Der Sarkisain v. Austin Preparatory School

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

NANCY DER SARKISIAN, )

)

Plaintiff, )

)

v. ) CIVIL ACTION

) NO. 20-12037-DPW

AUSTIN PREPARATORY SCHOOL, )

)

Defendant. )

___________________________________)

MEMORANDUM AND ORDER

December 6, 2022

Plaintiff, Nancy Der Sarkisian, an experienced teacher,

brings this action against her former employer, Defendant Austin

Preparatory School, claiming that the school (1) failed to provide

her a reasonable accommodation for her disability (an extended and

open-ended leave of absence from teaching she never specifically

asked for before crystalizing that proposal in this litigation)

and chose instead to terminate her employment, and in doing so,

(2) discriminated against her due to her age. Austin Preparatory

School has moved for summary judgment on both counts, arguing that

Mrs. Der Sarkisian was not a “qualified individual” with respect

to disability discrimination and that she cannot establish pretext

as to age discrimination. I will grant the motion for summary

judgment.

I. BACKGROUND

A. The Parties

Plaintiff, Nancy Der Sarkisian, was seventy years old at the

date of filing her Complaint, and had previously been employed by

Austin Preparatory School for twenty-four years. Ms. Der Sarkisian

resides in Reading, Middlesex County, Massachusetts.

Defendant, Austin Preparatory School (“Austin Prep”), is a

private co-educational institution in Reading, Middlesex County,

Massachusetts.

B. Travel of the Case

The case now before me was commenced on October 2, 2020, when

Ms. Der Sarkisian filed her Complaint in the Massachusetts Superior

Court, Middlesex County. Following that filing, on November 12,

2020, Austin Prep accepted service of the Summons and Complaint.

On November 13, 2020, Austin Prep filed a Notice of Removal to

this Court, pursuant to 28 U.S.C. §§ 1331 and 1441(c)(1)(A).1

1 This court can exercise jurisdiction over Mrs. Der

Sarkisian’s Americans with Disabilities Act (“ADA”) claim and over

her state law claims. Section 1441(c)(1)(A) of Title 28 of the

United States Code permits removal of an “entire action” when it

contains “a claim arising under the Constitution, laws, or treaties

of the United States” (here, Mrs. Der Sarkisian’s ADA claim), even

including “a claim not [otherwise] within the original or

supplemental jurisdiction of the district court or a claim that

[separately] has been made nonremovable by statute” (here, Mrs.

Der Sarkisian’s claims under Massachusetts General Laws chapter

151B). See also Brader v. Biogen Inc., 362 F. Supp. 3d 25, 36 (D.

Mass. 2019) (district court had jurisdiction over ADA and state

law claims pursuant to 28 U.S.C. §§ 1331 and 144(c)(1)(A)), aff’d,

983 F.3d 39 (1st Cir. 2020).

C. Factual Background

1. Austin Prep and Mrs. Der Sarkisian’s Tenure through 2017

Austin Prep, a private Catholic independent day school

located in Reading, Massachusetts, serves 750 students from Grades

6 through 12. Dr. James Hickey serves as the Head of School, and

was forty-nine years old as of the filing of the motion for summary

judgment before me. John Weber was fifty-six years old at that

point and acts as Austin Prep’s Chief Financial Officer.

Throughout Mrs. Der Sarkisian’s employment, Austin Prep

observed an Equal Employment Opportunity policy and a Handicap or

Disability Accommodation policy. The Handicap or Disability

Accommodation policy stated that individuals with disabilities

“should advise his or her immediate supervisor of any disability

and the nature of the accommodation necessary to enable him or her

to perform one or more of the essential functions of the job.”

Austin Prep maintained these policies in its Employment Handbook,

which Mrs. Der Sarkisian received.

Mrs. Der Sarkisian properly exhausted her administrative

remedies by filing a complaint with the Massachusetts Commission

Against Discrimination within the statutorily imposed three-

hundred-day period and waited ninety days to file her Complaint in

Massachusetts Superior Court. Filing with the Massachusetts

Commission Against Discrimination is sufficient under both the ADA

and Chapter 151B to exhaust administrative remedies. See Mekonnen

v. OTG Mgmt., LLC, 394 F. Supp. 3d 134, 148 (D. Mass. 2019), aff’d,

No. 19-1846, 2021 WL 1110915 (1st Cir. 2021). Austin Prep does

not contest Mrs. Der Sarkisian’s claims on jurisdictional grounds.

In 1996, Mrs. Der Sarkisian started working at Austin Prep as

a substitute teacher for the sixth grade. She then became a full-

time teacher for sixth grade English; she taught sixth and seventh

grade English at Austin Prep from 1996 to 2017. Beginning in 2017,

Mrs. Der Sarkisian taught ninth grade English.

2. Mrs. Der Sarkisian’s Duties

As a teacher at Austin Prep, Mrs. Der Sarkisian was required

to attend her classes in person; she never taught classes remotely

or via video. In addition to teaching five English classes, Mrs.

Der Sarkisian “monitor[ed] various activities at Austin Prep,

serv[ed] as an advisor, attend[ed] faculty meetings, and . . . was

involved with students on campus throughout the day.”

3. Mrs. Der Sarkisian’s Employment Agreements

Mrs. Der Sarkisian’s 2018-2019 employment was governed by a

collectively bargained agreement between Austin Prep’s Board of

Trustees and Austin Prep’s Teacher’s Association (“APTA

Agreement”). However, the APTA Agreement was terminated at the

end of the 2018-2019 school year and was not in effect for the

2019-2020 school year. Mrs. Der Sarkisian was aware that the APTA

Agreement was no longer in effect during the 2019-2020 school year.

In a June 9, 2019 e-mail, Dr. Hickey announced that Austin

Prep was implementing new policies related to sick days and

disabilities. Specifically, Austin Prep reduced the number of

potential sick days from 110 to 65 and implemented a long-term

disability policy. The long-term disability policy carried no

cost and became effective September 1, 2019. Mrs. Der Sarkisian

signed a contract that included these benefits.

During Mrs. Der Sarkisian’s deposition she recognized that

Austin Prep had indicated that the long-term disability was meant

to substitute for the elimination of the sick days. She testified

that she believed this arrangement meant that “if . . . [she] used

up the 65 [sick] days,” “[she] had nothing to worry about” because

of the long-term disability benefits. Her counsel repeated this

contention at the November 30, 2022 argument of the summary

judgment motion before me. More pertinently, however, Mrs. Der

Sarkisian acknowledged during her deposition — and her counsel

conceded during oral argument — that Austin Prep never indicated

that she would be “entitled to continue [her] employment while

. . . receiving long term disability benefits.”

4. Mrs. Der Sarkisian’s First and Second Surgeries

In the summer of 2019, Mrs. Der Sarkisian met with Dr. Daniel

Ward at Longwood Orthopedic Associates, Inc. regarding pain in her

hip and learned that she would need hip surgery. Dr. Ward notified

Mrs. Der Sarkisian that he had a cancellation and would be able to

fit her in for surgery on September 5, 2019. Accordingly, Mrs.

Der Sarkisian notified Austin Prep that she would have hip surgery

on September 5, 2019 and would be out for approximately four weeks.

Austin Prep granted her request for leave and retained Jonathan

Bourdeau, a forty-one-year-old substitute teacher having no formal

contract with Austin Prep, to cover her five classes.

Although Mrs. Der Sarkisian had originally intended to return

to teaching in October 2019, she needed a second surgery and

notified Austin Prep on October 13, 2019 that she“[m]ost likely .

. . will be out for the first semester.” Accordingly, Austin Prep

requested that Mrs. Der Sarkisian’s new orthopedist, Dr. Van

Flandern2, who was also affiliated with Longwood Orthopedic

Associates, Inc., provide an updated Family Medical Leave Act

(“FMLA”) Certification because her leave was going to be longer

than she initially represented. Dr. Van Flandern returned the

updated certification on October 28, 2019; in the certification,

he opined that Mrs. Der Sarkisian would likely require 2-3 months

to recover, that she could not perform her job functions, and that

her condition would last from October 5, 2019 to January 5, 2020.

After receiving this information, Mr. Weber told Mrs. Der Sarkisian

that she was expected to return to Austin Prep on January 6, 2020

and gave her information regarding the new long-term disability

program.

5. Mrs. Der Sarkisian’s Third Surgery

Mrs. Der Sarkisian, after reading through the long-term

2 Dr. Van Flandern apparently performed Mrs. Der Sarkisian’s second

and third surgeries, taking over her case when Dr. Ward was out of

town at the time that she needed the second surgery.

disability program, notified the school that she would apply for

the benefits and on November 26, 2019 filled out her portion of

that application. To qualify for long-term disability benefits,

“an individual must be unable to perform at least one of the

material duties of the individual’s regular occupation on a part-

time or full-time basis because of an injury or sickness.” Mrs.

Der Sarkisian reported that she became unable to work on September

4, 2019.

In the long-term benefits application, Mrs. Der Sarkisian

also notified the school that she required a third surgery, which

would occur on November 27, 2019. Accordingly, although she

initially wrote January 2020 as her return-to-work date on her

long-term benefits application, she crossed that out and wrote

“unsure after 3rd surgery.” When Dr. Van Flandern filled out his

portion of her application, he stated that Mrs. Der Sarkisian had

a “total temporary disability.” He reported that she needed three

to six months to recover, and could not walk, stand, or drive.

Mrs. Der Sarkisian’s husband submitted the long-term disability

form to Austin Prep on December 4, 2019. Mrs. Der Sarkisian e-

mailed Mr. Weber at Austin Prep the next day to confirm receipt of

the application, noting that she “definitely will be out longer

than [she] expected” and would “have to do an intravenous injection

of antibiotics at home until at least February 7th.”

6. The Accommodation Form

After Mrs. Der Sarkisian told Austin Prep that she would need

additional time to rehabilitate following her three surgeries,

Austin Prep asked her to give her doctor an Accommodation Request

Inquiry Form (“Accommodation Form”). The Accommodation Form asked

Dr. Van Flandern to provide information regarding “whether there

is a reasonable accommodation that would allow [Mrs. Der Sarkisian]

to perform the essential functions of her job” because Austin Prep

“ha[d] insufficient information to adequately determine whether

[she] [was] disabled as defined by the [Americans with Disabilities

Act].” At this point, Mrs. Der Sarkisian had used all of her

available FMLA leave and sick days.

Dr. Van Flandern responded that her hip “impairment” would

last three to six months, that it affected a number of her “major

life activit[ies],”3 that she was “currently non-weight bearing,”

that she could not walk, use stairs, bend, squat, lift, or drive,

that she would have difficulty performing “[a]ll” of her job

functions, and that “[s]he should be on total temporary

disability.” Dr. Van Flandern did not suggest any accommodations,

aside from “total temporary disability.” Mrs. Der Sarkisian signed

the form releasing her medical information on December 3, 2019.

3 Specifically, “[c]aring for [s]elf,” “[p]erforming

[m]annual[t]asks,” “[s]leeping,” “[w]alking,” “[s]tanding,”

“[w]orking,” “[l]ifting,” and “[b]ending.”

7. Mrs. Der Sarkisian’s Employment Termination

On December 26, 2019, after reviewing the Accommodation Form,

Mr. Weber of Austin Prep called Mrs. Der Sarkisian to tell her

that the school had terminated her employment. Shortly thereafter,

Mrs. Der Sarkisian received a letter memorializing her

termination, which explained that Austin Prep “ha[d] a growing

need to fill [her] position,” and “[could not] provide an extended

and continuing leave of absence with no set end date.”

II. Austin Prep’s Motion for Summary Judgment

Austin Prep moves for summary judgment on both Counts I and

II of Mrs. Der Sarkisian’s Complaint. I address each in turn.

A. Summary Judgment Standard

A movant is entitled to summary judgment when “the movant

shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(a). “An issue is ‘genuine’ if a reasonable jury could

resolve the point in favor of the nonmoving party. A fact is

‘material’ if its existence or nonexistence has the potential to

change the outcome of the suit.” Tropigas de Puerto Rico, Inc. v.

Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st

Cir. 2011) (internal citations and quotations omitted).

When evaluating a motion for summary judgment, a court “must

construe the record in the light most favorable to the nonmovant

and resolv[e] all reasonable inferences in that party’s favor.”

Collins v. Univ. of N.H., 664 F.3d 8, 14 (1st Cir. 2011)

(alteration in original) (internal citation and quotations

omitted). In all events, I must “proceed with caution and

restraint when considering summary judgment motions where, as

here, issues of motive and intent must be resolved, [because] the

nonmoving party must proffer more than conclusory allegations,

improbable inferences, and unsupported speculation for [her]

claims to survive.” Brader v. Biogen Inc., 983 F.3d 39, 55 (1st

Cir. 2020) (internal quotations and citations omitted).

B. Count I: Disability Discrimination under the ADA and MASS.

GEN. LAWS ch. 151B, §4(16)

Mrs. Der Sarkisian alleges, in Count I, that Austin Prep

violated the Americans with Disabilities Act (“ADA”) and

Massachusetts General Laws chapter 151B by terminating her

employment when it should have accommodated her with additional

and open-ended leave following her multiple surgeries.

I observe that the specific statutory provisions on which

Mrs. Der Sarkisian’s claims are based are detailed in their

directives.4 Massachusetts law declares it unlawful

4 Mrs. Der Sarkisian’s Complaint cites generically to MASS. GEN.

LAWS c. 151B, § 1, which lists various definitions used in that

Chapter. Her allegations in this Count appear to allege a claim

under MASS. GEN. LAWS c. 151B, §4(16). Similarly, with respect to

her Americans with Disabilities Act (“ADA”) claim, Mrs. Der

Sarkisian cites generically to 42 U.S.C. § 12101, which describes

the ADA’s “[f]indings and purpose.” Her allegations in this Count

appear to allege a claim under 42 U.S.C. § 12112.

For any employer, personally or through an agent, 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). The ADA provision is

substantially similar, including “[t]he statutory definitions of

‘disability’ under federal law and ‘handicap’ under Massachusetts

law.” See Brader v. Biogen Inc., 983 F.3d 39, 54 n.22 (1st Cir.

2018).

Because “[the First Circuit] analyze[s] claims under the ADA

and under Massachusetts General Laws chapter 151B using the same

framework,” I address the two statutes together. Jones v.

Nationwide Life Ins. Co., 696 F.3d 78, 86 (1st Cir. 2012). Under

both statutes, because Mrs. Der Sarkisian has not offered direct

evidence of discrimination, I apply the framework outlined in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which

requires a plaintiff to set forth a “three-factor prima facie

case.” Jones, 696 F.3d at 86. Here, Mrs. Der Sarkisian must show

that “[she] ha[d] a handicap [or disability, under the ADA]; that

she was nonetheless qualified to perform the essential functions

of the job, with or without reasonable accommodation; and that,

despite the foregoing, [Austin Prep] discharged her.” Miceli v.

JetBlue Airways Corp., 914 F.3d 73, 81 (1st Cir. 2019).

If Mrs. Der Sarkisian can make that prima facie showing,

“[t]he burden of production . . . shifts to [Austin Prep], which

must proffer a legitimate reason for the adverse employment

action.” Id. Should Austin Prep provide a legitimate reason for

terminating Mrs. Der Sarkisian’s employment, she then must

demonstrate “that the adverse employment action was taken ‘because

of’ her handicap and ‘not for the reason proffered by the

employer.’” Id. at 82 (quoting Gannon v. City of Boston, 73 N.E.

3d 748, 756 (Mass. 2017)). In other words, Mrs. Der Sarkisisan

must show that Austin Prep’s proffered reason was pretextual or

that Austin Prep “harbored discriminatory animus.”5 Brader, 983

F.3d at 58.

5 It is at this final stage that Massachusetts law diverges from

the ADA: “Massachusetts is a pretext only jurisdiction.” Bulwer

v. Mount Auburn Hosp., 46 N.E.3d 24, 33 (Mass. 2016) (quoting Blare

v. Husky Injection Molding Sys. Bos., Inc., 646 N.E.2d 111, 116

(Mass. 1995)). In contrast, under the ADA, a plaintiff must

“establish both discriminatory animus and pretext.” Brader, 983

F.3d at 59 n. 23. To show pretext at the summary judgment stage,

a “plaintiff need only present evidence from which a reasonable

jury could infer that ‘the respondent's facially proper reasons

given for its action against [her] were not the real reasons for

that action.’” Bulwer, 46 N.E.3d at 33 (quoting Wheelock Coll. v.

Mass. Comm’n Against Discrimination, 355 N.E.2d 309, 315 (Mass.

1976)). Here, I conclude Mrs. Der Sarkisian has established

neither pretext nor discriminatory animus, and as a result, the

divergence between the two statutory schemes is inconsequential

for purposes of the summary judgment motion now before me.

Austin Prep does not appear to contest that Mrs. Der Sarkisian

was disabled within the meaning of the ADA or handicapped under

Massachusetts law. Rather, Austin Prep contends that Mrs. Der

Sarkisian cannot establish her case of disability discrimination

because she was not a “qualified individual.” Austin Prep further

contends it provided her an initial accommodation and thereafter,

she did not specifically request any other reasonable

accommodation. Finally, Austin Prep contends, even if she could

meet these initial requirements, she cannot demonstrate pretext or

discriminatory animus. In response, Mrs. Der Sarkisian argues

that she was a qualified individual and that Austin Prep failed to

engage in a an “interactive process” to determine a reasonable

accommodation for her at Austin Prep.6

1. Whether Mrs. Der Sarkisian is a “Qualified Individual”

under the ADA or a “Qualified Handicapped Person” under

Massachusetts Law

It bears reemphasizing at this point that “[t]he Supreme

Judicial Court of Massachusetts has indicated that federal case

law construing the ADA should be followed in interpreting the

Massachusetts disability law.” Ward v. Mass. Health Rsch. Inst.,

Inc., 209 F.3d 29, 33 n.2 (1st Cir. 2000). “Accordingly, while

6 Mrs. Der Sarkisian’s pretext argument as to Count I is not

particularly clear. It seems to mirror her argument with respect

to age discrimination. Because Mrs. Der Sarkisian cannot show

that she was a qualified individual, however, I need not reach the

issue of pretext.

[I] write in terms of the ADA, [my] comments apply with equal force

to [Mrs. Der Sarkisian’s] claim under [Chapter 151B].” Mulloy v.

Acushnet Co., 460 F.3d 141, 154 (1st Cir. 2006) (citations

omitted).

To be a “qualified individual,” Mrs. Der Sarkisian must show

“first, that she ‘possess[es] ‘the requisite skill, experience,

education and other job-related requirements' for the position,

and second, [that she is] able to perform the essential functions

of the position with or without reasonable accommodation.’”

García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 (1st

Cir. 2000) (alteration in original) (quoting Criado v. IBM Corp.,

145 F.3d 437, 443 (1st Cir. 1998) (quoting 29 C.F.R. § 1630.2(m)).

Mrs. Der Sarkisian taught at Austin Prep, in either a full-time or

substitute teacher position, for more than twenty years. There

does not appear to be a dispute as to whether she had the necessary

skills to perform her duties.

The stone for stumbling on this element of her claim is that

Mrs. Der Sarkisian cannot marshal “sufficient evidence showing

that . . . she could perform the job’s essential functions either

with or without a reasonable accommodation” and that Austin Prep

“knew of her disability, yet failed to reasonably accommodate it.”

Lang v. Wal-Mart Stores E., L.P., 813 F.3d 447, 454 (1st Cir.

2016).

a. Whether Mrs. Der Sarkisian Could Perform the

Essential Functions of Her Role at Austin Prep

Under the ADA, “[a]n ‘essential function’ is a fundamental

job duty of the position at issue.” Kvorjak v. Maine, 259 F.3d

48, 55 (1st Cir. 2001) (citing 29 C.F.R. § 1630.2). Although an

“essential function” does not “include ‘marginal’ tasks, [it] may

encompass ‘individual or idiosyncratic characteristics’ of the

job.” Id. (quoting Ward, 209 F.3d at 34). “[S]ubstantial weight”

is often given to an “employer’s view of job requirements in the

absence of evidence of discriminatory animus,” but other factors

are considered also, including “written job descriptions,

consequences of not requiring the function, work experience of

past incumbents, and work experience of current incumbents.” Ward,

209 F.3d at 34.

As a teacher at Austin Prep, Mrs. Der Sarkisian was required

to attend her classes and faculty meetings in person, teach five

English classes, monitor other activities, and act as an advisor

to students. During her more than twenty years of employment at

Austin Prep, Mrs. Der Sarkisian never taught students remotely or

via video, and testified that teaching remotely was “unheard of.”

Moreover, Mrs. Der Sarkisian’s job description explained that when

she was not actively teaching her sections during the day, she was

“on-call for substitute teaching and class coverage” and otherwise

should use that time for meeting with various people at Austin

Prep. She was expected to attend various Austin Prep activities,

such as athletic events and student performances, as well as

professional meetings and trainings. Under these circumstances,

regular attendance was an “essential function” of Mrs. Der

Sarkisian’s role.7

From September 4, 2019 until her termination on December 26,

2019, Mrs. Der Sarkisian was not present at Austin Prep and did

not teach any of her classes. At the time of her termination, she

did not provide a date by which she would be able to return to

Austin Prep and was at best “unsure” regarding her return to

teaching date.

Although Mrs. Der Sarkisian “possess[ed] the skills necessary

to perform the job,” “employee[s] must be willing and able to

demonstrate these skills by coming to work on a regular basis.”

Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th

Cir. 1994). Even where disability is the reason for the absence,

“attendance is an essential function of any job.” Manning v.

Abington Rockland Joint Water Works, 357 F. Supp. 3d 106, 119 (D.

7 Mrs. Der Sarkisian’s employment with Austin Prep ended just

before the onset of the COVID-19 pandemic. At the time of her

termination, Austin Prep did not know that the pandemic would

require a transition to remote learning. The pandemic required

all teachers in particular to learn remote learning skills. There

is no basis to find that Mrs. Der Sarkisian could not also do so

if afforded the opportunity to return. Consequently, I do not

consider her prior lack of familiarity with remote learning to be

a viable grounds for her termination in December 2019 and Austin

Prep makes no such argument.

Mass. 2019) (quoting Ríos-Jiménez v. Principi, 520 F.3d 31, 42

(1st Cir. 2008)). Accordingly, by being unable to attend school

in person, Mrs. Der Sarkisian was not able to, at the time of her

termination, nor did she represent she could, fulfill an essential

function of her position. See, e.g., Tyndall, 31 F.3d at 213

(“[R]egardless of the fact that she possessed the necessary

teaching skills and performed well when she was at work,

[plaintiff’s] frequent absences rendered her unable to function

effectively as a teacher.”).8

The inquiry, however, does not end there – if Mrs. Der

Sarkisian can show that she “could perform the essential functions

of her job when given a reasonable accommodation for her

disabilities, then she would still have a colorable claim.”

Manning, 357 F. Supp. 3d at 120 (emphasis added).

b. Whether Mrs. Der Sarkisian Could Perform the

Essential Functions with a Reasonable

Accommodation

The First Circuit has long adhered to the fundamental

principle that “[i]n order to prove ‘reasonable accommodation,’ a

8 Mrs. Der Sarkisian argues that her “disability did not affect

her ability to conduct the essential functions of her job” but

“merely delayed the time when she would be able to resume her

duties,” and points to the fact that her cognitive abilities were

not at all impaired. This argument is out of focus. Mrs. Der

Sarkisian fails to address that attendance itself is an essential

function of her job. See, e.g., Mulloy v. Acushnet Co., 460 F.3d

141, 150 n.5 (1st Cir. 2006) (collecting cases for proposition

that attendance is a critical component of most jobs).

plaintiff needs to show not only that the proposed accommodation

would enable her to perform the essential functions of her job,

but also that. . . it is feasible for the employer under the

circumstances.” Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259

(1st Cir. 2001). Here, Austin Prep contends that at the outset of

her disability it provided Mrs. Der Sarkisian a reasonable

accommodation by giving her an extended leave of absence, but did

not have an obligation to extend her leave indefinitely, and that

Mrs. Der Sarkisian did not articulate any other accommodation that

would allow her to perform her duties. In response, Mrs. Der

Sarkisian contends that Austin Prep failed to engage in an

“interactive process” to identify a reasonable accommodation, and

that an additional extension to her leave of absence was

reasonable.

Typically, an employer need not offer a reasonable

accommodation until the employee requests it with sufficient

specificity. See Reed, 244 F.3d at 260–61. However, once the

employee makes a request for a reasonable accommodation, an

employer may have a duty to participate in an “interactive process”

that “involves an informal dialogue between the employee and the

employer in which the two parties discuss the issues affecting the

employee and potential reasonable accommodations that might

address those issues.” E.E.O.C. v. Kohl’s Dep’t Stores, Inc., 774

F.3d 127, 132 (1st Cir. 2014). The employer must participate “in

good faith” but if an employee “fails to cooperate in the process,

then the employer cannot be held liable under the ADA for a failure

to provide reasonable accommodations.” Id.

Taking the facts in the light most favorable to Mrs. Der

Sarkisian, when Mrs. Der Sarkisian made a request to extend her

leave of absence due to her third surgery, she made a request for

accommodation that triggered Austin Prep’s duty to “engage in an

interactive process.” Echevarría v. AstraZeneca Pharma. LP, 856

F.3d 119, 133 (1st Cir. 2017) (citation omitted). And Austin Prep

did just that — it explicitly asked Mrs. Der Sarkisian’s doctor to

fill out a form that would help Austin Prep determine “whether

there is a reasonable accommodation that would allow [Mrs. Der

Sarkisian] to perform the essential functions of her job.” Dr.

Van Flandern at best suggested that Mrs. Der Sarkisian “should be

on total temporary disability” for an uncertain but extended time

period.

I confront on this record, a circumstance in which “the

employee fails to satisfy her burden of showing that a reasonable

accommodation existed, [and as a result,] the employee cannot

maintain a claim for failure to engage in an interactive process.”

Echevarría, 856 F.3d at 133. Requesting additional leave would

not allow Mrs. Der Sarkisian to perform an essential function of

her job, namely attending to her school duties. Austin Prep is

under no obligation to “accommodate an employee by exempting her

from having to discharge an essential job function.” Lang, 813

F.3d at 456.9

Mrs. Der Sarkisian seems to argue that Austin Prep should

have probed Dr. Van Flandern’s response in the Accommodation Form

to determine whether there were certain accommodations available.

But it is long settled that “[t]he burden is on [Mrs. Der

9 Mrs. Der Sarkisian correctly notes that accommodations in the

form of leave requests “turn[] on the facts of the case.” García-

Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir.

2000) (citation omitted). However, in these circumstances, an

additional extension of leave was not a reasonable accommodation.

Mrs. Der Sarkisian had not set a return date, and “[s]uch an open-

ended request for additional leave is just the type of wait-and-

see approach that has been rejected as giving rise to a triable

issue on reasonable accommodation.” Henry v. United Bank, 686

F.3d 50, 61 (1st Cir. 2012).

I recognize the First Circuit has held that some open-ended

leave requests might be reasonable, but it has done so in

distinguishable circumstances. García-Ayala, 212 F.3d at 649-50

(leave extension reasonable where employee provided specific

return date, temporary workers filled employee’s responsibility,

and employer decided to terminate employee based purely on company

policy); Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998)

(leave extension reasonable where evidence showed that “leave

would be temporary and would allow her physician to design an

effective treatment program,” company provided 52 weeks of paid

disability leave, and company acknowledged that allowing the

employee to recover was “more profitable” than hiring and training

a new employee).

In the context of teaching and related responsibilities of a

school, other considerations are in play. Austin Prep wanted to

ensure that its students had consistency with respect to their

educators. Moreover, Austin Prep was understandably concerned

that Mrs. Der Sarkisian’s temporary replacement, Mr. Bourdeau, who

did not have a formal contract with the school, would leave for a

position elsewhere, thus exacerbating the burden of an open ended

accommodation to the school’s mission. Accordingly, on these

facts, an additional period of leave without end date was not a

reasonable accommodation.

Sarkisian] to show the existence of a reasonable accommodation,”

Phelps v. Optima Health, Inc., 251 F.3d 21, 26 (1st Cir. 2001),

and Austin Prep “is obviously not obligated to offer an

‘accommodation’ to an employee that is contrary to medical advice,”

Jones v. Walgreen Co., 765 F. Supp. 2d 100, 108 n.3 (D. Mass.

2011), aff’d, 679 F.3d 9 (1st Cir. 2012). Mrs. Der Sarkisian also

points to her deposition testimony, where she stated that “if [she]

had known [her] job was in jeopardy, [she] would have come back in

a wheelchair.” However, Austin Prep “is entitled to be judged on

what it knew at the time or could reasonably foresee.” Evans v.

Fed. Exp. Corp., 133 F.3d 137, 140 (1st Cir. 1998). Moreover,

there is no indication that a wheelchair would have been a feasible

accommodation at that time.10

Because Mrs. Der Sarkisian has failed to set out a prima facie

case of discrimination disability, I need not address whether she

can show pretext and I will grant Austin Prep’s motion for summary

judgment on this Count.

10 Mrs. Der Sarkisian’s arguments regarding her later assessments

of her doctor and physical therapist are not persuasive for similar

reasons. Austin Prep had to base its decisions “on what it knew

at the time or could reasonably foresee.” Evans v. Fed. Exp.

Corp., 133 F.3d 137, 140 (1st Cir. 1998). Her doctor’s assessment,

at the time of her termination, was that she needed to be on “total

temporary disability” and that her impairment would continue for

“3-6 months.”

C. Count II: Age Discrimination under MASS. GEN. LAWS. ch.

151B, § 4(1B)

Under Massachusetts law, it is unlawful

For an employer in the private sector, by himself or his

agent, because of the age of any individual, to refuse

to hire or employ or to bar or to discharge from

employment such individual, or to discriminate against

such individual in compensation or in terms, conditions

or privileges of employment, unless based upon a bona

fide occupational qualification.

MASS. GEN. LAWS ch. 151B, § 4(1B).

I employ the McDonnell Douglas standard, which is applicable

in age discrimination cases under Massachusetts law where there is

no direct evidence of age discrimination. See Blare v. Husky

Injection Molding Sys. Bos., Inc., 646 N.E.2d 111, 114–15 (Mass.

1995). Accordingly, to meet her prima facie burden, a plaintiff

must show that she “(1) is a member of a protected class-here an

individual above the age of forty; (2) met [her] employer's

legitimate job performance expectations; (3) experienced an

adverse employment action; and (4) was replaced by a person with

roughly equivalent job qualifications.” Matteo v. Hitachi Global

Storage Techs., Inc., No. 11–11191–DPW, 2013 WL 6092853, at *3 (D.

Mass. 2013).

If a plaintiff can make her prima facie case, then the burden

shifts to the defendant to proffer a legitimate and

nondiscriminatory reason for its employment action. Paul v.

Murphy, 948 F.3d 42, 49 (1st Cir. 2020). Should the defendant

meet this “burden of production,” then the plaintiff “bears the

ultimate burden of proof to show that the employer's proffered

nondiscriminatory reason for the adverse employment action was a

pretext” for illegal age discrimination. Bonilla-Ramirez v. MVM,

Inc., 904 F.3d 88, 94 (1st Cir. 2018) (describing the McDonnell

Douglas framework in the context of sex discrimination). “At

summary judgment, this question reduces to whether or not the

plaintiff has adduced minimally sufficient evidence to permit a

reasonable factfinder to conclude that [s]he was fired because of

h[er] age.” Dávila v. Corporacion De Puerto Rico Para La Difusion

Publica, 498 F.3d 9, 16 (1st Cir. 2007).

For the purpose of summary judgment, Austin Prep does not

contest that Mrs. Der Sarkisian can meet her prima facie burden.

Rather, Austin Prep argues that Mrs. Der Sarkisian cannot show

that the reason for her termination was pretextual, or that Austin

Prep had “discriminatory animus” against her due to her age. I

note at the outset that Massachusetts law, which is the sole

statute-at-issue in Count II, does not require intentional

discrimination. See Koster v. Trans World Airlines, Inc., 181

F.3d 24, 30 (1st Cir. 1999) (“Age discrimination plaintiffs in

Massachusetts have a lesser burden than those under federal law.

Massachusetts law requires the employee to show only pretext . .

. .); Gordon v. EarthLink, Inc., No. 14-14145-FDS, 2017 WL 3203385,

at *8 (D. Mass. July 27, 2017) (explaining, in the context of age

discrimination, that MASS. GEN. LAWS. ch. 151B is a “pretext-only”

statute (citation omitted)).

1. Austin Prep’s Proffered Reason for Mrs. Der Sarkisian’s

Termination

Austin Prep contends that it terminated Mrs. Der Sarkisian’s

employment only after it became apparent, on the basis of her own

representations and her doctor’s reports, that she would not be

able to return to work within a feasible time period — if at all.

Austin Prep also observes that no one at the school ever made

comments regarding her age, that Austin Prep employed Mrs. Der

Sarkisian well into her sixties, and that Austin Prep employs other

teachers who are in their seventies. Finally, Austin Prep observes

that both Dr. Hickey and Mr. Weber, those responsible for her

termination, at all relevant times were both over forty, the

critical point at which age discrimination cases can be asserted.

2. Whether Austin Prep’s Termination of Mrs. Der Sarkisian

Was Pretextual

In order to demonstrate pretext in this setting, Mrs. Der

Sarkisian identifies three teacher comparators, one a younger

teacher who was given a longer leave of absence, the other two

teachers in her age cohort she says faced harassing and

unsubstantiated complaints and consequently resigned.

a. The Younger Teacher Comparator

To establish the materiality of this type of comparator, Mrs.

Der Sarkisian attempts “to demonstrate that [a] similarly situated

[younger] employee[] [was] treated differently.” Matthews v.

Ocean Spray Cranberries, Inc., 686 N.E.2d 1303, 1309 (Mass. 1997)

(discussing comparators in context of race discrimination). To

establish pretext on this basis, Mrs. Der Sarkisian must “identify

and relate specific instances where persons similarly situated ‘in

all relevant aspects’ were treated differently.” Id. at 1310

(quoting Dartmouth Rev. v. Dartmouth Coll., 889 F.2d 13, 19 (1st

Cir.1989), overruled on other grounds by Educadores

Puertorriqueños en Acción v. Hernandez, 367 F.3d 61 (1st Cir.

2001)); see also Woodward v. Emulex Corp., 714 F.3d 632, 639 (1st

Cir. 2013) (“Disparate treatment between older and younger

employees is a familiar means of establishing pretext.”). “That

is, someone who is ‘substantially similar to [the plaintiff]’ ‘in

all relevant aspects’ concerning the adverse employment decision.

‘The test is whether a prudent person, looking objectively at the

incidents, would think them roughly equivalent and the

protagonists similarly situated. ... In other words, apples should

be compared to apples.’” Dusel v. Factory Mut. Ins. Co., 52 F.4th

495, 507 (1st Cir. 2022) (quoting Trs. of Health & Hosps. of Bos.,

Inc. v. MCAD, 871 N.E.2d 444, 450 (Mass. 2007)).

Mrs. Der Sarkisian argues that the treatment of Katie Haughn,

a younger teacher at Austin Prep, shows that Austin Prep’s

proffered reasons for her termination were pretextual. Ms. Haughn,

who is younger than Mrs. Der Sarkisian, was permitted to take an

extended leave from Austin Prep, which lasted from December 2019

to June 2020, due to a physical disability. Mrs. Der Sarkisian

concedes that Ms. Haughn was eventually fired, but claims, without

admissible support in the record, that it was rumored to have been

due to her physical disability “transform[ing] into a cognitive

disability in June 2020.”

The similarities between the two teachers were at the highest

level of generality. Both Mrs. Der Sarkisian and Ms. Haughn were

teachers at Austin Prep. Like Mrs. Der Sarkisian, Ms. Haughn

requested a leave of absence from Austin Prep for medical reasons.

Ms. Haughn’s absence started in the middle of the first semester

of the 2019-2020 school year and continued into the second

semester. During the second semester, Ms. Haughn’s doctor gave

Austin Prep an Accommodation Form that stated she could not perform

the essential functions of her job as a teacher, with or without

accommodation. After receiving this form, Austin Prep terminated

Ms. Haughn, who was thirty-eight at the time.

Mrs. Der Sarkisian apparently argues that she was treated

differently because Ms. Haughn received a longer leave than she

did. However, in her deposition testimony, Mrs. Der Sarkisian

stated that she “never saw” Ms. Haughn’s medical records or

doctor’s submissions to the school; accordingly, she cannot know

whether Ms. Haughn’s condition required a longer leave at the

onset, or whether Ms. Haughn and her doctors’ conversations with

the school differed from her own.11 As such, it is clear that Mrs.

Der Sarkisian and Ms. Haughn do not present an “apples to apples”

comparison. See Dartmouth Rev., 889 F.2d at 19.

In any event, Mrs. Der Sarkisian’s argument has another flaw

— Austin Prep treated Ms. Haughn and Mrs. Der Sarkisian in exactly

the same manner, despite their differences in age. Both teachers

were permitted to take an extended leave of absence. However,

from all that appears in the record once it became apparent that

they could not perform their duties even with accommodation, Austin

Prep terminated their employment.

b. Age Seventy or Older Comparators

To establish the materiality of her age seventy and older

comparators, Mrs. Der Sarkisian points to Austin Prep’s failure to

hire any employees older than seventy. The thrust of this argument

is that the only performance related Counseling Memorandum she

received at Austin Prep12 came when she was seventy, thereby

11 Mrs. Der Sarkisian’s testimony and argument that Ms. Haughn was

only dismissed because her physical disability transformed into a

cognitive disability is without merit. Although she testified

that she spoke to Ms. Haughn from time to time, Mrs. Der Sarkisian

also testified that she has not seen Ms. Haughn’s medical records

and was not privy to communications between Ms. Haughn’s doctor

and the school. Mrs. Der Sarkisian cannot “rest[] merely upon

conclusory allegations” or “unsupported speculation” to oppose

Austin Prep’s motion for summary judgment. Medina-Munoz v. R.J.

Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

12 Counseling Memorandums are apparently a tool that Austin Prep

uses to document performance-related issues. The one Counseling

Memorandum Mrs. Der Sarkisian received related to a parent’s

complaint that she “scared children.”

evidencing age discrimination, and that other older teachers

received similar “harassing and unsubstantiated complaints.”

These arguments are unpersuasive. First, nothing in the

record before me shows whether any people over the age of seventy

have even applied to teach at Austin Prep. See LeBlanc v. Great

Am. Ins. Co., 6 F.3d 836, 848 (1st Cir. 1993) (“[T]he fact that

recently hired [employees] are younger than [plaintiff] is not

necessarily evidence of discriminatory intent, but may simply

reflect a younger available work force.”).

Second, the impact of Mrs. Der Sarkisian’s contentions

regarding the Counseling Memorandum are unclear. In her own filing

in this case, Mrs. Der Sarkisian explains that “[d]espite this

Counseling Memorandum, [she] was invited back by Austin Prep to

return to continue being a full-time faculty member.” Accordingly,

it does not appear that the Counseling Memorandum factored into

Mrs. Der Sarkisian’s termination, nor does it show discrimination,

because, by her own admission, she was invited back to Austin Prep

afterwards.

Finally, her claims regarding other teachers are

unsubstantiated in the record. Mrs. Der Sarkisian cites her own

deposition testimony, but does not dispute that Ms. Garcia-Matta

and Mr. Edwin Meek — the two teachers Mrs. Der Sarkisian alleges

faced “harassing and unsubstantiated complaints” — voluntarily

resigned their positions at Austin Prep. Despite Mrs. Der

Sarkisian’s deposition testimony that she had online

communications with Mr. Meek, her counsel confirmed that those

messages have not been produced during the November 30, 2022

summary judgment hearing. There is no evidence in the record,

apart from Mrs. Der Sarkisian’s elliptical and conclusory second-

hand accounts, to substantiate her allegations. Mrs. Der Sarkisian

must adduce more than “sketchy evidence” to oppose the aspect of

a motion for summary judgment. Smith v. Stratus Comput., Inc., 40

F.3d 11, 17 (1st Cir. 1994). She has not.

c. Conclusion

These facts, as admissibly presented in the court, cannot

establish pretext. Accordingly, I will grant Austin Prep’s motion

for summary judgment on this Count.

IV. CONCLUSION

For the reasons set forth more fully above, I GRANT Austin

Prep’s motion [Dkt. No. 27] for summary judgment. The Clerk is

directed to enter judgment for Austin Prep.

/s/ Douglas P. Woodlock_______

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE

APPENDIX

Although I have granted summary judgment to Austin Prep as to

Mrs. Der Sarkisian’s Complaint, I discuss in this addendum the

contents of summary judgment submissions by Mrs. Der Sarkisian and

the way in which I have approached the challenges in Austin Prep’s

motion [Dkt. No. 40] to strike.

Austin Prep’s motion broadly asserted that its entire

statement of undisputed facts should be deemed admitted, in

accordance with Local Rule 56.1, and that correlatively Mrs. Der

Sarkisian’s statement of facts and accompanying materials should

be stricken. In the alternative, Austin Prep identified specific

paragraphs in Mrs. Der Sarkisian’s statement of facts and affidavit

that it contends I should strike: (1) paragraphs 2, 3, 11, 13,

15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 27, and 28 of Mrs. Der

Sarkisian’s Statement of Undisputed Facts and (2) paragraphs 8,

13, 14, 15, 16, 18, and 20 of Mrs. Der Sarkisian’s Affidavit. Mrs.

Der Sarkisian agreed to strike paragraph 13, and accordingly I did

not consider that paragraph of her affidavit. For her part, Mrs.

Der Sarkisian requested leave to amend paragraphs 2 and 15 of her

Statement of Facts, argued that her affidavit should not otherwise

be stricken, and, though untimely, filed a proper response to

Austin Prep’s statement of undisputed facts in an effort to parry

the thrust of Austin Prep’s motion to strike.

A. Local Rule 56.1

To put the discussion in context I set forth the process by

which facts are properly placed in dispute for purposes of summary

judgment practice in this court.

To “expedite the process of determining which facts are

genuinely in dispute, so that the court may turn quickly to the

usually more difficult task of determining whether the disputed

issues are material,” the United States District Court for the

District of Massachusetts adopted Local Rule 56.1. Brown v.

Armstrong, 957 F. Supp. 1293, 1297 (D. Mass. 1997), aff’d, 129

F.3d 1252 (Table) (1st Cir. 1997) (per curiam). Local Rule 56.1

requires a party opposing summary judgment to “include a concise

statement of the material facts of record as to which it is

contended that there exists a genuine issue to be tried, with page

references to affidavits, depositions and other documentation”

with its motion, filed “within 21 days after the motion is served,”

“unless the court orders otherwise.” L.R. 56.1. As the First

Circuit has observed in referencing another district’s similar

rule, “absent [rules like 56.1], summary judgment practice could

too easily become a game of cat-and-mouse, giving rise to the

‘specter of district court judges being unfairly sandbagged by

unadvertised factual issues.’” Ruiz Rivera v. Riley, 209 F.3d 24,

28 (1st Cir. 2000) (citation omitted), abrogated on other grounds

by de Aza-Paez v. United States, 343 F.3d 552 (1st Cir. 2003) (per

curiam).

Where parties ignore this type of Local Rule, they do so “at

their peril.” Id.; see also Summers v. City of Fitchburg, 940

F.3d 133, 138 (1st Cir. 2019) (affirming district court’s decision

to “allow[] the defendants[‘] [statement of facts] to map the

boundaries of the summary judgment record” where “plaintiffs

flouted Local Rule 56.1” of this court). Accordingly, I have the

discretion to deem Austin Prep’s Statement of Undisputed Material

Facts admitted as a sanction for Mrs. Der Sarkisian’s failure to

comply with Local Rule 56.1. See Butters v. Wells Fargo Advisors,

LLC, Civ. A. No. 10–10072–MLW, 2012 WL 5959986, at *2 (D. Mass.

Nov. 27, 2012).

In this instance, I declined to exercise my discretion in

that way. To be sure, Mrs. Der Sarkisian initially did not submit

a statement of disputed facts in compliance with Rule 56.1.

Rather, her submission merely set forth what the First Circuit has

characterized as a narrative “alternate statement of facts” that

“thwarted” the “salutary purpose” of Rule 56.1. Cában Hernández

v. Philip Morris USA, Inc., 486 F.3d 1, 7–8 (1st Cir. 2007)

(describing parallel Local Rule in District of Puerto Rico).

However, Mrs. Der Sarkisian did, eventually, submit a response in

the form contemplated by Rule 56.1. In this instance, although

Mrs. Der Sarkisian’s submission was untimely, I find that by

providing a response substantially as contemplated by the rule,

she ultimately did “not obscure[] the relevant issues to such an

extent as to justify the potentially draconian effect of a deemed

admission.” Navarro v. U.S. Tsubaki, Inc., 577 F. Supp. 2d 487,

492 n.1 (D. Mass. 2008).

Thus, while I did not consider Mrs. Der Sarkisian’s originally

filed alternative statement of facts in resolving the summary

judgment motion before me, I have instead looked to the later

submission that was substantially in accordance with Local Rule

56.1. See Naimark v. BAE Sys. Info. & Elec. Sys. Integration Inc.,

No. 20-cv-10138-DJC, 2021 WL 6098728, at *1 n.1 (D. Mass. Dec. 23,

2021) (“’[S]ubmission of a separate statement of undisputed facts

[by the opposing party] is not contemplated by the rule,’ and the

Court need not consider them.” (quoting Terry v. SimplexGrinnell

LP, No. 11-cv-40117-TSH, 2013 WL 1332240, at *1 (D. Mass. Mar. 28,

2013)). Because I did not consider Mrs. Der Sarkisian’s statement

of facts, I declined to consider her proposed amendments to

paragraphs 2 and 15.

In this connection, I note further that I have considered

only the factual components of Mrs. Der Sarkisian’s belated

response. Irrelevant and superfluous argument or conclusory

assertions have had no role in my examination of the factual

foundation upon which I have resolved the summary judgment motions.

I note further in the interest of completeness and to assure myself

no pertinent contention had been neglected, I carefully reviewed

Mrs. Der Sarkisian’s initial statement of facts but found nothing

in that submission to cause me to decide or address Austin Prep’s

motion for summary judgment in any other way than I have. See

Brown v. Armstrong, 957 F. Supp. 1293, 1298 n.4 (D. Mass. 1997),

aff’d, 129 F.3d 1252 (Table) (1st Cir. 1997) (per curiam).

B. Matters Subject to Being Stricken

1. Legal Standard

Under Federal Rule of Civil Procedure 56, affidavits filed in

support of or in opposition to summary judgment “must be made on

personal knowledge, set out facts that would be admissible in

evidence, and show that the affiant or declarant is competent to

testify on the matters stated.” FED. R. CIV. P. 56(c)(4). As the

First Circuit explained with respect to an earlier version of Rule

56, “[t]he rule requires a scalpel, not a butcher knife.” Perez

v. Volvo Car Corp., 247 F.3d 303, 315 (1st Cir. 2001).

Accordingly, I should “disregard[] only those portions that are

inadmissible and credit[] the remaining statements.” Rodríguez-

Rivera v. Allscripts Healthcare Sols., Inc., 43 F.4th 150, 170

(1st Cir. 2022) (Thompson, J.).

The “touchstone” of this review is personal knowledge, which

“must concern facts as opposed to conclusions, assumptions, or

surmise.” Perez, 247 F.3d at 315-16. As a result, hearsay

statements may not be considered for the truth of the matter

asserted at summary judgment. Kenney v. Floyd, 700 F.3d 604, 609

(1st Cir. 2012). Finally, a party cannot submit an affidavit that

contradicts its clear and unambiguous answers during a deposition,

merely to protect itself against summary judgment. See Escribano-

Reyes v. Pro. Hepa Certificate Corp., 817 F.3d 380, 386 (1st Cir.

2016).

2. Mrs. Der Sarkisian’s Affidavit

Austin Prep moved to strike the entirety of Mrs. Der

Sarkisian’s affidavit, or in the alternative, paragraphs 8, 14,

15, 16, 18, and 20. Broadly, Austin Prep asserts that these

paragraphs are inappropriate because they are: (1) not based on

personal knowledge, (2) argumentative and speculative, and (3)

hearsay. In approaching this aspect of Austin Prep’s motion, I

declined to “wield[] a butcher’s knife.” Rodríguez-Rivera, 43

F.4th at 170. Rather, I conducted a more detailed analysis for

such surgical excision as appeared necessary.

a. Paragraph 8

I treated as stricken paragraph 8 because, based on Mrs. Der

Sarkisian’s deposition testimony, she did not attend the meeting

described in this paragraph and does not herself have personal

knowledge regarding it. However, Mrs. Der Sarkisian is correct

that other materials in the record provide the factual information

related to this paragraph.

b. Paragraph 14

I did not treat Paragraph 14 as stricken. Mrs. Der Sarkisian

received the e-mail from Austin Prep on January 9, 2020 updating

the school on Ms. Haughn’s status, and thus has personal knowledge

of the information circulated by the school referenced in this

paragraph.

c. Paragraphs 15 and 20

I have treated Paragraphs 15 and 20 as stricken because they

are argumentative, present legal conclusions, and lack personal

knowledge. See Siupa v. Astra Tech., Inc., No. 10–10525–LTS, 2013

WL 4854031, at *7 (“[Plaintiff] may not rely upon her own

interpretation of the law or the legal conclusions she wishes the

Court to draw from the facts at hand.”).

d. Paragraph 16

Mrs. Der Sarkisian argues that “[t]he point” of this paragraph

“is supported by [her] medical records.” I have reviewed the

documents she has cited and have considered them as necessary to

resolve the motion for summary judgment, however, I observe that

they do not substantiate this paragraph. Moreover, although Mrs.

Der Sarkisian testified during her deposition that Dr. Van Flandern

offered to provide Austin Prep with a revised report, as Mrs. Der

Sarkisian’s counsel conceded during the November 30, 2022 summary

judgment hearing, no such report has been provided or filed in

this matter.

e. Paragraph 18

As with Paragraph 16, I have reviewed the documents that Mrs.

Der Sarkisian references, and have considered them in resolving

the motion for summary judgment. However, I observe they do not

fully substantiate the contentions asserted in this paragraph.

C. Conclusion

For the reasons set forth more fully in this Appendix, I have

GRANTED in part and DENIED in part Austin Prep’s motion [Dkt. No.

40] to strike.