Lauren Miceli v. Jetblue Airways, Corp.; Mathew Bourgeois

Plaintiff-appellant Lauren Miceli

sued her quondam employer, JetBlue Airways Corp. (JetBlue), for

handicap discrimination and retaliation under Massachusetts state

law.1 The appellant alleges that JetBlue fired her due to her

disability and not (as JetBlue maintains) because she flouted

company policy on unexcused absences. She also alleges that

JetBlue retaliated against her for filing a complaint with the

Massachusetts Commission against Discrimination (MCAD). The

district court granted summary judgment in JetBlue's favor. See

Miceli v. JetBlue Airways Corp., No. CV 16-12032, 2018 WL 1524539,

at *6 (D. Mass. Mar. 28, 2018). Critical to the court's assessment

was the appellant's failure to use measures provided by JetBlue

enabling an employee to challenge a suspension or termination.

See id. at *5.

The appellant assigns error. Even when viewing the

record in the light most favorable to the appellant, we detect no

probative evidence of discrimination or retaliation.

Consequently, we affirm.

1 The appellant's complaint named Mathew Bourgeois, JetBlue's

inflight service manager, as a co-defendant. The parties and the

district court have treated JetBlue and Bourgeois as a unit. For

ease in exposition, then, we refer to JetBlue as if it were the

sole defendant and appellee. Our decision, of course, binds all

parties.

- 3 -

I. BACKGROUND

We rehearse the facts "in the light most agreeable to

the plaintiff, consistent with record support," Kouvchinov v.

Parametric Tech. Corp., 537 F.3d 62, 65 (1st Cir. 2008), and then

recount the travel of the case. We reserve "more exegetic detail

for our analysis of the issues on appeal." Harrington v. Aggregate

Indus. Ne. Region, Inc., 668 F.3d 25, 28 (1st Cir. 2012).

Beginning in 2006, JetBlue employed the appellant as an

inflight crew member, based in the Boston area. When hired, the

appellant was given access to an employee handbook (the Blue Book),

which outlined, inter alia, JetBlue's policies on attendance,

leave, and reasonable accommodation. As her employment

progressed, the appellant began to suffer from health issues.

While on duty in the fall of 2014, she experienced an ear injury.

The following spring, she was diagnosed through JetBlue's thirdparty

employee assistance program with post-traumatic stress

disorder (PTSD) and depression. The appellant sought and obtained

leave with respect to these conditions under the Family and Medical

Leave Act (FMLA), 29 U.S.C. § 2601.

In administering its FMLA program, JetBlue contracts

with a third-party administrator, Metropolitan Life Insurance

Company (MetLife). JetBlue's protocol channels all matters

regarding FMLA approval to MetLife. In order to obtain FMLA leave

based on an illness of her own, a crew member is required to

- 4 -

furnish MetLife with substantiating documentation from her health

care provider (including a "Certificate of Health Care Provider"

form). Unless such leave is granted, absences are denoted in the

crew member's schedule as "unavailable for assignment" (UNA).

Under JetBlue's dependability guidelines policy, limned

in a Blue Book supplement, UNA absences are assigned category codes

and point values. The accrual of points within a twelve-month

period triggers five stages of progressive guidance, culminating

in an employment review upon the accumulation of twelve points.

Such a review may result in the crew member's termination.

Starting in the fall of 2014, the appellant began to

accrue UNA absences, which she traces to her health conditions.

On February 7, 2015, she received an initial progressive guidance

based on the accrual of six dependability points. In mid-March,

the appellant (upon submission of documentation from her health

care provider) was pre-approved for intermittent FMLA leave of one

occurrence per month in increments of one day. The appellant

received continued progressive guidance on May 28, 2015, for

reaching eight dependability points. During the accompanying

meeting, the appellant lamented that many of her UNA absences from

March to April (which exceeded her approved FMLA allotment) should

have been excused as FMLA leave. She also met with a supervisor

to vent her frustration with what she perceived as a skeptical and

condescending tone in the progressive guidance meeting. Over a

- 5 -

month later, the appellant followed up on this discussion by

sending an email memorializing her complaints.

On June 18, 2015, the appellant submitted amended

documentation in hopes of extending the approved increments of her

intermittent FMLA leave from one day per occurrence to five days

per occurrence. MetLife acceded to this request. Meanwhile, the

appellant continued to accrue unexcused absences. On July 17,

2015, she received a final progressive guidance (the penultimate

warning) based on her accrual of ten dependability points. The

appellant alleges that she submitted documentation from her health

care provider in late July indicating that several of her unexcused

absences from March and May were related to her PTSD and/or her

depression. She urged unsuccessfully that these absences should

be recoded as FMLA occurrences.

In the summer of 2015, the appellant was hospitalized

several times due to mental health issues. She claims that she

notified both JetBlue and MetLife of her hospitalization and that

she requested FMLA and short-term disability leave by July 30,

2015. MetLife asked for substantiating documentation, which the

appellant subsequently provided. The appellant furnished

documentation of hospitalization commencing on August 6, 2015, and

her leave was approved from that date forward. Even so, an absence

two days prior to this date was coded as UNA despite the fact that

the appellant appears to have been hospitalized on that date. This

- 6 -

unexcused absence brought the appellant's total dependability

points to twelve, thus exposing her to suspension, employment

review, and possible dismissal.

The appellant notified JetBlue on November 2, 2015, that

she had filed a complaint with the MCAD — a complaint alleging

that JetBlue had discriminated against her on the basis of her

handicap in violation of Chapter 151B of the Massachusetts General

Laws. On November 17 (two days after the appellant returned from

her approved disability leave), JetBlue suspended her. On December

15, JetBlue, citing the appellant's numerous unexcused absences,

terminated her employment.

Chapter 151B entitles complainants to bring a civil

action in a state court "at the expiration of ninety days after

the filing of a complaint with the commission . . . but not later

than three years after the alleged unlawful practice occurred."

Mass. Gen. Laws ch. 151B, § 9. The appellant filed a timely suit

in the Suffolk Superior Court, alleging not only discrimination

but also that JetBlue had retaliated against her for filing the

MCAD complaint. Noting diversity of citizenship and the existence

of a controversy in the requisite amount, JetBlue removed the suit

to the federal district court. See 28 U.S.C. §§ 1332(a), 1441.

Near the completion of discovery but after the expiration of the

deadlines set for amending the pleadings, see Fed R. Civ. P. 16(b),

the appellant sought to add an FMLA breach count. The district

- 7 -

court denied her motion to amend and likewise denied her motion

for reconsideration.

In due course, JetBlue moved for summary judgment. See

Fed. R. Civ. P. 56(a). The appellant opposed the motion, but the

district court granted it. See Miceli, 2018 WL 1524539, at *6.

This timely appeal ensued.

II. ANALYSIS

The appellant assigns error to the district court's

entry of summary judgment with respect to her state-law claims of

both handicap discrimination and retaliation.2 She also assigns

error to the denial of her motion to amend her complaint. We

address these claims of error sequentially.

A. Summary Judgment.

We review the grant of summary judgment de novo. See

Noviello v. City of Bos., 398 F.3d 76, 84 (1st Cir. 2005). Summary

judgment is warranted if the record, construed in the light most

flattering to the nonmovant, "presents no genuine issue as to any

material fact and reflects the movant's entitlement to judgment as

a matter of law." McKenney v. Mangino, 873 F.3d 75, 80 (1st Cir.

2017), cert. denied, 138 S. Ct. 1311 (2018). When a plaintiff

2 Massachusetts state law refers to an individual's "handicap"

rather than her "disability" — the term favored by the Americans

with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. Since there

is no substantive difference between the two terms, see Ocean Spray

Cranberries, Inc. v. MCAD, 808 N.E.2d 257, 263 n.6 (Mass. 2004),

we use them interchangeably.

- 8 -

opposes summary judgment, she bears "the burden of producing

specific facts sufficient to deflect the swing of the summary

judgment scythe." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15,

19 (1st Cir. 2003). For this purpose, she cannot rely on

"conclusory allegations, improbable inferences, acrimonious

invective, or rank speculation." Ahern v. Shinseki, 629 F.3d 49,

54 (1st Cir. 2010).

1. Discriminatory Discharge. In Massachusetts, it is

unlawful for an employer:

. . . to dismiss from employment or refuse to

hire, rehire or advance in employment or

otherwise discriminate against, because of his

handicap, any person alleging to be a

qualified handicapped person, capable of

performing the essential functions of the

position involved with reasonable

accommodation, unless the employer can

demonstrate that the accommodation required to

be made to the physical or mental limitations

of the person would impose an undue hardship

to the employer's business.

Mass. Gen. Laws ch. 151B, § 4(16). Massachusetts law supplies the

substantive rules of decision in this diversity suit. See Sanders

v. Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir. 2016). That state's

highest court, the Supreme Judicial Court (SJC), "look[s] to the

Federal cases decided under the ADA as a guide to the

interpretation of [chapter] 151B." Russell v. Cooley Dickinson

Hosp., Inc., 772 N.E.2d 1054, 1061 n.5 (Mass. 2002). The SJC,

however, is not bound by federal interpretations of the ADA in

- 9 -

construing chapter 151B. See Mass. Elec. Co. v. MCAD, 375 N.E.2d

1192, 1198 (Mass. 1978). Indeed, the SJC has, on occasion,

departed from federal law in the area of disability discrimination.

See e.g., Gannon v. City of Bos., 73 N.E.3d 748, 760 n.10 (Mass.

2017); Mammone v. President & Fellows of Harvard Coll., 847 N.E.2d

276, 285 n.25 (Mass. 2006). We proceed accordingly.

The McDonnell Douglas burden-shifting framework applies

to the appellant's discriminatory discharge claim. See Gannon 73

N.E.3d at 756 (citing McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973)); see also Henry v. United Bank, 686 F.3d 50, 59

(1st Cir. 2012). At the first stage of this framework, the

appellant bears the burden of showing a prima facie case of

discrimination. See Gannon, 73 N.E.3d at 756. This requires a

showing that the appellant has a handicap; that she was nonetheless

qualified to perform the essential functions of the job, with or

without reasonable accommodation; and that, despite the foregoing,

JetBlue discharged her. See Verdrager v. Mintz, Levin, Cohn,

Ferris, Glovsky & Popeo, P.C., 50 N.E.3d 778, 793 (Mass. 2016);

Gannon, 73 N.E.3d at 756. As a practical matter, we can safely

assume (albeit for argument's sake) that the appellant has met the

prima facie case requirement, thus creating "a presumption of

discrimination." Gillen v. Fallon Ambul. Serv., Inc., 283 F.3d

11, 30 (1st Cir. 2002).

- 10 -

The burden of production thus shifts to JetBlue, which

must proffer a legitimate reason for the adverse employment action,

supported by credible evidence. See Abramian v. President &

Fellows of Harvard Coll., 731 N.E.2d 1075, 1084 (Mass. 2000); see

also Verdrager, 50 N.E.3d at 793. The proffered reason must be

one "which, on its face, would justify a conclusion that the

plaintiff was let go for a nondiscriminatory motive." Dávila v.

Corporación De P.R. Para La Difusión Pública, 498 F.3d 9, 16 (1st

Cir. 2007); see Verdrager, 50 N.E.3d at 793. JetBlue has carried

this burden: it consistently has averred that it terminated the

appellant's employment in accordance with its clearly delineated

and neutrally applied corporate policy after she accrued twelve

dependability points. And JetBlue has buttressed this averment

with documentation confirming the appellant's unexcused absences.

Uniform application of a facially neutral policy that proscribes

unexcused absences is a legitimate, nondiscriminatory reason for

termination that is distinct from the employee's disability. See

Leary v. Dalton, 58 F.3d 748, 754 (1st Cir. 1995); cf. Raytheon

Co. v. Hernandez, 540 U.S. 44, 53 (2003) (holding, in ADA case,

that application of neutral, generally applicable policy

constituted legitimate nondiscriminatory reason for refusing to

rehire employee).

At the third stage of the McDonnell Douglas framework,

the burden reverts to the employee to show that the adverse

- 11 -

employment action was taken "because of" her handicap and "not for

the reason proffered by the employer." Gannon, 73 N.E.3d at 756

(quoting Mass. Gen. Laws ch. 151B, § 4(16)). In a Chapter 151B

case, an employee can survive summary judgment on this issue by

showing pretext, that is, "that there are disputed issues of fact

as to whether the employer's proffered reason was not the true

reason" for her termination. Id. at 757; see Verdrager, 50 N.E.3d

at 794. Pretext may be demonstrated in a variety of ways, such as

by exposing "weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions" in the employer's proffered

reason. Santiago-Ramos v. Centennial P.R. Wireless Corp., 217

F.3d 46, 56 (1st Cir. 2000) (quoting Hodgens v. Gen. Dynamics

Corp., 144 F.3d 151, 168 (1st Cir. 1998)); see Bulwer v. Mt. Auburn

Hosp., 46 N.E.3d 24, 35-38 (Mass. 2016).

The appellant contends that JetBlue's proffered reason

was pretextual because JetBlue, despite alleged knowledge of her

disability, did not accommodate her disability in applying its

attendance policy. While the appellant might perhaps be able to

demonstrate that the asserted basis for her termination was

pretextual were she able to show that she requested a reasonable

accommodation that would have ensured her compliance with the

policy, cf. Barbuto v. Advantage Sale & Mktg., LLC, 78 N.E.3d 37,

44 (Mass. 2017) (concluding that employee's request for

accommodation as to her use of medical marijuana was not facially

- 12 -

unreasonable and so termination for violating drug policy could

have been discriminatory); Evans v. Fed. Exp. Corp., 133 F.3d 137,

140 (1st Cir. 1998) ("If the employee had [requested an

accommodation], the firing might still be regarded as one 'because'

of a handicap or at least 'because' of the denial."), she has made

no such showing here.

"[F]or an employee's actions to constitute a request for

accommodation, they must make the employer aware that the employee

is entitled to and needs accommodation." Ocean Spray Cranberries,

Inc. v. MCAD, 808 N.E.2d 257, 271 n.21 (Mass. 2004). If the

requested accommodation is not suitable or the request is otherwise

inappropriate, the employer nonetheless "must make a reasonable

effort to determine the appropriate accommodation . . . through a

flexible, interactive process that involves both the employer and

the qualified individual with a disability." Russell, 772 N.E.2d

at 1065 (quoting 29 C.F.R. § 1630 App. (2001) (alteration in

original)).

Here, JetBlue offered its workforce specific avenues for

relaying requests for accommodations. To this end, it created an

email address and an online application directed to the company's

human resources department. Information about these modalities

was in the Blue Book and was included in relevant paperwork

furnished to all crew members (such as progressive guidance

- 13 -

materials). Although the appellant had access to these materials,

she chose not to travel along either of the designated avenues.

Even so, the appellant maintains that she requested

accommodations. She locates her supposed requests for

accommodation in progressive guidance meetings (in which she

expressed her frustration at MetLife's coding of her FMLA absences)

and in related interactions with JetBlue employees. In particular,

she focuses on a July 2015 email to Bourgeois, see supra note 1,

in which she referred to having a disability and expressed her

hope "for those of us with disabilities to be met with compassion

and reasonable accommodations made if difficulties are faced."

But an employee who seeks an accommodation must be more

forthcoming: a request for an accommodation must be reasonably

specific. See Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 89

(1st Cir. 2012). It must comprise more than a cryptic

communication to be deciphered by the recipient. Importantly,

such a request must illuminate the linkage between the requestor's

disability and the requested accommodation. See id.; Ocean Spray,

808 N.E.2d at 271-72.

In Ocean Spray, for instance, the employee had provided

his employer with three physician letters that supported his claim

of disability and described his need for an accommodation in

varying levels of detail. See 808 N.E.2d at 271. The SJC concluded

that, in the ensemble, these letters "constitute[d] substantial

- 14 -

evidence of an unmistakable request for accommodation." Id. The

court indicated, though, that any one of these letters, standing

alone, might well be insufficient to constitute a request for

accommodation. See id. Viewed in this light, the appellant's

complaints anent MetLife's alleged incorrect coding of her

absences and her email noting that people with disabilities are

entitled to reasonable accommodation are far removed from any

statement that JetBlue could reasonably be expected to interpret

as a request for a specific accommodation.

Nor are the appellant's requests for FMLA and disability

leave relevant to this inquiry. While such requests may be deemed

requests for accommodation "in some circumstances," Echevarría v.

AstraZeneca Pharm. LP, 856 F.3d 119, 128 (1st Cir. 2017) (quoting

García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st

Cir. 2000)), the appellant's requests were wholly collateral to

JetBlue's policy, which did not allocate dependability points on

the basis of absences stemming from either approved FMLA or

disability leaves. And in any event, those requests were granted.

Finally, we are not persuaded by the appellant's

attempts to locate pretext in JetBlue's failure to modify its

attendance policy absent any requests for modification on the

appellant's part. The SJC has concluded that Chapter 151B imposes

no such unilateral responsibility upon employers. See Mammone,

847 N.E.2d at 285 n.25.

- 15 -

That ends this aspect of the matter. We conclude that

in as much as the appellant has not shown that she requested an

accommodation as to JetBlue's attendance policy, she has failed to

cast any shadow upon JetBlue's proffered reason for her

termination. Therefore, we agree with the district court that the

appellant has not made out a genuine issue of material fact

sufficient to avoid summary judgment.

Of course, when an employer alleges that standard

policies underpin an adverse employment action against a person

with disabilities, that person may demonstrate pretext through a

showing that the employer has not applied those policies uniformly.

See Kouvchinov, 537 F.3d at 68; see also Acevedo-Parrilla v.

Novartis Ex-Lax, Inc., 696 F.3d 128, 142 (1st Cir. 2012). This

may be accomplished by showing, say, that the adverse action

departed from a clearly delineated policy, see Kouvchinov, 537

F.3d at 68, or that the employer applied such a policy differently

to similarly situated employees, see Verdrager, 50 N.E.3d at 795;

Bulwer, 46 N.E.3d at 36. Here, however, the theoretical

availability of these alternative methods of showing pretext does

not improve the appellant's lot.

To begin, the appellant has offered nothing to show that

JetBlue applied its attendance policy disparately to similarly

situated employees. So, too, the appellant's attempt to base

liability on a supposed departure from policy lacks force. In

- 16 -

this respect, she alleges that MetLife miscoded her FMLA absences

despite receiving proper notice and necessary substantiation, and

that JetBlue fired her due to those miscoded absences.3 But a bare

showing of administrative error, without more, does not make out

a case of either pretext or discriminatory discharge. After all,

Chapter 151B was never intended to "protect against all instances

of arbitrary action or from poor managerial judgment." Wheelock

Coll. v. MCAD, 355 N.E.2d 309, 314 (Mass. 1976); cf. Kouvchinov,

537 F.3d at 67 ("[T]he anti-discrimination laws do not insure

against inaccuracy or flawed business judgment on the employer's

part."). Instead, the law was "designed to protect against, and

to prevent, actions spurred by some discriminatory animus."

Kouvchinov, 537 F.3d at 67.

Last — but far from least — the appellant's claim of

pretext fails because she has adduced no evidence that JetBlue

knew that there were errors in the coding of her absences when it

terminated her employment. Nor has she adduced any evidence

showing that she engaged in the procedures established by JetBlue

to prevent such bevues from leading to termination. Under

3 The district court concluded that the appellant did not

provide sufficient evidence of the alleged coding errors at summary

judgment. See Miceli, 2018 WL 1524539, at *3. Because we hold

that the appellant's claim of pretext would fail even if she had

supplied such evidence, we do not wade into the nitty-gritty of

these allegations. We do note, however, that the record indicates

that MetLife's operation had some serious, and seriously

frustrating, kinks.

- 17 -

JetBlue's standard policies, the appellant had several

opportunities to challenge her unexcused absences, but she chose

not to avail herself of any of them. For example, the record makes

manifest that she neither reviewed nor responded to her final

progressive guidance. And she did not challenge (or even inquire

about) unexcused absences attributed to her when she was notified

first of her suspension and later of her termination.

The appellant's failure to pursue these remedial

measures sinks her claim of pretext. Where, as here, an employee's

concerns about the handling of her employment are not raised

through reasonable (and reasonably neutral) processes made

available by her employer and known to her, it is not appropriate

for a court to second-guess the fairness of individual attendance

determinations. Cf. Mesnick, 950 F.2d at 825 (explaining, in

discrimination case brought under federal law, that courts do not

"sit as super personnel departments").

To say more would be to paint the lily. We conclude

that the appellant has not satisfied her burden of adducing

evidence sufficient to show that JetBlue's proffered reason for

her dismissal was pretextual. Accordingly, we agree with the

district court that the appellant's handicap discrimination claims

cannot survive summary judgment.

2. Retaliation. The district court also granted summary

judgment as to the appellant's claim that JetBlue fired her in

- 18 -

retaliation for filing an MCAD complaint. See Miceli, 2018 WL

1524539, at *5. Once again, we employ the McDonnell Douglas

burden-shifting framework as an analytic tool. See Mole v. Univ.

of Mass., 814 N.E.2d 329, 338 (Mass. 2004).

Under applicable state law, see Mass. Gen. Laws ch. 151B,

§ 4(4), a prima facie case of retaliation requires the claimant to

show that she engaged in protected activity; that she experienced

some adverse action; and that the protected activity was causally

connected to the adverse action, see Mole, 814 N.E.2d at 338-39.

The first and second elements are clearly present: filing an MCAD

complaint is protected activity and termination of employment is

a classic example of an adverse employment action. See Clifton v.

Mass. Bay Transp. Auth., 839 N.E.2d 314, 318 (Mass. 2005); Mole,

814 N.E2d at 338 n.13. The third element, though, is the sticking

point.

In attempting to show the necessary causal connection

between JetBlue's receipt of the MCAD complaint and its termination

of her employment, the appellant relies exclusively on the timing

and sequence of these two events. In the circumstances of this

case, her reliance is misplaced.

To be sure, an inference of causation may be drawn "if

adverse action is taken against a satisfactorily performing

employee in the immediate aftermath of the employer's becoming

aware of the employee's protected activity." Mole, 814 N.E.2d at

- 19 -

339. But when "problems with an employee predate any knowledge

that the employee has engaged in protected activity, it is not

permissible to draw the inference that subsequent adverse actions,

taken after the employer acquires such knowledge, are motivated by

retaliation." Id. at 340.

Our decision in Pearson v. Mass. Bay Transp. Auth., 723

F.3d 36 (1st Cir. 2013), illustrates this point. There, we held

that a plaintiff alleging retaliation under Chapter 151B failed to

show a sufficient causal connection at summary judgment because

the plaintiff's supervisors had recommended his termination before

he engaged in the protected activity. See id. at 42. Even though

the employer's final decision to discharge the plaintiff did not

occur until after the protected activity, we concluded that the

plaintiff would have had to show that the outcome would have

differed if not for the employer's knowledge of the protected

activity. See id.

The case at hand fits the Pearson model. At the time

that the appellant filed her MCAD complaint, she had already

accrued twelve dependability points and, thus, was subject to

suspension and termination review. The appellant has offered

nothing to suggest that, but for her protected activity, she would

not have been terminated as a result of this review. In the

circumstances of this case, timing and sequence, without more, are

not enough to ground an inference of causation. It follows that

- 20 -

the district court did not err in granting summary judgment on the

appellant's retaliation claim.

B. Motion to Amend.

There is one loose end: the appellant's challenge to

the district court's denial of her motion to amend her complaint.

We review orders granting or denying leave to amend for abuse of

discretion. See U.S. ex rel. D'Agostino v. EV3, Inc., 802 F.3d

188, 191 (1st Cir. 2015). Under this deferential standard, we

will affirm "so long as the record evinces an arguably adequate

basis for the court's decision." Hatch v. Dep't of Children, Youth

& Their Families, 274 F.3d 12, 19 (1st Cir. 2001).

Where, as here, leave to amend is sought more than

twenty-one days after service of the complaint and the opposing

party has not consented, a complaint may be amended only by leave

of court. See Fed. R. Civ. P. 15(a). In general, leave should be

freely given if, in the court's view, "justice so requires." Id.

15(a)(2). The standard may change, though, when — as in this case

— the court has entered a scheduling order under Federal Rule of

Civil Procedure 16(b), which contains, inter alia, a deadline for

amendment of the pleadings. In that event, a motion to amend filed

outside the parameters set by the scheduling order will be granted

"only upon a showing of 'good cause.'" D'Agostino, 802 F.3d at

192 (quoting Rule 16(b)(4)); see Cruz v. Bristol-Myers Squibb Co.,

PR, Inc., 699 F.3d 563, 569 (1st Cir. 2012). Such an elevated

- 21 -

standard makes perfect sense: without it, "scheduling orders would

be little more than aspirational statements, to be disregarded by

the parties whenever compliance proves inconvenient." D'Agostino,

802 F.3d at 194.

The "good cause" standard focuses on both the conduct of

the moving party and the prejudice, if any, to the nonmovant. See

O'Connell v. Hyatt Hotels of P.R., 357 F.3d 152, 155 (1st Cir.

2004). In the decisional calculus, the moving party's diligence

or lack of diligence serves as the "dominant criterion." Id.

"[T]he longer a plaintiff delays, the more likely the motion to

amend will be denied, as protracted delay, with its attendant

burdens on the opponent and the court, is itself a sufficient

reason for the court to withhold permission to amend." Steir v.

Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004). Nor should

a court be expected to look kindly upon a plaintiff who seeks

belatedly to amend her complaint based on "information that [she]

had or should have had from the outset of the case." Trans-Spec

Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 327 (1st Cir.

2008).

With these principles in mind, we turn to the appellant's

motion to amend. She filed that motion on July 17, 2017, seeking

to add an FMLA claim approximately twelve months after she

commenced her civil action and approximately five months after the

Rule 16(b) deadline to amend had expired. JetBlue objected, and

- 22 -

the district court denied the motion. It concluded that the

appellant had failed to demonstrate good cause for the delay,

particularly given that she had referred to the possibility of an

FMLA claim as early as her 2015 MCAD complaint.

The appellant sought reconsideration. She asserted that

she had learned only during discovery that her termination was

premised in part upon an August 4, 2015, UNA absence. Her new

FMLA claim, she insisted, was spurred by this recently discovered

evidence. The district court reaffirmed its earlier denial of

leave to amend, concluding that the appellant had neither

identified any newly discovered evidence nor called attention to

any error in the court's prior reasoning.

Like the district court, we find the appellant's

argument unpersuasive. Importantly, the MCAD complaint included

allegations that JetBlue relied on miscoded FMLA absences in

terminating the appellant's employment. Given those allegations,

there was nothing revelatory in the "discovery" of the August 4,

2015, UNA absence. We hold, therefore, that the district court

did not abuse its discretion in concluding that the appellant

failed to show that new evidence justified the substantial delay

in bringing her belated FMLA claim. That delay, in turn, lends

weight to the district court's supportable conclusions that the

appellant was not diligent in attempting to pursue her FMLA claim

and, therefore, lacked "good cause." See O'Connell, 357 F.3d at

- 23 -

155 (affirming "good cause" denial of motion to amend complaint

five months after scheduling order deadline); Sosa v. Airprint

Sys., Inc., 133 F.3d 1417, 1419 (11th Cir. 1998) (per curiam)

(affirming denial of motion to amend because plaintiff, who had

relevant information "even before she filed suit," lacked "good

cause").

We need go no further. For the reasons elucidated above,

the judgment of the district court is



Affirmed.