Plaintiff-appellant Robert E. Higgins sued his former employer, defendant-ap-pellee New Balance Athletic Shoe, Inc. (New Balance), claiming, inter alia, hostile environment sex discrimination (relating to actions of, and remarks by, his supervisor and co-workers, allegedly on account of his homosexuality), retaliatory discharge (relating to his frequent complaints about activities in the factory that he thought were unsafe or illegal), and disability discrimination (relating to a hearing impairment that impeded his ability to work comfortably in the factory). The district court granted summary judgment in New Balance’s favor.
See Higgins v. New Balance Athletic Shoe, Inc.,
I. BACKGROUND
We present only the facts necessary to place the appealed claims into proper perspective, referring the reader who hungers for greater detail to the district court’s more exegetic account.
See id.
at 69-71. Like the district court, we credit the factual account that the appellant prefers, consistent with record support, and indulge all reasonable inferences favorably to his cause.
See Conward v. Cambridge Sch. Comm.,
For ten years, beginning in 1986, the appellant worked on the production line at New Balance’s factory in Norridgewock, Maine. Although he earned generally positive evaluations, he received two warnings in 1995 about his failure to comport himself as a team player. New Balance says that these warnings stemmed from Higgins’s disregard of its philosophy that the manufacturing process requires workers to collaborate and communicate with each other. Higgins refused to sign the warnings because he deemed them unjustified.
Apart from job performance, other problems plagued the appellant in the workplace. Apparently due to his homosexuality, many of his fellow workers mistreated him: they called him vulgar and derogatory names, made obscene remarks about his imagined sexual activities, and mocked him (e.g., by using high-pitched voices or gesturing in stereotypically feminine ways). 1 The appellant says that he complained repeatedly to persons in authority, but nothing was done to ameliorate the situation. Indeed, Ron Plourde, who eventually became the appellant’s supervisor, was one of his foremost tormentors.
A confrontation with yet another tormentor, Melanie Vitalone, precipitated the appellant’s discharge. According to the appellant’s account, Vitalone not only would ridicule him because of his sexual orientation but also would blame him when her work did not go well. He often griped about Vitalone’s predilections, but without result. Indeed, his supervisor (Plourde) told him at one indeterminate point that he would be “out the door” if he complained one more time about Vitalone. On what proved to be the appellant’s last day of work (January 4, 1996), Vitalone left the production line to socialize. When she returned, a backlog confronted her. She lashed out at the appellant, mouthing derogatory epithets and blaming him for the back-up. Vitalone called the matter to Plourde’s attention, telling him that she had asked Higgins a question and that he had refused to reply. Plourde spoke with both protagonists. Then, citing the personnel reports of Higgins’s failed communications, Plourde fired him for insubordination.
Harassment was not the appellant’s only bugaboo; he frequently complained about many other conditions and activities in the workplace. He groused, for example, about noxious fumes, misleading product labeling, and substance abuse by factory workers. Of particular interest here, he asserts that he complained that conditions in the factory made it hard for him to do his work because he had a hearing disability. He allegedly asked his superiors to accommodate his impaired hearing by (1) *258 having a fan installed near his work station (as did other workers) because steam-induced perspiration was ruining his hearing aid, and (2) moving a loudspeaker that exacerbated his difficulty in hearing his coworkers. According to the appellant, New Balance spurned these requests.
II. DISCUSSION
The summary judgment standard requires this court to give the nonmovant the benefit of genuinely disputed facts and inferences, but even this latitudinarian approach does not allow the nonmovant to switch horses in midstream. Consequently, although the court of appeals affords de novo review to orders granting summary judgment, it will not reverse such an order on the basis of arguments that were not made in the trial court.
See Sammartano v. Palmas del Mar Props., Inc.,
A. The Hostile Environment Claim.
The centerpiece of the appellant’s case is his contention that the continual abuse he suffered in the workplace created an ac-tionably hostile environment within the purview of Title VII, 42 U.S.C. §§ 2000e to 2000e-17, and the Maine Human Rights Act (MHRA), Me.Rev.Stat. Ann. tit. 5, §§ 4551-4631.
2
The lower court rejected this claim on the ground that the appellant had shown only harassment because of his sexual orientation, not harassment because of his sex.
See Higgins,
The record makes manifest that the appellant toiled in a wretchedly hostile environment. That is not enough, however, to make his employer liable under Title VII: no claim lies unless the employee presents a plausible legal theory, backed by significantly probative evidence, to show, inter alia, that the hostile environment subsisted “because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). If the appellant did not frame a trialworthy issue as to this essential element of his claim, Fed.R.Civ.P. 56(c) authorized the entry of summary judgment.
See Celotex Corp. v. Catrett,
We hold no brief for harassment because of sexual orientation; it is a noxious practice, deserving of censure and opprobrium. But we are called upon here to construe a statute as glossed by the Supreme Court, not to make a moral judgment — and we regard it as settled law that, as drafted and authoritatively construed, Title VII does not proscribe harassment simply because of sexual orientation.
See Hopkins v. Baltimore Gas & Elec. Co.,
On appeal, Higgins recasts his argument and presents two additional theories suggesting why the hostile environment that pervaded New Balance’s factory was “because of ... sex,” and thus actionable under Title VII. His first, a “sex-plus” theory, posits that the employer discriminated against men — and only men — who possessed certain qualities. Eminent authority indicates that such a course of action, if proven, may constitute discrimination “because of ... sex.”
See Phillips v. Martin Marietta Corp.,
The appellant’s second theory derives from
Price Waterhouse v. Hopkins,
Both of these initiatives lack focused factual development in the summary judgment record. We need not probe this point too deeply, however, for — absent exceptional circumstances, not present here — -we consider on appeal only arguments that were before the
nisi prius
court.
See Muniz-Cabrero,
The papers originally presented by Higgins to the trial court did not claim sexual harassment at all. In respect to the hostile environment claim, his complaint cited only the MHRA and averred that his coworkers abused him “because of his sexual preference.” The appellant shifted gears somewhat in his memorandum opposing summary judgment (mentioning Title VII as well as cases involving hostile environment sexual harassment), but he continued to attribute the harassment that he had experienced to his sexual preference. As if to drive the point home, he filed a statement of disputed material facts, see D. Me. R. 56(c), in which he reasserted that his co-workers knew him to be homosexual and treated him hostilely “as a result.” He did not, then or thereafter, attempt to show that the harassment was “because of ... sex” and thus actionable under Title VII.
The appellant later supplemented his summary judgment opposition. In that submission, he collected some precedents regarding claims of same-sex sexual harassment, and his lawyer wrote, conclu-sorily, that “[sjexual [hjarassment, based upon sexual preference or orientation, creating an objectionable, abusive hostile work environment, perceived so by a reasonable person and the victim, is sex and gender related, and is a violation of Title VII ... as well as of [the MHRA].” Still, the appellant never attempted to explain to the lower court how- — apart from sexual preference or orientation — the harassment was “sex and gender related.” He made no mention of Phillips, Price Waterhouse, or their respective progeny, nor did he marshal any evidence of abuse “because of ... sex.”
Although it is an appellant’s duty to order a transcript of any portion of the proceedings below that he wishes the court of appeals to consider,
see
Fed. R.App. P. 10(b)(1), Higgins has not proffered a transcript of the oral arguments on the summary judgment motion. Since we cannot tell from the available record precisely what his counsel may (or may not) have said during that session, we must assume that his counsel’s oral presentation tracked his written submissions.
See Campos-Orrego v. Rivera,
On this record, we cannot reach the new and different arguments that the appellant attempts to advance on appeal. We have warned that parties who permit their adversaries to configure the summary judgment record place themselves in peril.
See Kelly v. United States,
These elementary principles are dispositive here. The appellant’s sex-plus claim never surfaced in the district court, and the record contains no proof at all about how women with the “plus” traits that he now says are central to the case were treated at New Balance. Because the district court had before it neither evidence from which it could draw an inference of “sex-plus” harassment nor a *261 crystallized legal theory that suggested a viable basis for such a cause of action, no impediment existed to brevis disposition.
The appellant’s claim of impermissible stereotyping fares no better. Although he now maintains that the evidence of co-workers mocking his supposedly effeminate characteristics supports an argument for harassment based on sexual stereotypes, he presented that evidence to the district court only as an example of discrimination
because of sexual orientation.
He did not mention gender stereotyping below and he did not present any considered argumentation along that line.
4
His eleventh-hour statement to the district court that all harassment based on sexual orientation is “sex ... related” was an unsupported conclusion, not a developed argument — and conclusory statements of that sort cannot defeat summary judgment.
See Dow v. United Bhd. of Carpenters,
Where, as here, arguments made before the trial court and the appellate court, respectively, pull from the evidence common factual threads but weave them into distinctly different legal patterns, the new argument normally is deemed forfeited.
See Sammartano,
B. The Retaliatory Discharge Claim.
The appellant’s next claim rests on a somewhat different foundation. Section 4572(1)(A) of the MHRA makes it illegal for an employer to discriminate against an employee in retaliation for the employee’s exercise of rights under the Maine Whistleblowers’ Protection Act (MWPA), Me.Rev.Stat. Ann. tit. 26, §§ 831-840. The MWPA, in turn, protects an employee from discrimination when he has complained to the employer in good faith about a workplace-related condition or activity that he reasonably believes is illegal, unsafe, or unhealthy.
See id.
§ 833(1)(A)-(B). In the same vein, albeit more narrowly, Title VII prohibits an employer from discriminating because an employee has opposed an employment practice made illegal under Title VII or “because [the employee] has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e-3(a). Neither state nor federal law requires that the reported condition, activity, or practice actually
be
un
*262
safe or illegal; under either scheme, an employee’s reasonable belief that it crosses the line suffices, as long as the complainant communicates that belief to his employer in good faith.
See Bard v. Bath Iron Works,
MWPA claims for retaliatory discharge, like Title VII claims, typically invite analysis under the framework first established by the Supreme Court in
McDonnell Douglas Corp. v. Green,
Citing this body of law, the appellant argued below that New Balance did not fire him for insubordination or for failing to be a team player (as it claimed), but, rather, because he complained repeatedly about a multitude of unsafe and illegal working conditions. The district court ruled that the appellant had failed to make out a prima facie case of retaliatory discharge.
See Higgins,
On appeal, the appellant turns his back on the vast majority of his complaints and zeroes in on the January 1996 incident involving Vitalone. In his view, this narrowing of the focus creates a tight temporal link between the two salient events (his most recent complaint about Vitalone and his firing). He then points to the statement in his affidavit to the effect that his supervisor (Plourde) once told him that he would be “out the door” if he ever groused about Vitalone again, and argues that this demonstrates a sufficient causal nexus.
This revisionist approach brings with it insurmountable problems. First, there is no basis in the record for concluding that Higgins’s complaints about Vitalone constituted protected speech. After all, Higgins did not assert below that at the time he complained he believed Vital-one’s distemper to be in violation of Title VII or any other law, or to be a grave risk to his health. Nor did he maintain that facts existed to support a
reasonable
belief to that effect. Certainly, the mere inclusion in the record of New Balance’s internal policy against discrimination based on sexual orientation does not, as the appellant now suggests, evidence either his state of mind or the reasonableness of his beliefs. This leaves the appellant’s current claim high and dry: when an employer warns an employee that certain work-related behavior, not itself protected under the law, will be deemed inimical to the proper functioning of the shop, and the
*263
employee disregards the warning, the employer cannot be sued for retaliation simply because it then does what it warned it would do.
See Taylor v. FDIC,
We need not elaborate on this point, for a second, independently fatal, problem is that the appellant comes tardily to his narrowed construct. In the lower court, he never ascribed any significance vis-a-vis his retaliation claim to Plourde’s threat, the January 4 brouhaha, or any of the events of his last day at work. That being so, the Vitalone incident cannot be used now to satisfy the
McDonnell Douglas
prima facie case requirement.
See Sammartano,
The appellant has a fallback position. Courts sometimes say that the
McDonnell Douglas
paradigm operates only when there is no direct evidence of a discriminatory animus.
See, e.g., Price Waterhouse,
Let us be perfectly clear. When a claim involves complicated statutory schemes, as this one does, and the plaintiff “fail[s] to provide any analysis of the statutory scheme, to present any legal authority directly supporting [his] thesis, or to give any reason why” particular statutory provisions do or do not apply, the claim comprises “the merest of skeletons.”
McCoy,
C. The Disability Discrimination Claim.
Finally, the appellant contends that New Balance failed to provide reasonable accommodations for his aural disability in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and the MHRA. The district court rejected this contention because the appellant had not adduced evidence of discriminatory animus directed at his disability.
See Higgins,
In terms, this ruling is insupportable. New Balance argued below that, absent any evidence that it harbored a disability-related animus against the appellant, no discriminatory discharge claim would lie under either the ADA or the MHRA. This rationale is sound as far as it goes — it disposes handily of the appellant’s discriminatory discharge claim (a claim that the district court quite properly rejected, see id. at 71 n. 7, and one which the appellant no longer presses)- — but it does not go as far as the district court thought. When the court applied the same reasoning to block the appellant’s failure-to-accommodate claim, it erred.
Under the ADA, a covered employer shall not “discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and
*264
other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The pertinent provisions of the MHRA are to like effect.
See
Me.Rev.Stat. Ann. tit. 5, § 4572(1)(A). In order to facilitate inquiries into whether an employer’s adverse employment decision was motivated by an employee’s disability, courts generally use the
McDonnell Douglas
burden-shifting scheme.
See, e.g., Dichner v. Liberty Travel,
But under the ADA, “the term ‘discriminate’ includes ... not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability ..., unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the employer].” 42 U.S.C. § 12112(b)(5)(A). Maine law is almost identical.
See
Me.Rev.Stat. Ann. tit. 5, § 4553(2)(E).
5
Unlike other enumerated constructions of “discriminate,” this construction does not require that an employer’s action be motivated by a discriminatory animus directed at the disability. Rather, any failure to provide reasonable accommodations for a disability is necessarily “because of a disability” — the accommodations are only deemed reasonable (and, thus, required) if they are needed because of the disability — and no proof of a particularized discriminatory animus is exigible.
See Bultemeyer v. Fort Wayne Community Schools,
This distinction is in play here. To survive a motion for summary judgment on a failure-to-accommodate claim, a plaintiff ordinarily must furnish significantly probative evidence that he is a qualified individual with a disability within the meaning of the applicable statute; that he works (or worked) for an employer whom the ADA covers; that the employer, despite knowing of the employee’s physical or mental limitations, did not reasonably accommodate those limitations; and that the employer’s failure to do so affected the terms, conditions, or privileges of the plaintiffs employment.
See Lyons v. Legal Aid Soc’y,
The rest is history. Despite the fact that the failure-to-accommodate claim was adequately presented, it was ignored by the defendant (whose motion for summary judgment did not discuss it) and misper-ceived by the district court (which applied the McDonnell Douglas burden-shifting framework to it). This induced the court to err by granting summary judgment on the ground that the record contained no evidence of a discriminatory animus toward the appellant’s disability.
Of course, the trial court also wrote that New Balance had asked the appellant’s co-workers to speak up when talking to him.
See Higgins,
Because a remand is necessary on this aspect of the case, we add one further observation. While this appeal was pending, the Supreme Court decided a series of ADA cases, including
Sutton v. United Air Lines, Inc.,
— U.S. -, -,
III. CONCLUSION
We need go no further. For the reasons mentioned above, we affirm the entry of summary judgment for New Balance on all claims, save only the appellant’s failure-to-accommodate claim under the ADA and the MHRA. As to that claim, we vacate the judgment and remand for further consideration.
Affirmed in part, vacated in part, and remanded. No costs.
Notes
. Examples of abuse populate the record. One person put a sign on the appellant’s desk reading “Blow Jobs 25c.” Others told him that they did not want him near them because of an aversion to his "kind” or because they feared that he would give them AIDS. On various occasions, co-workers squirted him with condiments, snapped rubber bands at him, and poured hot cement on him. One colleague grabbed him from behind in the lavatory and shook him violently. The same person threatened from time to time to kill him.
. Because courts typically apply Title VII standards to claims of sexual harassment under the MHRA,
see Morrison v. Carleton Woolen Mills, Inc.,
. The Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (1991), overruled that part of
Price Waterhouse
in which the Court held that an employer could avoid liability for intentional discrimination in "mixed motive" cases if it could demonstrate that the same action would have ensued in the absence of the discriminatory motive.
See
42 U.S.C. § 2000e-2(m), as added by the Civil Rights Act of 1991, § 107(a); 42 U.S.C. § 2000e-5(g)(2)(B), as amended by the Civil Rights Act of 1991, § 107(b). The same legislation altered the remedial effects of parties meeting certain burdens, but not
Price Water-house
's burden-shifting structure itself.
See Breeding v. Arthur J. Gallagher & Co.,
. Be that as it may, in a footnoted rumination the district court questioned whether plaintiffs in same-sex sexual harassment cases might properly argue that they were harassed because they did not conform to gender-based stereotypes.
See Higgins,
. In both statutes, a separate provision addresses the claim that an employer denied employment opportunities to a plaintiff because of the employer’s refusal to make a reasonable accommodation. See 42 U.S.C. § 12112(b)(5)(B); Me.Rev.Stat. Ann., tit. 5, § 4553(2)(F).