# Willitts v. GDF Suez Energy North America Inc./Engie North America, Inc.

> District Court, D. Massachusetts · March 20, 2023

URL: https://www.frixlaw.com/law-library/cases/10200984

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** March 20, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10200984

## How later opinions describe it (automated extraction)

- finding a “proposed transfer was not an adverse employment action” because “an employee faced with a threatened employment action does not suffer a cognizable injury from an action that does not occur.” (citing Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002))
- finding that the Court may discount “conclusory allegations, improbable inferences, and unsupported speculation.” (quoting Medina- Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990))

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

*
JAMES A. WILLITTS, SR., *
*
Plaintiff, *
*
v. * Civil Action No. 20-cv-11255-ADB
*
ENGIE NORTH AMERICA INC., *
*
Defendant. *
*

MEMORANDUM AND ORDER

BURROUGHS, D.J.

Plaintiff James A. Willitts, Sr. (“Willitts”), who is proceeding pro se, brings this action
against his former employer, Defendant Engie North America Inc. (“ENGIE”). [ECF No. 14
(“Am. Compl.”)]. Plaintiff’s remaining claim alleges that ENGIE discriminated against him
based on his disabilities, in violation of the Americans with Disabilities Act (“ADA”). [Id.].
Currently before the Court is ENGIE’s motion for summary judgment, [ECF No. 165], which, as
more fully set forth below, is GRANTED.
I. BACKGROUND
A. Local Rule 56.1
As a preliminary issue, ENGIE argues that the facts in its statement of undisputed
material facts, [ECF No. 167 (“SOF”)], should be deemed admitted in their entirety because
Willitts did not file a concise statement of disputed material facts, as required by Local Rule
56.1. [ECF No. 174 at 2]. Willitts, in his opposition, did not directly respond to ENGIE’s SOF,
but instead included his own characterization of facts in his brief, sometimes with citations to
exhibits attached to an affidavit. See generally [ECF Nos. 173, 173-1]. These exhibits include
his deposition, [ECF Nos. 173-28, 173-29], and documents that appear to have been produced
during discovery. Some of the documents have handwritten annotations or include typed factual
summaries, that appear to have been drafted by Willitts. See, e.g., [ECF Nos. 173-2, 173-7].
Willitts also included, as separate exhibits, typed summaries of various events, many related to

alleged safety issues. See, e.g., [ECF Nos. 173-17, 173-20]. Willitts also filed a sur-reply, with
a section entitled “Background facts Relating to Plaintiff’s Claims of this Action” that includes
some discussion of facts, but again largely does not directly respond to ENGIE’s SOF. [ECF
No. 176 at 5–9].
Local Rule 56.1 provides that “[a] party opposing [a] motion [for summary judgment]
shall 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.” L.R. 56.1. “[This rule] was adopted 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.” Brown v. Armstrong, 957

F. Supp. 1293, 1297 (D. Mass. 1997), aff’d, 129 F.3d 1252 (1st Cir. 1997) (unpublished table
decision).
“Where a party opposing a motion for summary judgment fails to comply with Local
Rule 56.1, the court has the discretion to decide whether to impose the sanction of deeming the
moving party’s factual assertions to be admitted.” Butters v. Wells Fargo Advisors, LLC, No.
10-cv-10072, 2012 WL 5959986, at *2 (D. Mass. Nov. 27, 2012) (citing Swallow v. Fetzer
Vineyards, 46 F. App’x 636, 638–39 (1st Cir. 2002)) (further citation omitted); see
also Summers v. City of Fitchburg, 940 F.3d 133, 138 (1st Cir. 2019) (“Here, the [non-moving
party] flouted Local Rule 56.1 and allowed the [the moving party] to map the boundaries of the
summary judgment record. Such actions have consequences, and the district court deemed the
[moving party’s] statement of undisputed material facts admitted. Given the clarity of Local
Rule 56.1 and the important function that it serves, the district court was fully justified in
limiting the summary judgment record to the four corners of the [moving party’s] statement of

undisputed material facts.” (first citing United States v. McNicol, 829 F.3d 77, 80–81 (1st Cir.
2016) and then citing Schiffmann v. United States, 811 F.3d 519, 524–25 (1st Cir. 2016))).
Courts, however, “are solicitous of the obstacles that pro se litigants face, and while such
litigants are not exempt from procedural rules, we hold pro se pleadings to less demanding
standards than those drafted by lawyers and endeavor, within reasonable limits, to guard against
the loss of pro se claims due to technical defects.” Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir.
2008) (citations omitted). Nonetheless, “self-representation is not ‘a license not to comply with
relevant rules of procedural and substantive law.’” Andrews v. Bechtel Power Corp., 780 F.2d
124, 140 (1st Cir. 1985) (citation omitted). “Thus, the Court will consider a pro se movant’s
circumstances when reviewing his motion for summary judgment but will not provide ‘extra

procedural swaddling.’” Grossman v. Martin, 566 F. Supp. 3d 136, 143 (D.R.I. 2021) (quoting
Eagle Eye Fishing Corp. v. U.S. Dep’t of Com., 20 F.3d 503, 506 (1st Cir. 1994)).
Willitts failed to comply with Local Rule 56.1 by not filing a counterstatement of
material facts in accordance with Local Rule 56.1 or otherwise assisting the Court in determining
which facts are genuinely in dispute. Consequently, the portions of ENGIE’s SOF that Willitts
did not specifically controvert with support in the record are deemed admitted.
B. Material Facts
Unless otherwise noted, the following facts are admitted as uncontroverted pursuant to
Federal Rule of Civil Procedure 56 and Local Rule 56.1, and then stated in the light most
favorable to Willitts, the non-movant.
i. Willitts’ Position with ENGIE
In April 2014, Willitts started working for ENGIE at the Pinetree Power Fitchburg
Biomass Generating Plant (the “Plant”) as an Equipment Operator. [SOF ¶ 1; Am. Compl. at 1].
In this position, Willitts’ responsibilities included operating and maintaining a steam boiler and

auxiliary steam equipment that generated electricity, which was then delivered to power
companies. [SOF ¶ 3]. This position required working with “dangerous high voltage
equipment” and the ability to “respond to emergency situations that arise in the workplace.” [Id.
¶ 4].
ii. Willitts’ Disclosure of His Health Condition
In February or March 2016, Willitts informed Plant Operations Manager Scott Manning
(“Manning”) that he had attention-deficit/hyperactivity disorder (“ADHD”) and took medication
for the condition. [SOF ¶ 5]. This communication occurred during a “casual” conversation.
[Id.]. Willitts did not have any other conversations with Manning about his disability. [Id. ¶ 6].
Sometime after Willitts disclosed his disability to Manning, Willitts’ former supervisor,

Dennis Butler (“Butler”), told Willitts that Manning had asked him questions about Willitts’
disabilities and that he had responded by telling Manning that he was not allowed to ask about
that confidential information. [SOF ¶ 49; ECF No. 168-1 (Excerpts of Willitts Dep.) at 234:10–
24]. Butler also told Willitts that he believed Manning was trying to use Willitts’ disabilities to
question his performance and get him fired. [SOF ¶ 49].
iii. May 2016 Shift Realignment
On May 16, 2016, an email was sent to Willitts and other employees notifying them of an
upcoming shift realignment. [SOF ¶ 48]. The email indicated that Willitts would be paired with
Mike O’Rourke (“O’Rourke”). [Id.]. The parties dispute what motivated this shift realignment.
Willitts made earlier requests to not work with O’Rourke on shifts, which were denied. [ECF
No. 173 ¶ 18]. At some point after becoming aware of the shift realignment, Willitts asked
Manning that he not be placed on shift with O’Rourke. [Id. ¶ 23]. Willitts explained to Manning
that he could not work with O’Rourke because (1) Willitts had “zero trust in Mike O’Rourke’s

ability to properly and safely operate the plant” and (2) O’Rourke had “a mutual negative
attitude” towards Willitts because Willitts “sp[oke] out against Mike O’Rourke’s outrageous
actions and failures to properly operate the plant.” [Id. ¶ 18]. Manning denied the request on or
before May 24, 2016. [Id. ¶ 23].1
iv. Willitts’ Performance and the September 9, 2016 Written Warning and Proposed
Transfer
In his 2015 Performance Appraisal, Willitts’ supervisor, Butler, noted that Willitts had
voiced concerns about how the Plant operated “on many a[n] occasion[.]” [ECF No. 168-11
(“2015 Performance Appraisal”) at 4]. He explained that Willitts’ “suggestion[s], some
warranted, some not, ha[ve] put his peers into some heated debates.” [SOF ¶ 12 (first alteration
in original)]; see also [2015 Performance Appraisal at 4]. Butler stated that he was “sure” that

1 Willitts makes a number of assertions related to why he was re-assigned to work with
O’Rourke and why his requests not to work with O’Rourke were denied. For example, he avers
that his requests were denied “intentionally” to “[h]arm and [d]emote” him. [ECF No. 173
¶¶ 18, 23]. He also alleges that “Scott Manning worked quickly to make the shift changes to
allow . . . plans that denied the Plaintiffs Accommodation or Modification to stay on his shift
with Dennis Butler of over two(2) years.” [Id. ¶ 39]. Additionally, he states he was “denied his
request for Accommodations or Modifications and forced to work on shift with Mike O’Rourke
on May 24, 2016, knowing that this situation was going to have a very negative effect to the
Plaintiff. Mike Buckman, Scott Manning, and Mike O’Rourke worked together to Harm and
Demote the Plaintiff.” [Id. ¶ 18]. Willitts has not provided any record support for these
assertions and the Court finds that Willitts cannot competently testify about other ENGIE
employees’ intentions. The Court therefore does not credit these allegations. See Cochran v.
Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003) (finding that the Court may discount
“conclusory allegations, improbable inferences, and unsupported speculation.” (quoting Medina-
Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990))).
“in time” “this will settle down.” [SOF ¶ 12; 2015 Performance Appraisal at 4]. He also noted
that Willitts had come from a “larger utility” with “a[n] unlimited and endless budget” and that
he had had “some trouble adjusting [to] a smaller and tighter run ship.” [2015 Performance
Appraisal at 4]. Butler concluded his comments by stating that ENGIE was “lucky to have

[Willitts’] experience at the plant” and that he “look[ed] forward to working with him in the
future.” [Id.].
The Performance Appraisal also graded Willitts’ performance in various categories
related to: “Professional Skills and Accountability[,]” “Relationships and Communications[,]”
“Leadership[,]” and “Management Way[.]” [2015 Performance Appraisal at 2–4]. Willitts
received “Meets Expectations” or “Exceeds Expectations” in all categories. [Id.]. For “Overall
Appraisal,” he received “Exceeds Expectations.” [Id. at 4].
Willitts did have some “heated debates” with colleagues and supervisors, and they would
sometimes “get angry” and “annoyed with [him]” when he would “complain about certain
things.” [SOF ¶¶ 13, 14]. Willitts would sometimes disagree with his supervisor and would

sometimes refuse to complete his supervisors’ requests. [Id. ¶ 15]. He also acknowledged that
he might “raise [his] voice” in a “heated moment,” for example, if someone is “doing something
they are not supposed to be doing without a permit and the plant start[s] on fire[.]” [Id. ¶ 17].
He further testified that he has a “strong questioning attitude.” [Id. ¶ 16].
On September 9, 2016, Willitts was issued a written warning. [SOF ¶ 8]. The written
warning indicates that it came from O’Rourke and Manning. [ECF No. 168-10 (“September 9,
2016 Written Warning”)]. Butler was not involved in preparing or issuing the written warning.
[SOF ¶ 50].
The written warning includes the following statements pertaining to Willitts:
• “During my observations of the shifts it was determined that we needed shift
realignment due to one shift struggling to meet our targets operationally and
environmentally. It became evident that you were controlling the shift and
overstepping the authority of your Unit Supervisor.” [September 9, 2016 Written
Warning].

• “At the end of May the shifts were realigned, you expressed concern with the
realignment and presented an unsuitable attitude.” [Id.].

• “You have become argumentative and second guessing all levels of supervision and
management. Your morale is extremely poor and is affecting the entire operations
group.” [SOF ¶ 10].

• “Your current supervisor has brought to my attention, multiple times that he has
requested you to perform tasks that are again second guessed, argued and debated.”
[Id.].

The written warning also “recommend[s]” that Willitts be “reassigned to another position
at the plant indefinitely until these issues can be resolved.” [September 9, 2016 Written
Warning]. This proposed transfer would have been to another department referred to as the
“Woodyard.” [SOF ¶ 8].
The transfer did not go forward. [SOF ¶ 19]. If it had gone forward, the transfer would
not have affected Willitts’ salary. [Id. ¶ 19]. The parties dispute whether the transfer would
have required Willitts to do work outside of the scope of his current position or to get a separate
license. Willitts’ original offer letter for his Equipment Operator position stated that one of his
responsibilities may include “[o]perat[ing] wood yard equipment and computer system as
needed.” [Id. ¶ 3]. The parties also dispute whether the proposed transfer would have been
temporary or considered a demotion.
Finally, the parties dispute the basis for the written warning and proposed transfer.
Specifically, they dispute whether Willitts’ supervisors and colleagues complained to Manning
about Willitts’ argumentativeness and told Manning they no longer wanted to work with Willitts.
v. Willitts’ Relationship with ENGIE after September 9, 2016
Shortly after this meeting, Willitts began a leave of absence due to mental health issues,
including stress, anxiety, and depression. [SOF ¶ 21]. Willitts was approved for 12 weeks of
leave pursuant to the Family and Medical Leave Act (“FMLA”), which ran from mid-September
2016 to December 2016. [Id. ¶ 22].

The parties dispute whether, in December 2016, Willitts was terminated or continued to
be employed while remaining on medical leave. Willitts believed he was terminated by ENGIE
or “going to be terminated” in December 2016, [ECF No. 173 at 2; SOF ¶ 23], and says he was
“treated as if he was terminated[,]” [ECF No. 173 ¶ 42]. More specifically, on December 1,
2016, he received an email from Amanda Applin, in ENGIE Human Resources, stating that he
was expected “to provide a return to work notice from [his] physician by close of business
Tuesday, December 6, 2016.” [ECF No. 168-4 (Dec. 1, 2016 email from A. Applin to J.
Willitts)]. It further stated that “[t]he notice from [his] physician would need to state [his] ability
to return to work with 100% clearance, no restrictions.” [Id.]. It went on that if he was “unable
to furnish the physician’s return to work/fitness for duty by the aforementioned deadline, the

Company will terminate [his] employment.” [Id.]. Finally, the email noted that “[u]pon which
time you are medically able to return to work with medical clearance, we may consider
discussing terms [of] your reinstatement.” [Id.].
Following this email, no one from ENGIE told Willitts his employment was terminated.
[SOF ¶ 25].
On January 8, 2017, Willitts sent an email to several ENGIE employees, in which he
stated that he was “unable to return to work at this time.” [SOF ¶ 27]. He noted that in addition
to his depression and anxiety, he had recently had eye surgery, and had been instructed “not to be
exposed to any dust and debris in [his] environment.” [Id.; ECF No. 168-2 (Jan. 8, 2017 email
from J. Willitts to S. Cedroni and others) at 5].
On January 9, 2017, counsel representing Willitts emailed several ENGIE employees,
stating that they were forwarding some “correspondence” and requested that ENGIE “hold off on

making any employment decisions with respect to [Willitts]” until they reviewed that
information. [SOF ¶ 28].
On January 16, 2017, Frank Dobrinski, an ENGIE Human Resources employee,
responded to Willitts’ January 8, 2017 email. [SOF ¶ 29; ECF No. 168-3 (Jan. 16, 2017 email
from F. Dobrinski to J. Willitts and others)]. In the email, Dobrinski asked Willitts to call him to
discuss his options. [Id.]. Dobrinski noted that Willitts’ short-term disability (“STD”) had been
denied and that his FMLA leave had expired. [Id.].
On January 20, 2017, Willitts’ counsel sent correspondence to ENGIE. [ECF No. 173-31
(Jan. 20, 2017 letter from A. Cohen to F. Dobrinski)]. The cover letter described an attached
November 23, 2016 letter from a medical provider that stated that Willitts “would not be able to

return to the ‘hostile work environment’ until after January 1, 2017.” [Id. at 4]. The cover letter
also stated that “Mr. Willitts [was] looking to conclude his employment with the Company[.]”
[Id. at 6].
On February 2, 2017, Dobrinski wrote to Willitts again, stating that they needed to
“discuss [his] options[.]” [ECF No. 168-3]. He explained that because Willitts’ STD had been
denied, and his FMLA exhausted, and he had still not returned to work, he was “in an unexcused
absence, unpaid absence category that [could not] continue.” [SOF ¶ 30].
On March 24, 2017, Willitts filed a claim with the Massachusetts Commission Against
Discrimination (“MCAD”). [SOF ¶ 31]. In that complaint, he stated that he took FMLA
beginning September 12, 2016, and then applied for STD, which was approved for two weeks,
through September 29, 2016. [ECF No. 168-5 (Mar. 24, 2017 MCAD Charge) at 2]. He went on
to explain that after that, ENGIE asked him to provide “a cleared to work letter[,]” but his
“physician did not believe that [he] was able to return to work and indicated so to [ENGIE].”

[SOF ¶ 31]. Finally, he noted that “[t]o date, [he] ha[d] not heard anything from [ENGIE]
regarding [his] employment.” [Id.]. In response to a June 9, 2017 filing by ENGIE, Willitts filed
a “Statement of Facts” that said he was “still employed by ENGIE” but “still unable to work as a
result of [his] disability, without an accommodation.” [Id. ¶ 33].
On June 19, 2017, Willitts emailed employees of CIGNA, ENGIE’s administrator of
Willitts’ STD claim, asking about the approval of his STD claim, which he indicated had been
delayed by CIGNA, and noting that he was “[s]till on Medical Leave with ENGIE.” [ECF No.
168-6 (June 30, 2017 email from J. Willitts to S. Verge and others) at 3; SOF ¶ 32]. On June 30,
2017, he sent a follow-up email to CIGNA, again noting that he was “still out [o]n unpaid
medical leave with ENGIE.” [SOF ¶ 32].

On August 3, 2018, Willitts filed a complaint with the Massachusetts Attorney General’s
Office. [ECF No. 168-8]. In the complaint, Willitts stated that he had been “out of work for 23
months without pay on a disability Leave.” [SOF ¶ 34].
On December 27, 2018, Craig Woolcott, Vice President, ENGIE Human Resources, sent
a letter on behalf of ENGIE, informing Willitts of “the decision to terminate [his] employment
effective December 27, 2018 for job abandonment.” [SOF ¶ 35; ECF No. 168-9].
vi. Willitts’ Work Since September 2016 and Application for Worker’s
Compensation
All told, Willitts did not work from September 2016 to 2018. [SOF ¶ 38]. In late 2018
and 2019, Willitts had his own plumbing business. [Id. ¶ 39]. He stopped this work in 2019 due
to an unrelated lawsuit that exacerbated his medical conditions and has not worked since. [Id.].
On August 20, 2020, Willitts filed a claim for worker’s compensation benefits. [SOF ¶
41]. In his application, he indicated that he suffered from “[t]otal, temporary incapacity,” from
September 10, 2016 to the time of his application, August 20, 2020. [Id.]. Willitts explained at

his deposition that he “didn’t understand” this to be a claim of total disability when he filed the
worker’s compensation claim, but also confirmed that he spoke to an attorney before filing it.
See [id. ¶¶ 42, 43; ECF No. 168-1 (Excerpts of Willitts Dep.) at 210:16–211:11]. Although he
filed the application, Willitts did not “pursue it[,]” [ECF No. 168-1 (Excerpts of Willitts Dep.) at
202:10–20, 207:15–208:6], and there is no evidence that he ever received any worker’s
compensation benefits.
In May 2017, in the context of Willitts’ application for long-term disability leave, several
medical providers evaluated Willitts’ ability to return to work at ENGIE. In responding to the
question “What specific activities or tasks is your patient unable to perform to impact their
ability to work?” one provider responded that Willitts was “[n]o longer able to be in a plant work

setting due to lack of ability to function in a large organization that may be perceived as hostile.”
[ECF No. 173-22 (CIGNA Behavioral Health Questionnaire) at 10]. The provider further noted
Willitts “[c]annot return to work in plant setting with highly stressful job requiring quick
decision making.” [Id.]. Finally, the provider concluded that Willitts “cannot perform in prior
work setting” and “can start to perform in his own business setting where he can control stress
levels.” [Id. at 11].
At his deposition, Willitts acknowledged that health care providers told him he was
unable to work with or without accommodation. [SOF ¶ 36; ECF No. 168-1 (Excerpts of
Willitts Dep.) at 211:17–22]. Willitts also acknowledged that he would “find it difficult” to
work for an employer, and does not “know if [he] would be able to be employed.” [ECF No.
168-1 (Excerpts of Willitts Dep.) at 204:16-205:4]; see also [SOF ¶ 37 (explaining that Willitts
has been unable to work for any employer since the start of his leave)]. According to Willitts,
since September 2016 the “only way” he could work, was to work for himself. [SOF ¶ 39; ECF

No. 168-1 (Excerpts of Willitts Dep.) at 196:20–197:1]. Willitts further explained that he could
work for himself because it gave him “control” over what he did. [SOF ¶ 40]. He also suggested
that he may be able to work for an employer now, if he was given an accommodation that
ensured the job was “not stressful.” [Id.].
C. Procedural Background
Willitts initiated this action on June 30, 2020. [ECF No. 1]. On December 29, 2020, he
filed the operative, six-count complaint, bringing claims for (1) abuse of power (Count I), [Am.
Compl. at 5–7]; (2) breach of confidentiality (Count II), [id. at 7–9]; (3) “civil rights action”
(Count III), [id. at 9]; (4) intentional infliction of emotional distress (“IIED”) (Count IV), [id. at
9–10]; (5) invasion of privacy (Count V), [id. at 10–11]; and (6) “discrimination” (Count VI),
[id. at 11–12]. Although not entirely clear from Willitts’ pleadings, the Court interpreted

Willitts’ “discrimination” count as raising claims under the ADA, the Health Insurance
Portability and Accountability Act (“HIPAA”), the FMLA, Massachusetts General Laws Chapter
151B, § 4, and the Age Discrimination in Employment Act. [Am. Compl. at 11–12; ECF No.
27]. ENGIE moved to dismiss the complaint in its entirety on January 19, 2021. [ECF No. 17].
On June 7, 2021, the Court granted ENGIE’s motion to dismiss all claims, except his ADA
claim. [ECF No. 27].
Following a period of discovery, on July 29, 2022, ENGIE moved for summary
judgment. [ECF No. 165]. Willitts opposed the motion on September 21, 2022, [ECF No. 173],
ENGIE replied on October 5, 2022, [ECF No. 174], and Willitts filed a sur-reply on October 14,
2022, [ECF No. 176].
II. LEGAL STANDARD
Summary judgment is appropriate where the moving party can show 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). “[A]n issue is ‘genuine’ if it ‘may reasonably be resolved in favor
of either party.’” Robinson v. Cook, 863 F. Supp. 2d 49, 60 (D. Mass. 2012) (alteration in
original) (quoting Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008)) (further citation
omitted). “A fact is material if its resolution might affect the outcome of the case under the
controlling law.” Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003) (citation
omitted). Thus, “[a] genuine issue exists as to such a fact if there is evidence from which a
reasonable trier could decide the fact either way.” Id. (citation omitted). By invoking summary
judgment, “the moving party in effect declares that the evidence is insufficient to support the
nonmoving party’s case.” United States v. Plat 20, Lot 17, 960 F.2d 200, 204 (1st Cir. 1992)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
To succeed in showing that there is no genuine dispute of material fact, the moving
party must . . . “affirmatively produce evidence that negates an essential element of
the non-moving party’s claim,” or, using “evidentiary materials already on file . . .
demonstrate that the non-moving party will be unable to carry its burden of
persuasion at trial.”

Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 4–5 (1st Cir. 2015) (second alteration in
original) (quoting Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000)). Conversely, “[t]o
defeat a properly supported motion for summary judgment, the nonmoving party must establish a
trial-worthy issue by presenting enough competent evidence to enable a finding favorable to the
nonmoving party.” ATC Realty, LLC v. Town of Kingston, 303 F.3d 91, 94 (1st Cir. 2002)
(citation omitted). That is, the nonmoving party must set forth specific, material evidence
showing that there is “a genuine disagreement as to some material fact.” Plat 20, Lot 17, 960
F.2d at 204 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)) (further
citation omitted).

In reviewing the record, the Court “must take the evidence in the light most flattering to
the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.”
Cochran, 328 F.3d at 6 (citation omitted). The First Circuit has noted that this review “is
favorable to the nonmoving party, but it does not give him a free pass to trial.” Hannon v. Beard,
645 F.3d 45, 48 (1st Cir. 2011). “The factual conflicts upon which he relies must be both
genuine and material.” Gomez v. Stop & Shop Supermarket Co., 670 F.3d 395, 397 (1st Cir.
2012) (citation omitted). “Trialworthiness necessitates ‘more than simply show[ing] that there is
some metaphysical doubt as to the material facts.’” Nat’l Amusements, Inc. v. Town of
Dedham, 43 F.3d 731, 735 (1st Cir. 1995) (alteration in original) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); see Anderson, 477 U.S. at 252

(“The mere existence of a scintilla of evidence in support of the plaintiff’s position will be
insufficient . . . .”).
“‘On issues where the nonmovant bears the ultimate burden of proof, [it] must present
definite, competent evidence to rebut the motion’ for summary judgment.” Pleasantdale
Condominiums, LLC v. Wakefield, 37 F.4th 728, 733 (1st Cir. 2022) (quoting Mesnick v. Gen.
Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) and citing Brennan v. Hendrigan, 888 F.2d 189, 191
(1st Cir. 1989)). The Court may discount “conclusory allegations, improbable inferences, and
unsupported speculation.” Cochran, 328 F.3d at 6 (quoting Medina-Muñoz, 896 F.2d at 8).
“Evidence that is ‘conjectural or problematic’ will not suffice to forestall summary judgment.”
Wakefield, 37 F.4th at 733 (quoting Mack v. Great Atl. and Pac. Tea Co., 871 F.2d 179, 181 (1st
Cir. 1989)).
III. DISCUSSION
“The ADA prohibits discrimination in employment against qualified persons with a

disability.” Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002) (citing 42 U.S.C.
§ 12112(a)). As defined by the ADA, as relevant here, discrimination includes taking an adverse
employment action against a qualified individual because of the individual’s disability, see Tobin
v. Liberty Mut. Ins. Co., 433 F.3d 100, 104 (1st Cir. 2005), as well as “not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee[.]” Carroll, 294 F.3d at 237 (quoting 42 U.S.C.
§ 12112(b)(5)(A)).
The Court understands Willitts to be advancing two theories of discrimination under the
ADA: first, that ENGIE took “adverse employment actions” against him because of his
disabilities, and, second, that ENGIE failed to reasonably accommodate his disabilities. At

summary judgment, courts evaluate both claims under the three-step burden-shifting framework
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see Tobin, 433 F.3d at
104–05. Step one requires that Willitts establish a prima facie case of discrimination, which
itself has three elements. Tobin, 433 F.3d at 104. For both of Willitts’ theories, Willitts must
prove that: (1) he has a disability, within the meaning of the ADA, and (2) he was nevertheless
able to perform the essential functions of his job, either with or without reasonable
accommodation (a “qualified individual,” within the meaning of the ADA). Id. at 104, 107 n.5.
As to the third element, for the adverse employment actions claim, he must show that ENGIE
took an “adverse employment action” against him because of, in whole or in part, his protected
disability. Id. at 104. For the failure to accommodate claim, he must show that despite knowing
of Willitts’ disability, ENGIE failed to “reasonably accommodate” it. Id. at 107.
If Willitts makes this showing, the burden then shifts to the employer to “articulate a
legitimate, non-discriminatory reason for its employment decision” or failure to reasonably

accommodate, and “to produce credible evidence to show that the reason advanced was the real
reason.” Tobin, 433 F.3d at 105–07 (citation omitted).
Finally, “if [ENGIE] offers such a reason, the burden shifts back to [Willitts], and he
must proffer evidence to establish that [ENGIE’s] non-discriminatory justification is mere
pretext, cloaking discriminatory animus.” Tobin, 433 F.3d at 105 (citation omitted).
ENGIE argues it is entitled to summary judgment for several reasons. First, ENGIE
avers that Willitts has not presented sufficient evidence to establish his prima facie case under
either of his two theories. [ECF No. 166 at 5–7]. Specifically, as relevant to both theories,
ENGIE asserts that Willitts cannot show he is a “qualified individual,” within the meaning of the
ADA. [Id. at 7–11]. As to his failure to accommodate claim, ENGIE argues that Willitts cannot

show that ENGIE failed to reasonably accommodate him. [Id. at 11–14]. And finally, as to his
adverse employment actions claim, ENGIE avers that Willitts cannot show that ENGIE’s
conduct constitutes “adverse employment actions” within the meaning of the ADA,2 [id. at 14–
15], and that, even if he could make out a prima facie case for his adverse employment actions
claim, he has failed to present evidence that ENGIE’s proffered reasons for taking the challenged
action is pretextual and motivated by discriminatory animus. [Id. at 15–20].

2 “For the limited purpose of this Motion,” ENGIE does not dispute that Willitts had a disability,
as defined in the ADA. [ECF No. 166 at 5 n.3].
As discussed further below, the Court finds that Willitts has not presented competent
evidence to establish his prima facie case of discrimination for either of his claims. Therefore,
ENGIE’s motion for summary judgment must be GRANTED.
A. Scope of Willitts’ claims
Before addressing the elements of Willitts’ prima facie case, the Court again begins by

addressing a threshold matter—that is, the scope of the conduct relevant to Willitts’ claims. At
the motion to dismiss stage, the Court understood Willitts’ adverse employment actions claim to
relate to the September 2016 proposed transfer, or demotion, prompted by the written warning,
and his failure to accommodate claim to allege that ENGIE failed to reasonably accommodate
Willitts’ known disability when it failed to provide him a short-term medical leave beginning
sometime after September 2016. [ECF No. 27 at 15].
ENGIE notes that Willitts raised, for the first time at his deposition, an additional basis
for his adverse employment actions claim—that is the May 2016 shift realignment placed him on
shift with supervisor O’Rourke, which Willitts alleges was made by Manning “intentionally”
with knowledge of Willitts’ disability. See [ECF No. 166 at 16 n.5; SOF ¶ 47; ECF No. 168-1

(Excerpts of Willitts Dep.) at 289:1–290:23]. Willitts further testified that after the realignment
he requested to be removed from shifts with O’Rourke, as an “accommodation,” and that that
request was denied. [ECF No. 168-1 (Excerpts of Willitts Dep.) at 289:1–290:23]. Willitts’
opposition brief also references this shift change, his requests to be removed from O’Rourke’s
shifts, both before and after the shift realignment, and the denial of those requests. [ECF No.
173 ¶¶ 3, 37, 39]. It appears that Willitts is now alleging that this conduct is relevant to both of
his claims, and the Court must therefore determine whether to consider these broader versions of
Willitts’ claims in assessing his claims at the summary judgment stage.
“Individuals asserting discrimination or failure to accommodate claims under the ADA
are required to file an administrative charge with the EEOC, or alternatively, with an appropriate
state or local agency, prior to commencing a civil action.” Flaherty v. Entergy Nuclear
Operations, Inc., 946 F.3d 41, 55–56 (1st Cir. 2019) (citation omitted). Individuals are required

to file these charges within 300 days of the alleged unlawful employment practice. See Brader v.
Biogen Inc., 983 F.3d 39, 60 (1st Cir. 2020); see also 42 U.S.C. § 2000e-5. Willitts filed his
charge with the MCAD on March 24, 2017, [SOF ¶ 31], which means that any unlawful
employment practice must have occurred no earlier than May 28, 2016. Willitts received notice
of the shift change on May 16, 2016. [SOF ¶ 48]. His request to be removed from O’Rourke’s
shift following realignment was denied on or before May 24, 2016, [ECF No. 173 ¶ 23], and his
other requests to not work on shift with O’Rourke occurred sometime before May 2016. [Id. ¶ 3,
18]. Claims related to this conduct would therefore appear to be time-barred. That said,
“[c]ourts have recognized a narrow exception to the limitations period via the ‘continuing
violation doctrine.’” Ayala v. Shinseki, 780 F.3d 52, 57 (1st Cir. 2015) (citing Pérez–Sánchez v.

Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008)). Under the continuing violation doctrine, “a
plaintiff may obtain recovery for discriminatory acts that otherwise would be time-barred so long
as a related act [(often called an ‘anchoring act’)] fell within the limitations period.” Brader, 983
F.3d at 61 (alteration in original) (citations omitted).
However, this doctrine does not apply to “discrete acts” of alleged discrimination
that occur on a “particular day.” Instead, it applies only to claims that cannot be
said to occur on a particular day and that by their very nature require repeated
conduct to establish an actionable claim, such as hostile work environment claims.
The continuing violation doctrine simply “allow[s] suit to be delayed until a series
of wrongful acts blossoms into an injury on which suit can be brought.”
Ayala, 780 F.3d at 57 (alteration in original) (quoting Tobin v. Liberty Mut. Ins. Co., 553 F.3d
121, 130 (1st Cir. 2009) and then quoting Morales–Tañon v. P.R. Elec. Power Auth., 524 F.3d
15, 19 (1st Cir. 2008)) (further citation omitted). “[D]iscrete discriminatory acts are not
actionable if time barred, even when they are related to acts alleged in timely filed charges.”
Thornton v. United Parcel Serv., Inc., 587 F.3d 27, 33 (1st Cir. 2009) (quoting Nat’l Railroad
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)) (further citation omitted).

The First Circuit has held that “the denial of a reasonable accommodation, the failure to
renew a contract, a change of supervisor, a relocation to another floor, a transfer to another
office, and the failure to assign work to an employee . . . constitute discrete acts.” Ayala, 780
F.3d at 57 (emphasis added) (citing Thornton, 587 F.3d at 30, 33–34, Ruiz–Sulsona v. Univ. of
P.R., 334 F.3d 157, 160 (1st Cir. 2003), and Rivera v. P.R. Aqueduct and Sewers Auth., 331 F.3d
183, 186–89 (1st Cir. 2003)). “Similarly, a negative performance evaluation, transfer to another
area, and letter of warning also constitute discrete acts.” Id. (citing Miller v. N.H. Dep’t of Corr.,
296 F.3d 18, 21–22 (1st Cir. 2002)) (further citation omitted). Thus, even assuming the May 16,
2016 shift realignment and the September 2016 conduct were related, because each was a
“discrete act,” the continuing violation doctrine does not apply. Therefore, because Willitts filed

his MCAD charge over 300 days after receiving notice of the May 2016 shift realignment, any
adverse employment action claims related to that shift realignment are time-barred. Similarly,
any failure to accommodate claims related to the denial of Willitts’ requests to not work with
O’Rourke, both on May 24, 2016 and before, are also time-barred.
Arguably, given that Willitts missed the filing deadlines by only a few days and the fact
that he is pro se, the Court could nonetheless elect to consider the May 24, 2016 denial on its
merits. Here, however, Willitts gave no indication in his complaint or in any timely manner
thereafter that he intended to include this claim. Additionally, Willitts’ request to not work with
O’Rourke cannot reasonably be construed as a request for a reasonable accommodation for
Willitts’ disability under the circumstances presented here.3 The Court therefore will not
consider any failure to accommodate claim related to the denial of Willitts’ requests to not work
with O’Rourke.
In summary, the Court evaluates Willitts’ adverse employment actions claim as

challenging the September 2016 written warning and proposed transfer, and his failure to
accommodate claim to challenge ENGIE’s alleged failure to provide him a reasonable medical
leave after September 2016.
B. Qualified Individual
ENGIE asserts that Willitts has not been “qualified” to work for an employer, other than
himself, since his leave from ENGIE began in September 2016. See [ECF No. 166 at 7–8].
ENGIE bases this on Willitts’ own statements in two contexts. [Id. at 8–11]. First, in his August
2020 worker’s compensation application, Willitts stated that he was totally disabled from

3 While Willitts describes this and other requests as “accommodations or modifications,” see,
e.g., [ECF No. 173 ¶ 18], these conclusory statements are insufficient to establish them as
requests for reasonable accommodations for Willitts’ disability. “[An] employee’s request must
be sufficiently direct and specific, giving notice that she needs a special accommodation.” Reed
v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001) (citations and internal quotation
marks omitted). “At the least, the request must explain how the accommodation requested is
linked to some disability . The employer has no duty to divine the need for a special
accommodation where the employee merely makes a mundane request for a change at the
workplace.” Id. (citation omitted); see also Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 89
(1st Cir. 2012) (“The obligation is on the employee to provide sufficient information to put the
employer on notice of the need for accommodation . . . . This means not only notice of a
condition, but of a causal connection between the major life activity that is limited and the
accommodation sought.” (citations and internal quotation marks omitted)). Here, Willitts
detailed the reasons he gave Manning for not wanting to work with O’Rourke, [ECF No. 173
¶ 18], and these reasons made no reference to, or drew any “causal connection” to, his disability.
Considering his failure to accommodate claim as related to the May 24, 2016 denial would
therefore be an empty exercise. See Reed, 244 F.3d at 260 (“We need not concern ourselves
with the reasonableness of [plaintiff’s] accommodation, however, because [plaintiff] has failed to
prove another essential element of her burden: that she ever sufficiently requested the
accommodation in question.”).
September 19, 2016 through August 2020. [Id. at 8–9]. Second, at his deposition, Willitts
acknowledged that he has not been able to work for any employer since September 2016, and
would find it difficult to work for any employer. [Id. at 9–11]. ENGIE argues that these
statements preclude his claim that he could work with reasonable accommodations. ENGIE also

argues that Willitts has failed to propose a reasonable accommodation that would allow him to
work for an employer. [Id. at 10–11]. Willitts responds in his sur-reply that he is a “qualified”
individual. [ECF No. 176 at 6]. He further states that he had a “temporary medical problem”
that was exacerbated by ENGIE’s actions, including his wrongful termination in December 2016,
which turned his “temporary condition” into a “long term condition.” [Id.].
“Under the ADA, a ‘qualified individual’ is ‘an individual who, with or without
reasonable accommodation, can perform the essential functions of the employment position that
such individual holds . . . .’” Pena v. Honeywell Int’l, Inc., 923 F.3d 18, 27 (1st Cir. 2019)
(quoting 42 U.S.C. § 12111(8)). “For each of [his] ADA claims, [Willitts] must establish that he
was a ‘qualified individual’ at the time of [the alleged adverse action].” Thompson v. Gold

Medal Bakery, Inc., 989 F.3d 135, 141 (1st Cir. 2021) (citing 42 U.S.C. § 12112(a), (b)(5)(A)).
This analysis typically proceeds “in two steps: first, whether the individual can perform
the essential functions of her position; and second, if she is unable to perform those essential
functions, whether any reasonable accommodation by her employer would allow her to do so.”
Phelps v. Optima Health, Inc., 251 F.3d 21, 25 (1st Cir. 2001) (citation omitted).
i. Adverse Employment Actions Claim
As to Willitts’ adverse employment actions claim, the Court finds that Willitts was a
“qualified individual” when he received the written warning and proposed transfer on September
9, 2016. His previous performance review was favorable, and, in fact, he had been found to
“Exceed[] Expectations.” [2015 Performance Appraisal at 4]. The September 2016 written
warning may suggest that Willitts was having issues with performance, but it recommended a
transfer rather than a termination. [SOF ¶ 8]. Thus, ENGIE seemingly did not believe he was so
unfit for his position or any other that he could not perform its essential functions. See

Richardson v. Friendly Ice Cream Corp., 594 F.3d 69, 76 (1st Cir. 2010) (“The ADA expressly
provides that ‘consideration shall be given to the employer’s judgment as to what functions of a
job are essential, and if an employer has prepared a written description before advertising or
interviewing applicants for the job, this description shall be considered evidence of the essential
functions of the job.’” (quoting 42 U.S.C. § 12111(8))). Further, while Willitts has the ultimate
burden of proving he was a qualified individual, “[i]t is the employer’s burden ‘to come forward
with some evidence’ that a particular function is essential[.]” Id. (quoting Tobin, 433 F.3d at
107). ENGIE’s arguments all focus on the time period after Willitts went on leave in September
2016, and the only essential function ENGIE explicitly references is “attendance.” See [ECF
No. 166 at 10]. There is no evidence showing that Willitts was not performing this function (or

any other essential function) prior to September 9, 2016. The Court therefore finds, “indulging
all reasonable inferences in [Willitts’] favor[,]” Cochran, 328 F.3d at 6, that Willitts has met his
burden to show that he was a “qualified individual” for purposes of his adverse employment
actions claim.
ii. Failure to Accommodate Claim
On the other hand, as to Willitts’ Failure to Accommodate claim, the Court finds that
Willitts has not presented “definite, competent evidence,” Pleasantdale Condominiums, 37 F.4th
at 733, showing that he could perform the essential functions of his role at ENGIE, with or
without accommodation, after leaving ENGIE in September 2016.
It is undisputed that Willitts stopped working in September 2016. See [SOF ¶¶ 21, 22].
The First Circuit has made clear that “attendance is an essential function of any job.” Rios-
Jimenez v. Principi, 520 F.3d 31, 42 (1st Cir. 2008) (citing Waggoner v. Olin Corp., 169 F.3d
481, 485 (7th Cir. 1999) (“an employee who does not come to work cannot perform the essential

functions of his job”)) (further citations omitted). All jobs may not require physical presence,
but Willitts’ position, which involved operating and maintaining physical equipment, clearly did.
Willitts has therefore failed to show that he could perform an essential function of his position as
of September 2016. See Manning v. Abington Rockland Joint Water Works, 357 F. Supp. 3d
106, 119–20 (D. Mass. 2019) (“It is clear from the record that to perform the essential functions
of the office clerk position with the Water Works, the clerk should be physically present in the
office. [Plaintiff] points to no evidence to show that, without accommodation, [plaintiff] had the
ability to be present in the office for even half the work days in a given year. Thus, it is clear
that [plaintiff] could not perform the essential functions of her job without a reasonable
accommodation.”).

As to the second step of the analysis, Willitts has also failed to present evidence that a
reasonable accommodation would have allowed him to perform the essential functions of his
position. Willitts asserts in his sur-reply that if ENGIE had not terminated him in early
December 2016, as he alleges, his condition would not have been exacerbated, and he would
have been able to return to work shortly thereafter. [ECF No. 176 at 6]. Willitts also states that
documents had been sent to ENGIE with a scheduled date for his return, though he does not
attach those documents for the Court’s review. [Id.]. It is possible that Willitts is referencing a
November 23, 2016 letter from a medical provider that states that “he would not be able to return
to the ‘hostile work environment’ until after January 1, 2017.” [ECF No. 173-31 at 4]. The
Court finds this is not competent evidence for several reasons. First, Willitts’ assertions that he
would have been able to return, but for ENGIE’s alleged conduct, are speculative and
conjectural. See Cochran, 328 F.3d at 6; Pleasantdale Condominiums, 37 F.4th at 733. Second,
it is true that “a leave of absence and leave extensions are reasonable accommodations in some

circumstances,” Fiumara v. President and Fellows of Harvard Coll., 526 F. Supp. 2d 150, 157
(D. Mass. 2007) (citing Garcia–Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647–48 (1st
Cir. 2000) (further citation omitted)), aff’d, 327 F. App’x 212 (1st Cir. 2009), but “[a]n open-
ended or indefinite leave extension, however, is not reasonable[,]” id. (citing Watkins v. J & S
Oil Co., 164 F.3d 55, 61–62 (1st Cir. 1998)) (further citation omitted). The November 23, 2016
letter indicates only that Willitts would not be able to return until after January 1, 2017, precisely
the sort of “indefinite” leave extension that courts have found unreasonable. See id. What is
more, Willitts does not dispute that as of his January 8, 2017 email to ENGIE, he was still not
able to return to work, or provide a date for when he could return.
Further, as ENGIE notes, in his August 2020 worker’s compensation application, Willitts

claimed to be totally disabled as of September 19, 2016. He also acknowledged at his deposition
that he has not worked for an employer since the same date and would find it difficult to work
for any employer. Willitts’ speculation that he would have been able to work for an employer if
ENGIE had not terminated him in December 2016 is insufficient to overcome this evidence. See
Sullivan v. Raytheon Co., 262 F.3d 41, 47 (1st Cir. 2001) (“[T]o defeat [the employer’s] motion
for summary judgment, [the employee] must explain why the representations of total disability
he has made in the past are consistent with his current claim that he could perform the essential
functions of [his position] with reasonable accommodation.” (citing Cleveland v. Pol’y Mgmt.
Sys. Corp., 526 U.S. 795, 798 (1999))).
Finally, to the extent that Willitts contends he could work for an employer with an
accommodation that ensured the job would not be stressful, courts have found that such an
accommodation is unreasonable as a matter of law. See, e.g., Marino v. U.S. Postal Serv., 25
F.3d 1037 (1st Cir. 1994) (unpublished table decision) (“[Plaintiff] suggests as a reasonable

accommodation that he be protected from stress- producing situations at work. Such an
accommodation, however, has been deemed unreasonable as a matter of law.” (citing Pesterfield
v. Tenn. Valley Auth., 941 F.2d 437, 442 (6th Cir. 1991))); Manning, 357 F. Supp. 3d at 122
(“[A] proposed accommodation, which essentially amounts to making a busy workplace a stress-
free environment, or at least one in which [plaintiff] is shielded from negative feedback, ‘is an
unreasonable accommodation as a matter of law.’” (quoting Grillasca-Pietri v. Portorican Am.
Broad. Co., 233 F. Supp. 2d 258, 264 (D.P.R. 2002))).
Willitts’ failure to present evidence controverting ENGIE’s evidence that Willitts could
not perform in his position, with or without accommodation, is “fatal” to his claim. See
Manning, 357 F. Supp. 3d at 119 (“[Plaintiff’s] failure to respond [to movant’s adverse evidence]

or point to any evidence in support of the proposition that she could, in fact, perform the
essential functions of the job (with or without an accommodation) is fatal to her failure to
accommodate claim.”). Because Willitts cannot make out a prima facie case of discrimination
for his failure to accommodate claim, summary judgment must enter for ENGIE on this claim.
C. Adverse Employment Actions
ENGIE next argues that Willitts also cannot establish that it took an “adverse
employment action” against Willitts because of his disabilities. Specifically, ENGIE avers that
the written warning and proposed transfer are not “adverse employment action[s]” because they
were not “materially adverse” and did not “carry tangible consequences” to Willitts’
employment.” [ECF No. 166 at 14 (citing Bhatti v. Trs. of Bos. Univ., 659 F.3d 64, 73 (1st Cir.
2011))]. The Court agrees.
“To be adverse, an action must materially change the conditions of plaintiffs’ employ.”
Gu v. Bos. Police Dep’t, 312 F.3d 6, 14 (1st Cir. 2002) (citations omitted). “Generally, an

adverse employment action involves a discrete change in the terms and conditions of
employment, such as ‘hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing significant change in benefits.’” de Jesus v. Potter, 211
Fed. App’x 5, 9 (1st Cir. 2006) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761
(1998) (further citation omitted). “While a reprimand may constitute an adverse action, it must
carry with it tangible consequences in addition to correcting some workplace behavior that
management perceived as needing correction.” Abouhamad v. Bank of Am., Corp., No. 10-cv-
11133, 2012 WL 4023579, at *6 (D. Mass. Sept. 11, 2012) (citing Bhatti, 659 F.3d at 73)
(further citation omitted). The same is true for a proposed transfer. Demotions and
“disadvantageous transfers or assignments . . . may constitute adverse employment action[s],

subject to the facts of a particular case.” Colon-Fontanez v. San Juan, 660 F.3d 17, 37 (1st Cir.
2011) (citations and internal quotation marks omitted). Where a proposed transfer does not
occur, however, it does not constitute a material change to a person’s employment. See West v.
Potter, 540 F. Supp. 2d 91, 96 (D.D.C. 2008) (finding a “proposed transfer was not an adverse
employment action” because “an employee faced with a threatened employment action does not
suffer a cognizable injury from an action that does not occur.” (citing Forkkio v. Powell, 306
F.3d 1127, 1131 (D.C. Cir. 2002))) (further citation omitted). The evidence here shows that the
written warning may have ultimately led to a transfer, but because the evidence establishes that
the transfer did not occur, neither the warning nor the proposed transfer had a material impact on
Willitts’ employment. As such, neither constitutes an “adverse employment action” for purposes
of a discrimination claim. Gu, 312 F.3d at 14.
The Court therefore finds that Willitts has not established a prima facie case of
discrimination for his adverse employment actions claim, and summary judgment must therefore

also enter for ENGIE on this claim. The Court need not address ENGIE’s remaining arguments.
IV. CONCLUSION
ENGIE’s motion for summary judgment, [ECF No. 165], is GRANTED.
SO ORDERED.
March 20, 2023 /s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10200984. Public record. Not legal advice.