author: LIPEZ, Circuit Judge.

text:
    Michelle AUDETTE, Plaintiff, Appellant, v. TOWN OF PLYMOUTH, MA; Plymouth Police Department; Chief Michael E. Botieri, in his official and individual capacity; Captain John Rogers, in his official and individual capacity; Roberta Kety, in her official and individual capacity, Defendants, Appellees.
    No. 15-2457
    United States Court of Appeals, First Circuit.
    May 26, 2017

      Timothy M. Burke, Cincinnati, OH, with whom Jared S. Burke and Law Offices of Timothy M. Burke, Needham, MA, were on brief for appellant.
    Evan C. Ouellette, with whom Leonard H. Kesten, Deidre Brennan Regan, and Brody, Hardoon, Perkins & Kesten, LLP, Boston, MA, were on brief for appellee.
    Before TORRUELLA, LIPEZ, and BARRON, Circuit Judges.
   LIPEZ, Circuit Judge.

Appellant Michelle Audette, a police patrol officer in Plymouth, Massachusetts, appeals from the entry of summary judgment for the Town of Plymouth (“Town”), the Plymouth Police Department (“Department”), and a number of the Town’s and the Department’s employees. Audette claims that she suffered discrimination in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213, and its Massachusetts state-law corollary, Massachusetts General Laws chapter 151B § 4, when the defendants failed to accommodate her request for transfer to another position in the Department after she sustained an on-the-job injury. Audette further alleges that she suffered illegal retaliation when she attempted to assert her rights under the ADA and that she suffered discrimination on the basis of her gender in violation of Massachusetts law. We affirm the district court’s rejection of these claims.

I.

The following facts are undisputed, except as noted.

A. Audette’s Ankle Injuries

Audette began her career as a patrol officer for the Plymouth Police Department in 1986. While working on October 4, 2010, she sustained the first of two on-the-job injuries to her right ankle. These injuries led to visits to many doctors, two surgeries, and rounds of physical therapy. To this day, she has yet to fully recover.

Audette’s doctors have prescribed physical limitations to her movement in order to aid in her recovery. These limitations have varied at times, but include: strictly sedentary work, shorter working shifts (four or six hours, rather than the typical eight- and-a-half), working in an “air-cast” boot, working with the use of crutches, limited standing or walking to forty-five minutes out of every hour, and limited bending. According to the Plymouth Police Department’s “Rules and Regulations” manual, a patrol officer’s duties include patrolling by foot and in a vehicle, responding to emergencies, providing services on an emergency basis, aiding individuals who are in danger of physical harm, preserving crime scenes, and apprehending criminal offenders. Since the initial injury, Audette’s limitations have prevented her from fulfilling her standard responsibilities as an active patrol officer, except for a brief period between August 2011 and January 2012, when she sustained a second on-the-job injury to the same ankle.

Nevertheless, the Plymouth Police Department continues to employ Audette as a patrol officer. When doctors’ limitations on her working conditions have permitted, Audette has received full-time pay for working part-time shifts in a light-duty capacity as a -station officer. When her doctors’ limitations, have not allowed her to work as a station officer, Audette has been afforded full pay while taking “injured on duty” (“IOD”) leave. The Department has also granted her other accommodations not available to other patrol officers, including an elevator key and a designated, convenient parking spot.

B. The Department’s National Incident-Based Reporting System

Like many police departments across the nation, the Plymouth Police Department participates in the National Incident-Based Reporting System (“NIBRS”). NIBRS is an incident-based reporting system used by law enforcement agencies to collect and report data on crimes. Local, state, and federal agencies compile and maintain data in NIBRS as part of their records management responsibilities. Ordinarily, two Department employees are responsible for NIBRS data: the Department’s Records Sergeant, who oversees all records maintenance, including NIBRS, and a civilian clerical worker. In July 2012, the Records Sergeant was also assisted by Detective Robert Morse, who oversaw the Department’s evidence management responsibilities. After the Records Sergeant announced his retirement in September 2012, Morse temporarily took over NIBRS oversight responsibilities.

In May 2013—when Audette was out of work due to her first ankle surgery— Morse announced that he would retire. On May 30, 2013, patrol officer Benjamin Dexter returned to work after sustaining an injury, and he was placed on full-time light duty. Plymouth Police Chief Michael Boti-eri assigned Dexter to train with Morse and assist in getting “caught up” with the NIBRS records. By October 6, the Department had sufficiently caught up with its backlog, and Dexter was reassigned as a station officer for the remainder of his light-duty status. The Department never appointed another patrol officer on light duty to assist with the NIBRS data outside of Dexter’s four-month assignment in 2013. In November 2013, Dexter returned to active-duty status as a patrol officer, and Sergeant Michael Ferazzi was appointed as the new Records Sergeant and became responsible for NIBRS oversight.

C. Audette’s Accommodation Request

Audette underwent ankle surgery in June 2013. Later that summer her doctor issued a note stating that she could return to work on October 21. The only limitation the doctor placed on Audette was “walking/standing based on symptoms.” On October 9—three days after Officer Dexter had been reassigned from NIBRS data maintenance to station officer—Audette delivered a letter to Chief Botieri titled “Reasonable [Accommodation],” which requested that she be allowed to work the NIBRS data-entry position to which Dexter had been assigned. We quote the letter in full:

I am requesting a “Reasonable [Accommodation]” as I would like to return to work and feel that I can be a productive member of this Police Department.
Following a very extensive and [painful] ankle injury I am currently in the healing process after receiving [surgery]. I have recently received a [Doctor’s] note allowing for me to return to work on October 21, 2013. The physical limitations are for 4 hours, with walking and standing limited to symptoms. As I continue with my Physical Therapy I find that my symptoms vary day to day.
I recently became aware that a nontraditional “Light Duty” assignment had been offered to another Officer and that this assignment is currently vacant. This assignment was utilized to aid in keeping the [NIBRS] records/stats up to date. This assignment is mainly sitting while reading and completing data on a computer.
I am [hopeful] this same opportunity could be extended to me. Being assigned to a seated position would allow me to feel productive as well as continue to heal and gain greater strength as I move towards returning to work full duty.

Chief Botieri met with Audette and told her that the non-traditional data-entry assignment to which her letter referred had been completed and that the only light-duty assignment available for patrol officers was the station officer position that she had' intermittently worked before her surgery. He sent an email to Audette on October 18 confirming this information, which also stated that “[i]f an assignment does become available and the work is within your limitations^] I will notify you.”

Despite not receiving the accommodation she requested, Audette returned to work as scheduled on October 21, 2013, and she continued to work as a station officer until September 2014, when she took time off for her second ankle surgery. After the second surgery, Audette again returned to work as a station officer in April 2015 under her doctor’s order that she work in a light-duty capacity for four hours per day with “limited bending,” and she has continued to work in that position. At no point has Audette been assigned responsibilities that conflict with any doctor’s orders. Nor has she ever indicated to Chief Botieri or anyone else in the Department that she is unable to perform her assigned duties

D. Audette’s Disciplinary Proceedings

At an early stage during Audette’s medical ordeal, some events occurred that underlie her retaliation and gender discrimination claims. On the evening of November 24, 2011, one of Audette’s fellow officers got into an off-duty altercation at a bar in downtown Plymouth. As a result, the patrol officer contacted Audette, as his union vice-president, and officer Ray Reid, his union steward, seeking assistance in getting placed into an alcohol treatment facility for police officers in Brattleboro, Vermont. The following day—when Reid was off-duty but Audette was on-duty—they went to the patrol officer’s house for about an hour-and-a-half. After meeting with the patrol officer, Reid agreed to transport him to the alcohol treatment facility, and Audette told Reid that she would inform the Department about what had occurred and that the patrol officer would be out sick while at the treatment facility. When Audette left her patrol to attend to her colleague at his home around 10:00 a.m. that morning, she notified a dispatcher that she would be “tied up” for a while. Audette left her coworker’s home at 11:30 a.m. but did not inform anyone in the Department about what had occurred there, or that the coworker was on his way to the Vermont facility, until sometime between 1:49-3:00 p.m. that afternoon.

On April 17, 2012, Audette met with the Town’s Human Resources Director, Roberta Kety, to discuss Audette’s return to work at the Department after sustaining her second ankle injury. Audette alleges that as a result of this meeting, Kety informed Chief Botieri that Audette had complained about how she had been treated by the Department and that she had asked for a reasonable accommodation, including, but not limited to, a sedentary light-duty position. Three days after meeting with Kety, Audette met with Chief Botieri, and he broached the topic of Au-dette’s early retirement.

A few days after their initial meeting, Audette again met with Chief Botieri, who stated that there was an “open discipline issue” regarding her handling of the incident at her fellow patrol officer’s home, though Chief Botieri chose not to resolve the issue at that time. At some point during the next two weeks, Audette was given the option of taking a suspension or receiving a letter of reprimand as a result of the disciplinary incident. On May 2, 2012, Chief Botieri issued a letter of reprimand to Audette that stated she had violated multiple rules of professional conduct, in-eluding engaging in “conduct unbecoming of an officer” and “neglect of duty.” The letter stated that it would be subject to review and removal from her personnel file within one year if she was involved in no other disciplinary incidents during that period.

Rather than signing the letter of reprimand, Audette opted for a disciplinary hearing. After the disciplinary hearing, there was a finding that Audette had violated the Department’s rules and regulations, and she received a new letter of reprimand on May 23. The second letter was identical to the first, except that it stated it would remain in Audette’s personnel file for up to two years, rather than one. The letter of reprimand was the only disciplinary action taken against Audette for the incident, and it did not affect her rank, pay, or duties as a patrol officer.

Audette filed a demand for arbitration challenging the reprimand letter. In December 2013 the police officers’ union—on Audette’s behalf—entered into a settlement agreement with the Town of Plymouth and Chief Botieri. The settlement agreement stated that the Town would “not rely on the reprimand for any future employment related purpose,” that the Town would remove the letter from Au-dette’s file, that the settlement agreement did not constitute an admission of any party, and that the “execution of [the] agreement shall constitute a waiver of any action arising under either contract or statute with regard to the issuance of the reprimand.” Because the letter had not been removed immediately from Audette’s personnel file, despite the settlement agreement, Chief Botieri sent a letter to the Town’s Human Resources Department on May 29, 2014, notifying it that the letter should have been removed, and he instructed the department to do so.

E. Procedural History

In August 2014, Audette filed a complaint in Massachusetts state court alleging a failure to accommodate under the ADA and the Rehabilitation Act (Counts I and II); discrimination based on an “actual handicap,” a “perceived handicap,” and a “record of handicap” under Massachusetts law (Counts III, IV, and V); gender and age discrimination under Massachusetts law (Counts VI, VII, VIII, and IX); intentional infliction of emotional distress (Count X); and conspiracy (Count XI). Defendants removed the action to federal court and filed a motion for summary judgment in September 2015.

After a hearing, the district court granted summary judgment for the defendants, stating that Audette had “failed to raise a genuine issue of material fact as to her being a qualified disabled individual, able to perform the essential functions of a patrol officer, so her disability discrimination claims must fail.” It also found that she failed to raise “genuine and material issues of fact” regarding her other discrimination claims, noting that she had “not submitted admissible evidence sufficient for a jury to infer that she has suffered an adverse employment action because of either [her age or gender].” Finally, it concluded that she faded to establish a prima facie case for all of her remaining claims. Audette timely appealed.

II.

Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mulloy v. Acushnet Co., 460 F.3d 141, 145 (1st Cir. 2006) (quoting Fed. R. Civ. P. 56(c)). “Material facts” are those which “might affect the outcome of the suit under the governing law,” and an issue is “genuine” if there is evidence that would allow a reasonable jury to find for the non-moving party. Id. (quoting Seaboard Sur. Co. v. Town of Greenfield, 370 F.3d 215, 218-219 (1st Cir. 2004)).

Although we construe the factual record in the light most favorable to the non-moving party—here, Audette—we need not consider “eonelusory allegations, improbable inferences, [or] unsupported speculation.” Id. (quoting Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002)). We review the district court’s grant of summary judgment de novo, id., and “[w]e may affirm summary judgment ‘on any basis apparent in the record,’ ” Jones v. Nationwide Life Ins., 696 F.3d 78, 86 (1st Cir. 2012) (quoting Chiang v. Verizon New Eng. Inc., 595 F.3d 26, 34 (1st Cir. 2010)).

III.

A. Disability and Handicap Discrimination Claims

The ADA prohibits employers from discriminating against a “qualified individual”—defined as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires”—on the basis of disability. 42 U.S.C. §§ 12111(8), 12112(a); Lang v. Wal-Mart Stores East, L.P., 813 F.3d 447, 454 (1st Cir. 2016). Failing to provide reasonable accommodations for a qualified employee’s known physical or mental limitations constitutes discrimination, unless an employer can demonstrate that such an accommodation would impose an undue hardship. Lang, 813 F.3d at 454; 42 U.S.C. § 12112(b)(5)(A).

To prevail at the summary judgment stage on a typical claim of failure to accommodate, a plaintiff must present sufficient evidence indicating “that (a) she is disabled within the ADA’s definition; that (b) she could perform the job’s essential functions either with or without a reasonable accommodation; and that (c) the employer knew of her disability, yet failed to reasonably accommodate it.” Lang, 813 F.3d at 454.

However, the burden for the employee at the second step of the inquiry changes slightly when an employee becomes disabled, can no longer perform the essential functions of her job, and requests as an accommodation a transfer or complete reassignment of duties. Instead of addressing the essential functions of her current position, an employee must demonstrate that she can perform the essential functions of the position she desires. Moreover, the employee must demonstrate that there is an actual vacant position to which she can transfer. Lang, 813 F.3d at 456. “An employer is not required by the ADA to create a new job for an employee, nor to re-establish a position that no longer exists.” Phelps v. Optima Health, Inc., 251 F.3d 21, 27 (1st Cir. 2001); see also Lang, 813 F.3d at 456.

The parties agree that Audette has presented evidence that she is disabled within the ADA definition, and there is no dispute that Audette is unable to fulfill the duties and responsibilities of an active patrol officer. But Audette argues that the ADA entitles her to transfer to a clerical position maintaining NIBRS data.

In an attempt to prove that such a vacancy existed, Audette cites Chief Botieri’s testimony that NIBRS data maintenance is a “lot of work,” “takes a lot of time,” and that at certain points the Department was “several months behind” in logging all of its data. This testimony demonstrates only that the Department had fallen behind on its record-keeping obligations and that additional help was occasionally used to ease the Department’s backlog. It does nothing to establish that the Department had a vacancy that Audette could have filled.

She next argues unpersuasively that the “time frames” clearly demonstrate that there was a vacant NIBRS data-entry position available. Although the Department temporarily assigned an injured patrol officer, Officer Dexter, to assist with NIBRS data entry during the summer that Au-dette underwent her first ankle surgery, the Department determined that it had sufficiently “caught up” on the project by early fall, reassigning Dexter to work as a station officer on October 6. Audette did not request a transfer to the position until three days after the Department eliminated the temporary position, and no patrol officer has subsequently been assigned to such a position.

In a final attempt to prove that a vacancy existed, Audette points to the Department’s hiring of a new Records Sergeant— a position that was vacant at the time of her accommodation request—one month after her request for a data-entry position was denied. As we noted, supra, the Department tasks two people with working on NIBRS data maintenance—a civilian clerical worker and the Department’s Records Sergeant. But the Records Sergeant’s duties are much broader than the exclusive data-entry tasks that Audette requested to perform. The Records Sergeant oversees all Department records (not merely NIBRS), supervises civilian clerical staff, and responds to public records requests. Audette cannot persuasively argue that that the appointment of a new Records Sergeant, with the broad responsibilities of this position, constitutes evidence that the Department failed to consider her for a vacant NIBRS data-entry position. Since Dexter’s transition out of the data-entry position on October 6, 2013, no one other than the Records Sergeant and the civilian clerical worker has been assigned to work on the NIBRS log.

In short, Audette has “offered no evidence that there were any [NIBRS data-entry] vacancies when she asked for an accommodation, and it was her burden to show as much.” Lang, 813 F.3d at 456. Thus, the district court correctly entered summary judgment on her ADA and Massachusetts General Laws chapter 151B, § 4 handicap discrimination claims.

B. Retaliation Claim

Audette’s initial complaint did not outline a claim for ADA retaliation. Her only claim filed under the ADA, Count I, cites the entire statute and states that defendants “failed to reasonably accommodate Plaintiffs disability, failed to engage in an interactive process to properly and reasonably address her serious health concerns, and as a result she was subject to adverse employment actions by means of Defendants^] discriminatory conduct and other retaliatory and unfair treatment.” (emphasis added). Appellees argue that this reference to “other retaliatory and unfair treatment” is not substantial enough to constitute a claim of ADA retaliation.

We need not decide whether Audette’s passing reference to “retaliatory and unfair treatment,” buried within the complaint’s failure-to-accommodate claim, constitutes an independent cause of action that she could have pursued as a companion to her principal ADA claim. In her memoranda filed in opposition to summary judgment, Audette addressed no ADA retaliation claims. The only accusations of retaliation she argued on summary judgment were in reference to her gender discrimination claim and an intentional infliction of emotional distress claim that is not before us on appeal. Even if we were able to glean an ADA retaliation claim from Audette’s complaint, she certainly waived such a claim during the summary judgment proceedings. See Schneider v. Local 103 I.B.E.W. Health Plan, 442 F.3d 1, 3 (1st Cir. 2006) (per curiam) (“Even an issue raised in the complaint but ignored at summary judgment may be deemed waived.” (quoting Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995))).

C. Gender Discrimination Claim

When examining an employment discrimination claim under Massachusetts General Laws chapter 151B, the Supreme Judicial Court of Massachusetts uses the familiar McDonnell Douglas burden shifting analysis. Sensing v. Outback Steakhouse of Fla., LLC, 575 F.3d 145, 154 (1st Cir. 2009); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this analysis, a plaintiff must first present a prima facie case of employment discrimination. If she succeeds, the burden shifts to the defendant to present evidence of a legitimate, non-discriminatory reason for the employment action taken against the plaintiff. Goncalves v. Plymouth Cty. Sheriffs Dep’t, 659 F.3d 101, 105 (1st Cir. 2011). If the defendant provides such a reason, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the defendant’s purported reason was merely pretextual. Id.

We begin and end with Audette’s prima facie case for gender discrimination. To establish a prima facie case in this context, Audette must provide evidence that (1) she is a member of a protected class, (2) she suffered from an adverse employment action, (3) discriminatory animus, and (4) a causal linkage between the discriminatory animus and the adverse employment action. Lipchitz v. Raytheon Co., 434 Mass. 493, 751 N.E.2d 360, 368 (2001); cf. Ray v. Ropes & Gray LLP, 799 F.3d 99, 113 (1st Cir. 2015) (employees claiming denial of promotion on basis of gender must demonstrate that they are (1) a member of a protected class, (2) qualified for the position sought, (3) suffered an adverse employment action, and (4) the position remained open or was filled by a person with similar qualifications). The district court found that Audette failed to provide “any admissible evidence sufficient for a jury to infer that she has suffered an adverse employment action because of either her [gender or age].” We agree.

Citing our decision in Bhatti v. Trs. of Bos. Univ., 659 F.3d 64, 73 (1st Cir. 2011), the district court indicated that Au-dette had suffered no adverse employment action because she could point to no “tangible consequences” of Chief Botieri’s reprimand letter. Appellees, unsurprisingly, agree with the district court’s assessment and note that the letter issued to Audette did not affect her salary, grade, or any other objective terms of her employment or working conditions. Conversely, Audette argues that a formal letter of reprimand subjecting her to a period of enhanced discipline and charging her with engaging in “conduct unbecoming an officer” and “neglect of duty” constitutes serious reputational harm that rises to a “tangible consequence.”

If Audette’s story concluded with the issuance of the reprimand letter, she might well have a point. However, rather than accepting a letter of reprimand, Audette sought arbitration and, as a result, entered into a settlement agreement in which the Town agreed to remove the letter from her file. While the Town stated that “it will not rely on the reprimand for any future employment related purpose,” Audette’s representatives agreed that the settlement agreement “shall constitute a waiver of any action arising under either contract or statute with regard to the issuance of the reprimand.” In light of the settlement agreement’s explicit waiver provision, Au-dette may not point to the reprimand letter as the basis of an adverse employment action for her Massachusetts General Laws chapter 151 gender discrimination claim.

Audette proposes a second adverse employment action—that Chief Boti-eri intimidated her by making repeated, yet unfulfilled, threats to suspend her for her conduct. Appellees respond that Au-dette failed to raise this argument in the district court and that we should not consider this argument for the first time on appeal. We agree. “[I]n the absence of extraordinary circumstances—and none exist in this case—‘legal theories not raised squarely in the lower court cannot be broached for the first time on appeal.’ ” B&T Masonry Constr. Co., Inc. v. Pub. Serv. Mut. Ins. 382 F.3d 36, 40 (1st Cir. 2004) (quoting Teamsters Union v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992)). Moreover, even if Audette had preserved the issue for appeal, she faces a second barrier. Her only evidence of the threats comes from her unverified civil complaint, which cannot be considered for summary judgment purposes. See Geshke v. Crocs, Inc., 740 F.3d 74, 78 n.3 (1st Cir. 2014) (“[U]nverified allegations in a complaint are not evidence.”)

Because Audette has provided no admissible evidence of an adverse employment action, she has failed to establish a prima facie claim of gender discrimination.

Affirmed.

      . The Plymouth Police Department's official title for the position is "patrolman,” but we opt to use the gender-neutral term "patrol officer” throughout this opinion.

      . The Department’s station officer works behind the front desk at the Plymouth police station and can be assigned various tasks such as assisting civilians who come to the station to file complaints, filling out various forms, assisting with booking procedures and fingerprinting, assisting dispatch when necessary, coordinating overtime assignments for other officers, and conducting prisoner cell checks at the station.

      . For example, Audette was briefly placed on paid IOD leave after her first ankle injury when her doctor limited her to strictly sedentary work, because the station officer position—though a light-duty position involving limited movement—requires some amount of standing and walking. Audette was also placed on paid IOD leave for one week when one of her doctors required her to use crutches, due to the Department’s policy of prohibiting on-duty officers’ use of crutches.

      .The Records Sergeant’s duties also include managing the Department’s Records Division, maintaining and processing Department records, ensuring compliance with public records laws, supervising clerical staff, and responding to public records requests.

      . There was one other occasion on record in which an officer—though a sergeant and not a patrol officer—was assigned to assist with NIBRS maintenance. During the summer of 2012, Sergeant Christopher Butler suffered an injury and was placed on light duty. The only light-duty position within the Department available for sergeants is "Shift Commander.” Because another employee was already assigned to work as a shift commander—and to avoid having two employees assigned to the same task—Sergeant Butler was instead assigned to assist in updating the Department’s NIBRS logs. Sergeant Butler was removed from light duty and returned to his active duty position by November of 2012.

      . Appellees deny both that Audette asked for an accommodation in the meeting with Kety and that Chief Botieri suggested to Audette that she retire.

      . Chief Botieri asserts that suspension was never on the table as a disciplinary option, but Captain John Rogers stated in his deposition that he believed Audette was given a choice between suspension and a letter of reprimand.

      . We have noted in the past that Massachusetts’s handicap discrimination statute, Massachusetts General Laws chapter 15IB, § 4, is "nearly identical” to the ADA. Mulloy, 460 F.3d at 154 (1st Cir. 2006). Other than a “gloss” that the Massachusetts workers' compensation statute potentially places on Massachusetts General Laws chapter 15IB § 4, which is not at issue in this case, we analyze the statute in exactly the same manner as the ADA. Id. at 154-55.

      . We have noted that in a reasonable accommodation case, the burden is first on the employee to demonstrate that a proposed accommodation would enable her to perform the essential functions of her job and that the proposed accommodation, on the face of things, appears feasible for the employer. See Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259 (1st Cir. 2001). If the plaintiff carries this initial burden, the employer has the opportunity to demonstrate that the actual costs of the facially feasible accommodation in fact create an undue hardship. Id. The Supreme Court approvingly cited Reed's framework in U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-02, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002).

      . Because the ADA definition of "qualified individual” includes the ability to perform the essential functions of the job that the individual "holds or desires,” a disabled employee seeking a transfer is a “qualified individual,” so long as she can perform the essential functions of the vacant position—with or without a reasonable accommodation—even if she can no longer perform the essential functions of her current position. Indeed, "reassignment to a vacant position" is explicitly listed among the reasonable accommodations offered by the ADA. 42 U.S.C. § 12111(9)(B); Barnett, 535 U.S. at 397, 122 S.Ct. 1516. This understanding of a "qualified individual” accords with one of the purposes of the ADA—accommodating disabled employees who can no longer perform the essential functions of their current job, with or without a reasonable accommodation, by allowing them to transfer to a vacant position whose essential functions they can perform. See H.R. Rep. No. 101— 485, pt. 2, at 63 (1990) (“If an employee, because of disability, can no longer perform the essential functions of the job that she or he has held, a transfer to another vacant job for which the person is qualified may prevent the employee from being out of work and [the] employer from losing a valuable worker.”); see also 29 C.F.R. pt. 1630 App. § 1630.2(o); S. Rep. No. 101-116, 101 Cong., 129-30 (1989); Stacy M. Hickox, Transfer as an Accommodation: Standards from Discrimination Cases and Theory, 62 Ark. L. Rev. 195, 196-201 (2009). Indeed, a number of our sister circuits have held that the ADA requires such an interpretation. See, e.g,, Cravens v. Blue Cross & Blue Shield of Kan. City, 214 F.3d 1011, 1016-18 (8th Cir. 2000) (holding that the ADA requires an employer to consider reassigning an individual with disabilities where the individual can no longer perform the essential functions of her current position); Burns v. Coca-Cola Enters., 222 F.3d 247, 256 (6th Cir. 2000). (same); Smith v. Midland Brake, Inc., a Div. of Echlin, Inc., 180 F.3d 1154, 1162 (10th Cir. 1999) (same); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1301 (D.C. Cir. 1998) (same); Gile v. United Airlines, Inc., 95 F.3d 492, 498 (7th Cir. 1996) (same).

      . Each of Audette’s many physicians has consistently stated that she is unable to perform tasks beyond the light-duty station officer assignment, and none of them have been able to predict when she might recover to a point in which she could return to her active patrol officer duties, with or without a reasonable accommodation.

      . Audette, a patrol officer, specifically requested a seated data-entry position and did not request to be promoted to Records Sergeant. Some of our sister circuits have held that the ADA does not require an employer to promote a disabled employee as a reasonable accommodation. See, e.g., McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 98 & n.4 (2d Cir. 2009); see also 29 C.F.R. pt. 1630, App. § 1630.2(o) ("[A]n employer is not required to promote an individual with a disability as an accommodation.”). We have not faced this question ourselves, and need not comment upon it here, except to note that even if Audette’s request could have been construed as a request to be promoted to Records Sergeant, she has proffered no evidence to demonstrate that she was qualified for the position.

      . Audette has not appealed the district court's decision on her age discrimination claim.

      . We also note that even if the settlement agreement’s waiver provision had not foreclosed this aspect of Audette's gender discrimination claim, she faces a second obstacle. In order to demonstrate discriminatory animus in this context, Massachusetts law requires Audette to demonstrate that "she was treated differently from another person, known as a comparator, who was not a member of her protected class, but who otherwise was 'similarly situated.' ” Trs. of Health and Hosps. of City of Bos. v. Mass. Comm'n Against Discrimination, 449 Mass. 675, 871 N.E.2d 444, 450 (2007) (quoting Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 686 N.E.2d 1303, 1310 (1997)). Audette has failed to proffer evidence of another Department employee whose circumstances were "substantially similar to [Audette’s] 'in all relevant aspects’ concerning the adverse employment decision.” Id. (quoting Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989)). If anything, evidence in the record demonstrates that no such "similarly situated” employee existed, since the only other employee involved in the incident at issue, Reid, was off-duty, while Audette was on-duty.


source: Caselaw Access Project

author: SELYA, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Kevin Joseph FIELDS, Defendant, Appellant.
    No. 16-1451
    United States Court of Appeals, First Circuit.
    May 26, 2017

      Claudia Leis Bolgen and Bolgen & Bol-gen, Woburn, MA, on brief for appellant.
    Emily Gray Rice, United States Attorney, and Seth R. Aframe, Assistant United States Attorney, on brief for appellee.
    Before LYNCH, SELYA and KAYATTA, Circuit Judges.
   SELYA, Circuit Judge.

Defendant-appellant Kevin Joseph Fields stole more than $30,000 worth of postage stamps by passing bad checks at various post offices. This stamp-stealing scheme proved ill-conceived and, following his conviction, the appellant was sentenced to a 30-month term of immurement. He now appeals his upwardly variant sentence. Discerning no error, we affirm.

I. BACKGROUND

Because this appeal follows a guilty plea, “we glean the relevant facts from the change-of-plea colloquy, the unchallenged portions of the presentence investigation report (PSI Report), and the record of the disposition hearing.” United States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).

In June of 2014, the United States Postal Inspection Service began investigating reports that an individual was using bad checks to purchase stamps at a number of post offices in New Hampshire and Maine. A copy of one of the checks, written on an account at the Kennebunk Savings Bank, displayed the name and address of the appellant. The inspectors requested information about this account from the bank. It supplied the requested information and also disclosed that it had contacted the local sheriffs department about the account. That contact was inspired when—a few weeks earlier—the appellant made two deposits into the account using counterfeit checks (each in an amount in excess of $3000).

Warming to the chase, postal inspectors located the appellant in Dover, New Hampshire. They advised him of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which he waived. The appellant admitted to opening the checking account and using checks furnished by the bank to purchase stamps despite his knowledge that the account did not contain sufficient funds. He estimated that he had purchased nearly $27,000 worth of stamps using bad checks, explained that “[m]oney drives me,” and related that he had taken the stamps to pawn shops and exchanged them either for cash or for merchandise. He added that he had created fake checks on his computer (though he had not purchased stamps with those home-made checks).

Following a review of post office and bank records, inspectors concluded that, during the period from June 9 through June 17, 2014, the appellant had obtained more than $30,000 worth of stamps by passing bad checks at post offices in New Hampshire, Maine, and Massachusetts. In due course, a federal grand jury sitting in the District of New Hampshire returned an indictment charging the appellant with possessing stolen government property (the stamps) with intent to convert that property. See 18 U.S.C. § 641. A summons and, later, an arrest warrant were issued but never served.

We fast-forward to May of 2015, at which time the appellant wound up in state custody for an unrelated parole violation. He was brought before a federal magistrate pursuant to a writ of habeas corpus ad prosequendum and subsequently entered a guilty plea to the charge of possession of stolen government property with intent to convert. The district court allowed a change of counsel at the appellant’s request and, some months later, held a sentencing hearing.

The probation department submitted the PSI Report, which recommended a base offense level of six, see USSG § 2Bl.l(a)(2); a four-level enhancement premised on the amount of loss, see id. § 2Bl.l(b)(l)(C); and a two-level enhancement on the basis that the offense of conviction involved the possession or use of device-making equipment, see id. § 2Bl.l(b)(ll)(A)(i). After subtracting two levels for acceptance of responsibility, see id. § 3El.l(a), the PSI Report recommended a total offense level of ten. The appellant’s past convictions—including convictions for identity fraud, forgery, larceny, and the fraudulent use of credit cards—produced a criminal history score of 30, which the PSI Report augmented by two points because the appellant had committed the offense of conviction while on parole for unrelated state charges. See id. § 4Al.l(d). These computations placed the appellant squarely in criminal history category VI.

At sentencing, the district court adopted most of the guideline calculations limned in the PSI Report. The appellant objected, however, to the two-level enhancement for his alleged possession or use of device-making equipment. Though he had manufactured counterfeit checks, he had not employed them in his stamp-stealing scheme. The district court sustained this objection and reduced the appellant’s total offense level accordingly. This adjustment in the appellant’s offense level, coupled with his placement in criminal history category VI, yielded a guideline sentencing range of 18 to 24 months (as opposed to the 24- to 30-month range suggested in the PSI Report).

The court proceeded to impose an above-the-range sentence of 30 months’ imprisonment. In pronouncing sentence, the court emphasized the appellant’s extensive criminal history and fretted that the appellant would not be deterred from future criminal conduct because earlier prison terms had failed to ameliorate his behavior. Thus, a relatively stiff sentence was needed to protect the public and to promote general deterrence. This timely appeal ensued.

II. ANALYSIS

As a general matter, we review the imposition of a sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). Within this rubric, though, some specific parameters pertain. “[Sentencing claims are addressed under a two-step pavane. First, we address those claims that affect the procedural integrity of the sentence. Second, we address any residual question as to the substantive reasonableness of the sentence.” United States v. Rodríguez-Adorno, 852 F.3d 168, 175 (1st Cir. 2017) (citations omitted). Our review “is characterized by a frank recognition of the substantial discretion vested in a sentencing court.” United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).

Consistent with our bifurcated process, we first address the appellant’s assignments of procedural error. Specifically, he claims that the sentencing court relied on clearly erroneous facts and, moreover, failed adequately to explain its reasons for imposing an upwardly variant sentence.

We start with the appellant’s claim that the sentencing court relied on clearly erroneous facts. In approaching this claim, we pause to recognize that the abuse of discretion standard is not monolithic. Within it, we review findings of fact for clear error and embedded questions of law de novo. See United States v. Carrasco-de-Jesús, 589 F.3d 22, 26-27 (1st Cir. 2009). Clear error review is respectful and requires that we accept findings of fact and inferences drawn therefrom unless, “on the whole of the record, we form a strong, unyielding belief that a mistake has been made.” United States v. Demers, 842 F.3d 8, 12 (1st Cir. 2016) (quoting Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990)).

The appellant’s complaint about the court’s use of clearly erroneous facts is really two separate claims. We take these claims one by one, beginning with the appellant’s contention that the district court clearly erred in refusing to find that the appellant’s criminal conduct was attributable to his substance abuse. After setting the stage, we explain why we reject this claim.

At the disposition hearing, the appellant asked for leniency on account of his lengthy struggle with substance abuse. In support, his counsel sought to attribute the appellant’s stamp-stealing spree to the fact that he was in the thrall of drugs. The lawyer noted that the appellant’s most recent arrest involved the possession of heroin. Furthermore, in his presentence interview, the appellant had explained that “he did whatever he had to do to support his habit.” And on appeal, counsel called our attention to the PSI Report’s suggestion that the appellant was using heroin daily at the time of ^he offense of conviction.

We recognize that drug abuse is at the root of many crimes. To some extent, addiction may play a role in virtually everything that an addict does or does not do. This does not mean, however, that every crime committed by a person with a drug habit can automatically be written off as a by-product of that habit.

In this instance, the district court was fully aware of the appellant’s protracted involvement with drugs. It nonetheless rejected the appellant’s plea and found that “his crimes [did] not appear to be related to drug abuse.” The court implied instead that the appellant was motivated by greed.

In reaching this conclusion, the court mentioned the absence of any evidence that the appellant, when writing the bad checks, purchasing the stamps, or swapping the stamps at the pawn shop, was either under the influence of any controlled substances or in possession of such substances. Stressing that the appellant’s crime was “premeditated,” the court concluded that he appeared to “enjoy[] the process of deceiving ... the bank, the United States Post Office, [and] the pawnshop.” The court stated that, although it would recommend substance abuse treatment given the appellant’s history, it did not believe that any such treatment would help to allay the appellant’s larcenous inclinations.

The circumstances surrounding the offense of conviction lend credence to the district court’s view. The appellant’s explanation as to why he had embarked on his stamp-stealing spree (“[m]oney drives me”), given during his post-Miranda interview, was consistent with a finding that greed was the impetus for his actions. The appellant did not claim, for example, that he had intended to sell or trade the purloined stamps to obtain drugs.

At any rate, the standard of review is determinative here. The district court had the opportunity to see and hear the appellant, and its on-the-spot judgment is entitled to considerable weight. See United States v. Matos, 328 F.3d 34, 40 (1st Cir. 2003). Though a different finding may have been supportable in view of the appellant’s history of drug abuse, the district court was not required to interpret the record in the manner that the appellant urged. See Rivera-Rivera v. United States, 844 F.3d 367, 373 (1st Cir. 2016). We have said before, and today reaffirm, that “where there is more than one plausible view of the circumstances, the sentencing court’s choice among supportable alternatives cannot be clearly erroneous.” United States v. Ruiz, 905- F.2d 499, 508 (1st Cir. 1990). We therefore uphold the district court’s determination that the appellant’s offensive conduct was not attributable to his drug habit.

The appellant’s other claim about the sentencing court’s supposed reliance on a clearly erroneous fact fails for a different reason. Simply put, there is less to this claim than meets the eye.

The appellant asserts that the court became confused and found (incorrectly) that his offensive conduct involved identity fraud. This assertion has two parts. First, it presumes that the appellant did not engage in identity fraud as part of the offense of conviction. Second, it presumes that the court misconstrued the appellant’s crime and thought that it involved identity fraud. Only one of these presumptions is true.

We agree with the appellant that the record is barren of any evidence that his stamp-stealing scheme included identity fraud. For instance, there is no evidence that he opened the checking account using a false identity, or that the checks he submitted to the various post offices bore any name other than his own, or that he gave a pseudonym to the pawn shops when unloading the stamps.

The appellant’s claim runs aground, though, on the second part of his hypothesis: the record makes pellucid that the district court made' no finding that the offensive conduct involved identity fraud. While the court did comment about identity fraud, the appellant’s plaint yanks the court’s comments from their contextual moorings. We explain briefly.

In the critical portion of its remarks at sentencing, the court discussed the weight to be given to the appellant’s criminal record—a record that it characterized as “horrendous.” The court expressed particular concern about the appellant’s historical record of fraud and theft crimes, including state-court convictions for forgery, fraudulent use of credit cards, and identity fraud. The court’s passing reference to the importance of protecting the victims of identity fraud was made in the course of concluding that, although the appellant’s past crimes were not violent, they nonetheless signified a significant threat to the public and warranted substantial weight in the sentencing calculus. This was an entirely appropriate factor for the court to consider at sentencing. See 18 U.S.C. § 3553(a)(1); see also Flores-Machicote, 706 F.3d at 21. We discern no error, clear or otherwise.

The appellant has one more shot in his procedural-error sling. He alleges that the district court failed adequately to explain its reasons for imposing an upwardly variant sentence.

It is common ground that a sentencing court must “state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). Beyond that, the court is obligated to complete “a statement of reasons form.” Id § 3553(c)(2); see 28 U.S.C. § 994(w)(1)(B). Even so, the court’s failure to complete this form does not require vacation of the sentence absent a showing of prejudice. See United States v. Vázquez-Martínez, 812 F.3d 18, 25-26 (1st Cir. 2016). We will not set aside a sentence on such a ground if, after reviewing “the district court’s oral explanation, we believe that the district court would have imposed the same sentence had it filed a written statement of reasons form.” Id. at 25.

We are mindful that the challenged sentence represents an upward variance, exceeding the top of the applicable guideline range by six months. A sentencing court’s obligation to explain its reasons for the sentence imposed is heightened in proportion to the extent that the sentence varies from the guideline sentencing range. See United States v. Montero-Montero, 817 F.3d 35, 37 (1st Cir. 2016). Larger variances require more cogent (or, at least, more detailed) explanations. See id.

In the case at hand, the appellant asseverates that the district court did not furnish an adequate explanation for his above-the-range sentence. The court did file a,'written statement of reasons form, but the appellant argues that the court did not sufficiently address that form’s component parts. Specifically, the appellant points out that the court did not complete section VI(D) of the form, which directs that the court “[s]tate the basis for a variance.” This asseveration is true as far as it goes, but it does not take the appellant very far.

Despite the omission on which the appellant relies, the court did complete section YI(C) of the form, entitled “18 U.S.C. § 3553(a) and other reason(s) for a variance.” This section presents a checklist of the section 3553(a) factors and provides blank lines for the court to insert more particularized comments. The court checked several boxes listing pertinent statutory factors, and it specified (in the space allotted) that the nature of the offense—a “[planned, premeditated fraud”—together with the appellant’s “[e]xtensive” criminal history warranted the upwardly variant sentence. Given that the court did supply its reasons for the variance, we are not convinced that its failure to complete section VI(D) was error.

Even assuming, for argument’s sake, that the failure to fill out section VI(D) was error, any such error was harmless. See United States v. Fernández-Garay, 788 F.3d 1, 5 (1st Cir. 2015) (“[A]n error is deemed harmless if a reviewing court can say with fair assurance that the sentencing court ‘would have imposed the same sentence even without the error.’ ” (quoting United States v. Tavares, 705 F.3d 4, 25 (1st Cir. 2013))). What the court wrote in responding to other sections of the form, combined with what it said at the disposition hearing, leaves no doubt that the district court would have imposed the same sentence had it filed a fully completed statement of reasons form.

The appellant demurs. He suggests that having the district court complete the form in full would have made a difference in his sentence. In his view, the district court was “subconsciously” influenced by the proposed two-level enhancement for the possession or use of device-making equipment, see USSG § 2Bl.l(b)(ll)(A)(i), even though the court sustained the appellant’s objection to this proposed enhancement. Had the court written out the basis for the variance, the appellant says, it “may have noted the eerie similarity between the variant sentence handed down and the top of the Guideline Sentencing Range [including] the disallowed two-level enhancement.”

This argument, though creative, is woven entirely out of tattered threads of speculation and surmise. Nothing in the record so much as hints that the court confused the two guideline sentencing ranges and thought it was imposing a top-of-the-range sentence. Nor does the record indicate that once the court had rejected the proposed enhancement, it nonetheless continued to take it into account.

The appellant makes one last effort to pull a rabbit out of a hat. The sentencing court’s oral reasoning makes transparently clear that the driving force behind the upward variance was the combination of the appellant’s prolific criminal history and the gravity of the offense of conviction. The appellant strives to transmogrify the clarity of this explanation into a fatal flaw. He posits that the sentencing guidelines already accounted for these factors and, thus, the court needed to explain why the guidelines insufficiently accounted for them before imposing an above-the-range sentence. See United States v. Zapete-Garcia, 447 F.3d 57, 60 (1st Cir. 2006) (explaining that when a sentencing court relies on a factor already accounted for by the sentencing guidelines to impose a variant sentence, the court must indicate what makes that factor worthy of extra weight in the defendant’s case); see also United States v. Del Valle-Rodríguez, 761 F.3d 171, 176 (1st Cir. 2014).

The appellant’s argument collapses because the court did exactly what the case law requires. The court noted that both the appellant’s past convictions and the"1 offense conduct were non-violent and stated “that’s why the guideline range on this ... is light.” It then explained that, notwithstanding their non-violent nature, the appellant’s crimes were serious and emphasized the hardship that fraud of the type perpetrated by the appellant in past cases imposes on its victims. Similarly, the court was “very concerned” about protecting the public from the appellant’s “serial nonstop criminal conduct” and worried that the appellant would resume his criminal behavior “the minute he gets out.” No more detailed explanation was exigible: “a sentencing court’s obligation to explain a variance requires the court to offer a plausible and coherent rationale—but it does not require the court to be precise to the point of pedantry.” Del Valle-Rodríguez, 761 F.3d at 177.

This brings us to the appellant’s challenge to the substantive reasonableness of his sentence. The government concedes that the appellant preserved this objection below and, thus, our review is for abuse of discretion. See United States v. Medina-Villegas, 700 F.3d 580, 583 (1st Cir. 2012).

“In appraising the substantive reasonableness of a sentence, we first ask whether the district court has offered.a plausible rationale for the sentence and then ask whether the sentence embodies a defensible result.” United States v. Diaz-Arroyo, 797 F.3d 125, 129 (1st Cir.), cert. denied, — U.S.-, 136 S.Ct. 272, 193 L.Ed.2d 199 (2015). We must affirm the sentence if it is “within the universe of acceptable outcomes.” United States v. Vargas-Dávila, 649 F.3d 129, 132 (1st Cir. 2011). This remains true even if reasonable jurists could disagree on the length of the ideal sentence. See id.

This standard is “highly deferential” to the district court’s judgment, even when that court has imposed a variant sentence. United States v. Matos-de-Jesús, 856 F.3d 174, 180 (1st Cir. 2017). Here, moreover, the court below provided a surfeit of reasons in support of the sentence imposed.

As we already have discussed, the appellant came before the court with a lengthy criminal history—one that convinced the court that the appellant presented a very high risk of recidivism. In addition, the court was troubled by the fact that the appellant’s criminal conduct seemed to be increasing in severity, as his current offense was “a planned, premeditated scheme” of “deceit and fraud” that “lasted over many weeks” as opposed to a crime of opportunity. This escalation reflected a change of course (in the wrong direction) from the appellant’s earlier convictions for, say, stealing wallets.

To be sure, the court recognized that there were two sides to the story. For example, it found the appellant’s personal circumstances mitigating. He had been raised by a supportive foster family from the age of four, but. his upbringing was marred by behavioral and mental health issues. The court considered the appellant’s psychological infirmities—anxiety, depression, post-traumatic stress disorder, and polysubstance dependence—to weigh in mitigation. The court told the appellant that it had “taken into consideration everything I’ve heard” and “come down from where I really thought you should be based on my reading of your criminal record.”

The sentencing court’s comments, read as a whole, paint a clear picture of the court’s thought process. We consider its carefully balanced rationale to be thoroughly plausible.

So, too, we take no issue with the resulting sentence. The duration of the sentence is readily defensible: the appellant’s criminal history is substantial, the offense of conviction is serious, and the appellant’s past encounters with the legal system have not altered his behavior. Seen in this light, the 30-month sentence falls well within the universe of reasonable sentences. See Vargas-Dávila, 649 F.3d at 132. Accordingly, the appellant’s claim of substantive unreasonableness fails.

III. CONCLUSION

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

Affirmed.

      . Of course, unpreserved claims of sentencing error are normally reviewed for plain error. See United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). Here, the parties dispute whether any or all of the appellant’s procedural claims of sentencing error were preserved below. We need not resolve this dispute: we assume instead, favorably to the appellant, that the ordinary standard of review for preserved claims of error applies. Even so, the appellant's procedural claims still fail.

      . In point of fact, the appellant exchanged at least some of the stolen stamps for pawn shop merchandise rather than cash. A number of these items were found in his home, including an iPad and a laptop—and nothing in the record indicates that he was planning to sell or swap these devices for controlled substances.

      . At the same time, we note that, had the district court agreed with the appellant and found that his criminality was driven by his addiction, his sentence may well have been the same. How much weight to afford such a conclusion would have been subject to the court’s discretion. See United States v. Bermúdez-Meléndez, 827 F.3d 160, 165 (1st Cir. 2016).

      .Both in the colloquy in the district court and in their briefs, the parties refer variously to "identity fraud,” "identity theft,” "credit card fraud,” and the like. Whatever the precise phrase, the point is the same. So for simplicity's sake, we refer throughout (except where -direct quotations are involved) to "identity fraud.”

      . In particular, the court stated that "victims of credit card fraud,” though not subjected to violence, certainly experience "a violation" and face difficulty when they “try to clear their record[s]” and "clear their name[s].”


author: THOMPSON, Circuit Judge.

text:
    Annalia MONTANY, Plaintiff, Appellant, v. UNIVERSITY OF NEW ENGLAND and Scott McNeil, Defendants, Appellees.
    No. 16-2176
    United States Court of Appeals, First Circuit.
    May 30, 2017

      John J.E. Markham, II, with whom Markham & Read, Boston, MA, was on brief, for .appellant.
    Edward M. Kaplan, with whom William D. Pandolph and Sulloway & Hollis, P.L.L.C., Concord, NH, were on brief, for appellees.
    Before TORRUELLA, THOMPSON, and KAYATTA, Circuit Judges.
   THOMPSON, Circuit Judge.

Annalia Montany appeals from the entry of summary judgment in favor of the University of New England (UNE) and Scott McNeil (collectively, defendants). We affirm.

BACKGROUND

Montany was a student in UNE’s two-year occupational-therapy master’s degree program. The program requires its students to take practical exams, in which program instructors act as mock patients and students are tested on their ability to properly manage a patient in need of occupational therapy. In one of these practical exams, Montany was tasked with assisting McNeil—an instructor playing the role of a mock patient who was “unable to ambulate” and was “very weak, and unable to bear much weight into the legs”—in a transfer from a wheelchair into a bed. According to Montany, while she was assisting McNeil in the transfer, McNeil intentionally “dropped ■ his weight” (210 pounds) in “a fake slipping” or “falling movement.” Montany suffered a back injury as a result, although she did not report this injury to McNeil at this time. Montany did not achieve the minimum passing score on this practical exam. According to Montany, she told McNeil three days after failing this practical exam that her “back hurts.” Five days after that, Montany took a retake of the practical exam for the course; it is undisputed that she did not tell McNeil or any other instructor at UNE that she could not retake the practical exam because of any back problem. She failed the retake exam as well, and so did not receive a passing grade for the course.

As a result of this failing grade, the program’s Student Development Committee (SDC) intervened. During her initial meeting with the SDC, Montany did not report that she had injured her back or relate that her failure of the retake of the practical exam was a product of her back injury. The SDC developed a plan (SDC plan) for Montany that provided, in pertinent part, that, “[djepending on her GPA and progress in other courses this fall, she may return [for the following fall semester] on academic probation to re-take [the failed course] or be dismissed” and that “she needs to keep her GPA high in other courses to meet the 3.00 semester criterion.” In a later meeting with the SDC, she reported the back injury she suffered in the practical exam. Although Montany maintained a 3.07 GPA that semester, the SDC nonetheless voted to dismiss Monta-ny from the program. The program director agreed, and, accordingly, Montany was dismissed from the program.

Montany responded by filing suit against UNE and McNeil. She asserted a negligence claim against both defendants and a breach-of-contract claim against UNE. Montany timely appealed from the district court’s entry of summary judgment on both claims.

ANALYSIS

On appeal, Montany argues that the district court erred in entering summary judgment for defendants on both of her claims. We address each claim in turn.

A. Negligence

In her complaint, Montany alleged that the practice of feigning falls in a practical exam—-which, according to Montany, McNeil did during Montany’s practical exam (and, to a lesser extent, during another one of Montany’s practical exams in the prior semester)—is “a procedure known by the medical community to be dangerous.” “Lifting or bearing the dead weight of a patient,” Montany’s complaint alleged, “is known to be a frequent cause of injury to health care providers. Therefore, the practice engaged in by defendant McNeil ... was negligent in that it placed an unreasonable risk of injury upon the plaintiff.” Montany further alleged that McNeil’s conduct during the practical exam in which she suffered a lasting back injury “was unreasonable and a lack of ordinary care” and that McNeil’s weight “was more tha[n] [Montany] should have been required to bear.”

After discovery was complete, the district court entered summary judgment in defendants’ favor on Montany’s negligence claim. Reasoning that “[t]he circumstances of the practical exam at issue were particular to the program of study of occupational therapy conducted by UNE” and that “the negligence and its. harmful results to [Montany] are not so obvious in this case as to lie within a jury’s common knowledge,” the court concluded that expert testimony was required to establish defendants’ breach of the standard of care. The court explained:

Whether a student studying occupational therapy is required to move patients heavier than herself as part of the job duties for which she is being trained, whether she must demonstrate at [Mon-tany’s] stage of her training at the time of the practical exam at issue that she knows how to do this without coaching from ah instructor or supervisor, and whether an instructor acting as a patient in such an exam may reasonably act in the manner described by [Montany] are all questions that are not within an average juror’s common sense, knowledge, or experience.

Because Montany had failed to designate such an expert, the district court granted defendants summary judgment on her negligence claim.

On appeal, Montany argues that expert testimony was not required to establish McNeil’s breach of the standard of care. Montany insists that, to the contrary, McNeil’s actions—instructing Montany to hold on to a gait belt and then dropping his weight during the practical exam— were “non-technical” and went “against common sense and the ordinary standard of care.” As a fallback, Montany argues that, even if expert testimony would ordinarily be required in this context, it is not required in this case because “the negligence and harmful results [were] sufficiently obvious as to lie within common knowledge.” (Quoting Cyr v. Giesen, 150 Me. 248, 108 A.2d 316, 318 (1954).) We disagree.

Under Maine law, there are four elements of a negligence claim: “duty, breach, causation, and damages.” Maravell v. R.J. Grondin & Sons, 914 A.2d 709, 712 (Me. 2007) (quoting Maddocks v. Whitcomb, 896 A.2d 265, 268 (Me. 2006)). “In determining the nature of the appropriate standard of care or practice, expert testimony may be necessary ‘where the matter in issue is within the knowledge of experts only, and not within the common knowledge of lay[persons].’ ” Id. at 712-13 (alteration in original) (quoting Cyr, 108 A.2d at 318). The Maine Supreme Judicial Court, sitting as the Law Court (Law Court), has held that expert testimony is ordinarily required to establish the duty and breach elements in a negligence action against a physician or surgeon, see Cyr, 108 A.2d at 318, a dentist, see Welch v. McCarthy, 677 A.2d 1066, 1067, 1069 (Me. 1996), an attorney, see Pawlendzio v. Haddow, 148 A.3d 713, 715 (Me. 2016), a professional engineer, see Seven Tree Manor, Inc. v. Kallberg, 688 A.2d 916, 917-18 (Me. 1997), a college athletic trainer, see Searles v. Trs. of St. Joseph’s Coll., 695 A.2d 1206, 1210 (Me. 1997), and a general contractor supervising a blasting contractor, see Maravell, 914 A.2d at 713. As the Law Court has observed, requiring expert testimony in such circumstances protects against “the potential danger that a jury, composed of laymen and gifted with the benefit of hindsight, will divine the breach of a[n] ... obligation largely on the basis of the unfortunate result.” Woolley v. Henderson, 418 A.2d 1123, 1131 (Me. 1980).

We reject Montany’s contention that an expert is not generally required to establish the standard of care for what is reasonable conduct in a practical exam in an occupational-therapy program and the breach of that standard of care. Montany admits that “[a] practical exam requires that a student properly manage a patient in need of occupational therapy,” and McNeil testified that practical exams are designed to test students’ abilities to demonstrate proper mastery of transfer mechanics. The question of whether a practical exam tests those mechanics in an unreasonable fashion is “not within the common knowledge of lay[persons]” and instead lies “within the knowledge of experts only.” Maravell, 914 A.2d at 712-13 (alteration in original) (quoting Cyr, 108 A.2d at 318). Indeed, Montany concedes that her negligence claim involves the question “whether an instructor acting as a patient in [a practical] exam ‘may reasonably act in the manner described by [Mon-tany].’ ” Answering that question requires more than the jury’s common sense, knowledge, and experience; it requires expert testimony separating the reasonable actions of an occupational-therapy instructor administering a practical exam to a graduate student from those that breach the standard of care.

Of course, even in those circumstances where expert testimony is ordinarily required to establish breach of the standard of care, such testimony is not required “where the negligence and harmful results are sufficiently obvious as to lie within common knowledge.” Id. at 713; see also Downer v. Veilleux, 322 A.2d 82, 84 (Me. 1974) (explaining that this exception applies “where the negligence and the harmful results are so glaringly apparent as to lie within the common knowledge of laymen”); cf. Michaud v. Blue Hill Mem’l Hosp., 942 A.2d 686, 688 (Me. 2008) (“Except in unusual circumstances, not existing here, a plaintiff in a medical malpractice case must prove the nature and scope of the defendants’ duty by expert medical testimony.” (emphasis added)). Montany attempts to bring her case within this exception, but we are unpersuaded.

The two cases upon which Montany primarily relies do not support her position that expert testimony was not required in this case. Montany principally relies on Searles, but that case offers her no assistance. In Searles, the Law Court held that, while “establishing the standard of care for [athletic trainers] in their treatment of athletes ordinarily requires expert testimony,” 695 A.2d at 1210, no expert testimony was required in the circumstances of that case, which involved a negligence action brought by a college basketball player who suffered knee injuries, id. at 1208, 1210-11. The basketball player’s claim against the athletic trainer “involve[d] more than a claim that [the athletic trainer] negligently conducted a course of treatment of [the player’s] injuries that contributed to a worsening of his condition, or that he failed to appreciate the seriousness of [the player’s] condition.” Id. at 1210-11. Instead, the claim was that the athletic trainer, despite knowing of the acuteness of the player’s injuries, failed to notify the basketball coach that the player should not have played basketball and failed to communicate to the coach the nature and extent of the player’s injuries. Id. at 1211. The court reasoned that “[j]urors could apply their common knowledge in determining whether such failures, if they occurred, constituted a breach by [the athletic trainer] of his duty to exercise reasonable care for the health and safety of [the player].” Id.

But Montany’s case is not cut from the same cloth. She alleges that McNeil’s weight drop during the practical exam was unreasonable. Assessing the reasonableness of that conduct—which indisputably occurred during the course of a practical exam in an occupational-therapy graduate-degree program—is not a matter within the common knowledge of lay jurors. Instead, it is a matter of professional judgment about the appropriate manner in which to test occupational-therapy graduate students on mobility-transfer mechanics. Indeed, Searles actually supports the district court’s conclusion that an expert was required in this case. As the Law Court recognized in Searles, “the standard of care applicable to an athletic trainer who treats physical injuries or who must make judgments about the severity of a physical condition does not ordinarily lend itself to common knowledge.” Id. at 1210. The same is true for the standard of care in this case, which hinges on a professional-judgment call about the appropriate manner to test graduate students in a practical exam administered as part of an occupational-therapy program.

The other case on which Montany relies, Walter v. Wal-Mart Stores, Inc., 748 A.2d 961 (Me. 2000), is also of no assistance to her. In that ease, the defendant pharmacist gave the plaintiff the wrong medication, id. at 964-65, and he admitted that he failed to follow the pharmacy’s four-step process utilized to check for errors, id. at 967. The Law Court held that expert testimony was not required to establish the pharmacist’s breach of the standard of care because “[t]he negligence of the pharmacist and the harmful results were sufficiently obvious to be within the common knowledge of a lay person. It does not take an expert to know that filling a prescription with the wrong drug and failing to take the steps in place in that pharmacy to check for the wrong drug is negligence.” Id. at 972. Unlike a pharmacist’s failure to dispense the correct medication, however, McNeil’s alleged negligence—a purposeful weight drop during a practical exam testing students’ abilities to demonstrate proper transfer mechanics in an occupational-therapy graduate-degree program—and its harmful effects are not sufficiently obvious to be within the common knowledge of a lay person. Expert testimony, therefore, was required to establish McNeil’s breach of the standard of care.

At oral argument, Montany offered an additional reason why, in her view, her negligence claim does not require expert testimony: According to Montany, McNeil testified in his deposition that an intentional weight drop “wasn’t part of the test.” But this contention made its debut at oral argument, so we need not—and therefore do not—consider it. See United States v. Hogan, 722 F.3d 55, 61 (1st Cir. 2013) (holding that appellant waived arguments raised for first time at oral argument).

As a last gasp, Montany attempts to paper over her own failure to obtain an expert by noting that “[defendants presented no evidence of any specialized circumstances that preclude a jury from understanding what happened.” But she cites no case—let alone a Maine case—for the proposition that a defendant in a negligence action is under any burden to come forward with record evidence demonstrating that an expert is required to establish the standard of care and its breach. Mon-tany, the plaintiff in this action, bore the burden of establishing the prima facie elements of her negligence claim, see Mara-vell, 914 A.2d at 712, and, for reasons already explained, we are convinced— based on the undisputed fact that her negligence claim against an occupational-therapist instructor alleges that he acted unreasonably in the course of administering a practical exam to a graduate student in the occupational-therapy master’s degree program—that, to satisfy this burden, she needed to come forward with expert testimony to establish the standard of care and its breach. Because expert testimony was required to establish McNeil’s breach of the standard of care and Montany failed to adduce such evidence, summary judgment in defendants’ favor was appropriate on her negligence claim. See Pawlendzio, 148 A.3d at 715-16 (affirming entry of summary judgment on legal-malpractice claim based on plaintiffs’ failure to produce expert-based evidence); Michaud, 942 A.2d at 688 (same in medical-malpractice case).

B. Breach of Contract

In her brief before us, Montany’s characterization of her contract claim is a bit of a moving target. At certain points in her brief, Montany seems to rely on the UNE student handbook as the basis for her contract claim. At other points in her brief, Montany seems to suggest that her breach-of-contract claim is grounded, at least in part, in the SDC plan. Finally, at still other points in her brief, Montany characterizes her contract claim as one for UNE’s breach of either “the implied promise of good faith and fair dealing” or the duty “not to act in an arbitrary manner and in bad faith toward the student.” We address each characterization in turn.

1. Handbook

In her complaint, Montany alleged that “[t]here existed between [Montany] and UNE a contract the terms of which were the provision of the [s]tudent [h]andbook.” Montany argues that the district court “ignore[d] the claim of breach of contract based upon the [sjtudent [h]andbook.”

But it did no such thing. Rather, the district court recognized that “[t]he contract claim asserted in the complaint is based on the student handbook” but noted that, when confronted with defendants’ argument that they were entitled to summary judgment on a breach-of-contract claim arising from the student handbook, Montany eschewed reliance on the handbook, “apparently abandoned” it as a basis for her contract claim, and instead “respond[ed] that her claim based on the [SDC plan] remains viable, as well as a claim, apparently based on an implied contract, that the defendants acted unfairly, arbitrarily, and/or capriciously.”

Defendants argue that Montany’s failure to put forth any argument in her opposition to defendants’ motion for summary judgment to the effect that UNE breached a provision of the student handbook constitutes abandonment of any such claim. Having read Montany’s opposition, we agree. See Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995) (recognizing that “an issue raised in the complaint but ignored at summary judgment may be deemed waived”); see also Vélez-Vélez v. P.R. Highway & Transp. Auth., 795 F.3d 230, 238 (1st Cir. 2015) (cpncluding that plaintiff failed to preserve arguments relating to entry of summary judgment on one claim where plaintiff failed to address, beyond mere one-sentence cursory assertion, that claim in her opposition to summary-judgment motion); Merrimon v. Unum Life Ins. Co. of Am., 758 F.3d 46, 57 (1st Cir. 2014) (“After filing their complaint, the plaintiffs did nothing to develop this particular claim, and the summary judgment papers disclose no development of it. The claim is, therefore, waived.”).

2. SDC Plan

The district court concluded that Montany’s “complaint cannot reasonably be read to include ... a contract claim based on the [SDC plan],” and it refused to allow her to amend her complaint through argument in her opposition to defendants’ motion for summary judgment. See Asociación de Suscripción Conjunta del Seguro de Responsabilidad Obligatorio v. Juarbe-Jiménez, 659 F.3d 42, 53 (1st Cir. 2011) (quoting Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004), for the proposition that “[a] plaintiff may not amend her complaint through argument in a brief opposing summary judgment”). We agree that Montany’s complaint cannot be read as asserting such a claim; indeed, the SDC plan is not even mentioned in the complaint.

On appeal, Montany has not offered a coherent and developed argument challenging the ground on which the district court entered summary judgment on any breach-of-contract claim premised on the SDC plan. First, she argues that the SDC “plan is not a separate contract; it is part and parcel of the contract between UNE and ... Montany that is based upon the [s]tudent [h]andbook, and which carries with it an implied obligation of good faith and fair dealing in all interactions between UNE and its students.” Second, Montany observes that “university/student contracts mostly ‘involve written materials, usually student handbooks’ ” and notes that the SDC “plan presented by UNE to Monta-ny, setting forth the requirements for her continuation at UNE, and produced by UNE in discovery, is a writing, and part and parcel of a larger contractual obligation.”

But, notwithstanding these passing observations, Montany has failed to meaningfully develop any argument that the district court erred in entering summary judgment on any breach-of-contract claim premised on the SDC plan since such a claim was never alleged in her complaint; accordingly, we need not consider any such undeveloped argument. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”); see also Town of Norwood v. Fed. Energy Regulatory Comm’n, 202 F.3d 392, 405 (1st Cir. 2000) (“[Developing a sustained argument out of ... legal precedents is the job of the appellant, not the reviewing court, as we have previously warned.”).

3. Good Faith/Arbitrariness

In her complaint, Montany alleges that (1) UNE undertook an obligation to “deal with her in good faith and fairly” and to not “act arbitrarily and in bad faith”; (2) she “relied on UNE’s promise of good faith and fair dealing, and that she would not be treated in bad faith and arbitrarily”; and (3) UNE “did not act in good faith and did not deal fairly with plaintiff.”

But, to the extent she means to assert a claim for UNE’s breach of the implied obligation of good faith and fair dealing, she cannot do so because, as the district court correctly concluded, Maine has confined this duty to insurance contracts and contracts governed by the Uniform Commercial Code (U.C.C.). See Wortley v. Camplin, 333 F.3d 284, 293 (1st Cir. 2003) (“Maine law does not impose a duty of good faith and fair dealing except in circumstances governed by specific provisions of the U.C.C.”); Me. Farms Venison, Inc. v. Peerless Ins. Co., 853 A.2d 767, 770 (Me. 2004) (“We have held that ‘in every insurance contract an insurer owes a duty to act in good faith and deal fairly with its insured’ in the handling of insurance claims.” (quoting Marquis v. Farm Family Mut. Ins. Co., 628 A.2d 644, 648 (Me. 1993))); Haines v. Great N. Paper, Inc., 808 A.2d 1246, 1250 (Me. 2002) (“We have declined to impose a duty of good faith and fair dealing except in circumstances governed by specific provisions of the Uniform Commercial Code.”); Niedojadlo v. Cent. Me. Moving & Storage Co., 715 A.2d 934, 937 (Me. 1998) (“We have had the opportunity to extend the implied covenant of objective good faith in contracts not governed by Maine’s U.C.C. and we have specifically refused to do so. We decline the invitation to do so today.” (internal citations omitted)).

Perhaps in recognition of this hurdle, Montany’s reply brief distinguishes the “duty of good faith and fair dealing” that “some states attach ... to various commercial contracts” from her allegation that UNE breached “a stand-alone duty” to avoid arbitrary and capricious conduct and to “meet[ ] common standards of fair play, meet[] the student’s reasonable expectations, and provide[ ] fundamental fairness.” And, according to Montany, a jury should decide whether UNE acted arbitrarily and in a fundamentally unfair manner when it promulgated the SDC plan—a plan that (in Montany’s words) “surely could justify Montany’s reasonable expectation that she would be allowed to return to UNE and complete her occupational therapy training if she complied with” it— but failed to honor it.

But it is not at all clear—despite Montany’s protestations to the contrary—that Maine imposes any such duty on private universities. The primary authority upon which Montany relies for the existence of this duty is a decision of the Maine Superior Court, Millien v. Colby Coll., No. Civ. A CV-02-261, 2003 WL 22100833 (Me. Super. Ct. Aug. 14, 2003). Relying on Goodman v. President & Trustees of Bowdoin College, 135 F.Supp.2d 40, 54 (D. Me. 2001), the Superior Court concluded in Millien that: (1) “a contractual relationship [between the college and the student] probably existed],” Millien, 2003 WL 22100838, at *2; (2) “[t]o the extent that there is a contractual relationship between the college and its students with regard to disciplinary proceedings, the school’s responsibility would be to provide a process which meets common standards of fair play, meets the student’s reasonable expectations^] and provides fundamental fairness,” id. at *3; and (3) in any event, the college did not breach any contractual obligation in that case, id. at *3.

The student appealed, -and the Law Court affirmed. Millien, 874 A.2d at 400. Because the college did not file a cross-appeal challenging the Superior Court’s finding that a contractual relationship existed between the parties, the Law Court accepted this finding and affirmed the lower court’s conclusion that the college’s conduct did not constitute a breach of contract. Id. at 401-02 & nn. 2-3. Notably, the student urged the Law Court to adopt language from Goodman—the very same language that Montany relies on in this case—but it declined to do so: “Because we affirm the trial court’s finding regarding the contractual relationship between [the student] and [the college] under the facts of this case, we see no need to adopt a fixed standard or standards governing the contractual relationship between students and private colleges or universities.” Id. at 401 n.2. Since Millien, Maine’s highest court has not addressed whether and to what extent a contractual relationship exists between students and private colleges or universities.

Now Montany—who elected to bring this diversity action in federal court instead of Maine state court—asks us to adopt the very same “fixed standard or standards” that the Law Court declined to adopt in Millien. But the eases upon which she relies shed little light on whether the Law Court would hold that a private university has the contractual relationship with students that Montany alleges, and, in light of Millien, we are hesitant to conclude that it would. After all, “we are reluctant to push state law to new frontiers in a plaintiff-elected diversity action where the state’s [highest court] has evinced reluctance to take the approach the diversity plaintiff proposes.” Kelly v. Marcantonio, 187 F.3d 192, 199 (1st Cir. 1999). Montany’s breach-of-contract theory “should have been directed to the state courts in the first instance.” Id. at 198-99. In the absence of authority persuading us that such a contractual relationship exists under Maine law, “we find no basis for [this aspect of Montany’s contract] claim.” Nicolaci v. Anapol, 387 F.3d 21, 27 (1st Cir. 2004) (declining to recognize cause of action for common-law indemnification under Massachusetts law where, as diversity plaintiffs conceded, Massachusetts had never extended doctrine to scenario of plaintiffs’ case and cases cited by plaintiffs did not support such extension). Therefore, summary judgment was appropriate on this aspect of Montany’s breach-of-contract claim.

CONCLUSION

For these reasons, we affirm the entry of summary judgment in defendants’ favor on Montany’s negligence and breach-of-contract claims. Each side shall bear its own costs.

      . In this summary-judgment appeal, we view the facts (and all reasonable inferences that can be drawn from them) in the light most favorable to Montany, the nonmovant. See Garmon v. Nat'l R.R. Passenger Corp., 844 F.3d 307, 312 (1st Cir. 2016). We set forth here only those facts necessary to provide the general backstory, simplifying this factual background when necessary in the course of our analysis.

      . In her opening and reply briefs, Montany repeatedly asserts that McNeil instructed her to hold on to a gait belt during this transfer. However, the record passages cited for support show only that Montany was holding a gait belt during the transfer, not that McNeil instructed her to do so. Nonetheless, because it makes no difference to our analysis, we assume, favorably to Montany, that McNeil instructed her to hold on to a gait belt during the transfer.

      . We view things institutionally and use "the district court” to refer to both the magistrate judge who issued a report and recommendation (R&R) and the district-court judge who adopted the R&R in its entirety.

      . The parties agree that Maine law governs this diversity case.

      . Montany's complaint confirms this conclusion. Although she alleged that McNeil’s conduct during the practical exam "was unreasonable and a lack of ordinary care," she also alleged that the practice of feigning falls is "a procedure known by the medical community to be dangerous” and that "[l]ifting or bearing the dead weight of a patient is known to be a frequent cause of injury to health care providers.” (Emphasis added.)

      . Montany’s reliance on Laing v. Clair Car Connection, No. Civ. A. CV-01-516, 2003 WL 1669624, at *4 (Me. Super. Ct. Jan. 29, 2003), is also misplaced. The plaintiffs pertinent claims in Laing were for negligent misrepresentation and breach of contract, and the Superior Court rejected the car dealer’s argument that "expert testimony is required to establish one’s duty not to negligently misrepresent facts or breach a contract.” Id. Similarly, to the extent Montany intended to rely on Seider v. Board of Examiners of Psychologists, 754 A.2d 986 (Me. 2000), it provides her no support. In that case—which arose from the decision of the Board of Examiners of Psychologists (Board) that found that the plaintiff, a psychologist, violated the code of conduct governing her profession—the Law Court rejected the argument that the Board was required, as a matter of procedural due process, to establish the standard of care through expert testimony because (among other reasons) "it is well within the realm of common knowledge that a complete failure to act in accordance with provisions of the code of conduct established for one's profession constitutes a violation, and that violations of numerous provisions of that code may constitute negligence.” Id. at 992.

      . It appears that what McNeil actually said in his deposition was less definitive than Monta-ny lets on. From our review of the deposition transcript (Montany has not pointed us to where in the record this statement appears), the closest thing we can find in McNeil’s testimony is where he stated: “Shift my weight unexpectedly, throw my arms in the air unexpectedly, I—that doesn’t sound like what happens in a practical exam.” In any event, because Montany failed to raise this argument to this court until oral argument, we need not dwell on whether Montany’s characterization of McNeil's testimony is accurate.

      . The Law Court’s decision in Seven Tree Manor, which Montany references in passing in connection with this argument, imposes no such obligation. In that case, the Law Court instructed the parties to brief the issue of the need for expert testimony to establish breach of the standard of care owed by professional engineers and both parties agreed that such testimony should ordinarily be required. Seven Tree Manor, 688 A.2d at 917-18.

      . The district court similarly remarked that Montany’s "summary judgment presentation on the merits of her contract claim is based entirely upon the alleged 'specific contractual promise’ inherent in the '... SDC Plan.’”

      . We note that, even if she hadn’t abandoned this claim, it’s far from clear that Montany could state a contract claim based on the provisions of the student handbook. The handbook provides that its "provisions ... do not constitute a contract, express or implied, between [UNE] and any applicant, student's family or faculty or staff member” and that UNE "reserves the right to change the policies, procedures, rules, regulations, and information in this handbook at any time.” Under Maine law, a student handbook using language such as this cannot alone form the basis of a breach-of-contract claim. See Millien v. Colby Coll., 874 A.2d 397, 400, 402 (Me. 2005) (affirming trial court’s conclusion that student handbook—which contained "a reservation clause that g[ave] [the college] the right to unilaterally alter the terms of the handbook without notice to students”—"was not a binding contract or the exclusive source of the terms of the parties' agreement” because, "[ujnder Maine law, 'a reservation to either party of an unlimited right to determine the nature and extent of his perform-anee renders his obligation too indefinite for legal enforcement, making it, as it is termed, merely illusory’ ” (quoting Corthell v. Summit Thread Co., 132 Me. 94, 167 A. 79, 81 (1933))).

      .In addition to the Maine Superior Court decision in Millien and the language from Goodman that the Law Court declined to adopt in Millien, Montany relies on two decisions from the United States District Court for the District of Maine—both of which predate the Law Court's decision in Millien and involved situations where the university did not contest that a contractual relationship existed, see Gomes v. Univ. of Me. Sys., 304 F.Supp.2d 117, 130 (D. Me. 2004); Tobin v. Univ. of Me. Sys., 59 F.Supp.2d 87, 95 (D. Me. 1999)—and four decisions of this court— all but one of which also predate Millien and all of which, in any event, apply the substantive law of a state other than Maine, see Havlik v. Johnson & Wales Univ., 509 F.3d 25, 34-35 (1st Cir. 2007) (applying Rhode Island law, which recognizes "that parties to a contract act pursuant to an implied duty of good faith and fair dealing”); Mangla v. Brown Univ., 135 F.3d 80, 83, 84 (1st Cir. 1998) (same); Russell v. Salve Regina Coll., 890 F.2d 484, 487, 488 (1st Cir. 1989), rev'd 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991) (same); Cloud v. Trs. of Bos. Univ., 720 F.2d 721, 724-25 (1st Cir. 1983) (applying Massachusetts law).

      . Although the district court did not enter summary judgment on this aspect of Monta-ny's breach-of-contract claim on this precise ground, we are free to affirm the entry of summary judgment on any ground apparent from the record. See Delgado Echevarría v. AstraZeneca Pharm. LP, 856 F.3d 119, 125-26 (1st Cir. 2017).

      . We need not—and therefore do not'—address UNE's argument that the district court could have entered summary judgment on Montany's breach-of-contract claim on the ground that she failed to exhaust her internal remedies by failing to appeal her dismissal to the Dean of UNE.