                  Not for Publication in West's Federal Reporter
                 Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

            United States Court of Appeals
                          For the First Circuit

No. 03-1190

                                ANNA LEAVITT,

                           Plaintiff, Appellant,

                                        v.

                          WAL-MART STORES, INC.,

                           Defendant, Appellee.


            APPEAL FROM THE UNITED STATES DISTRICT COURT

                        FOR THE DISTRICT OF MAINE

             [Hon. D. Brock Hornby, U.S. District Judge]


                                     Before

                          Boudin, Chief Judge,
                    Baldock,* Senior Circuit Judge,
                      and Howard, Circuit Judge.


     Robert W. Kline with whom Kline Law Offices was on brief for
appellant.
     Mark V. Franco with whom Thompson & Bowie, LLP was on brief
for appellee.


                               August 27, 2003




    *
        Of the Tenth Circuit, sitting by designation.
           BALDOCK, Senior Circuit Judge.        Plaintiff Anna Leavitt

brought   suit   against   her   former   employer,   Defendant   Wal-Mart

Stores, Inc. (“Wal-Mart”), alleging discrimination in violation of

the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 -

12213 (2000), and Maine state law.           Leavitt claimed she is a

qualified person with a disability as defined by the ADA and that

Wal-Mart failed to reasonably accommodate her disability leading to

her constructive discharge. On cross-motions for summary judgment,

the district court concluded the treatment Leavitt alleged was not

sufficiently severe to establish a constructive discharge.             The

court also concluded Leavitt was not seeking damages apart from her

constructive discharge claim.         Accordingly, the court entered

judgment in favor of Wal-Mart on her discrimination claims.1

           Plaintiff appeals, asserting (1) the district erred in

granting Wal-Mart summary judgment on her constructive discharge

claim; and (2) the court erred in failing to address her claim that

Wal-Mart discriminated against her by failing to provide reasonable

accommodations.2    We have jurisdiction pursuant to 28 U.S.C. §


     1
      Leavitt also filed a claim seeking damages for intentional
infliction of emotional distress.     The district court granted
summary judgment in favor of Wal-Mart on this claim after
concluding the treatment Leavitt alleged was not sufficiently
extreme or outrageous to permit recovery. Leavitt does not appeal
this ruling.
     2
      In the interest of judicial economy, it may have been
preferable for Leavitt to bring this alleged error to the attention
of the district court by filing a Motion to Alter or Amend Judgment
pursuant to Fed. R. Civ. P. 59(e) or a Motion for Relief from

                                    -2-
1291.   We affirm the district court’s grant of summary judgment on

Leavitt’s     constructive    discharge         claim,   but    remand   for

consideration of Leavitt’s reasonable accommodation claim.

                                     I.

            Leavitt worked at the Wal-Mart store in Falmouth, Maine

from approximately August 7, 1998 to May 10, 2000.             Shortly after

she began her employment, Wal-Mart promoted Leavitt from a sales

associate’s position to a management position in its in-store

restaurant.     Store records indicate Leavitt received positive

performance     evaluations    and        was    performing     all   duties

satisfactorily.    In March 1999, Leavitt suffered a heart attack.

            Leavitt asserts she became disabled within the meaning of

the ADA due to health problems associated with the heart attack.

As a result of these health problems, Leavitt has difficulty

breathing and walking and suffers from increased fatigue and

occasional panic attacks. On several occasions, Leavitt’s physical

condition required her to seek medical attention.              As a result,

Leavitt’s treating physician documented her condition and placed

restrictions on her work, including limits on both the hours she




Judgment pursuant to Rule 60. But, as Wal-Mart properly conceded
at oral argument, there is nothing in either the Federal Rules of
Civil Procedure or the Federal Rules of Appellate Procedure that
mandate this approach. Following the district court’s entry of
final judgment purporting to dispose of all claims, this court had
jurisdiction over Leavitt’s claim.

                                  -3-
can work and the amount of weight she can lift.                Leavitt provided

this documentation to Wal-Mart.

            Upon   Leavitt’s    return       to   work,    Wal-Mart    management

proposed to transfer her from her former position to a position

that would require less physical exertion.                 After observing that

Leavitt still struggled to perform her duties, management proposed

a second transfer to a position that required even less physical

exertion.    Both transfers occurred after discussions with Leavitt

and with her consent.       Wal-Mart management viewed the transfers as

an   accommodation    for    Leavitt’s       medical      condition.       Despite

transferring    Leavitt     from   a   management         position    to   a   sales

associate position, Wal-Mart did not reduce her hourly wage.

            Before her heart attack, Leavitt primarily worked the day

shift, but covered the evening shift on occasion.                    When Leavitt

transferred to the new positions, her schedule changed such that

she was working almost exclusively evening shifts. Leavitt was led

to believe this change would be temporary, but after several months

she saw no indication Wal-Mart was attempting to find another

employee to cover the evening shifts.                Leavitt asserts working

evening shifts increased her fatigue, which in turn exacerbated her

breathing and walking problems.          Leavitt made several requests to

various members of the management team in an effort to have her

schedule changed.     Wal-Mart did not accommodate these requests.

There is some evidence Leavitt was led to believe she would not be


                                       -4-
scheduled to work at all if she insisted on only working day

shifts.

            Leavitt lives in Casco, Maine and, after her heart

attack,    found    the     lengthy   commute       to   Falmouth     increased   her

fatigue.       She informed Wal-Mart management she would like to

transfer to a Wal-Mart store located in Windham, Maine, which was

significantly closer to her home.                   The Falmouth store manager

encouraged Leavitt to investigate openings at the Windham store,

but when she informed him of openings took no action to initiate a

transfer.

            Leavitt       also   asserts      she    experienced      some   hostile

reactions    to    her    disability.       Several       evening-shift      managers

repeatedly confronted Leavitt as she left work, demanding to know

why she was able to leave early.                 These confrontations occurred

despite documentation in her work file limiting her shifts to six

hours.      Wal-Mart also would not permit Leavitt to park in a

handicapped spot until she obtained a handicapped parking permit.

After obtaining the permit, Leavitt endured comments that she

wasn’t really handicapped and that she must feel entitled to

special treatment.          Leavitt also asserts her direct supervisor

asked her to work hours and perform duties beyond those permitted

by her documented medical restrictions.                  These requests continued

even   after      Leavitt    informed      the      supervisor   of    her    medical

condition.


                                        -5-
              Finally, in late April, Leavitt received notice of a

schedule change that allowed her to work two day shifts over the

next three-week period.         She verified the schedule change with the

store   manager.        But   Leavitt’s    direct    supervisor   subsequently

assigned the day shifts to another employee once again leaving

Leavitt   with     only   evening    shifts.        Leavitt   confronted      the

supervisor about the schedule change, but the supervisor made it

clear the change would stand. After discussing the matter with her

supervisor, Leavitt believed Wal-Mart would fire her if she did not

comply with the change.         She also discovered that her day shifts

had been assigned to a new, non-disabled employee.                The schedule

change directly conflicts with Wal-Mart’s stated scheduling policy,

which reserves coveted day-time shifts for employees with more

seniority and requires a manager to consult with an employee prior

to implementing a schedule change.

              Frustrated with Wal-Mart’s refusal to accommodate her

requests for a schedule change or a store transfer, and frustrated

with    her   supervisor’s      failure     to    comply   with   store   policy

concerning scheduling, Leavitt terminated her employment with Wal-

Mart.

                                      II.

              Leavitt   first    asserts    the    district   court   erred    in

granting summary judgment on her constructive discharge claim.                 We

review de novo the district court’s grant of summary judgment,


                                      -6-
viewing the evidence and all reasonable inferences in the light

most favorable to the non-moving party.     See Gonzalez v. El Dia,

Inc., 304 F.3d 63, 68 (1st Cir. 2002).

          Constructive discharge is a label for “treatment so

hostile or degrading that no reasonable employee would tolerate

continuing in the position.”   Mesendez-Arroyo v. Cutler-Hammer de

P.R. Co., 273 F.3d 30, 36 (1st Cir. 2001).          The standard is an

objective one: the conditions must be so difficult or unpleasant

that a reasonable person in the plaintiff’s shoes would have felt

compelled to resign.    Marrera v. Goya of Puerto Rico, Inc., 304

F.3d 7, 28 (1st Cir. 2002) (citing Suarez v. Pueblo Int’l, Inc.,

229 F.3d 49, 54 (1st Cir. 2000) (additional citation omitted)).

Properly applied, this standard “does not guarantee a workplace

free of the usual ebb and flow of power relations and inter-office

politics.” Suarez, 229 F.3d at 54.       Rather, the plaintiff must

establish that “working conditions were so unpleasant that staying

on the job while seeking redress would have been intolerable.”

Marrera, 304 F.3d at 28 (quoting Keeler v. Putnam Fid. Trust Co.,

238 F.3d 5, 10 (1st Cir. 2001) (internal quotations omitted)).

          A constructive discharge can arise from, among other

things,   “reassignment    with     significantly     diminished   job

responsibilities, or a decision causing a significant change in

benefits.”    See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,

761 (1998).   However, a reduction in responsibility, unaccompanied


                                  -7-
by a diminution in salary or some other marked lessening of the

quality of working conditions, does not constitute a constructive

discharge.     See Suarez, 229 F.3d at 55.

             There   is   no   evidence    Leavitt’s   job   transfers   were

anything other than a desired accommodation of her health problems.

Leavitt also does not claim Wal-Mart reduced her hours or her

hourly wage.     Leavitt’s only complaints, that Wal-Mart failed to

accommodate her requests for a transfer and for more day shifts,

and failed to follow policy in awarding day shifts, are not so

severe and did not produce working conditions so unpleasant that

staying on the job would have been intolerable.              Leavitt did not

produce any evidence that working evening shifts and commuting to

Falmouth had a dramatic impact on her health conditions or that she

was unable to continue her work.           Accordingly, the district court

did not err in granting summary judgment on this claim.

                                    III.

             Leavitt next asserts the district court erred in failing

to consider her reasonable accommodation claim.              After resolving

the constructive discharge claim, the district court stated:

     Since Leavitt has made clear that in this lawsuit she is
     not claiming damages for her treatment apart from the
     constructive discharge, I grant summary judgment to the
     defendant on [both discrimination counts].

Leavitt v. Wal-Mart Stores, Inc., 238 F. Supp. 2d 313, 316 (D. Me.

2003 (footnote omitted).         The court based this conclusion on a



                                     -8-
footnote in   Leavitt’s   reply   brief   to   her   motion    for   summary

judgment.   Id. at 316 n.2.   In that footnote, Leavitt noted:

     Defendant has moved for summary judgment, or to dismiss,
     a “claim” that Plaintiff never raised; that the
     disability-based harassment she endured at the hands of
     Defendant’s management entitles her to damages under the
     ADA or MHRA. This was not Plaintiff’s claim; Plaintiff
     mentioned the incidents in her Statement of Material
     Facts Not in Dispute in order to show inter alia,
     Defendant’s awareness of Plaintiff’s disability and
     resulting restrictions; the stress and frustration this
     caused Plaintiff and as direct and circumstantial
     evidence of Defendant’s discriminatory animus towards her
     based on her disability.


Appendix at 214-15(italics in original, citations omitted).             This

footnote appeared in response to Wal-Mart’s brief in opposition to

plaintiff’s motion for partial summary judgment.          In that brief,

Wal-Mart argued:

     It also appears that the Plaintiff’s Motion for Partial
     Summary Judgment, for the first time, alleges that
     Defendant engaged in disability based harassment by Wal-
     Mart management. However, nowhere in Plaintiff’s initial
     Complaint was there an allegation (or inference) that the
     Plaintiff was the subject of disability based harassment.
     At the outset, therefore, Defendant requests the Court to
     dismiss this claim....”

Appendix at 200 (citations and emphasis omitted).             In support of

the district court’s grant of summary judgment, Wal-Mart argues

both that Leavitt failed to raise a reasonable accommodation claim

in the proceedings before the district court and that, even if

raised, the district court correctly concluded Leavitt expressly

waived the claim based on the referenced footnote.



                                  -9-
            Leavitt raised the claim in both her pleadings and motion

briefs.     In   her   complaint,    Leavitt   clearly   pled    failure   to

accommodate as a ground for recovery.             In Count I, Plaintiff’s

complaint     asserts     Wal-Mart      engaged     in   disability-based

discrimination in violation of the ADA.            This Count raises two

distinct theories of recovery under the ADA: a claim that Wal-Mart

failed to provide reasonable accommodation and a claim that this

failure lead to Plaintiff’s constructive discharge.             Paragraph 29

of the Complaint states:

     Wal-Mart failed to provide Plaintiff with a reasonable
     accommodation because of her disability.      The record
     establishes that Plaintiff is an otherwise qualified
     individual with a disability, entitled to reasonable
     accommodations to her known physical limitations.
     Plaintiff sought these reasonable accommodations – being
     assigned to the Fitting Department, having her shifts
     occur during the day and a transfer to a location closer
     to her home. Wal-Mart refused to take these simple steps
     to   accommodate  Plaintiff   solely   because   of  her
     disability.

Appendix at 11.         This paragraph states a claim separate and

distinct from Leavitt’s constructive discharge claim, which appears

in Paragraph 28 of the Complaint.

            Plaintiff also performed discovery on the reasonable

accommodation claim, and dedicated a section of her Statement of

Material Facts to this claim.        See Appendix at 33 (Section titled

“Wal-Mart Refuses to Reasonably Accommodate Plaintiff’s Requests to

either be Rescheduled to the Day Shift in Falmouth, or to be

Transferred to its Windham Store”).            Plaintiff also raised the


                                     -10-
issue in her motion for partial summary judgment by seeking summary

judgment on Wal-Mart’s affirmative defense that it had provided

reasonable accommodations.          Appendix at 125.

              Defendant clearly was on notice of Leavitt’s reasonable

accommodation claim.          In its motion for summary judgment, Wal-Mart

describes Count I of Leavitt’s Complaint as asserting both a

failure to accommodate and a constructive discharge claim:

         Count I, in essence, alleges . . . that Defendant failed
         to provide her with a reasonable accommodation because of
         her   disability   and   that   Wal-Mart   constructively
         terminated Plaintiff’s employment in whole or in part
         because of her disability.

Appendix at 161.        The brief goes on to discuss both claims.             See

Appendix at 171. Wal-Mart clearly recognized Plaintiff’s complaint

plead two alternative grounds for recovery under the ADA.

              Plaintiff also expressly opposed Wal-Mart’s motion for

summary judgment on her failure to accommodate claim. See Appendix

at 188-192 (Section titled “Defendant is not entitled to Judgment

as   a    matter   of   law   on   Plaintiff’s   claim   that   it   failed   to

reasonably accommodate her disability or discriminated against her

because of her disability”).           This argument is distinct from the

following section which opposes summary judgment on “Plaintiff’s

claim that [Wal-Mart] constructively terminated her employment.”

Appendix at 192.        Thus, we reject Wal-Mart’s argument that Leavitt

did not raise or preserve a failure to accommodate claim.




                                       -11-
                  We also conclude the district court erred in interpreting

the    footnote          as   an    express   waiver     of   Leavitt’s   failure   to

accommodate claim.              As is clear from the briefs, Leavitt stated

only       that    she    was      not   asserting   a   separate   disability-based

harassment claim.3                 This footnote cannot reasonably be read to

waive Leavitt’s reasonable accommodation claim, given that she

expressly pled the claim and dedicated a significant portion of her

response brief opposing summary judgment on this claim.

                  Accordingly, we reverse the district court’s entry of

summary judgment on Count I of Plaintiff’s complaint.4                    We express



       3
      Although the First Circuit has yet to address the issue,
several other Circuit courts recently have recognized a cause of
action for disability-based harassment under the ADA. Such actions
permit recovery based on a plaintiff’s exposure to a hostile work
environment, and arise independently of claims based on the
employer’s failure to provide reasonable accommodations.         To
succeed on this claim, a plaintiff generally must demonstrate (1)
that she was disabled as defined by the ADA; (2) that she was
subjected to unwelcome harassment; (3) that the harassment
complained of was based on her disability or disabilities; (4) that
the harassment complained of affected a term, condition, or
privilege of employment; and (5) that the employer knew or should
have known of the harassment and failed to take prompt, remedial
action. See, e.g., Gowesky v. Singing River Hosp. Systems, 321
F.3d 503, 509 (5th Cir. 2003); Fox v. General Motors Corp., 247
F.3d 169, 176 (4th Cir. 2001); Keever v. City of Middletown, 145
F.3d 809, 813 (6th Cir. 1998); Cody v. CIGNA Healthcare, 139 F.3d
595, 598 (8th Cir. 1998); see also Silk v. City of Chicago, 194
F.3d 788 (7th Cir. 1999) (assuming, without deciding, that such a
claim is legally cognizable under ADA); Walton v. Mental Health
Ass'n, 168 F.3d 661, 666-67 (3d Cir. 1999) (same).
       4
      Count II asserts violations of the Maine Human Rights Act and
pleads only Plaintiff’s constructive discharge as grounds for
recovery. Accordingly, the district court properly granted summary
judgment as to Count II.

                                              -12-
no opinion on the merits of Leavitt’s reasonable accommodation

claim or of the arguments made in the cross-motions for summary

judgment.    We remand to the district court for consideration of

this claim in the first instance.

                                IV.

            For the reasons stated, we AFFIRM the district court’s

grant of summary judgment on Plaintiff’s constructive discharge

claims.   We VACATE the district court’s entry of summary judgment

on Count I of the complaint and REMAND with instructions to

consider Plaintiff’s reasonable accommodation claim.




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