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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 99-1043 <br> <br>                        ROBERT E. HIGGINS, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                 NEW BALANCE ATHLETIC SHOE, INC., <br> <br>                       Defendant, Appellee. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                    FOR THE DISTRICT OF MAINE <br> <br>           [Hon. Morton A. Brody, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                                 <br>                   Cyr, Senior Circuit Judge, <br>                                 <br>                   and Boudin, Circuit Judge. <br>                                 <br>                                 <br>                                 <br>     John P. Gause, with whom Berman & Simmons, P.A., Burton G. <br>Shiro, and Shiro & Shiro Law Offices were on brief, for appellant. <br>     Bernard J. Kubetz, with whom Thad B. Zmistowski and Eaton, <br>Peabody, Bradford & Veague, P.A. were on brief, for appellee. <br> <br> <br> <br> <br> <br>October 22, 1999 <br> <br> <br> <br>                                 <br>

  SELYA, Circuit Judge.  Plaintiff-appellant Robert E. <br>Higgins sued his former employer, defendant-appellee New Balance <br>Athletic Shoe, Inc. (New Balance), claiming, inter alia, hostile <br>environment sex discrimination (relating to actions of, and remarks <br>by, his supervisor and co-workers, allegedly on account of his <br>homosexuality), retaliatory discharge (relating to his frequent <br>complaints about activities in the factory that he thought were <br>unsafe or illegal), and disability discrimination (relating to a <br>hearing impairment that impeded his ability to work comfortably in <br>the factory).  The district court granted summary judgment in New <br>Balance's favor.  See Higgins v. New Balance Athletic Shoe, Inc., <br>21 F. Supp. 2d 66 (D. Me. 1998).  Higgins appeals.  In large part, <br>the arguments that he advances bear only a faint resemblance to the <br>arguments raised below, and therefore fail.  Higgins's remaining <br>arguments are mostly (but not entirely) unavailing.  Thus, we <br>affirm the judgment below in substantial part.  Regarding one <br>aspect of Higgins's disability discrimination claim, however, we <br>vacate the judgment and remand for further proceedings. <br>I.  BACKGROUND <br>  We present only the facts necessary to place the appealed <br>claims into proper perspective, referring the reader who hungers <br>for greater detail to the district court's more exegetic account.  <br>See id. at 69-71.  Like the district court, we credit the factual <br>account that the appellant prefers, consistent with record support, <br>and indulge all reasonable inferences favorably to his cause.  See <br>Conward v. Cambridge Sch. Comm., 171 F.3d 12, 17 (1st Cir. 1999). <br>  For ten years, beginning in 1986, the appellant worked on <br>the production line at New Balance's factory in Norridgewock, <br>Maine.  Although he earned generally positive evaluations, he <br>received two warnings in 1995 about his failure to comport himself <br>as a team player.  New Balance says that these warnings stemmed <br>from Higgins's disregard of its philosophy that the manufacturing <br>process requires workers to collaborate and communicate with each <br>other.  Higgins refused to sign the warnings because he deemed them <br>unjustified. <br>  Apart from job performance, other problems plagued the <br>appellant in the workplace.  Apparently due to his homosexuality, <br>many of his fellow workers mistreated him:  they called him vulgar <br>and derogatory names, made obscene remarks about his imagined <br>sexual activities, and mocked him (e.g., by using high-pitched <br>voices or gesturing in stereotypically feminine ways).  The <br>appellant says that he complained repeatedly to persons in <br>authority, but nothing was done to ameliorate the situation.  <br>Indeed, Ron Plourde, who eventually became the appellant's <br>supervisor, was one of his foremost tormentors. <br>  A confrontation with yet another tormentor, Melanie <br>Vitalone, precipitated the appellant's discharge.  According to the <br>appellant's account, Vitalone not only would ridicule him because <br>of his sexual orientation but also would blame him when her work <br>did not go well.  He often griped about Vitalone's predilections, <br>but without result.  Indeed, his supervisor (Plourde) told him at <br>one indeterminate point that he would be "out the door" if he <br>complained one more time about Vitalone.  On what proved to be the <br>appellant's last day of work (January 4, 1996), Vitalone left the <br>production line to socialize.  When she returned, a backlog <br>confronted her.  She lashed out at the appellant, mouthing <br>derogatory epithets and blaming him for the back-up.  Vitalone <br>called the matter to Plourde's attention, telling him that she had <br>asked Higgins a question and that he had refused to reply.  Plourde <br>spoke with both protagonists.  Then, citing the personnel reports <br>of Higgins's failed communications, Plourde fired him for <br>insubordination. <br>  Harassment was not the appellant's only bugaboo; he <br>frequently complained about many other conditions and activities in <br>the workplace.  He groused, for example, about noxious fumes, <br>misleading product labeling, and substance abuse by factory <br>workers.  Of particular interest here, he asserts that he <br>complained that conditions in the factory made it hard for him to <br>do his work because he had a hearing disability.  He allegedly <br>asked his superiors to accommodate his impaired hearing by (1) <br>having a fan installed near his work station (as did other workers) <br>because steam-induced perspiration was ruining his hearing aid, and <br>(2) moving a loudspeaker that exacerbated his difficulty in hearing <br>his co-workers.  According to the appellant, New Balance spurned <br>these requests. <br>II.  DISCUSSION <br>  The summary judgment standard requires this court to give <br>the nonmovant the benefit of genuinely disputed facts and <br>inferences, but even this latitudinarian approach does not allow <br>the nonmovant to switch horses in midstream.  Consequently, <br>although the court of appeals affords de novo review to orders <br>granting summary judgment, it will not reverse such an order on the <br>basis of arguments that were not made in the trial court.  See <br>Sammartano v. Palmas del Mar Props., Inc., 161 F.3d 96, 97-98 (1st <br>Cir. 1998); Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 <br>(1st Cir. 1995); Muniz-Cabrero v. Ruiz, 23 F.3d 607, 609 (1st Cir. <br>1994); see also United States v. Slade, 980 F.2d 27, 31 (1st Cir. <br>1992) ("[T]he raise-or-waive rule applies with full force when an <br>appellant tries to present a new theory about why facts previously <br>placed on record are determinative.").  With these words of <br>caution, we turn to the three claims that the appellant presses on <br>appeal. <br>                A.  The Hostile Environment Claim. <br>  The centerpiece of the appellant's case is his contention <br>that the continual abuse he suffered in the workplace created an <br>actionably hostile environment within the purview of Title VII, 42 <br>U.S.C.  2000e to 2000e-17, and the Maine Human Rights Act (MHRA), <br>Me. Rev. Stat. Ann. tit. 5,  4551-4631.  The lower court <br>rejected this claim on the ground that the appellant had shown only <br>harassment because of his sexual orientation, not harassment <br>because of his sex.  See Higgins, 21 F. Supp. 2d at 75-76.  <br>Accordingly, the court did not reach logically subsequent questions <br>such as whether the harassment resulted in a tangible employment <br>action.  See generally Faragher v. City of Boca Raton, 118 S. Ct. <br>2275, 2293 (1998); Burlington Indus., Inc. v. Ellerth, 118 S. Ct. <br>2257, 2261 (1998). <br>  The record makes manifest that the appellant toiled in a <br>wretchedly hostile environment.  That is not enough, however, to <br>make his employer liable under Title VII:  no claim lies unless the <br>employee presents a plausible legal theory, backed by significantly <br>probative evidence, to show, inter alia, that the hostile <br>environment subsisted "because of such individual's race, color, <br>religion, sex, or national origin."  42 U.S.C.  2000e-2(a)(1).  If <br>the appellant did not frame a trialworthy issue as to this <br>essential element of his claim, Fed. R. Civ. P. 56(c) authorized <br>the entry of summary judgment.  See Celotex Corp. v. Catrett, 477 <br>U.S. 317, 322 (1986).  The Supreme Court has made clear in Oncale <br>v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998 (1998) that, in <br>same-sex harassment cases as in all sexual harassment cases, the <br>plaintiff "must always prove that the conduct at issue was not <br>merely tinged with offensive sexual connotations," but in fact <br>constituted discrimination "because of . . . sex."  Id. at 1002.  <br>The statutory "because of . . . sex" requirement is not met merely <br>because workplace harassment involves sexual matters:  the <br>substance of the violation is discrimination based on sex or, as <br>the Court put the matter, "whether members of one sex are exposed <br>to disadvantageous terms or conditions of employment to which <br>members of the other sex are not exposed."  Id. (internal quotation <br>marks omitted). <br>  We hold no brief for harassment because of sexual <br>orientation; it is a noxious practice, deserving of censure and <br>opprobrium.  But we are called upon here to construe a statute as <br>glossed by the Supreme Court, not to make a moral judgment   and we <br>regard it as settled law that, as drafted and authoritatively <br>construed, Title VII does not proscribe harassment simply because <br>of sexual orientation.  See Hopkins v. Baltimore Gas & Elec. Co., <br>77 F.3d 745, 751-52 & n.3 (4th Cir. 1996); Williamson v. A.G. <br>Edwards & Sons, 876 F.2d 69, 70 (8th Cir. 1989).  The appellant <br>argued below for a contrary rule, but the court correctly rejected <br>his importunings.  See Higgins, 21 F. Supp. 2d at 73-74, 76.  To <br>that extent, summary judgment plainly was appropriate. <br>  On appeal, Higgins recasts his argument and presents two <br>additional theories suggesting why the hostile environment that <br>pervaded New Balance's factory was "because of . . . sex," and thus <br>actionable under Title VII.  His first, a "sex-plus" theory, posits <br>that the employer discriminated against men   and only men   who <br>possessed certain qualities.  Eminent authority indicates that such <br>a course of action, if proven, may constitute discrimination <br>"because of . . . sex."  See Phillips v. Martin Marietta Corp., 400 <br>U.S. 542, 544 (1971) (per curiam) (reversing summary judgment and <br>holding that an employer may have violated Title VII by treating <br>women with pre-school-age children differently than men with <br>children of the same age).  Riding this horse for all it is worth, <br>the appellant identifies the culpable trait   for which men were <br>punished but women were not   as either a sexual attraction to men <br>or, alternatively, homosexuality. <br>  The appellant's second theory derives from Price <br>Waterhouse v. Hopkins, 490 U.S. 228 (1989), in which the Court <br>ruled that an individual who suffered adverse employment <br>consequences because she did not match the social stereotypes <br>associated with her protected group had an actionable claim under <br>Title VII.  See id. at 250-52 (plurality op.); id. at 272-73 <br>(O'Connor, J., concurring).  Following this lead, the appellant <br>points to evidence that his peers mocked him by speaking in high- <br>pitched voices and mimicking feminine movements.  From these <br>circumstances, he asseverates that he was harassed because he <br>failed to meet his co-workers' stereotyped standards of masculinity <br>and that, therefore, he was harassed "because of . . . sex." <br>  Both of these initiatives lack focused factual <br>development in the summary judgment record.  We need not probe this <br>point too deeply, however, for   absent exceptional circumstances, <br>not present here   we consider on appeal only arguments that were <br>before the nisi prius court.  See Muniz-Cabrero, 23 F.3d at 609 ("A <br>party opposing a summary judgment motion must inform the trial <br>judge of the reasons, legal or factual, why summary judgment should <br>not be entered.  If [he] does not do so, and loses the motion, [he] <br>cannot raise such reasons on appeal." (citations and internal <br>quotation marks omitted)); see also Slade, 980 F.2d at 30 ("It is <br>a bedrock rule that when a party has not presented an argument to <br>the district court, she may not unveil it in the court of <br>appeals.").  The appellant's newfound theories of sex <br>discrimination were not.  We explain briefly. <br>  The papers originally presented by Higgins to the trial <br>court did not claim sexual harassment at all.  In respect to the <br>hostile environment claim, his complaint cited only the MHRA and <br>averred that his co-workers abused him "because of his sexual <br>preference."  The appellant shifted gears somewhat in his <br>memorandum opposing summary judgment (mentioning Title VII as well <br>as cases involving hostile environment sexual harassment), but he <br>continued to attribute the harassment that he had experienced to <br>his sexual preference.  As if to drive the point home, he filed a <br>statement of disputed material facts, see D. Me. R. 56(c), in which <br>he reasserted that his co-workers knew him to be homosexual and <br>treated him hostilely "as a result."  He did not, then or <br>thereafter, attempt to show that the harassment was "because of . <br>. . sex" and thus actionable under Title VII. <br>  The appellant later supplemented his summary judgment <br>opposition.  In that submission, he collected some precedents <br>regarding claims of same-sex sexual harassment, and his lawyer <br>wrote, conclusorily, that "[s]exual [h]arassment, based upon sexual <br>preference or orientation, creating an objectionable, abusive <br>hostile work environment, perceived so by a reasonable person and <br>the victim, is sex and gender related, and is a violation of Title <br>VII . . . as well as of [the MHRA]."  Still, the appellant never <br>attempted to explain to the lower court how   apart from sexual <br>preference or orientation   the harassment was "sex and gender <br>related."  He made no mention of Phillips, Price Waterhouse, or <br>their respective progeny, nor did he marshal any evidence of abuse <br>"because of . . . sex." <br>  Although it is an appellant's duty to order a transcript <br>of any portion of the proceedings below that he wishes the court of <br>appeals to consider, see Fed. R. App. P. 10(b)(1), Higgins has not <br>proffered a transcript of the oral arguments on the summary <br>judgment motion.  Since we cannot tell from the available record <br>precisely what his counsel may (or may not) have said during that <br>session, we must assume that his counsel's oral presentation <br>tracked his written submissions.  See Campos-Orrego v. Rivera, 175 <br>F.3d 89, 93 (1st Cir. 1999) ("Parties seeking appellate review must <br>furnish the court with the raw materials necessary to the due <br>performance of the appellate task."). <br>  On this record, we cannot reach the new and different <br>arguments that the appellant attempts to advance on appeal.  We <br>have warned that parties who permit their adversaries to configure <br>the summary judgment record place themselves in peril.  See Kelly <br>v. United States, 924 F.2d 355, 358 (1st Cir. 1991).  A party who <br>aspires to oppose a summary judgment motion must spell out his <br>arguments squarely and distinctly, or else forever hold his peace.  <br>See Sammartano, 161 F.3d at 97-98; Paterson-Leitch Co. v. <br>Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir. <br>1988).  The district court is free to disregard arguments that are <br>not adequately developed,  see McCoy v. MIT, 950 F.2d 13, 22 (1st <br>Cir. 1991), and such arguments cannot be resurrected on appeal. <br>  These elementary principles are dispositive here.  The <br>appellant's sex-plus claim never surfaced in the district court, <br>and the record contains no proof at all about how women with the <br>"plus" traits that he now says are central to the case were treated <br>at New Balance.  Because the district court had before it neither <br>evidence from which it could draw an inference of "sex-plus" <br>harassment nor a crystallized legal theory that suggested a viable <br>basis for such a cause of action, no impediment existed to brevis <br>disposition. <br>  The appellant's claim of impermissible stereotyping fares <br>no better.  Although he now maintains that the evidence of co- <br>workers mocking his supposedly effeminate characteristics supports <br>an argument for harassment based on sexual stereotypes, he <br>presented that evidence to the district court only as an example of <br>discrimination because of sexual orientation.  He did not mention <br>gender stereotyping below and he did not present any considered <br>argumentation along that line.  His eleventh-hour statement to the <br>district court that all harassment based on sexual orientation is <br>"sex . . . related" was an unsupported conclusion, not a developed <br>argument   and conclusory statements of that sort cannot defeat <br>summary judgment.  See Dow v. United Bhd. of Carpenters, 1 F.3d 56, <br>59-60 (1st Cir. 1993); Medina Munoz v. R.J. Reynolds Tobacco Co., <br>896 F.2d 5, 8 (1st Cir. 1990). <br>  Where, as here, arguments made before the trial court and <br>the appellate court, respectively, pull from the evidence common <br>factual threads but weave them into distinctly different legal <br>patterns, the new argument normally is deemed forfeited.  See <br>Sammartano, 161 F.3d at 98; Slade, 980 F.2d at 30; Clauson v. <br>Smith, 823 F.2d 660, 665-66 (1st Cir. 1987).  This is as it should <br>be:  considerations of fairness, institutional order, and respect <br>for trial courts in our hierarchical system of justice all militate <br>strongly in favor of such a rule.  Consequently, the court of <br>appeals should be extremely reluctant to reverse a district court's <br>decision because an appellant belatedly presents on appeal a legal <br>theory, not argued below, hinged on a piece of evidence that was <br>buried in the district court record.  While such reluctance might <br>be overcome if compelling reasons for an exception exist, nothing <br>about the present situation justifies such a departure.  <br>Accordingly, we conclude that the district court did not err in <br>granting summary judgment in New Balance's favor on the hostile <br>environment claim. <br>               B.  The Retaliatory Discharge Claim. <br>  The appellant's next claim rests on a somewhat different <br>foundation.  Section 4572(1)(A) of the MHRA makes it illegal for an <br>employer to discriminate against an employee in retaliation for the <br>employee's exercise of rights under the Maine Whistleblowers' <br>Protection Act (MWPA), Me. Rev. Stat. Ann. tit. 26,  831-840.  <br>The MWPA, in turn, protects an employee from discrimination when he <br>has complained to the employer in good faith about a workplace- <br>related condition or activity that he reasonably believes is <br>illegal, unsafe, or unhealthy.  See id.  833(1)(A)-(B).  In the <br>same vein, albeit more narrowly, Title VII prohibits an employer <br>from discriminating because an employee has opposed an employment <br>practice made illegal under Title VII or "because [the employee] <br>has made a charge, testified, assisted, or participated in any <br>manner in any investigation, proceeding, or hearing" under Title <br>VII.  42 U.S.C.  2000e-3(a).  Neither state nor federal law <br>requires that the reported condition, activity, or practice <br>actually be unsafe or illegal; under either scheme, an employee's <br>reasonable belief that it crosses the line suffices, as long as the <br>complainant communicates that belief to his employer in good faith.  <br>See Bard v. Bath Iron Works, 590 A.2d 152, 154 (Me. 1991) <br>(explicating relevant MWPA requirements); Petitti v. New Engl. Tel. <br>& Tel. Co., 909 F.2d 28, 33 (1st Cir. 1990) (explicating relevant <br>Title VII requirements); cf. Mesnick v. General Elec. Co., 950 F.2d <br>816, 827 (1st Cir. 1991) (analyzing a similar provision in the Age <br>Discrimination in Employment Act). <br>  MWPA claims for retaliatory discharge, like Title VII <br>claims, typically invite analysis under the framework first <br>established by the Supreme Court in McDonnell Douglas Corp. v. <br>Green, 411 U.S. 792, 802-04 (1973).  See Petitti, 909 F.2d at 31; <br>DiCentes v. Michaud, 719 A.2d 509, 514 (Me. 1998).  To present a <br>prima facie case, an employee-plaintiff must show (1) that he <br>engaged in a protected activity, (2) that his employer thereafter <br>cashiered him, and (3) that there was a causal nexus between the <br>protected activity and the firing.  See Hoeppner v. Crotched <br>Mountain Rehab. Ctr., Inc., 31 F.3d 9, 14 (1st Cir. 1994); Bard, <br>590 A.2d at 154.  If the employer then responds by proffering a <br>legitimate, nonretaliatory reason for the discharge, the employee <br>must adduce some significantly probative evidence showing both that <br>the proffered reason is pretextual and that a retaliatory animus <br>sparked his dismissal.  See Mesnick, 950 F.2d at 827. <br>  Citing this body of law, the appellant argued below that <br>New Balance did not fire him for insubordination or for failing to <br>be a team player (as it claimed), but, rather, because he <br>complained repeatedly about a multitude of unsafe and illegal <br>working conditions.  The district court ruled that the appellant <br>had failed to make out a prima facie case of retaliatory discharge.  <br>See Higgins, 21 F. Supp. 2d at 73.  Although assuming that "many" <br>of his complaints antedated his firing and "may" have constituted <br>protected conduct under the relevant statutes, the court concluded <br>that the appellant had failed to demonstrate a causal connection <br>between his complaints and his ouster.  Id.  In reaching this <br>conclusion, the court relied heavily upon the lack of any evidence <br>of temporal proximity between the stream of complaints, on the one <br>hand, and the appellant's dismissal, on the other, and upon the <br>absence of any proof that other similarly situated employees were <br>treated differently.  See id. <br>  On appeal, the appellant turns his back on the vast <br>majority of his complaints and zeroes in on the January 1996 <br>incident involving Vitalone.  In his view, this narrowing of the <br>focus creates a tight temporal link between the two salient events <br>(his most recent complaint about Vitalone and his firing).  He then <br>points to the statement in his affidavit to the effect that his <br>supervisor (Plourde) once told him that he would be "out the door" <br>if he ever groused about Vitalone again, and argues that this <br>demonstrates a sufficient causal nexus. <br>  This revisionist approach brings with it insurmountable <br>problems.  First, there is no basis in the record for concluding <br>that Higgins's complaints about Vitalone constituted protected <br>speech.  After all, Higgins did not assert below that at the time <br>he complained he believed Vitalone's distemper to be in violation <br>of Title VII or any other law, or to be a grave risk to his health.  <br>Nor did he maintain that facts existed to support a reasonable <br>belief to that effect.  Certainly, the mere inclusion in the record <br>of New Balance's internal policy against discrimination based on <br>sexual orientation does not, as the appellant now suggests, <br>evidence either his state of mind or the reasonableness of his <br>beliefs.  This leaves the appellant's current claim high and dry:  <br>when an employer warns an employee that certain work-related <br>behavior, not itself protected under the law, will be deemed <br>inimical to the proper functioning of the shop, and the employee <br>disregards the warning, the employer cannot be sued for retaliation <br>simply because it then does what it warned it would do.  See Taylor <br>v. FDIC, 132 F.3d 753, 765 (D.C. Cir. 1997); cf. Hochstadt v. <br>Worcester Found. for Experim'l Biology, 545 F.2d 222, 233 (1st Cir. <br>1976). <br>  We need not elaborate on this point, for a second, <br>independently fatal, problem is that the appellant comes tardily to <br>his narrowed construct.  In the lower court, he never ascribed any <br>significance vis--vis his retaliation claim to Plourde's threat, <br>the January 4 brouhaha, or any of the events of his last day at <br>work.  That being so, the Vitalone incident cannot be used now to <br>satisfy the McDonnell Douglas prima facie case requirement.  See <br>Sammartano, 161 F.3d at 98; Beddall v. State St. Bank & Trust Co., <br>137 F.3d 12, 22 (1st Cir. 1998). <br>  The appellant has a fallback position.  Courts sometimes <br>say that the McDonnell Douglas paradigm operates only when there is <br>no direct evidence of a discriminatory animus.  See, e.g., Price <br>Waterhouse, 490 U.S. at 244-47 (plurality op.); id. at 278-79 <br>(O'Connor, J., concurring); Hodgens v. General Dynamics Corp., 144 <br>F.3d 151, 160 (1st Cir. 1998); Mesnick, 950 F.2d at 823.  Seizing <br>on this allusion, the appellant insists that the district court <br>mis-analyzed his case because he had presented direct evidence of <br>retaliation (Plourde's threat).  This, too, is an argument that <br>Higgins did not share with the district court.  Hence, he has <br>forfeited the right to raise it here. <br>  Let us be perfectly clear.  When a claim involves <br>complicated statutory schemes, as this one does, and the plaintiff <br>"fail[s] to provide any analysis of the statutory scheme, to <br>present any legal authority directly supporting [his] thesis, or to <br>give any reason why" particular statutory provisions do or do not <br>apply, the claim comprises "the merest of skeletons."  McCoy, 950 <br>F.2d at 22.  Such a bareboned thrust is insufficient to overcome a <br>properly focused motion for summary judgment.  See Sammartano, 161 <br>F.3d at 98.  So here:  the argument that the Plourde threat <br>constitutes direct evidence of discrimination has been forfeited.  <br>See Slade, 980 F.2d at 30; Clauson, 823 F.2d at 666.  Because the <br>district court did not err in concluding, on the arguments actually <br>presented to it, that there was no sufficient showing of a causal <br>connection between the appellant's discharge and his complaints <br>about conditions in the workplace, we uphold its judgment in this <br>respect. <br>             C.  The Disability Discrimination Claim. <br>  Finally, the appellant contends that New Balance failed <br>to provide reasonable accommodations for his aural disability in <br>violation of the Americans with Disabilities Act (ADA), 42 U.S.C. <br> 12101-12213, and the MHRA.  The district court rejected this <br>contention because the appellant had not adduced evidence of <br>discriminatory animus directed at his disability.  See Higgins, 21 <br>F. Supp. 2d at 72. <br>  In terms, this ruling is insupportable.  New Balance <br>argued below that, absent any evidence that it harbored a <br>disability-related animus against the appellant, no discriminatory <br>discharge claim would lie under either the ADA or the MHRA.  This <br>rationale is sound as far as it goes   it disposes handily of the <br>appellant's discriminatory discharge claim (a claim that the <br>district court quite properly rejected, see id. at 71 n.7, and one <br>which the appellant no longer presses)   but it does not go as far <br>as the district court thought.  When the court applied the same <br>reasoning to block the appellant's failure-to-accommodate claim, it <br>erred. <br>  Under the ADA, a covered employer shall not "discriminate <br>against a qualified individual with a disability because of the <br>disability of such individual in regard to job application <br>procedures, the hiring, advancement, or discharge of employees, <br>employee compensation, job training, and other terms, conditions, <br>and privileges of employment."  42 U.S.C.  12112(a).  The <br>pertinent provisions of the MHRA are to like effect.  See Me. Rev. <br>Stat. Ann. tit. 5,  4572(1)(A).  In order to facilitate inquiries <br>into whether an employer's adverse employment decision was <br>motivated by an employee's disability, courts generally use the <br>McDonnell Douglas burden-shifting scheme.  See, e.g., Dichner v. <br>Liberty Travel, 141 F.3d 24, 29-30 (1st Cir. 1998); DiCentes, 719 <br>A.2d at 514 n.10 (citing Maine Human Rights Comm'n v. City of <br>Auburn, 408 A.2d 1253, 1261-63 (Me. 1979)).  The third stage of <br>this scheme, as we have interpreted it, requires that the plaintiff <br>point to evidence, direct or circumstantial, of a particularized <br>discriminatory animus.  See, e.g., Dichner, 141 F.3d at 30; Smith <br>v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st Cir. 1994); Mesnick, <br>950 F.2d at 823-25.  The appellant's discriminatory discharge claim <br>  a claim abandoned on appeal   exemplifies this genre of cases. <br>  But under the ADA, "the term 'discriminate' includes . . <br>. not making reasonable accommodations to the known physical or <br>mental limitations of an otherwise qualified individual with a <br>disability . . ., unless [the employer] can demonstrate that the <br>accommodation would impose an undue hardship on the operation of <br>the business of [the employer]."  42 U.S.C.  12112(b)(5)(A).  <br>Maine law is almost identical.  See Me. Rev. Stat. Ann. tit. 5,  <br>4553(2)(E).  Unlike other enumerated constructions of <br>"discriminate," this construction does not require that an <br>employer's action be motivated by a discriminatory animus directed <br>at the disability.  Rather, any failure to provide reasonable <br>accommodations for a disability is necessarily "because of a <br>disability"   the accommodations are only deemed reasonable (and, <br>thus, required) if they are needed because of the disability   and <br>no proof of a particularized discriminatory animus is exigible.  <br>See Bultemeyer v. Fort Wayne Community Schs., 100 F.3d 1281, 1283- <br>84 (7th Cir. 1996).  Hence, an employer who knows of a disability <br>yet fails to make reasonable accommodations violates the statute, <br>no matter what its intent, unless it can show that the proposed <br>accommodations would create undue hardship for its business.  See <br>42 U.S.C.  12112(b)(5)(A); Me. Rev. Stat. Ann. tit. 5,  <br>4553(2)(E); see also Aka v. Washington Hosp. Ctr., 156 F.3d 1284, <br>1300 (D.C. Cir. 1998) (en banc).  It follows inexorably that the <br>McDonnell Douglas scheme is inapposite in respect to such claims.  <br>See Pond v. Michelin N. Am., Inc., 183 F.3d 592, 597 n.5 (7th Cir. <br>1999); Bultemeyer, 100 F.3d at 1283-84; see generally Kevin W. <br>Williams, The Reasonable Accommodation Difference:  The Effect of <br>Applying the Burden Shifting Frameworks Developed under Title VII <br>in Disparate Treatment Cases to Claims Brought under Title I of the <br>Americans with Disabilities Act, 18 Berkeley J. Emp. & Lab. L. 98, <br>151-59 (1997). <br>  This distinction is in play here.  To survive a motion <br>for summary judgment on a failure-to-accommodate claim, a plaintiff <br>ordinarily must furnish significantly probative evidence that he is <br>a qualified individual with a disability within the meaning of the <br>applicable statute; that he works (or worked) for an employer whom <br>the ADA covers; that the employer, despite knowing of the <br>employee's physical or mental limitations, did not reasonably <br>accommodate those limitations; and that the employer's failure to <br>do so affected the terms, conditions, or privileges of the <br>plaintiff's employment.  See Lyons v. Legal Aid Soc'y, 68 F.3d <br>1512, 1515 (2d Cir. 1995); Kralik v. Durbin, 130 F.3d 76, 78 (3d <br>Cir. 1997).  But cf. Gaines v. Runyon, 107 F.3d 1171, 1175 (6th <br>Cir. 1997) (requiring that the accommodation be both reasonable and <br>necessary for the plaintiff to perform the essential functions of <br>his job).  Here, the appellant's failure-to-accommodate claim <br>satisfied these rather undemanding requirements:  his affidavit <br>stated, in substance, that he had a hearing impairment, that New <br>Balance knew of it, and that management nonetheless failed to <br>accommodate him either by supplying a fan or relocating a <br>loudspeaker. <br>  The rest is history.  Despite the fact that the failure- <br>to-accommodate claim was adequately presented, it was ignored by <br>the defendant (whose motion for summary judgment did not discuss <br>it) and misperceived by the district court (which applied the <br>McDonnell Douglas burden-shifting framework to it).  This induced <br>the court to err by granting summary judgment on the ground that <br>the record contained no evidence of a discriminatory animus toward <br>the appellant's disability. <br>  Of course, the trial court also wrote that New Balance <br>had asked the appellant's co-workers to speak up when talking to <br>him.  See Higgins, 21 F. Supp. 2d at 72.  This undisputed fact does <br>not save the judgment.  Although an employer's provision of a <br>specific accommodation may provide relevant circumstantial evidence <br>in respect to the reasonableness vel non of a different <br>accommodation, see, e.g., Vande Zande v. Wisconsin Dep't of Admin., <br>44 F.3d 538, 546 (7th Cir. 1995), that accommodation will not <br>always be enough to satisfy the employer's duty under the law, see <br>Ralph v. Lucent Techs., Inc., 135 F.3d 166, 171-72 (1st Cir. 1998) <br>("The duty to provide reasonable accommodation is a continuing one <br>. . . and not exhausted by one effort."); see also Criado v. IBM <br>Corp., 145 F.3d 437, 444-45 (1st Cir. 1998).  Thus, New Balance's <br>laudable directive fell short of what was needed to authorize <br>summary judgment. <br>  Because a remand is necessary on this aspect of the case, <br>we add one further observation.  While this appeal was pending, the <br>Supreme Court decided a series of ADA cases, including Sutton v. <br>United Air Lines, Inc., 119 S. Ct. 2139, 2149 (1999) (holding that <br>courts should take corrective measures into account when deciding <br>whether a plaintiff is "substantially limited in any major life <br>activity" and thus disabled under the ADA).  Sutton may well put <br>the appellant's claim in an entirely different light (depending, <br>inter alia, on the extent to which his hearing impairment is <br>correctable by a hearing aid).  Sutton, however, calls for a <br>particularized, fact-specific analysis, see id., and at this point <br>the record is not sufficiently developed to allow us to assess <br>Sutton's impact on the case at hand.  Accordingly, we deem it <br>preferable to leave all Sutton-related issues, in the first <br>instance, to the nisi prius court. <br>III.  CONCLUSION <br>  We need go no further.   For the reasons mentioned above, <br>we affirm the entry of summary judgment for New Balance on all <br>claims, save only the appellant's failure-to-accommodate claim <br>under the ADA and the MHRA.  As to that claim, we vacate the <br>judgment and remand for further consideration. <br> <br>  Affirmed in part, vacated in part, and remanded.  No <br>costs.</pre>

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