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Audette v. Town of Plymouth, MA

United States Court of Appeals, First Circuit

May 26, 2017

MICHELLE AUDETTE, Plaintiff, Appellant,
v.
TOWN OF PLYMOUTH, MA; PLYMOUTH POLICE DEPARTMENT; CHIEF MICHAEL E. BOTIERI, in his official and individual capacity; CAPTAIN JOHN ROGERS, in his official and individual capacity; ROBERTA KETY, in her official and individual capacity, Defendants, Appellees.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]

          Timothy M. Burke, with whom Jared S. Burke and Law Offices of Timothy M. Burke, were on brief for appellant.

          Evan C. Ouellette, with whom Leonard H. Kesten, Deidre Brennan Regan, and Brody, Hardoon, Perkins & Kesten, LLP, were on brief for appellee.

          Before Torruella, Lipez, and Barron, Circuit Judges.

          LIPEZ, Circuit Judge.

         Appellant Michelle Audette, a police patrol officer[1] in Plymouth, Massachusetts, appeals from the entry of summary judgment for the Town of Plymouth ("Town"), the Plymouth Police Department ("Department"), and a number of the Town's and the Department's employees. Audette claims that she suffered discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, and its Massachusetts state-law corollary, Massachusetts General Laws chapter 151B § 4, when the defendants failed to accommodate her request for transfer to another position in the Department after she sustained an on-the-job injury. Audette further alleges that she suffered illegal retaliation when she attempted to assert her rights under the ADA and that she suffered discrimination on the basis of her gender in violation of Massachusetts law. We affirm the district court's rejection of these claims.

         I.

         The following facts are undisputed, except as noted.

         A. Audette's Ankle Injuries

         Audette began her career as a patrol officer for the Plymouth Police Department in 1986. While working on October 4, 2010, she sustained the first of two on-the-job injuries to her right ankle. These injuries led to visits to many doctors, two surgeries, and rounds of physical therapy. To this day, she has yet to fully recover.

         Audette's doctors have prescribed physical limitations to her movement in order to aid in her recovery. These limitations have varied at times, but include: strictly sedentary work, shorter working shifts (four or six hours, rather than the typical eight-and-a-half), working in an "air-cast" boot, working with the use of crutches, limited standing or walking to forty-five minutes out of every hour, and limited bending. According to the Plymouth Police Department's "Rules and Regulations" manual, a patrol officer's duties include patrolling by foot and in a vehicle, responding to emergencies, providing services on an emergency basis, aiding individuals who are in danger of physical harm, preserving crime scenes, and apprehending criminal offenders. Since the initial injury, Audette's limitations have prevented her from fulfilling her standard responsibilities as an active patrol officer, except for a brief period between August 2011 and January 2012, when she sustained a second on-the-job injury to the same ankle.

         Nevertheless, the Plymouth Police Department continues to employ Audette as a patrol officer. When doctors' limitations on her working conditions have permitted, Audette has received full-time pay for working part-time shifts in a light-duty capacity as a station officer.[2] When her doctors' limitations have not allowed her to work as a station officer, Audette has been afforded full pay while taking "injured on duty" ("IOD") leave.[3] The Department has also granted her other accommodations not available to other patrol officers, including an elevator key and a designated, convenient parking spot.

         B. The Department's National Incident-Based Reporting System

         Like many police departments across the nation, the Plymouth Police Department participates in the National Incident-Based Reporting System ("NIBRS"). NIBRS is an incident-based reporting system used by law enforcement agencies to collect and report data on crimes. Local, state, and federal agencies compile and maintain data in NIBRS as part of their records management responsibilities. Ordinarily, two Department employees are responsible for NIBRS data: the Department's Records Sergeant, [4]who oversees all records maintenance, including NIBRS, and a civilian clerical worker. In July 2012, the Records Sergeant was also assisted by Detective Robert Morse, who oversaw the Department's evidence management responsibilities. After the Records Sergeant announced his retirement in September 2012, Morse temporarily took over NIBRS oversight responsibilities.

         In May 2013 -- when Audette was out of work due to her first ankle surgery -- Morse announced that he would retire. On May 30, 2013, patrol officer Benjamin Dexter returned to work after sustaining an injury, and he was placed on full-time light duty. Plymouth Police Chief Michael Botieri assigned Dexter to train with Morse and assist in getting "caught up" with the NIBRS records. By October 6, the Department had sufficiently caught up with its backlog, and Dexter was reassigned as a station officer for the remainder of his light-duty status. The Department never appointed another patrol officer on light duty to assist with the NIBRS data outside of Dexter's four-month assignment in 2013.[5] In November 2013, Dexter returned to active-duty status as a patrol officer, and Sergeant Michael Ferazzi was appointed as the new Records Sergeant and became responsible for NIBRS oversight.

         C. Audette's Accommodation Request

         Audette underwent ankle surgery in June 2013. Later that summer her doctor issued a note stating that she could return to work on October 21. The only limitation the doctor placed on Audette was "walking/standing based on symptoms." On October 9 -- three days after Officer Dexter had been reassigned from NIBRS data maintenance to station officer -- Audette delivered a letter to Chief Botieri titled "Reasonable [Accommodation], " which requested that she be allowed to work the NIBRS data-entry position to which Dexter had been assigned. We quote the letter in full:

I am requesting a "Reasonable [Accommodation]" as I would like to return to work and feel that I can be a productive member of this Police Department.
Following a very extensive and [painful] ankle injury I am currently in the healing process after receiving [surgery]. I have recently received a [Doctor's] note allowing for me to return to work on October 21, 2013. The physical limitations are for 4 hours, with walking and standing limited to symptoms. As I continue with my Physical Therapy I find that my symptoms vary day to day.
I recently became aware that a nontraditional "Light Duty" assignment had been offered to another Officer and that this assignment is currently vacant. This assignment was utilized to aid in keeping the [NIBRS] records/stats up to date. This assignment is mainly sitting while reading and completing data on a computer.
I am [hopeful] this same opportunity could be extended to me. Being assigned to a seated position would allow me to feel productive as well as continue to heal and gain greater ...

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