          United States Court of Appeals
                      For the First Circuit


No. 16-1306

                        HEIDI GERMANOWSKI,

                      Plaintiff, Appellant,

                                v.

PATRICIA HARRIS, individually and in her capacity as Register of
              Deeds; COMMONWEALTH OF MASSACHUSETTS,

                      Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Mark G. Mastroianni, U.S. District Judge]


                              Before

                       Howard, Chief Judge,
              Torruella and Kayatta, Circuit Judges.


     Andrea F. Nuciforo, Jr. and Nuciforo Law Group LLC on brief
for appellant.
     Heather A. Valentine, Assistant Attorney General, Government
Bureau, and Maura Healey, Attorney General of Massachusetts, on
brief for appellees.


                          April 12, 2017
           KAYATTA, Circuit Judge.        Heidi Germanowski challenges

the district court's order dismissing claims that her former

employer violated her rights under the Family and Medical Leave

Act of 1993 ("FMLA"), 29 U.S.C. §§ 2611–2654.              According to

Germanowski, the facts pleaded in her complaint plausibly allege

that her supervisor fired her because she sought leave protected

by the FMLA.   We disagree and thus affirm.

                                   I.

           Because this appeal follows a dismissal pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure, we accept

as true all well-pleaded facts in Germanowski's complaint and draw

all reasonable inferences in her favor.          See Carrero-Ojeda v.

Autoridad de Energía Eléctrica, 755 F.3d 711, 712 (1st Cir. 2014).

           Germanowski worked at the Berkshire Middle District

Registry of Deeds for more than a decade, ascending the ranks from

Recording Clerk to First Assistant Register.            For much of her

tenure, Germanowski worked alongside Patricia Harris, a defendant

in this action.     They enjoyed a strong friendship in addition to

a collegial working relationship. But sometime after Harris became

Germanowski's supervisor in January 2013, their relationship began

to   deteriorate,   culminating   in    Germanowski's    termination   in

February 2015.

           According to the complaint, the trouble started a little

over a year after Harris became Register.           Germanowski, then

                                  - 2 -
serving as First Assistant Register, began experiencing stress and

anxiety      accompanied      by   fatigue,      hair      loss,    aches,    and

gastrointestinal pain.        She sought medical attention, visiting her

primary care physician and other healthcare providers.                  She kept

Harris abreast of her symptoms and physician visits.

             A few months later, in June 2014, Harris allegedly began

pressuring Germanowski to support William Galvin, the Secretary of

the    Commonwealth     of   Massachusetts,     in   his    upcoming    bid   for

reelection.        Germanowski twice refused Harris's requests to make

financial contributions to Secretary Galvin's campaign committee.

Around the time of Germanowski's second refusal, Harris reassigned

certain tasks from Germanowski to other employees and boxed her

out of management meetings and decisions.               Harris also redoubled

her efforts to extract a financial contribution from Germanowski,

cautioning that "it would look bad" if she declined to make a

contribution and demanding that she defend her decision.                 Fearing

that   her    continued      employment   was   contingent     upon    making   a

contribution, Germanowski ultimately caved to the pressure in

August 2014 and contributed.

             The     following     month,       Germanowski        visited    her

gynecologist and complained of uncontrollable crying, weight loss,

anxiety, and other symptoms of stress.           The gynecologist diagnosed

Germanowski     with    anxiety    disorder.      Once     again,    Germanowski



                                     - 3 -
apprised Harris that she was seeking medical care and reported her

symptoms.

              Weeks after the diagnosis, in October 2014, Germanowski

suffered      a    nervous     breakdown     while        working.       Harris      drove

Germanowski        home,     notwithstanding       Germanowski's        protests       that

Harris was the cause of her stress and anxiety.                        Germanowski saw

her   primary        care     physician,     who        prescribed     medication       and

instructed her to contact a therapist.                    Over the following week,

Germanowski tried to connect with Harris to discuss her absence

from work and arrange coverage of her responsibilities.                        When they

finally connected, "Harris accused Germanowski of disloyalty,

and   .   .   .     of    inappropriately        informing     staff    members      about

Germanowski's        condition."         According        to   the   complaint,      these

accusations worsened Germanowski's physical and emotional state.

              Germanowski informed Harris that she had begun treatment

with both a psychiatrist and a therapist. She then tried to return

to work on October 20, two and a half weeks after her nervous

breakdown, but Harris suggested another week of rest.                         They met at

the conclusion of that week and agreed to Germanowski's return to

work the following day, October 28.

              The    next     several    weeks     were     uneventful.         In   early

December, however, Harris asked a question of Germanowski in the

presence      of    another     employee.         Germanowski        alleges    that    the

question      was        "intended   .   .   .     to     embarrass     and    humiliate

                                         - 4 -
Germanowski,       and    to    have   significant    emotional    and    physical

consequences for Germanowski," and that it did so.                 Germanowski's

complaint does not reveal what the question was.

             Later that month, on Christmas Day, Germanowski received

a sport pistol from her husband as a gift.                She told Harris, who

was    familiar          with    Germanowski's       sport     shooting      hobby.

Approximately one month later, on January 28, 2015, Harris called

Germanowski's husband to express her discomfort with the gift and

ask whether Germanowski carried it to work.               Germanowski's husband

emphasized during their telephone conversation that Germanowski

posed no danger to herself or others and denied that his wife

carried the pistol at work.

             The next day, Harris accused Germanowski of having an

affair.     According to the complaint, the accusation--which lacked

any factual basis--was "made . . . to provoke a response from

Germanowski" and "had its intended effect."                  The complaint does

not describe that effect.              It does allege that, later the same

day, Harris left Germanowski two voicemails directing her not to

come   to   work    the     following    day,   Friday,      January   30.    When

Germanowski went to the Registry building on the morning of

January 30 to drop off keys to a basement storage room, a court

security officer denied her access to the building.                    Germanowski




                                        - 5 -
claims that Harris told the officer and others than she posed a

safety threat.

           Two days later, on Sunday, February 1, Harris sent

Germanowski a text message indicating that they needed to speak

that day because Harris would not have time to do so on Monday or

Tuesday.   It is unclear from the complaint whether they connected

that day or whether Germanowski reported to work the following

day.   But on the afternoon of Monday, February 2, Harris left word

with Germanowski not to come to work on February 3.

           At this point, Germanowski feared that her employment

was "in jeopardy."      She sent an email to Harris on February 3

stating "that she would be out sick for the week, and that she was

scheduled to see her doctor."        Two days later, on February 5,

Germanowski saw her psychiatrist, who gave her a letter advising

her to take a leave of absence in order to pursue treatment.

Germanowski does not allege that she provided this letter to anyone

at the Registry or that anyone at the Registry otherwise obtained

it.

           The   next   day,   February   6,   Germanowski   received   a

voicemail message from the chief court officer. The message stated

that Germanowski was terminated effective immediately.          Moments




                                  - 6 -
later, Germanowski received a written termination notice from

Harris via email.

           Germanowski     brought     this    lawsuit      against    Harris

(individually and in her official capacity) and the Commonwealth

of Massachusetts, alleging in a five-count complaint that the

defendants violated the FMLA as well as Massachusetts statutory

and common law.         According to the complaint, the defendants

violated Germanowski's FMLA rights, discriminated against her on

the basis of a covered impairment, illegally required her to

participate     in   prohibited   political    activity,    and    wrongfully

terminated her with actual malice.

           In   subsequent   course,   the     district    court   granted   a

motion by the defendants to dismiss the case under Rules 12(b)(1)

and 12(b)(6) of the Federal Rules of Civil Procedure.              The court

dismissed on Eleventh Amendment grounds all of Germanowski's FMLA

claims against the Commonwealth as well as those FMLA claims

against Harris in her official capacity seeking monetary damages.

It then considered the remaining FMLA claims against Harris and

dismissed them because Germanowski's complaint failed to allege

facts stating, or supporting the inference, that Harris knew or

had reason to know at the time of Germanowski's termination that

Germanowski intended to take FMLA-protected leave.           Because Harris

lacked   such   knowledge,   the    district    court     reasoned,   it   was

implausible that Harris acted on account of it when terminating

                                   - 7 -
Germanowski.     Having dismissed Germanowski's FMLA claims with

prejudice, the district court declined to exercise supplemental

jurisdiction over the remaining state law claims and dismissed

them without prejudice.       This appeal followed.

                                      II.

                                      A.

            Germanowski appeals the portion of the district court's

order dismissing certain FMLA claims against Harris not barred by

the   Eleventh   Amendment.     She    also   asks   this      court   to   order

reinstatement of her state law claims upon reversing the dismissal

of her FMLA claims.    "We review orders granting motions to dismiss

under Rule 12(b)(6) de novo, applying the same criteria as the

district    court."    Carrero-Ojeda,        755   F.3d   at    717    (emphasis

omitted).    In undertaking this review, we ask whether the well-

pleaded factual allegations, viewed in the light most favorable to

the plaintiff, state a claim for which relief can be granted.                See

Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1, 7 (1st Cir. 2011)

(citing Fed. R. Civ. P. 12(b)(6)).          A complaint clears this hurdle

when the facts alleged, which we take as true, and the inferences

they support, which we draw in the plaintiff's favor, "plausibly

narrate a claim for relief." Schatz v. Republican State Leadership

Comm., 669 F.3d 50, 55 (1st Cir. 2012).            By "plausibly," we mean

"something more than merely possible," id., or "merely consistent



                                   - 8 -
with a defendant's liability," Ocasio–Hernández, 640 F.3d at 11

(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

             "It   is   not    necessary      to   plead   facts   sufficient      to

establish a prima facie case at the pleading stage."                     Rodríguez-

Reyes v. Molina-Rodríguez, 711 F.3d 49, 54 (1st Cir. 2013).                     But

this does not mean "that the elements of the prima facie case are

irrelevant to a plausibility determination in a discrimination

suit. . . . Those elements are part of the background against which

a plausibility determination should be made."                 Id.    In order to

give rise to a "plausible" claim, a complaint must plead "factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged."                   Iqbal,

556   U.S.   at    678.       While   this     standard    does    not    impose    a

"probability requirement," it does require "more than a sheer

possibility that a defendant has acted unlawfully."                 Id.   Engaging

in this plausibility inquiry is "a context-specific task that

requires the reviewing court to draw on its judicial experience

and common sense."         Id. at 679.

                                         B.

             The   FMLA,      in   relevant    part,   entitles     "an    eligible

employee . . . to a total of 12 workweeks of leave during any 12-

month period . . . [b]ecause of a serious health condition that

makes the employee unable to perform the functions of the position

of such employee."         29 U.S.C. § 2612(a)(1)(D).          The leave can be

                                       - 9 -
unpaid.   Id. § 2612(c).        "Upon an employee's return, her employer

must reinstate her to the same or an equivalent position, without

any loss of accrued seniority."          Carrero-Ojeda, 755 F.3d at 718

(citing Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d

325, 330 (1st Cir. 2005)); see also 29 U.S.C. § 2614(a)(1).

           The    pertinent     regulations   place   the    burden     on    the

employee to notify the employer of the need for such leave.                   See

29 C.F.R. § 825.303.            Where the leave is unforeseeable, "an

employee must provide notice to the employer as soon as practicable

under the facts and circumstances of the particular case."                    Id.

§ 825.303(a).     In providing such notice, the employee must supply

"sufficient information for an employer to reasonably determine

whether   the    FMLA     may   apply   to   the   leave    request."         Id.

§ 825.303(b).     What constitutes "sufficient information" depends

on whether the employee has received leave for that FMLA-qualifying

reason before.         If she has, "the employee must specifically

reference either the qualifying reason for leave or the need for

FMLA leave."     Id.    If she has not, "the employee need not expressly

assert rights under the FMLA or even mention the FMLA."                 Id.   In

either case, however, the employee does not satisfy this burden

merely by calling in sick.          See id. ("Calling in 'sick' without




                                    - 10 -
providing    more   information    will   not      be   considered    sufficient

notice to trigger an employer's obligations under the Act.").

            To   protect   the    exercise    of     the      substantive    rights

described above, the FMLA makes it "unlawful for any employer to

interfere with, restrain, or deny the exercise of or the attempt

to exercise" such rights.          29 U.S.C. § 2615(a)(1).            Under this

provision, employees may assert so-called "interference" claims

alleging deprivations of their substantive rights.                  Colburn, 429

F.3d at 331.      We also permit employees to advance claims under a

"retaliation" theory based on their employers' "use [of] the taking

of FMLA leave as a negative factor in employment actions, such as

hiring,     promotions     or    disciplinary        actions."        29     C.F.R.

§ 825.220(c); see also Colburn, 429 F.3d at 330-32 (identifying

the basis of retaliation claims and exploring the overlap between

retaliation and interference claims).

            Germanowski's complaint might be read as seeking to

assert both an interference claim and a retaliation claim. Without

objection, the district court so construed it. On appeal, however,

Germanowski      focuses   her    challenge     on      the    district     court's

dismissal of her FMLA retaliation claim.                      This narrowing of

Germanowski's focus makes good sense because the interference

claim necessarily fails if Germanowski was properly discharged.

Carrero-Ojeda, 755 F.3d at 722 ("[T]he FMLA does not protect an

employee from discharge for any reason while she is on leave--

                                    - 11 -
rather, . . . it protects her only from discharge because she

requests or takes FMLA leave.").          We therefore also train our

analysis of this appeal on Germanowski's contention that the

district court erred in dismissing her FMLA retaliation claim.

                                     C.

          We begin with the elements of a prima facie case of FMLA

retaliation, which "are useful 'as a prism to shed light upon the

plausibility of a [plaintiff's] claim.'"           Id. at 719 (alteration

in original) (quoting Rodríguez–Reyes, 711 F.3d at 54).          The prima

facie case has three elements that Germanowski need establish:

"(1) she availed herself of a protected FMLA right; (2) she was

'adversely affected by an employment decision;' and (3) 'there was

a causal connection between [her] protected conduct and the adverse

employment action.'"     Id. (alteration in original) (quoting Orta–

Castro v. Merck, Sharp & Dohme Química P.R., Inc., 447 F.3d 105,

107 (1st Cir. 2006)).

          Like the district court, we find that the complaint's

allegations   lack   a   plausible   theory   of    causation   connecting

Germanowski's attempt to exercise FMLA rights and her termination.

Our reasons are slightly different than the district court's but

are entirely consistent with its result.            See Rocket Learning,

Inc. v. Rivera-Sánchez, 715 F.3d 1, 8 (1st Cir. 2013).

          The district court homed in on the February 3 email,

finding that it gave no notice that Germanowski was asserting any

                                - 12 -
right to unpaid leave of up to twelve weeks for a serious health

condition.1     Rather, the cryptic email, within its four corners,

bore many of the attributes of a simple "[c]alling in 'sick'"

missive.   29 C.F.R. § 825.303(b).        So construing it, the district

court reasoned that Harris could not have retaliated against

Germanowski for an assertion of FMLA rights that did not plausibly

appear to have been made.     See Ameen v. Amphenol Printed Circuits,

Inc., 777 F.3d 63, 70 (1st Cir. 2015) ("To demonstrate that he was

fired in retaliation for engaging in FMLA-protected conduct, [the

plaintiff]    'must   show   that   the   retaliator   knew   about   [his]

protected activity--after all, one cannot have been motivated to

retaliate by something he was unaware of.'" (second alteration in

original) (quoting Medina–Rivera v. MVM, Inc., 713 F.3d 132, 139

(1st Cir. 2013))).

             Germanowski's email certainly could have been more clear

concerning the reason for which she was missing work.         See Collins

v. NTN-Bower Corp., 272 F.3d 1006, 1008-09 (7th Cir. 2001) (holding

that where plaintiff had previously advised supervisors of her

depression, which "incapacitated her on a particular day[,] she

could have made clear the 'serious' nature of her condition by

referring to knowledge already in the employer's possession"; by


     1 Contrary to Germanowski's argument on appeal, the complaint
does not "detail[] the repeated communications she had with
defendants on and after February 2, 2014 regarding her leave." It
instead describes only one communication: this February 3 email.

                                    - 13 -
instead saying only that she was "sick," plaintiff "not only

withheld important information from the employer but likely threw

it off the scent").

            We nevertheless do not settle on the lack of notice as

a reason to dismiss the complaint.      The allegations here depict

Germanowski's employer as already knowing that she was suffering

from a chronic and significant health condition, symptoms of which

were recently obvious to her employer.    In this context, a notice

that Germanowski would be out for the week and would be seeing her

doctor might arguably be read as informing her employer that she

would be absent due to a serious health condition.

            We rest our decision, instead, on an alternative ground

addressed and argued in the parties' briefs on appeal.         In a

nutshell, no matter how one interprets the February 3 email, the

allegations in the complaint fail to make it plausible that the

email triggered the firing.   Rather, Germanowski's own allegations

make it almost certain that the decision to fire her was already

in the works and had nothing to do with the email.

            To explain why this is so, we begin with the allegations

that describe Harris's treatment of Germanowski's prior illness-

related absences.     The complaint alleges that, during the year

preceding     Germanowski's   termination,    Harris   consistently




                               - 14 -
accommodated Germanowski when she felt unable to work.2                        As best

the complaint reveals, whenever Germanowski asked to stay out of

work, Harris agreed, and there is no indication that Harris

required that the absences be unpaid or even reduced Germanowski's

available FMLA leave time.               As Germanowski describes it, Harris

actually urged Germanowski to stay out longer during her leave of

absence in October 2014.3              This record provides poor soil in which

to plant a claim that Harris's receipt of a notice that Germanowski

would       be    out   sick    for    the   week    precipitated      Germanowski's

termination.

                 Germanowski's        principal     rejoinder     is   to     urge   an

inference of a causal link between the February 3 email and the

firing because the firing came fast on the heels of the email.

Certainly there are circumstances in which a "'[v]ery close'

temporal         proximity     between   protected     activity    and   an    adverse

employment action can satisfy a plaintiff's burden of showing

causal connection."             Sánchez-Rodríguez v. AT & T Mobility P.R.,



        2
       Germanowski argues in her brief on appeal that Harris made
"relentless barbs and negative comments concerning . . . her leave
taking   for   months   before  she   was   discharged."      That
characterization lacks support in the complaint's allegations.
        3
       Germanowski advances a perfunctory argument without any
cited support to the effect that we should ignore these pleaded
facts as merely pleading in the alternative. While we doubt this
is so, we need not decide because the argument is waived. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived.").

                                          - 15 -
Inc., 673 F.3d 1, 15 (1st Cir. 2012) (quoting Calero–Cerezo v.

U.S. Dep't of Justice, 355 F.3d 6, 25 (1st Cir. 2004)).      Imagine

an employee with an unblemished record and steady performance who,

shortly after requesting FMLA leave, is terminated by her employer

without explanation.    In such circumstances, temporal proximity

would most likely suffice to allege a plausible claim.        At the

same time, the notion that temporal proximity is not always enough

must also be correct.      Imagine an employee shoots her boss,

immediately asks for FMLA leave, and gets fired the next day.     We

would hope that our common sense would protect us from saying that

the close proximity between the FMLA request and the termination

makes retaliation plausible.

          Here, there was no shooting.   But the allegations relate

a history of an emotionally fraught and longstanding dispute

between the employer and the employee, an expressed fear by the

employer that the employee may have brought a gun to work, and a

subsequent lock-out of the employee, all in a context that caused

even Germanowski to suspect imminent termination, and all before

she sent her email saying she would be out sick.     To think that an

employer in such a case fired Germanowski because she asked for

some time off while she was already locked out is to suggest that

common sense borne of real world experience has no role to play in

the plausibility analysis.     We think otherwise.   As the district

court observed, the "FMLA is not a tool an employee can use to

                                - 16 -
delay or avoid a termination."       Germanowski v. Harris, No. 15-CV-

30070, 2016 WL 696097, at *4 (D. Mass. Feb. 19, 2016).

           Germanowski's remaining arguments fare even worse.         She

contends that Harris was out to get her, intentionally aggravated

her condition, and began taking away her responsibilities.            But

that, too, all preceded the February 3 email, and thus cuts against

the causal connection Germanowski's complaint need make plausible.

Germanowski alleges that Harris accused her of disloyalty for

telling other employees about her condition, but she offers no

reason why such an accusation bears on the issue at hand.       All in

all, her arguments--even considered cumulatively--simply reinforce

the    plausibility    of   other,   preexisting   motives   behind     a

termination that had been set in motion before the February 3

email.

           To summarize, the only issue raised on appeal is whether

the complaint plausibly alleges that Harris terminated Germanowski

in retaliation for asserting rights protected by the FMLA.      Pagán-

Colón v. Walgreens of San Patricio, Inc., 697 F.3d 1, 8 (1st Cir.

2012) ("[A] crucial component of an FMLA retaliation claim is some

animus or retaliatory motive on the part of the plaintiff's

employer that is connected to protected conduct.").           For the

foregoing reasons, we agree with the district court that it does

not.

           Affirmed.

                                 - 17 -
