          United States Court of Appeals
                      For the First Circuit

No. 11-2246

                        KATHERINE KELLEY,

                      Plaintiff, Appellant,

                                v.

              CORRECTIONAL MEDICAL SERVICES, INC.,

                       Defendant, Appellee.



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

           [Hon. D. Brock Hornby, U.S. District Judge]
       [Hon. Margaret J. Kravchuk, U.S. Magistrate Judge]



                              Before

                       Lynch, Chief Judge,
              Torruella and Lipez, Circuit Judges.



     Guy D. Loranger, with whom Nichols, Webb & Loranger, P.A., was
on brief, for appellant.
     Matthew J. LaMourie, with whom Michael G. Messerschmidt and
Preti, Flaherty, Beliveau & Pachios, LLP was on brief, for
appellee.



                         February 6, 2013
                LIPEZ, Circuit Judge. Plaintiff Katherine Kelley appeals

from the district court's grant of summary judgment in favor of

defendant        Correctional       Medical      Services,      Inc.    ("CMS")   on   her

retaliation          claims   under      the   Americans     with      Disabilities    Act

("ADA"), 42 U.S.C. § 12203(a), and the Maine Human Rights Act

("MHRA"), Me. Rev. Stat. Ann., tit. 5, § 4572(2).                       Kelley contends

that the district court erred in finding that she had failed to

raise a genuine dispute of material fact as to whether CMS's stated

reason for her termination was a pretext for retaliatory animus.

Concluding that Kelley has presented sufficient evidence to bring

to   a       jury,    we   vacate   the    entry     of   summary      judgment   on   her

retaliation claims.1

                                               I.

                The facts are drawn from the deposition testimony and

affidavits, as well as documentary evidence.                            We recount the

relevant events in the light most favorable to the nonmoving party,

see Roman v. Potter, 604 F.3d 34, 38 (1st Cir. 2010), and draw all

reasonable           inferences     in   her    favor,    see    Acevedo-Parrilla       v.

Novartis Ex-Lax, Inc., 696 F.3d 128, 131-32 (1st Cir. 2012).




         1
       The district court also granted summary judgment on Kelley's
claim for failure to accommodate under the ADA and her state law
slander claim. Kelley has not raised those claims on appeal and
they are therefore waived. Rodríguez v. Mun. of San Juan, 659 F.3d
168, 175 (1st Cir. 2011).

                                               -2-
A.    The CMS Facilities and Kelley's Job Responsibilities

              CMS provides medical staffing and health care services

for the inmates at the Maine State Prison.                  Kelley is a licensed

practical nurse and began employment with CMS at the prison in

spring 2007.

              CMS staff treats inmates at the prison in five locations.

Three of these are relevant here: the main clinic, the infirmary,

and   the   "close   unit."         In   the   main     clinic,    inmates   receive

treatment for various medical issues.                 Patients similarly receive

treatment in the infirmary, but can remain there for longer periods

or overnight if they require constant monitoring.                    The close unit

serves as a site for distributing medication to the inmates.

              Nurses stationed at the main clinic bear responsibility

for   the   narcotics      count,    also      called    "the     count."    At    the

conclusion of each shift, the outgoing nurse and the incoming nurse

count the narcotics stored at the clinic together, after which the

outgoing nurse gives the keys to the clinic to the incoming nurse.

The   count    and   the   handover      of    keys     signal    the   transfer    of

responsibility for the main clinic from one nurse to the other.

              Responsibility for the main clinic also includes the

obligation to respond to medical emergencies, called "code blues."

A code blue typically requires personnel on duty to respond from

their station to the place where the inmate was located within a

certain time. Code blues sometimes require personnel to respond to


                                         -3-
locations physically distant from their stations, bringing with

them emergency medical equipment, such as a stretcher.                 During a

code blue, one staff member typically remains behind in the clinic

to call a doctor and prison security, as well as pull the patient's

charts.

            During Kelley's employment, most of her regular shifts

were in the close unit, but she worked at times in other locations,

including the infirmary.        She did not express a preference for

working    in   one   unit   over   another.     Toward    the   end    of   her

employment, her assignments sometimes changed on short notice.

Kelley knew how to conduct the narcotics count as part of her

responsibilities.

B.   Kelley's Disability and Her Interactions with Kesteloot

            In July 2007, Kelley shattered the right side of her

pelvis during a horseback riding accident.                As a result, she

required    surgery    and   took   a    leave   of   absence    that    lasted

approximately six weeks.

            Theresa Kesteloot, Kelley's supervisor, had been a CMS

employee since July 2006, and was transferred to Maine State Prison

sometime during Kelley's leave of absence.            Before Kelley returned

to work, a representative of CMS's Human Resources Department sent

her an email stating that if she could not return to work after her




                                        -4-
leave of absence, she would be reduced to PRN status.2          The email

referred to Kesteloot having "an issue about her and PRN status,"

and       suggested   that   Kelley    contact    the   Human   Resources

representative to discuss the matter further.           Kelley also avers

that during her leave of absence, Kesteloot told her on the phone

that she would be fired if she did not work full time after her

leave and that she did not want Kelley to return to work on an as

needed basis.

              On September 17, 2007, Kelley returned to work with a

medical note outlining her restrictions.         The note stated that she

should use crutches for ambulation, she could not use her hands for

lifting, and her ability to bend and squat was limited.          The note

also indicated that she could lift, push, and pull objects as long

as she stayed seated.3

              The first night Kelley returned to work, Kesteloot told

her that her doctor's note regarding her medical restrictions had

not been provided on the appropriate CMS form, and that Kelley

could not commence working until she provided a doctor's note on

the correct form.      The director of nursing overruled Kesteloot and

permitted Kelley to work her shift.         As Kesteloot was providing


      2
       "PRN" stands for "pro re nata," a Latin phrase that roughly
translates to "as needed."
      3
       Kelley was subsequently given two more doctor's notes in
October and December of 2007, which stated that she was permitted
to use crutches or a wheelchair at work, and that bending and
squatting should be limited to infrequent episodes during the day.

                                      -5-
Kelley with the proper form, however, she asked Kelley, "seriously,

what are your expectations?" Kelley responded that she intended to

return to work with the use of a cane.

            During the first three months after Kelley returned to

work, she worked primarily in the infirmary and the main clinic.

Kelley "sometimes" responded to code blues if they were in other

units; "once or twice" she used crutches to respond to code blues

in the close or medium unit.    After some time, Kelley returned to

her pre-injury assignment in the close unit.        She nonetheless

worked in the main clinic when necessary.

            Throughout 2008, Kelley's leg and health problems impeded

her ability to work double shifts and she began using a cane at

work.    Kesteloot told her not to use the cane until and unless she

obtained medical authorization to do so.4       In response, Kelley

procured notes from physicians stating that she should be permitted

to use a cane; these notes also limited her to working only 10.5

hours at a time.5




     4
       In April 2008, Kesteloot wrote Kelley a memo informing her
that her restriction sheet had expired, and that until she
submitted a new restriction form, "there are no restrictions
concerning your work."
     5
       At various points in her briefs and deposition testimony,
Kelley states that Kesteloot "took away" her cane, suggesting that
Kesteloot removed her cane by force.     This contention finds no
support in the record, which shows only that Kesteloot forbade her
from bringing the cane to work until she provided a doctor's note
authorizing its use.

                                 -6-
            Kelley avers that on several occasions after her return,

Kesteloot suggested that she was misrepresenting the extent of her

injuries and that she would be unable to walk if she had truly

fractured her pelvis.6      Kesteloot also consistently criticized

Kelley's job performance, and put written comments that she had not

seen before in her employment file.     Violet Hanson, a member of CMS

management, told Kelley that Kesteloot "wanted [her] gone."

            In July 2008, Kelley's medical providers recommended that

she have a second hip surgery, which would likely require another

lengthy leave of absence.     Kelley testified that she "believe[s]

she had a discussion" with Kesteloot concerning her second surgery.

C.   The October 17, 2008 Night Shift

            On the night shift of October 17, 2008, which runs from

10 PM to 7:30 AM, matters came to a head between Kelley and

Kesteloot.    Although Kelley was on vacation on that date, she

received a call asking her to take a shift in the close unit in

place of another nurse who had been originally scheduled to staff

the unit.    She arrived for work at around 10 PM.    By the time she

arrived, however, a second employee also needed a substitute,

requiring a staffing reshuffle.    Since a nurse was not required to



     6
       The record does not disclose the dates these incidents took
place. Kelley's statement of material facts states that the "last"
of these conversations took place on July 22, 2008, but the only
evidence cited to support this contention is Kelley's affidavit,
which states that these incidents took place on "three occasions"
without specifying when.

                                  -7-
staff the close unit until it was time to set up the medications at

around 3:30 or 4 AM, Kelley's assignment was changed to the main

clinic without her knowledge.

          Bruce Lumsden was the registered nurse on duty in the

main clinic when Kelley arrived.      Kelley noted the alteration in

her assignment, and discussed the matter with Lumsden. Kelley told

him of her mobility restrictions and stated that her leg was

bothering her that day. She expressed concern about her ability to

respond to a code blue, in part because she would have difficulty

lifting the stretcher.   She asked to switch responsibilities with

Ann Voorhees, a nurse who was scheduled to work in the infirmary,

since the infirmary was generally a lighter assignment than working

in the clinic.   Lumsden responded that Kelley should ask Voorhees

to switch positions.

          Kelley then approached Voorhees and requested the switch,

but Voorhees initially refused.    Lumsden then left Kelley in the

main clinic alone and went to speak to Voorhees.    Upon his return,

he informed Kelley that he and Voorhees had spoken with Kesteloot

via telephone, and that Voorhees had agreed to come out of the

infirmary since that location did not require constant supervision.

Pursuant to Kesteloot's instructions, Kelley and Voorhees were to

staff the main clinic together, and the latter would do any

"running around" that was needed. After this conversation, Lumsden




                                -8-
did the narcotics count for the main clinic with another nurse,

Deborah Hill, and left.

            Contrary to the agreed-upon arrangement, Voorhees refused

to leave the infirmary, stating that she had barely slept the night

before    and   did   not   want    to     take       on    the   additional    clinic

responsibilities.      Kelley told Hill that she could not staff the

clinic alone due to her leg problems and her lack of familiarity

with the position.      She further noted that responsibility for the

main clinic would obligate her to respond to code blues and that

staffing the clinic would be too stressful for her.7                   Kelley stated

that she wanted to go home rather than assume responsibility for

the main clinic.      Hill, who had already worked two shifts prior to

the night shift, wanted to leave work, but could not do so until

she   did   the   narcotics        count       with        another   nurse,    thereby

transferring responsibility for the main clinic.

            Kelley then called Kesteloot at home and requested her

help in getting Voorhees to leave the infirmary and assist Kelley

in the main clinic. The call was transferred to the infirmary, and

Voorhees got on the line and spoke with Kesteloot.                            Voorhees

subsequently came to the main clinic and told Kelley that the three

of them, as well as Hill, would speak together about the situation,

with Kesteloot participating via speakerphone.


      7
        Kelley testified that she believed she "could have"
responded to code blues, but that doing so would have been awkward
and that people would have laughed at her.

                                         -9-
D.   The Speakerphone Conversation and Aftermath

                 During the pivotal speakerphone call, Kesteloot attempted

to enforce her original plan of having Voorhees leave the infirmary

to assist Kelley in the main clinic.                Kesteloot told Kelley,

however, that "it was only fair" that Kelley conduct the narcotics

count for the main clinic because Voorhees had already done the

count in the infirmary.          Hill and Kelley mentioned that Hill had

already conducted a proper count with Lumsden. Kesteloot responded

that Kelley should conduct the count with Hill nonetheless, but

Kelley reiterated that the count had already been done and refused

to accept the clinic keys.8           She expressed her belief that the main

clinic assignment would "require[] too much physical activity" and

that       she     did   not   feel     "comfortable    with   the     physical

responsibilities of [being in] charge in the clinic."9           Kelley also

made a remark about leaving work because she could not accept

responsibility for the clinic.             Kesteloot responded that if she

left, she would be fired and reported to the Board of Nursing for

abandoning her post.




       8
      Kelley quibbles with the characterization that she "refused"
responsibility for the clinic, but during her deposition she
herself stated that she "refused to accept the keys."
       9
       These quotations come from              Hill's   recollection    of   the
crucial speakerphone conversation.

                                        -10-
            Kesteloot asked Kelley if she was "refusing to go and

count the narcotics and sharps10 in the clinic as your supervisor

is asking you to do," and noted that refusing to take the keys was

tantamount to disobeying a direct order.       Kelley expressed her

willingness to remain on duty in the main clinic, but persisted in

refusing to do the narcotics count.

            At some point in the midst of the call, Voorhees stated

that she would "do it all," including the narcotics count in the

main clinic.    The last thing Kesteloot stated on the speakerphone

call was that she would call back to the infirmary to speak with

Voorhees alone.    The call had taken about ten minutes in total.

            After the speakerphone call, Kelley remained in the

clinic and     began   doing paperwork.   Voorhees   returned   to   the

infirmary and had a separate phone conversation with Kesteloot, who

asked Voorhees to have security call her at home so that she could

arrange to have Kelley escorted off the premises.       Kesteloot had

two security officers escort Kelley out of the building at around

midnight.

            After Kesteloot spoke with security, she became nervous

about her decision to remove Kelley and reviewed the CMS Success

Guide, a personnel manual for CMS employees.     The guide contained

language indicating that refusing the main clinic assignment was a


     10
       The term "sharps" refers to devices such as needles and
scissors that could cause wounds or punctures in those handling
them.

                                  -11-
serious disciplinary offense.     After preparing her own written

statement and obtaining one from Voorhees, Kesteloot submitted a

written recommendation to her superiors on October 28, 2008,

stating that Kelley should be terminated for failure to carry out

her supervisor's reasonable instruction.   This recommendation was

also provided to CMS's Human Resources Division, which agreed with

Kesteloot's assessment.11   Kelley was fired the next day.

          Kelley then filed a complaint in the district court

alleging, inter alia, that Kesteloot recommended her termination in

retaliation for Kelley's request for an accommodation on the night

of October 17, 2008.   The case was referred to a magistrate judge,

who issued a lengthy memorandum opinion granting summary judgment

in CMS's favor.   The court ruled that Kelley had failed to adduce

evidence that Kesteloot's stated basis for terminating Kelley was

pretextual, and concluded that Kelley's evidence of retaliatory

animus was too conclusory and speculative to take to trial.   After

appellant filed an objection, the district court heard argument on




     11
        The parties disagree as to whether Kesteloot or the HR
department had the final say as to whether Kelley should be
terminated. Kesteloot was undisputedly part of the decisionmaking
process, however, and CMS does not contend that the HR department's
decision somehow broke the causal chain leading to Kelley's
termination. Accordingly, this distinction is immaterial. See
Sánchez-Rodríguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 15 (1st
Cir. 2012) (observing that retaliation claim requires plaintiff to
point to "'some evidence of retaliation by a pertinent
decisionmaker'" (quoting Randlett v. Shalala, 118 F.3d 857, 862
(1st Cir. 1997)).

                                -12-
the matter and subsequently affirmed the magistrate judge's ruling

in a brief order.     This timely appeal followed.

                                     II.

            To survive summary judgment on a retaliation claim, the

plaintiff "must establish a genuine issue of material fact as to

whether [s]he . . . was retaliated-against within the meaning of

the ADA."    Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 32

(1st Cir. 2010) (citing Fed. R. Civ. P. 56(c)).12             We review the

district    court's    grant   of   summary   judgment   de    novo.     See

Cabán-Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir.

2007).    "Summary judgment is appropriately granted where there is

no genuine issue of material fact, and the moving party is entitled

to judgment as a matter of law."      Vives v. Fajardo, 472 F.3d 19, 21

(1st Cir. 2007).      In reviewing the facts, we "draw all reasonable

inferences in the light most favorable to the nonmovant."              Cabán-

Hernández, 486 F.3d at 8.

A.   Retaliation Claims Under the ADA

            A retaliation claim under the ADA is analyzed under the

familiar burden-shifting framework drawn from cases arising under

Title VII.    See Freadman v. Metro. Prop. and Cas. Ins. Co., 484



     12
        Generally, disability-related claims under the MHRA are
"construed and applied along the same contours as the ADA." Dudley
v. Hannaford Bros. Co., 333 F.3d 299, 312 (1st Cir. 2003). Kelley
does not assert that her state law claims are distinguishable in
any material way from her federal claims, so we apply the same
analysis to both.

                                    -13-
F.3d 91, 106 (1st Cir. 2007); see also Soileau v. Guilford of

Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997) (observing that

"guidance on the proper analysis of [an] ADA retaliation claim is

found in Title VII cases").             To make out a prima facie retaliation

claim, the plaintiff must show that: "(1) she engaged in protected

conduct; (2) she experienced an adverse employment action; and (3)

there was a causal connection between the protected conduct and the

adverse    employment         action."        Calero-Cerezo    v.    U.S.    Dep't   of

Justice, 355 F.3d 6, 25 (1st Cir. 2004).                  Once the plaintiff has

made a prima facie showing of retaliation, the defendant "must

articulate a legitimate, non-retaliatory reason for its employment

decision."       Id. at 26.       If the defendant meets this burden, the

plaintiff     must     show    that     the   proffered   legitimate        reason    is

pretextual     and     that    "the     job   action   was    the    result    of    the

defendant's retaliatory animus." Id. (citing St. Mary's Honor Ctr.

v.   Hicks,      509    U.S.     502,     510-11    (1993)).         Requesting       an

accommodation is protected conduct under the ADA's retaliation

provision.       Freadman, 484 F.3d at 106.

            The district court found that Kelley had made out a prima

facie retaliation claim, and that CMS had adduced sufficient

evidence    of    a    legitimate,       non-discriminatory         reason    for    her

termination, namely, Kelley's refusal to obey her supervisor's

instruction.       The only issues on appeal are whether the district

court erred in concluding that Kelley failed to raise a genuine


                                          -14-
dispute of material fact as to pretext and retaliatory animus.

While summary judgment may be appropriate even "'where elusive

concepts such as motive or intent are at issue,'" Vives, 472 F.3d

at 21 (quoting Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st

Cir. 2003)), we have stated that "where a plaintiff . . . makes out

a prima facie case and the issue becomes whether the employer's

stated nondiscriminatory reason is a pretext for discrimination,

courts must be 'particularly cautious about granting the employer's

motion for summary judgment.'" Hodgens v. Gen. Dynamics Corp., 144

F.3d 151, 167 (1st Cir. 1998) (quoting       Stepanischen v. Merchants

Despatch Transp. Corp., 722 F.2d 922, 928 (1st Cir. 1983)).

            "[T]here is no mechanical formula for finding pretext."

Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 39 (1st Cir. 2003)

(internal quotation marks omitted).       Instead, "[i]t is the type of

inquiry where 'everything depends on the individual facts.'"             Id.

at 40 (quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 57 (1st

Cir. 1999)).    The inquiry focuses on whether the employer truly

believed its    stated   reason   for   taking   action   adverse   to   the

employee.    See Feliciano de la Cruz v. El Conquistador Resort &

Country Club, 218 F.3d 1, 7 (1st Cir. 2000).        The plaintiff bears

"[t]he ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against the plaintiff."

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)

(alteration in original) (internal quotation mark omitted).


                                  -15-
           Here,     there   is   substantial   overlap   between   Kelley's

evidence     of    pretext   and    of   discriminatory    animus.      See

Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 54

(1st Cir. 2000) (stating that plaintiffs "may use the same evidence

to support both conclusions, provided that the evidence is adequate

to enable a rational factfinder reasonably to infer that unlawful

discrimination was a determinative factor in the adverse employment

action" (quoting Thomas, 183 F.3d at 57) (internal quotation marks

omitted)).        Consequently, in order to determine whether CMS's

asserted justification was a mask for retaliatory animus, we must

review the history of Kelley and Kesteloot's interactions regarding

the former's earlier requests for accommodations.

B.   The Evidence of Pretext and Retaliatory Animus

           As noted, the record shows that long before the crucial

events of October 17, 2008, Kelley and Kesteloot had a number of

disagreements regarding Kelley's need for accommodation.               Even

before Kelley returned to work after her medical leave, Kesteloot

suggested that she would not be permitted to return unless she

could come back full time.        When Kelley did in fact return from her

leave of absence, Kesteloot tried to prevent her from working until

she returned with a properly formatted doctor's note describing the

extent of her injuries.       Kesteloot's own supervisor overruled this

decision and permitted Kelley to begin work and bring a properly

formatted note at a later date.             Moreover, Kelley's affidavit


                                     -16-
states that Kesteloot "accused [her] of lying about having a

fractured pelvis and no hip socket" and suggested that she would

essentially be immobile if her injuries were truly that extensive.

There was also the evidence that Kesteloot prohibited Kelley from

using a cane until she returned with a doctor's note stating that

she was required to use the cane to aid her mobility, despite the

fact that     Kelley's   disability      was     more    than evident.             Taken

together,    this   circumstantial       evidence       could    lead       a    jury    to

conclude that Kesteloot was repeatedly hostile to any accommodation

of Kelley's disability.

            Importantly,       Kesteloot's     comments         and   actions          were

consistently    linked    to    Kelley's    disability      and       her       need    for

accommodation.      Hence, the presence of discriminatory animus is a

reasonable inference that arises from these interactions, thereby

distinguishing this case from those where the employer's proffered

basis for its adverse action may have been false, but the record

contains little to no evidence suggesting that the adverse action

stemmed from an unlawful motive.               See Reeves, 530 U.S. at 148

(observing that summary judgment may be appropriate in cases where

"the plaintiff created only a weak issue of fact as to whether the

employer's     reason    was    untrue     and    there     was       abundant          and

uncontroverted independent evidence that no discrimination had

occurred").      Also,    the    consistent      links     between      Kesteloot's

hostility and Kelley's disability distinguishes this case from that


                                     -17-
of the plaintiff in Roman, a Title VII case on which appellees

rely. In that case, we rejected the plaintiff's numerous claims of

retaliation partly on the basis that she had relied heavily on her

"subjective    belief      in   retaliation,"         rather    than    on    concrete

evidence of animus.        604 F.3d at 41.         The record in Roman showed

that the employer had taken numerous adverse actions against the

plaintiff that were well supported by legitimate nondiscriminatory

reasons, without any evidence connecting those adverse actions to

Roman's protected activity.              Id. at 40-42.          By contrast, the

evidence in this case describes exchanges between Kelley and

Kesteloot that were closely connected to the former's requests for

accommodations for her disabled status, and Kesteloot's resistance

to these accommodations.

            This    background     of     disability-based           animus    is   also

probative     of    a    pretextual      ground    for     terminating        Kelley's

employment.    One well-established method of demonstrating pretext

is "to show that discriminatory comments were made by the key

decisionmaker       or    those    in     a     position       to     influence     the

decisionmaker."          Santiago-Ramos,        217    F.3d     at    55;     see   also

Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 n.6 (1st

Cir. 2000); Palasota v. Haggar Clothing Co., 342 F.3d 569, 578 (5th

Cir.   2003)       (observing     that     remarks       related       to     protected

characteristic "are appropriately taken into account . . . even

where the comment is not in the direct context of the termination")


                                         -18-
(citation      omitted)   (internal     quotation     marks    omitted).      As

described above, Kesteloot's interactions with Kelley extended

beyond mere comments or remarks suggestive of animus.                On repeated

occasions, Kesteloot exhibited her resistance to accommodating

Kelley through both her words and her conduct prior to October 17,

2008.    See Mesnick v. General Elec. Co., 950 F.2d 816, 828 (1st

Cir. 1991) (observing that plaintiff may meet pretext burden by

relying on "comments by the employer which intimate a retaliatory

mindset").

            The events of October 17 may reasonably be viewed as the

culmination of this history of disability-based conflict.                On that

evening,    Kelley   requested    yet    another    accommodation       for   her

disability, precipitating a confrontation between Kesteloot and

Kelley regarding what kind of accommodation was appropriate.

Notably, during the crucial speakerphone call, Voorhees eventually

agreed to "do it all," including doing the narcotics count and

taking   the    clinic    keys.    Although    this    concession     seemingly

resolved the dispute, Kesteloot nonetheless proceeded to have

Kelley escorted      from   the   premises    after    the    call   ended,   and

promptly recommended her termination.           Such conduct suggests her

eagerness to be rid of Kelley.               Under these circumstances, a

reasonable factfinder could conclude that Kelley's refusal to obey

an instruction of Kesteloot served as a convenient pretext for

eliminating an employee who had engaged in ADA-protected conduct


                                      -19-
one too many times.       See Wright v. CompUSA, Inc., 352 F.3d 472, 478

(1st Cir. 2003) (holding, in case where employee was terminated

"immediately after returning from medical leave and requesting

accommodation," that employee had raised triable issue as to

whether alleged insubordination or request for accommodation had

motivated his discharge).

             Put another way, a reasonable factfinder could find that

Kesteloot's action against Kelley was "a disingenuous overreaction

to justify dismissal of an annoying employee who asserted [her]

rights under the ADA," rather than the firing of an insubordinate

employee.    Miller v. Ill. Dep't of Transp., 643 F.3d 190, 200 (7th

Cir. 2011); cf. Shellenberger v. Summit Bancorp, Inc., 318 F.3d

183,   190   (3d   Cir.   2003)   (holding   that   employee   had   adduced

sufficient evidence that employer had "tired of her persistent

requests for an accommodation" and therefore "fired [her] in

retaliation for her protected activity rather than (or in addition

to) her insubordinate behavior").

             In granting summary judgment, the district court focused

almost   exclusively      on   Kelley's    insubordination.     The    court

concluded that on October 17, Kesteloot had made an effort to

accommodate Kelley by requiring Voorhees to handle the physically

demanding duties, thereby rendering baseless Kelley's resistance to

assuming responsibility for the main clinic. Although this view of

the record is reasonable, it disregards the record evidence of


                                    -20-
Kesteloot's ongoing disability-based animus and the way in which

that animus might have influenced Kesteloot's adverse employment

action against Kelley. Moreover, an employer's seeming willingness

to accommodate an employee's disability does not conclusively

preclude a finding that the employer was motivated by retaliatory

intent.       Cf. Soileau, 105 F.3d at 16 (stating that it would be

"anomalous"         to     interpret    the   ADA   as     "leav[ing]         employees

unprotected if an employer granted the accommodation and shortly

thereafter terminated the employee in retaliation").                     Although CMS

tries to explain Kesteloot's prior conduct as merely a supervisor's

diligent adherence to protocol, it is insufficient at this stage of

the    case    to        depict    Kesteloot's   actions     as    "arguably      non-

discriminatory,"           Acevedo-Parrilla,     696     F.3d     at   144.      Where

"permissible inferences that could be drawn from the facts" support

the employee's claims, the employer is not entitled to summary

judgment.       Dominguez-Cruz, 202 F.3d at 433.                   There are such

inferences here.

                                          III.

              While the ADA is not "a license for insubordination at

the workplace," Reed v. LePage Bakeries, Inc., 244 F.3d 254, 262

(1st   Cir.     2001),       the   employer   cannot     invoke    the    specter   of

insubordination in order to "mask[] retaliation for requesting [an]

accommodation."            Wright, 352 F.3d at 478.             Kelley has raised

triable issues as to whether Kesteloot conveniently seized upon


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Kelley's refusal to assume primary responsibility for the main

clinic as a basis for her termination, and whether this decision

was the product of retaliatory animus.     We therefore vacate the

district court's entry of summary judgment in CMS's favor on

Kelley's retaliation claim under the ADA and MHRA and remand for

further proceedings.    Costs are awarded to the appellant.

          So ordered.




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