Miceli v. Jetblue Airways Corp.

• Decision Date: 28 January 2019
• Docket Number: No. 18-1345,18-1345
• Citation: 914 F.3d 73
• Parties: Lauren MICELI, Plaintiff, Appellant, v. JETBLUE AIRWAYS CORP.; Mathew Bourgeois, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

914 F.3d 73

Lauren MICELI, Plaintiff, Appellant,

v.JETBLUE AIRWAYS CORP.; Mathew Bourgeois, Defendants, Appellees.

No. 18-1345

United States Court of Appeals, First Circuit.

January 28, 2019

Christopher J. Trombetta and Law Office of Christopher J. Trombetta, Mansfield, MA, on brief for appellant.

Samantha K. Abeysekera and Akerman LLP, New York, NY, on brief for appellees.

Before Torruella, Selya, and Lynch, Circuit Judges.

SELYA, Circuit Judge.

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.

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 third-party 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 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 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 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 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, ––– U.S. ––––, 138 S.Ct. 1311, 200 L.Ed.2d 475 (2018). When a plaintiff 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., 437 Mass. 443, 772 N.E.2d 1054, 1061 n.5 (2002). The SJC, however, is not bound by federal interpretations of the ADA in construing chapter 151B. See Mass. Elec. Co. v. MCAD, 375 Mass. 160, 375 N.E.2d 1192, 1198 (1978). Indeed, the SJC has, on...