.
See e.g., Gannon v. City of Bos., 73 N.E.3d 748, 760 n.10 (Mass.
2017); Mammone v. President & Fellows of Harvard Coll., 847 N.E.2d
276, 285 n.25 (Mass. 2006). We proceed accordingly.
The McDonnell Douglas burden-shifting framework applies
to the appellant's discriminatory discharge claim. See Gannon 73
N.E.3d at 756 (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973)); see also Henry v. United Bank, 686 F.3d 50, 59
(1st Cir. 2012). At the first stage of this framework, the
appellant bears the burden of showing a prima facie case of
discrimination. See Gannon, 73 N.E.3d at 756. This requires a
showing that the appellant has a handicap; that she was nonetheless
qualified to perform the essential functions of the job, with or
without reasonable accommodation; and that, despite the foregoing,
JetBlue discharged her. See Verdrager v. Mintz, Levin, Cohn,
Ferris, Glovsky & Popeo, P.C., 50 N.E.3d 778, 793 (Mass. 2016);
Gannon, 73 N.E.3d at 756. As a practical matter, we can safely
assume (albeit for argument's sake) that the appellant has met the
prima facie case requirement, thus creating "a presumption of
discrimination." Gillen v. Fallon Ambul. Serv., Inc., 283 F.3d
11, 30 (1st Cir. 2002).
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The burden of production thus shifts to JetBlue, which
must proffer a legitimate reason for the adverse employment action,
supported by credible evidence. See Abramian v. President &
Fellows of Harvard Coll., 731 N.E.2d 1075, 1084 (Mass. 2000); see
also Verdrager, 50 N.E.3d at 793. The proffered reason must be
one "which, on its face, would justify a conclusion that the
plaintiff was let go for a nondiscriminatory motive." Dávila v.
Corporación De P.R. Para La Difusión Pública, 498 F.3d 9, 16 (1st
Cir. 2007); see Verdrager, 50 N.E.3d at 793. JetBlue has carried
this burden: it consistently has averred that it terminated the
appellant's employment in accordance with its clearly delineated
and neutrally applied corporate policy after she accrued twelve
dependability points. And JetBlue has buttressed this averment
with documentation confirming the appellant's unexcused absences.
Uniform application of a facially neutral policy that proscribes
unexcused absences is a legitimate, nondiscriminatory reason for
termination that is distinct from the employee's disability. See
Leary v. Dalton, 58 F.3d 748, 754 (1st Cir. 1995); cf. Raytheon
Co. v. Hernandez, 540 U.S. 44, 53 (2003) (holding, in ADA case,
that application of neutral, generally applicable policy
constituted legitimate nondiscriminatory reason for refusing to
rehire employee).
At the third stage of the McDonnell Douglas framework,
the burden reverts to the employee to show that the adverse
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employment action was taken "because of" her handicap and "not for
the reason proffered by the employer." Gannon, 73 N.E.3d at 756
(quoting Mass. Gen. Laws ch. 151B, § 4(16)). In a Chapter 151B
case, an employee can survive summary judgment on this issue by
showing pretext, that is, "that there are disputed issues of fact
as to whether the employer's proffered reason was not the true
reason" for her termination. Id. at 757; see Verdrager, 50 N.E.3d
at 794. Pretext may be demonstrated in a variety of ways, such as
by exposing "weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions" in the employer's proffered
reason. Santiago-Ramos v. Centennial P.R. Wireless Corp., 217
F.3d 46, 56 (1st Cir. 2000) (quoting Hodgens v. Gen. Dynamics
Corp., 144 F.3d 151, 168 (1st Cir. 1998)); see Bulwer v. Mt. Auburn
Hosp., 46 N.E.3d 24, 35-38 (Mass. 2016).
The appellant contends that JetBlue's proffered reason
was pretextual because JetBlue, despite alleged knowledge of her
disability, did not accommodate her disability in applying its
attendance policy. While the appellant might perhaps be able to
demonstrate that the asserted basis for her termination was
pretextual were she able to show that she requested a reasonable
accommodation that would have ensured her compliance with the
policy, cf. Barbuto v. Advantage Sale & Mktg., LLC, 78 N.E.3d 37,
44 (Mass. 2017) (concluding that employee's request for
accommodation as to her use of medical marijuana was not facially
- 12 -
unreasonable and so termination for violating drug policy could
have been discriminatory); Evans v. Fed. Exp. Corp., 133 F.3d 137,
140 (1st Cir. 1998) ("If the employee had [requested an
accommodation], the firing might still be regarded as one 'because'
of a handicap or at least 'because' of the denial."), she has made
no such showing here.
"[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." Ocean Spray Cranberries,
Inc. v. MCAD, 808 N.E.2d 257, 271 n.21 (Mass. 2004). If the
requested accommodation is not suitable or the request is otherwise
inappropriate, the employer nonetheless "must make a reasonable
effort to determine the appropriate accommodation . . . through a
flexible, interactive process that involves both the employer and
the qualified individual with a disability." Russell, 772 N.E.2d
at 1065 (quoting 29 C.F.R. § 1630 App. (2001) (alteration in
original)).
Here, JetBlue offered its workforce specific avenues for
relaying requests for accommodations. To this end, it created an
email address and an online application directed to the company's
human resources department. Information about these modalities
was in the Blue Book and was included in relevant paperwork
furnished to all crew members (such as progressive guidance
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materials). Although the appellant had access to these materials,
she chose not to travel along either of the designated avenues.
Even so, the appellant maintains that she requested
accommodations. She locates her supposed requests for
accommodation in progressive guidance meetings (in which she
expressed her frustration at MetLife's coding of her FMLA absences)
and in related interactions with JetBlue employees. In particular,
she focuses on a July 2015 email to Bourgeois, see supra note 1,
in which she referred to having a disability and expressed her
hope "for those of us with disabilities to be met with compassion
and reasonable accommodations made if difficulties are faced."
But an employee who seeks an accommodation must be more
forthcoming: a request for an accommodation must be reasonably
specific. See Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 89
(1st Cir. 2012). It must comprise more than a cryptic
communication to be deciphered by the recipient. Importantly,
such a request must illuminate the linkage between the requestor's
disability and the requested accommodation. See id.; Ocean Spray,
808 N.E.2d at 271-72.
In Ocean Spray, for instance, the employee had provided
his employer with three physician letters that supported his claim
of disability and described his need for an accommodation in
varying levels of detail. See 808 N.E.2d at 271. The SJC concluded
that, in the ensemble, these letters "constitute[d] substantial
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evidence of an unmistakable request for accommodation." Id. The
court indicated, though, that any one of these letters, standing
alone, might well be insufficient to constitute a request for
accommodation. See id. Viewed in this light, the appellant's
complaints anent MetLife's alleged incorrect coding of her
absences and her email noting that people with disabilities are
entitled to reasonable accommodation are far removed from any
statement that JetBlue could reasonably be expected to interpret
as a request for a specific accommodation.
Nor are the appellant's requests for FMLA and disability
leave relevant to this inquiry. While such requests may be deemed
requests for accommodation "in some circumstances," Echevarría v.
AstraZeneca Pharm. LP, 856 F.3d 119, 128 (1st Cir. 2017) (quoting
García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st
Cir. 2000)), the appellant's requests were wholly collateral to
JetBlue's policy, which did not allocate dependability points on
the basis of absences stemming from either approved FMLA or
disability leaves. And in any event, those requests were granted.
Finally, we are not persuaded by the appellant's
attempts to locate pretext in JetBlue's failure to modify its
attendance policy absent any requests for modification on the
appellant's part. The SJC has concluded that Chapter 151B imposes
no such unilateral responsibility upon employers. See Mammone,
847 N.E.2d at 285 n.25.
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That ends this aspect of the matter. We conclude that
in as much as the appellant has not shown that she requested an
accommodation as to JetBlue's attendance policy, she has failed to
cast any shadow upon JetBlue's proffered reason for her
termination. Therefore, we agree with the district court that the
appellant has not made out a genuine issue of material fact
sufficient to avoid summary judgment.
Of course, when an employer alleges that standard
policies underpin an adverse employment action against a person
with disabilities, that person may demonstrate pretext through a
showing that the employer has not applied those policies uniformly.
See Kouvchinov, 537 F.3d at 68; see also Acevedo-Parrilla v.
Novartis Ex-Lax, Inc., 696 F.3d 128, 142 (1st Cir. 2012). This
may be accomplished by showing, say, that the adverse action
departed from a clearly delineated policy, see Kouvchinov, 537
F.3d at 68, or that the employer applied such a policy differently
to similarly situated employees, see Verdrager, 50 N.E.3d at 795;
Bulwer, 46 N.E.3d at 36. Here, however, the theoretical
availability of these alternative methods of showing pretext does
not improve the appellant's lot.
To begin, the appellant has offered nothing to show that
JetBlue applied its attendance policy disparately to similarly
situated employees. So, too, the appellant's attempt to base
liability on a supposed departure from policy lacks force. In
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this respect, she alleges that MetLife miscoded her FMLA absences
despite receiving proper notice and necessary substantiation, and
that JetBlue fired her due to those miscoded absences.3 But a bare
showing of administrative error, without more, does not make out
a case of either pretext or discriminatory discharge. After all,
Chapter 151B was never intended to "protect against all instances
of arbitrary action or from poor managerial judgment." Wheelock
Coll. v. MCAD, 355 N.E.2d 309, 314 (Mass. 1976); cf. Kouvchinov,
537 F.3d at 67 ("[T]he anti-discrimination laws do not insure
against inaccuracy or flawed business judgment on the employer's
part."). Instead, the law was "designed to protect against, and
to prevent, actions spurred by some discriminatory animus."
Kouvchinov, 537 F.3d at 67.
Last — but far from least — the appellant's claim of
pretext fails because she has adduced no evidence that JetBlue
knew that there were errors in the coding of her absences when it
terminated her employment. Nor has she adduced any evidence
showing that she engaged in the procedures established by JetBlue
to prevent such bevues from leading to termination. Under
3 The district court concluded that the appellant did not
provide sufficient evidence of the alleged coding errors at summary
judgment. See Miceli, 2018 WL 1524539, at *3. Because we hold
that the appellant's claim of pretext would fail even if she had
supplied such evidence, we do not wade into the nitty-gritty of
these allegations. We do note, however, that the record indicates
that MetLife's operation had some serious, and seriously
frustrating, kinks.
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JetBlue's standard policies, the appellant had several
opportunities to challenge her unexcused absences, but she chose
not to avail herself of any of them. For example, the record makes
manifest that she neither reviewed nor responded to her final
progressive guidance. And she did not challenge (or even inquire
about) unexcused absences attributed to her when she was notified
first of her suspension and later of her termination.
The appellant's failure to pursue these remedial
measures sinks her claim of pretext. Where, as here, an employee's
concerns about the handling of her employment are not raised
through reasonable (and reasonably neutral) processes made
available by her employer and known to her, it is not appropriate
for a court to second-guess the fairness of individual attendance
determinations. Cf. Mesnick, 950 F.2d at 825 (explaining, in
discrimination case brought under federal law, that courts do not
"sit as super personnel departments").
To say more would be to paint the lily. We conclude
that the appellant has not satisfied her burden of adducing
evidence sufficient to show that JetBlue's proffered reason for
her dismissal was pretextual. Accordingly, we agree with the
district court that the appellant's handicap discrimination claims
cannot survive summary judgment.
2. Retaliation. The district court also granted summary
judgment as to the appellant's claim that JetBlue fired her in
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retaliation for filing an MCAD complaint. See Miceli, 2018 WL
1524539, at *5. Once again, we employ the McDonnell Douglas
burden-shifting framework as an analytic tool. See Mole v. Univ.
of Mass., 814 N.E.2d 329, 338 (Mass. 2004).
Under applicable state law, see Mass. Gen. Laws ch. 151B,
§ 4(4), a prima facie case of retaliation requires the claimant to
show that she engaged in protected activity; that she experienced
some adverse action; and that the protected activity was causally
connected to the adverse action, see Mole, 814 N.E.2d at 338-39.
The first and second elements are clearly present: filing an MCAD
complaint is protected activity and termination of employment is
a classic example of an adverse employment action. See Clifton v.
Mass. Bay Transp. Auth., 839 N.E.2d 314, 318 (Mass. 2005); Mole,
814 N.E2d at 338 n.13. The third element, though, is the sticking
point.
In attempting to show the necessary causal connection
between JetBlue's receipt of the MCAD complaint and its termination
of her employment, the appellant relies exclusively on the timing
and sequence of these two events. In the circumstances of this
case, her reliance is misplaced.
To be sure, an inference of causation may be drawn "if
adverse action is taken against a satisfactorily performing
employee in the immediate aftermath of the employer's becoming
aware of the employee's protected activity." Mole, 814 N.E.2d at
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339. But when "problems with an employee predate any knowledge
that the employee has engaged in protected activity, it is not
permissible to draw the inference that subsequent adverse actions,
taken after the employer acquires such knowledge, are motivated by
retaliation." Id. at 340.
Our decision in Pearson v. Mass. Bay Transp. Auth., 723
F.3d 36 (1st Cir. 2013), illustrates this point. There, we held
that a plaintiff alleging retaliation under Chapter 151B failed to
show a sufficient causal connection at summary judgment because
the plaintiff's supervisors had recommended his termination before
he engaged in the protected activity. See id. at 42. Even though
the employer's final decision to discharge the plaintiff did not
occur until after the protected activity, we concluded that the
plaintiff would have had to show that the outcome would have
differed if not for the employer's knowledge of the protected
activity. See id.
The case at hand fits the Pearson model. At the time
that the appellant filed her MCAD complaint, she had already
accrued twelve dependability points and, thus, was subject to
suspension and termination review. The appellant has offered
nothing to suggest that, but for her protected activity, she would
not have been terminated as a result of this review. In the
circumstances of this case, timing and sequence, without more, are
not enough to ground an inference of causation. It follows that
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the district court did not err in granting summary judgment on the
appellant's retaliation claim.
B. Motion to Amend.
There is one loose end: the appellant's challenge to
the district court's denial of her motion to amend her complaint.
We review orders granting or denying leave to amend for abuse of
discretion. See U.S. ex rel. D'Agostino v. EV3, Inc., 802 F.3d
188, 191 (1st Cir. 2015). Under this deferential standard, we
will affirm "so long as the record evinces an arguably adequate
basis for the court's decision." Hatch v. Dep't of Children, Youth
& Their Families, 274 F.3d 12, 19 (1st Cir. 2001).
Where, as here, leave to amend is sought more than
twenty-one days after service of the complaint and the opposing
party has not consented, a complaint may be amended only by leave
of court. See Fed. R. Civ. P. 15(a). In general, leave should be
freely given if, in the court's view, "justice so requires." Id.
15(a)(2). The standard may change, though, when — as in this case
— the court has entered a scheduling order under Federal Rule of
Civil Procedure 16(b), which contains, inter alia, a deadline for
amendment of the pleadings. In that event, a motion to amend filed
outside the parameters set by the scheduling order will be granted
"only upon a showing of 'good cause.'" D'Agostino, 802 F.3d at
192 (quoting Rule 16(b)(4)); see Cruz v. Bristol-Myers Squibb Co.,
PR, Inc., 699 F.3d 563, 569 (1st Cir. 2012). Such an elevated
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standard makes perfect sense: without it, "scheduling orders would
be little more than aspirational statements, to be disregarded by
the parties whenever compliance proves inconvenient." D'Agostino,
802 F.3d at 194.
The "good cause" standard focuses on both the conduct of
the moving party and the prejudice, if any, to the nonmovant. See
O'Connell v. Hyatt Hotels of P.R., 357 F.3d 152, 155 (1st Cir.
2004). In the decisional calculus, the moving party's diligence
or lack of diligence serves as the "dominant criterion." Id.
"[T]he longer a plaintiff delays, the more likely the motion to
amend will be denied, as protracted delay, with its attendant
burdens on the opponent and the court, is itself a sufficient
reason for the court to withhold permission to amend." Steir v.
Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004). Nor should
a court be expected to look kindly upon a plaintiff who seeks
belatedly to amend her complaint based on "information that [she]
had or should have had from the outset of the case." Trans-Spec
Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 327 (1st Cir.
2008).
With these principles in mind, we turn to the appellant's
motion to amend. She filed that motion on July 17, 2017, seeking
to add an FMLA claim approximately twelve months after she
commenced her civil action and approximately five months after the
Rule 16(b) deadline to amend had expired. JetBlue objected, and
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the district court denied the motion. It concluded that the
appellant had failed to demonstrate good cause for the delay,
particularly given that she had referred to the possibility of an
FMLA claim as early as her 2015 MCAD complaint.
The appellant sought reconsideration. She asserted that
she had learned only during discovery that her termination was
premised in part upon an August 4, 2015, UNA absence. Her new
FMLA claim, she insisted, was spurred by this recently discovered
evidence. The district court reaffirmed its earlier denial of
leave to amend, concluding that the appellant had neither
identified any newly discovered evidence nor called attention to
any error in the court's prior reasoning.
Like the district court, we find the appellant's
argument unpersuasive. Importantly, the MCAD complaint included
allegations that JetBlue relied on miscoded FMLA absences in
terminating the appellant's employment. Given those allegations,
there was nothing revelatory in the "discovery" of the August 4,
2015, UNA absence. We hold, therefore, that the district court
did not abuse its discretion in concluding that the appellant
failed to show that new evidence justified the substantial delay
in bringing her belated FMLA claim. That delay, in turn, lends
weight to the district court's supportable conclusions that the
appellant was not diligent in attempting to pursue her FMLA claim
and, therefore, lacked "good cause." See O'Connell, 357 F.3d at
- 23 -
155 (affirming "good cause" denial of motion to amend complaint
five months after scheduling order deadline); Sosa v. Airprint
Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998) (per curiam)
(affirming denial of motion to amend because plaintiff, who had
relevant information "even before she filed suit," lacked "good
cause").
Outcome: We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: