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2 PJI 3.1 | First Circuit (US)
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2 PJI 3.1 | DISABILITY DISCRIMINATION1

Introductory Note
The following instruction for disability discrimination cases will require modification depending upon whether the case is a McDonnell Douglas pretext or a Price Waterhouse mixed motive case. Note that “[t]his circuit has noted, but not resolved, the question of whether that portion of the 1991 Civil Rights Act which amended Title VII to provide for limited relief against defendants who would have taken the same action even absent their discriminatory motive... applies to cases under the ADA.” Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21, 25 n.2 (1st Cir. 2002). see Instructions 1.11.2 for further discussion of the issues associated with the use of pretext and/or mixed motive instructions generally.

This pattern has been updated to reflect the passage of the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008).

The ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553 (2008), substantially changes how employers and courts are to evaluate ADA claims. For example, Congress has expanded the class of major life activities to specifically include, among others, seeing and working. Id. at § 4(a). In addition, Congress expressly rejected certain holdings of the Supreme Court in Sutton v. United Airlines,527 U.S. 471, 489 (1999), and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,534 U.S. 184 (2002), which “narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect” and causedlower courts [to] incorrectly [find] in individual cases that people with a range of substantially limiting impairments are not people with disabilities.” ADAAA, Pub. L. No. 110-325, § 2(a)(4)-(6).

The express language of the ADAAA directs that these amendments take effect January 1, 2009. Id. § 8. They are not retroactive to conduct that preceded their effective date. Thornton v. United Parcel Service, Inc.,587 F.3d 27, 34 (1st Cir. 2009).

When conduct occurring prior to January 1, 2009, is at issue, consult endnotes 4, 11, and 12 below.
[Plaintiff] accuses [defendant] of disability discrimination. Specifically, [she/he] claims that [defendant] took adverse employment action against [her/him] because of disability discrimination. To succeed on this claim, [plaintiff] must prove by a preponderance of the evidence all of the following:

First, [plaintiff] [had; had a record of having; was regarded as having]2 a physical or mental impairment3 that substantially limited [was regarded as substantially limiting] [plaintiff]’s ability to [specify major life activity or activities affected]4;

Second, [plaintiff] was a qualified individual, which means [he/she] possessed the necessary skill, experience, education and other job-related requirements for [specify job or position sought] and could have performed the essential functions5 of [specify job held or position sought] at the time [defendant] [specify adverse action] {if [defendant] had made reasonable accommodations for [plaintiff]’s disability}6;

Third, [defendant] knew that [plaintiff] had [specify alleged impairment]; and
{Choose one of the following two bracketed sentences, depending on whether the case is a pretext or a mixed motive case7 (Note: a similar choice/modification must be made at the end of the instruction depending on whether the case is a pretext or a mixed motive case.): 8{Fourth, that were it not for [plaintiff]’s disability, [defendant] would not have taken adverse employment action against [him/her].}

9{Fourth, that [plaintiff]’s disability was a motivating factor in [defendant]’s decision10 to take adverse employment action against [him/her].}}

A person is substantially limited if he or she is [restricted in the ability to]11 [specify major life activity affected].12

An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that [he/she] has been subjected to adverse employment action because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

In order to decide what the essential functions of a job are, you may consider the following factors:13 [(1) The employer's judgment as to which functions of the job are essential; (2) written job descriptions; (3) the amount of time spent on the job performing the function in question; (4) consequences of not requiring the person to perform the function; (5) the terms of a collective bargaining agreement; (6) the work experience of people who have held the job; (7) the current work experience of people in similar jobs; (8) whether the reason the position exists is to perform the function; (9) whether there are a limited number of employees available among whom the performance of the function can be distributed; (10) whether the function is highly specialized and the individual in the position was hired for his or her expertise or ability to perform the function; and (11) (list any other relevant factors supported by the evidence)]. No one factor is necessarily controlling. You should consider all of the evidence in deciding whether a job function is essential.

14{An “adverse employment action” is one that, standing alone, actually causes damage, tangible or intangible, to an employee. A trivial harm is insufficient. The fact that an employee is unhappy with something his or her employer did or failed to do is not enough to make that act or omission an adverse employment action.15 An employer takes materially adverse action against an employee only if it: (1) takes something of consequence away from the employee, for example by discharging or demoting the employee, reducing his or her salary, or taking away significant responsibilities; or (2) fails to give the employee something that is a customary benefit of the employment relationship, for example, by failing to follow a customary practice of considering the employee for promotion after a particular period of service.16 Whether action is materially adverse should be judged from the perspective of a reasonable person in [plaintiff]’s position, considering all the circumstances.}

17{Reasonable Accommodations}

{For a pretext case, insert the last 3 paragraphs of Instruction 1.1. For a mixed motive case, add the “motivating factor” definition from Instruction 1.2, as well as the last 4 paragraphs of that instruction.}

Footnotes

1 This instruction is designed for disability discrimination cases. Although these notes discuss disability discrimination in terms of Title I of the Americans with Disabilities Act (“ADA”) (the First Circuit has not yet decided whether a public employee can sue under Title II, Carmona-Rivera v. Puerto Rico,464 F.3d 14, 17 (1st Cir. 2006) (citing Currie v. Group Ins. Comm’n,290 F.3d 1, 10-14 (1st Cir. 2002) (ADA)), the same instruction should be usable in a Rehabilitation Act case. see Kvorjak v. Maine, 259 F.3d 48, 50 n.1 (1st Cir. 2001) (ADA) (“the standards applicable to [the Americans with Disabilities Act and the Rehabilitation Act] have been viewed as essentially the same”); Oliveras-Sifre v. P.R. Dep’t of Health,214 F.3d 23, 25 n.2 (1st Cir. 2000) (ADA and Rehabilitation Act) (“An employment discrimination claim under... the Rehabilitation Act is analyzed under the same standards applicable to... the ADA. We therefore do not separately consider the Rehabilitation Act claim.” (internal citation omitted)). The Introductory Notes at the beginning of these instructions outline the statutory basis for disability discrimination claims.
2 A person has a disability, and therefore qualifies for protection under the ADA, if that person has: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) is regarded as having such an impairment. 42 U.S.C. §§ 12102(2), 12112; ADAAA, Pub. L. No. 110-325 § 4(a). The definition of “regarded as having” comes directly from the ADAAA. Earlier case law statements such as the following, therefore, must be read with great care: “A plaintiff claiming that he is ‘regarded’ as disabled cannot merely show that his employer perceived him as somehow disabled; rather, he must prove that the employer regarded him as disabled within the meaning of the ADA.” Ruiz Rivera v. Pfizer Pharmaceuticals,LLC, 521 F.3d 76, 83 (1st Cir. 2008) (quoting Bailey v. Georgia-Pacific Corp.,306 F.3d 1162, 1169 (1st Cir. 2002) (emphasis in original)); Id. at 86 (The plaintiff “may not rely exclusively on her employer’s recognition or implementation of the restrictions imposed by her own physician to establish a regarded as claim.”); Sutton v. United Air Lines, Inc., 527 U.S. 471, 489-90 (1999) (pre-ADAAA) (discussing the “regarded as having” standard); Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521-25 (1999) (ADA) (same); Sheehan v. City of Gloucester,321 F.3d 21, 25-26 (1st Cir. 2003) (although city/employer regarded plaintiff as capable of work as police officer, to meet “regarded as” standard, plaintiff “would have to show that the City regarded his hypertension as rendering him unable to perform a broad range of jobs.”); Bailey v. Georgia-Pacific Corp.,306 F.3d 1162, 1166-67 (1st Cir. 2002) (same); Santiago Clemente v. Executive Airlines, Inc., 213 F.3d 25, 33-34 (1st Cir. 2000) (ADA) (discussing and rejecting plaintiff’s arguments that she had a record of impairment and that she was regarded as having an impairment). The ADAAA explains that its “regarded as” definition “shall not apply to impairments that are transitory and minor,” where “[a] transitory impairment is an impairment with an actual or expected duration of 6 months or less.” ADAAA, Pub. L. No. 110-325 § 4(a).

The ADAAA explicitly notes that the EEOC has “authority to issue regulations implementing the definitions of disability,” ADAAA, Pub. L. No. 110-325 § 6(a)(2), and the EEOC has issued new regulations implementing the ADAAA, see 29 C.F.R. § 1630, effective May 24, 2011. Thus, earlier case law statements like the following must be read with great caution: “[T]he EEOC has authority to issue regulations to carry out the employment provisions in Title I of the ADA, §§ 12111-12117, pursuant to § 12116” but it has not “been given authority to issue regulations implementing the generally applicable provisions of the ADA, see §§ 12101-12102, which fall outside Titles I-V.” Sutton, 527 U.S. at 479; Toyota Motor Mfg. Ky., Inc. v. Williams,534 U.S. 184, 194 (2002) (ADA) (citing Sutton and observing: “The persuasive authority of the EEOC regulations [defining the term ‘disability’] is less clear.... [N]o agency has been given authority to issue regulations interpreting the term ‘disability’ in the ADA. Nonetheless, the EEOC has done so.”).

3 The term “physical or mental impairment” is not defined in the statute, but the ADAAA requires that “[t]he definition of disability... shall be construed in favor of broad coverage of individuals.” ADAAA, Pub. L. No. 110-325 § 4(a). The new regulations amplify the terms. 29 C.F.R. § 1630.2(j). The First Circuit has said: “There is no question that alcoholism is an impairment for purposes of the first prong of analysis under the ADA,” Bailey v. Georgia-Pacific Corp.,306 F.3d 1162, 1167 (1st Cir. 2002), but also said that it was not “a per se disability,” Id. at 1168. “The ADA explicitly allows an employer to ‘hold an employee who... is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the... alcoholism of such employee.’ 42 U.S.C. § 12114(c). This statutory provision means that an employee who tries to use deficiencies in his job performance as evidence that alcoholism substantially impairs his ability to work is likely to establish the unhelpful proposition, for ADA coverage, that he cannot meet the legitimate requirements of the job.” Sullivan v. Neiman Marcus Group, Inc., 358 F.3d 110, 115-16 (1st Cir. 2004).
4 For cases involving conduct prior to January 1, 2009, the Supreme Court defined “major life activity” to include “those activities that are of central importance to daily life.” Toyota Motor Mfg., Ky., Inc. v. Williams,534 U.S. 184, 197 (2002) (ADA). The Court cautioned, however, “[t]hat these terms need to be interpreted strictly to create a demanding standard for qualifying as disabled.” Id. The then-applicable EEOC regulations, former 29 C.F.R. § 1630.2(i), defined a “major life activity” as a “function[ ] such as caring for oneself, performing manual tasks, walking, Seeing, hearing, speaking, breathing, learning, and working.”

Toyota’s restrictive definition has been replaced by the ADAAA. For cases involving conduct on and after January 1, 2009, the ADAAA provides a definition of “major life activity”:
[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, Seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.... [A] major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. ADAAA, Pub. L. No. 110-325 § 4(a). Furthermore the ADAAA expressly rejects Toyota’s requirement that the terms “substantially” and “major” need to be strictly interpreted to create a demanding standard under the ADA. Id. § 2(b). The ADAAA makes clear that “the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis.” Id.

The ADAAA provides expressly that working is a major life activity. Prior to the ADAAA, the Supreme Court had declined to rule on whether working was a major life activity. Toyota, 534 U.S. at 200; Sutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999) (ADA). The First Circuit stated:
Awaiting a definitive ruling from the Supreme Court otherwise, we have assumed that “working” is a major life activity and applied the EEOC’s framework in dismissing plaintiffs’ ADA claims.... So doing, we have required claimants to show that they were precluded from more than the performance of a particular job. Guzmán-Rosario v. United Parcel Serv., Inc., 397 F.3d 6, 11 (1st Cir. 2005) (citation omitted).

For pre-ADAAA cases, a plaintiff must “show an inability to work in a ‘broad range of jobs,’ rather than a specific job.” Toyota, 534 U.S. at 200 (citing Sutton, 527 U.S. at 492); see also former 29 C.F.R. § 1630.2(j)(3)(i) (“With respect to the major life activity of working... [t]he term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes.... The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.” (applying the pre-ADAAA standard of “significantly” restricted)); Sheehan v. City of Gloucester,321 F.3d 21, 25-26 (1st Cir. 2003) (summary judgment for City where the plaintiff could no longer work as a police officer but could work as a private security guard 24-32 hours per week); Carroll v. Xerox Corp.,294 F.3d 231, 239 (1st Cir. 2002) (“Furthermore, to determine whether a substantial limitation exists when work is at issue, we have looked to whether plaintiff can show that he or she is significantly restricted in his or her ability to perform ‘a class of jobs’ or ‘a broad range of jobs in various classes.’”); Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 524-25 (1999) (ADA) (upholding summary judgment for defendant where plaintiff’s hypertension prevented him from working as one type of mechanic but did not affect his ability to work as a mechanic generally); Tardie v. Rehabilitation Hosp. of R.I.,168 F.3d 538, 541-42 (1st Cir. 1999) (ADA) (holding that plaintiff’s inability to work more than 40 hours a week did not substantially limit her in the major life activity of working). In Gelabert-Ladenheim,252 F.3d at 58-59, the First Circuit observed that:
[W]hen the question of whether someone is disabled turns on the plaintiff's ability to work, the very existence of the disability turns on factors beyond simply the physical characteristics of the plaintiff. So, arguably, different results could be reached with respect to plaintiffs who suffer from identical physical impairments but who, due to a variety of factors like the economic health or geographic location of an area, face dissimilar employment prospects. Furthermore, “[a]n otherwise valid job requirement, such as a height requirement, does not become invalid simply because it would limit a person's employment opportunities in a substantial way if it were adopted by a substantial number of employers.” Sutton, 527 U.S. at 493-94. For a listing of some criteria see Bailey v. Georgia-Pacific Corp.,306 F.3d 1162, 1168 (1st Cir. 2002) (“accessible geographic area, the numbers and types of jobs in the area foreclosed due to the impairment, and the types of training, skills, and abilities required by the jobs”).

The following cases discuss whether specific activities constitute major life activities pre-ADAAA: Toyota, 534 U.S. at 197 (“manual tasks”); Guzman-Rosario, 397 F.3d at 11 (caring for oneself); Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 21-24 (1st Cir. 2002) (ADA) (lifting); Whitney v. Greenberg,Rosenblatt, Kull & Bitsoli, P.C., 258 F.3d 30, 34 (1st Cir. 2001) (ADA) (learning); Criado v. I.B.M. Corp,145 F.3d 437, 442-43 (1st Cir. 1998) (ADA) (sleeping); Bercovitch v. Baldwin School, Inc., 133 F.3d 141, 155 (1st Cir. 1998) (ADA) (learning); Soileau v. Guilford of Me., Inc., 105 F.3d 12, 15 (1st Cir. 1997) (ADA) (“ability to get along with others”).


5 Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 646 (1st Cir. 2000). For elaboration of the “essential functions” requirement, see Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11, 24-25 (1st Cir. 2002).
6 The bracketed language may be used in cases where reasonable accommodations are a disputed issue.
7 The Seventh Circuit held that the mixed motive analysis does not apply to discrimination suits brought under the ADA. Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010).
8 This bracketed sentence should be used in a pretext case. see Instruction 1.1.
9 This bracketed sentence should be used in a mixed motive case. see Instruction 1.2.
10 In Staub v. Proctor Hosp., ___ U.S. ___, 131 S. Ct. 1186 (2011), the Supreme Court dealt with so-called cat’s paw liability under the Uniformed Services Employment and Reemployment Rights Act ― according to the Court, “very similar to Title VII” in its use of the phrase “a motivating factor in the employer’s action.” The Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable” even if the supervisor who ultimately took the adverse action did not share the discriminatory animus. Id. at 1194 (emphasis in original). The principle seems applicable generally to employment discrimination cases. The Court expressed no view about liability “if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision.” Id. at n.4.
11 For conduct occurring prior to January 1, 2009, the instruction should reflect the pre-ADAAA standard under Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,534 U.S. 184, 198 (2002), that “to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” Also taking into account the pre-ADAAA guidelines by the EEOC, former 29 C.F.R. § 1630.2(j), the pattern should read: “A person is substantially limited if he or she is [unable to; significantly restricted in the ability to] [specify major life activity affected].”

Under the ADAAA, “substantially limits” must “be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.” ADAAA, Pub. L. No. 110-325 § 4(a). These findings and purposes include “provid[ing] broad coverage” for individuals with disabilities. Id. § 2(a). The ADAAA expressly rejects the standard announced in Toyota, 534 U.S.at 198, that “to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” ADAAA, Pub. L. No. 110-325 § 2(b)(4). The ADAAA further denounces the EEOC definition of “substantially limits” as “significantly restricted.” Id. § 2(b)(6). However, the ADAAA fails to suggest a new standard in the place of the rejected Toyota and EEOC standards. The ADAAA explicitly notes that the EEOC has “authority to issue regulations implementing the definitions” of the terms used in 28 U.S.C. § 12102, ADAAA, Pub. L. No. 110-325 § 6(a)(2), and the EEOC has issued regulations defining “substantially limits.” 29 C.F.R. § 1630.2(j). Pursuant to the ADAAA, “[a]n impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.” ADAAA, Pub. L. No. 110-325 § 4(a).

For conduct occurring prior to the effective date of the ADAAA, the assessment of the severity of any condition must include the effect of any corrective measures. Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999) (ADA) (“[I]f a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures — both positive and negative — must be taken into account when judging whether that person is ‘substantially limited’ in a major life activity and thus ‘disabled’ under the Act.”); Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521 (1999) (ADA) (same).

After the ADAAA, however, “[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.” ADAAA, Pub. L. No. 110-325 § 4(a). These measures expressly include:
(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (II) use of assistive technology; (III) reasonable accommodations or auxiliary aids or services; or (IV) learned behavioral or adaptive neurological modifications. Id. “The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses,” however, “shall be considered in determining whether an impairment substantially limits a major life activity.” Id. (emphasis added). An employer is barred from using “qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard, test, or other selection criteria... is shown to be job-related for the position in question and consistent with business necessity.” Id. § 5(b).

12 The ADAAA amends the ADA to provide that “[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” ADAAA, Pub. L. No. 110-325 § 4(a). Prior to the ADAAA, the Supreme Court held that an impairment’s impact must be permanent or long-term, Toyota, 534 U.S. at 198, and the First Circuit had noted that the pre-ADAAA version of the statute:
[Said] nothing about duration and nothing in the term “disability” or its definition [gave] a judge, and still less a jury, much guidance. The problem is primarily a policy choice to which Congress did not speak clearly; and the Supreme Court has done no more than extrapolate, from some estimated numbers of those to be covered, that severe restrictions of very important activities were what Congress had in mind. Until the Supreme Court fine-tunes its interpretation, it will be unclear how lower courts should deal with periods between, say, 6 and 24 months. Guzmán-Rosario v. United Parcel Serv., Inc., 397 F.3d 6, 10 (1st Cir. 2005) (citation omitted). But post-ADAAA, a plaintiff with a “transitory impairment... with an actual or expected duration of 6 months or less,” cannot succeed under the “regarded as” prong of the definition of disability. ADAAA, Pub. L. No. 110-325 § 4(a).

13 see 29 C.F.R. § 1630.2(n)(3); Eighth Circuit Model Instruction 5.52B (2001); see also Ward v. Mass. Health Research Institute,209 F.3d 29, 34 (1st Cir. 2000) (ADA) (an employer’s description of a job’s essential functions is given substantial weight, but other factors to consider include “written job descriptions, consequences of not requiring the function, work experience of past incumbents, and work experience of current incumbents”). Although attendance, generally, is an essential job function, see Leary v. Dalton,58 F.3d 748, 753 (1st Cir. 1995) (Rehabilitation Act), adherence to a fixed schedule may not be essential for some jobs. see Ward, 209 F.3d at 34. The jury charge should select only the relevant factors from this list.
14 This bracketed paragraph may be used in cases where there is a dispute about whether the action that the defendant allegedly took against the plaintiff constituted an adverse employment action. Although this question, if it arises, is one for the jury, see Melendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30, 36 (1st Cir. 2001) (ADEA) (jury could find that plaintiff who was given a raise but assigned less challenging, largely menial responsibilities suffered an adverse employment action), in most cases the dispute will be about whether the defendant’s challenged conduct was motivated by discriminatory animus, not whether it amounted to an adverse employment action. If there is no dispute about whether the alleged conduct, if proven, would constitute an adverse employment action, the bracketed paragraph may be deleted and the generic references to “adverse employment action” may be replaced by a brief description of the adverse employment action defendant allegedly took.
15 Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996) (FLSA) (“[T]he inquiry must be cast in objective terms. Work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.”). In a retaliation case, the Supreme Court said: “We speak of material adversity because we believe it is important to separate significant from trivial harms.” Burlington N. & Santa Fe Ry. Co. v. White,548 U.S. 53, 68 (2006). The Court there used the objective plaintiff standard from Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80 (1998).
16 Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996) (FLSA). This definition is generalized because “[d]etermining whether an action is materially adverse necessarily requires a case-by-case inquiry.” Id. There is little explicit guidance in the case law about what constitutes an adverse employment action. In the majority of cases, the court does not explicitly analyze whether the challenged conduct constitutes an adverse employment action, presumably because certain actions, such as layoffs, salary reductions, and demotions, are generally recognized as adverse employment actions. See, e.g., Straughn v. Delta Air Lines, Inc., 250 F.3d 23 (1st Cir. 2001) (Title VII and section 1981) (termination); Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15 (1st Cir. 1999) (Title VII) (demotion); Mullin v. Raytheon Co., 164 F.3d 696 (1st Cir. 1999) (ADEA) (demotion and salary reduction), abrogated on other grounds by Smith v. City of Jackson, 544 U.S. 228 (2005). In some cases, the court has defined what actions are insufficient to constitute an adverse employment action by upholding a trial court’s conclusion that the defendant’s conduct was not, as a matter of law, actionable. See, e.g., Marrero v. Goya of P.R., Inc., 304 F.3d 7, 24 (1st Cir. 2002) (“minor, likely temporary, changes in... working conditions,” extra supervision and probationary period in new post); Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998) (Title VII) (plaintiff was subjected to increased email messages, disadvantageous assignments and “admonition that [he] complete his work within an eight hour [day]”); Blackie, 75 F.3d at 726 (plaintiffs claimed defendants refused to negotiate a “side agreement” to supplement their employment contract); Connell v. Bank of Boston, 924 F.2d 1169, 1179 (1st Cir. 1991) (ADEA) (plaintiff who had already been fired and whose severance package was already calculated was forced to leave office two weeks early). In another class of cases, the court held that the challenged employment action could constitute an adverse employment action by either upholding a jury verdict for the plaintiff, See, e.g., White v. N.H. Dep’t of Corrections, 221 F.3d 254, 262 (1st Cir. 2000) (Title VII) (“ample evidence” of adverse employment action where plaintiff was harassed, transferred without her consent, not reassigned to another position, “and ultimately constructively discharged”), or holding that the defendant was not entitled to summary judgment on this issue. See, e.g., Melendez-Arroyo v. Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30, 36 (1st Cir. 2001) (ADEA) (plaintiff given standard salary increase but assigned less challenging, largely menial responsibilities); DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997) (Title VII) (plaintiff given five month assignment to job for which he had no experience and deprived of meaningful duties); Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir. 1997) (Title VII) (defendant refused to grant plaintiff a hardship transfer); see also Simas v. First Citizens’ Federal Credit Union, 170 F.3d 37, 48, 50 (1st Cir. 1999) (Federal Credit Union Act; whistleblower retaliation) (plaintiff given negative performance evaluations and deprived of responsibility for major account) (applying Title VII definition of adverse employment action).
17 Insert the appropriate language from Instruction 3.2 when reasonable accommodations are a disputed issue.

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