Dusel v. Factory Mutual Insurance Company ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1609
THOMAS DUSEL,
Plaintiff, Appellant,
v.
FACTORY MUTUAL INSURANCE COMPANY, d/b/a FM GLOBAL,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Barron, Chief Judge,
Gelpí, Circuit Judge,
and Katzmann,* Judge.
Danielle Callahan Gill, with whom Callahan Law Group, LLC was
on brief, for appellant.
Matthew A. Porter, with whom Todd H. Girshon, Jonathan C.
Hatfield, and Jackson Lewis P.C. were on brief, for appellee.
November 1, 2022
* Of the United States Court of International Trade, sitting
by designation.
GELPÍ, Circuit Judge. Appellant Thomas Dusel ("Dusel")
was an employee of Appellee Factory Mutual Insurance Company, d/b/a
FM Global ("FM Global") until his termination on September 12,
2018. Dusel, alleging that the stated grounds for his firing were
pretextual, brought suit against FM Global in Massachusetts state
court alleging age discrimination and retaliation against a
protected activity. The action was removed to the United States
District Court for the District of Massachusetts, which granted FM
Global's motion for summary judgment on both claims. We affirm.
I. Background
Dusel, a citizen of Massachusetts, was an employee of FM
Global, a commercial property insurer headquartered in Rhode
Island, for approximately thirty-five years. At the time of his
termination, Dusel was President and Chief Executive Officer
("CEO") of Hobbs Brook Management ("HBM"), a Waltham,
Massachusetts-based subsidiary of FM Global which provides real
estate management and services for its properties. Several
employees reported to Dusel in his capacity as President and CEO
of HBM, including Kevin Casey ("Casey"), HBM's Vice President of
Leasing and Construction.
In 2015, Patricia Holland ("Holland"), an HBM employee,
filed a complaint with FM Global's Human Resources ("HR")
department alleging harassment and other inappropriate behavior by
Casey, then her supervisor. HR conducted an investigation but
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declined to discipline Casey. Dusel later testified at a
deposition that he did not consider himself a witness to the
specific alleged behavior that was the subject of the 2015
investigation, but that he nonetheless disagreed with the outcome
of the inquiry and had expressed as much to HR. In February 2018,
Holland filed another complaint against Casey alleging workplace
misconduct, whereupon a second internal investigation ensued.
Dusel claims that Holland initially came to him with her concerns,
which he passed along to his supervisors, and that he had
encouraged her to reach out to HR. Pursuant to the second
investigation, Dusel reported to HR over the course of three
interviews that he had observed Casey acting aggressively toward
different men and women, including Holland, and that other
employees had previously expressed concerns regarding the
workplace environment created by Casey. HR again concluded that
it lacked sufficient evidence to determine that Casey had violated
FM Global's policies.
Following the second HR investigation, FM Global decided
in March 2018 to relocate HBM's management team to FM Global's
corporate headquarters in Johnston, Rhode Island, and to rearrange
HBM's organizational structure such that Casey and Holland would
report directly to Alex Tadmoury, Dusel's supervisor at FM Global.
Dusel was displeased by this decision, and in April and June 2018
sent letters through an attorney to FM Global protesting that the
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move would substantially increase his commute time and diminish
his job responsibilities. Dusel suggested that FM Global's stated
reasons for the operational changes were pretextual, and that FM
Global was in fact retaliating against him in connection with his
role in the 2018 HR investigation into Casey. Dusel also
complained, in his June 2018 letter, that his May 9 performance
review -- wherein he received an overall rating of "Meets
Expectations" -- similarly evinced FM Global's continued
retaliatory animus. FM Global disputed that the changes were
punitive in nature, claiming that they were intended to increase
cohesion among the HBM leadership team, enable better supervision
by FM Global, and defuse interpersonal tensions that were revealed
by the HR investigation.
In July 2018, FM Global began an audit of the cell phone
account for HBM after an HBM employee sought to retain his cell
phone following his departure from the company. During the
investigation, FM Global discovered that Dusel possessed three
cell phone lines, two of which belonged to his wife and daughter,
which had been charged to the company's account for several years.
Dusel never reimbursed HBM for these expenses. While the
investigation into HBM's cell phone expenses was ongoing, Dusel
transferred his wife and daughter's cell phone lines from the
company plan to a personal account. Shortly thereafter, Dusel
told company investigators that none of his family members had
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phone lines charged to HBM's company account, without informing
them that the phone lines had been charged to HBM until the
previous month. In August 2018, FM Global produced a report
concluding that Dusel had been untruthful in several respects with
regard to the cell phone investigation. Dusel disputes having
deceived the investigators, claiming that he had been confused
about the phone lines and arguing that his statement as to none of
his family members having any service plans charged to HBM was
technically truthful at the time he made the claim.
Concurrently with the cell phone investigation, FM
Global opened an inquiry into Dusel's frequent visits to an HBM-
owned building in Wakefield, Massachusetts (the "Wakefield
facility") outside of normal business hours. Surveillance footage
revealed Dusel entering the Wakefield facility's cafeteria on
several occasions carrying an empty bag and leaving shortly
thereafter with a full bag. FM Global found evidence that Dusel
had visited the facility at least eighty-seven times in the
previous two years, frequently after work hours or on weekends.
In a report, FM Global concluded that Dusel had likely been
stealing food from the Wakefield facility for several years.
Dusel, for his part, denies taking food from company property
without compensating HBM.
In September 2018, FM Global terminated Dusel on the
stated grounds of violations of the company's code of conduct and
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misappropriation of company services and property. Following
Dusel's termination, FM Global found that Dusel had amassed a
considerable physical and electronic collection of sexually
explicit materials in his office, all in violation of FM Global
policy. Dusel admitted in a deposition to accessing adult
materials using company servers. Prior to the events in question,
Dusel had never been formally disciplined by FM Global.
On July 17, 2019, Dusel brought suit against FM Global
in Massachusetts state court, alleging age discrimination and
retaliation under Mass. Gen. Laws ch. 151B, § 4(1B) and § 4(4).1
FM Global removed the action to federal court on the basis of
diversity jurisdiction, and filed an Answer with Counterclaims
against Dusel for misappropriation, waste of corporate assets,
conversion, unjust enrichment, and breach of fiduciary duty. On
1 In relevant part, Mass. Gen. Laws ch. 151B, § 4(1B) makes
it unlawful
[f]or an employer in the private sector . . . because of
the age of any individual, to refuse to hire or employ
or to bar or to discharge from employment such
individual, or to discriminate against such individual
in compensation or in terms, conditions or privileges of
employment, unless based upon a bona fide occupational
qualification.
Mass. Gen. Laws ch. 151B, § 4(4) provides that it is illegal
for an employer "to discharge, expel or otherwise discriminate
against any person because he has opposed any practices forbidden
under this chapter or because he has filed a complaint, testified
or assisted in any proceeding under section five [of Mass. Gen.
Laws ch. 151B]."
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April 21, 2021, the parties cross-moved for summary judgment.
Later, Dusel filed a motion to exclude evidence relating to the
pornographic materials as well as motions to strike certain
affidavits FM Global had filed in support of its motion for summary
judgment and certain paragraphs from its Statement of Undisputed
Material Facts. On July 14, 2021, the district court denied
Dusel's motions and granted summary judgment in favor of FM Global,
dismissing Dusel's complaint in its entirety. Dusel v. Factory
Mut. Ins. Co., No. 19-11698, 2021 WL 2953322, at *10 (D. Mass July
14, 2021). Subsequently, FM Global dismissed its counterclaims
without prejudice. Dusel timely appealed.
II. Discussion
On appeal, Dusel contends that the district court erred
in granting summary judgment on the retaliation and age
discrimination claims and in denying Dusel's evidentiary motions.
We assess Dusel's arguments regarding the age discrimination and
retaliation claims and the evidentiary motions seriatim.
A. The District Court Did Not Err in Granting Summary Judgment to
FM Global on Dusel's Age Discrimination and Retaliation Claims
1. Standard of Review
We review a district court's grant or denial of summary
judgment de novo, examining the record in the light most favorable
to the nonmovant and drawing all reasonable inferences in that
party's favor. Murray v. Kindred Nursing Ctrs. W. LLC, 789 F.3d
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20, 25 (1st Cir. 2015). "To prevail, the movant must demonstrate
that 'there is no genuine dispute as to any material fact' and
that it 'is entitled to judgment as a matter of law.'" Id. (quoting
Fed. R. Civ. P. 56(a)). This standard is unchanged when the
district court disposes of cross-motions for summary judgment
simultaneously. See Blackie v. Maine, 75 F.3d 716, 721 (1st Cir.
1996). Facts are material if they "might affect the outcome of
the suit under the governing law." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). If the party moving for summary
judgment is able to make a showing that there is no genuine issue
of material fact, "the burden shifts to the nonmoving party, who
must, with respect to each issue on which [it] would bear the
burden of proof at trial, demonstrate that a trier of fact could
reasonably resolve that issue in [its] favor." Flovac, Inc. v.
Airvac, Inc., 817 F.3d 849, 853 (1st Cir. 2016) (alterations in
original) (quoting Borges ex rel. S.M.B.W. v. Serrano–Isern, 605
F.3d 1, 5 (1st Cir. 2010)). Evidence of a genuine dispute of
material fact "must be 'significantly probative'" and "more than
'merely colorable.'" Id. (quoting Anderson, 477 U.S at 249-50).
2. The Age-Discrimination Claim
Massachusetts's antidiscrimination statute forbids
employers from discriminating against or terminating employees
based on their age. Mass. Gen. Laws ch. 151B, § 4(1B). Under
Massachusetts law, there are "four elements an employee must prove
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to prevail on a claim of discrimination in employment: membership
in a protected class, harm, discriminatory animus, and causation."
Sullivan v. Liberty Mut. Ins. Co., 825 N.E.2d 522, 530 (Mass.
2005). If direct evidence of the latter two factors is
unavailable, Massachusetts courts apply the burden-shifting
framework articulated in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802–05 (1973), by which a plaintiff may establish animus
or causation. Sullivan, 825 N.E.2d at 530 & n.11 (noting that it
is the Massachusetts Supreme Judicial Court's "practice to apply
Federal case law construing the Federal antidiscrimination
statutes in interpreting [Mass. Gen. Laws ch.] 151B" (quoting
Wheatley v. Am. Tel. & Tel. Co., 636 N.E.2d 265, 268 (Mass.
1994))). Under this tripartite framework, a plaintiff bears the
initial burden of establishing a prima facie case of age
discrimination by demonstrating that he or she "(1) was a member
of the class protected by [Mass. Gen. Laws ch.] 151B (that is,
over forty years of age); (2) had performed [his or] her job at an
acceptable level; (3) was terminated; and (4) was replaced by a
similarly or less qualified" person at least five years younger.
Knight v. Avon Prods., Inc., 780 N.E.2d 1255, 1262, 1265 (Mass.
2003) (footnote omitted).2 If the plaintiff is able to establish
2 Knight further clarifies that "the elements of the prima
facie case will vary depending on, among other things, the type of
discrimination alleged and the protected category at issue" and
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a prima facie case, the burden of production -- though not, at
summary judgment, the burden of persuasion -- "shifts to the
employer to 'articulat[e] a legitimate, nondiscriminatory reason
for its hiring decision,'" whereupon "the burden of production
shifts back to the employee to produce evidence that 'the
employer's articulated justification [for the adverse action] is
not true but a pretext.'" Verdrager v. Mintz, Levin, Cohn, Ferris,
states that to satisfy the fourth element of the prima facie case
in an age-discrimination suit, a plaintiff must either show
replacement by a "substantially younger" individual "or otherwise
present some evidence that supports a reasonable inference that
age was a determinative factor in the employer's decision." 780
N.E.2d at 1258, 1261 n.4. How courts lay out the final prong of
the prima facie case can differ slightly depending on the case.
See, e.g., Bennett v. Saint-Gobain Corp., 507 F.3d 23, 30 (1st
Cir. 2007) (fourth prong, in an age-discrimination case brought
under both federal law and Mass. Gen. Laws ch. 151B, § 4(1B), was
satisfied if the "employer had a continuing need for the services
that he had been rendering"); Sullivan, 825 N.E.2d at 531, 533-34
(fourth prong requires that "employer sought to fill [the
employee's] position by hiring another individual with
qualifications similar to [the employee's]," and, at least in a
reduction-of-force case, this is met if the plaintiff can proffer
"some evidence that [the plaintiff's] layoff occurred in
circumstances that would raise a reasonable inference of unlawful
discrimination"); see also Abramian v. Pres. & Fellows of Harvard
Coll., 731 N.E.2d 1075, 1084 (Mass. 2000) (noting that the specific
elements of the prima facie showing "may vary depending on the
specific facts of a case" (quoting Blare v. Husky Injection Molding
Sys. Bos., Inc., 646 N.E.2d 111, 115 (Mass. 1995))). Here, it is
only the second prong of the prima facie case -- acceptable job
performance -- that the district court found lacking. In its
briefing to us, FM Global similarly contends that Dusel failed to
establish adequate performance, but does not dispute that Dusel
met the other elements of the prima facie case. As such, we
assume, for purposes of summary judgment, that it is only the
acceptable-performance prong that is in dispute.
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Glovsky & Popeo, P.C., 50 N.E.3d 778, 793 (Mass. 2016) (alterations
in original) (quoting Blare, 646 N.E.2d at 115-16).
We begin with the prima facie case. "Whether a plaintiff
has proffered evidence sufficient to establish a prima facie case
is a question of law and depends on the specific facts of a case."
Knight, 780 N.E.2d at 1263. The Supreme Court has made clear that
the first stage of the McDonnell Douglas framework is "not
onerous." Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253
(1981). Indeed, "[w]e have described this prima facie showing as
'modest,' and a 'low standard.'" Vélez v. Thermo King de P.R.,
585 F.3d 441, 447 (1st Cir. 2009) (first quoting Rathbun v.
Autozone, Inc., 361 F.3d 62, 71 (1st Cir. 2004); and then quoting
Zapata–Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 44 (1st Cir.
2002)); accord Villanueva v. Wellesley Coll., 930 F.2d 124, 127
(1st Cir. 1991) (prima facie showing of employment discrimination
is "quite easy to meet").
Notwithstanding this relatively lax standard, the
district court determined that Dusel had failed to meet his burden
at the prima facie stage because he was unable to demonstrate that
he performed his job at an acceptable level. Dusel, 2021 WL
2953322, at *6. In so holding, the court emphasized that Dusel
had failed to counter the evidence mustered by FM Global showing
"1) that he had improperly charged the company for personal phone
lines and other expenses, 2) that he had problems managing his
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staff and 3) [that] security camera footage [depicted] Dusel
entering company-owned property outside of business hours and for
no legitimate business purpose." Id. Further, while Dusel offered
his track record of positive performance reviews and substantial
compensation as evidence that he was performing his job at an
acceptable level, the court determined that previous "[y]ears of
positive performance do not . . . create a genuine dispute as to
an employee's performance at the time of his termination," and
that his compensation was likewise not probative of his "day-to-
day performance of his job." Id. As such, the district court
concluded, "[t]he evidence indicates that there is no genuine
dispute as to whether plaintiff can establish a prima facie case
of age discrimination." Id.On review, we find that the district court erred in
determining that Dusel failed to make out a prima facie case of
age discrimination. "A plaintiff is not required, at the prima
facie stage, to disprove the defendant's proffered
nondiscriminatory reason for taking an adverse employment action."
Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 139 (1st
Cir. 2012) (district court erred in considering employer's
"alleged reason for dismissal" at the first stage of the McDonnell
Douglas analysis). Such evidence properly comes into play only at
the second and third stages of the McDonnell Douglas framework,
where the burden shifts to the employer to offer a legally
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sufficient rationale for the adverse employment action, and (if
such an explanation is provided) the burden returns to the employee
to demonstrate that such rationale was pretextual. See id. As
such, by requiring Dusel to respond to FM Global's stated reasons
for his termination at the outset (to wit, Dusel's improper cell
phone charges, staff management issues, and suspicious after-hours
visits to company property), the district court placed too much
heft onto a burden that, at the prima facie stage, is intended to
be light. "This error," we have noted, "was captured well" by the
Sixth Circuit's explanation that
[a] court may not consider the employer's alleged
nondiscriminatory reason for taking an adverse
employment action when analyzing the prima facie case.
To do so would bypass the burden-shifting analysis and
deprive the plaintiff of the opportunity to show that
the nondiscriminatory reason was in actuality a pretext
designed to mask discrimination.
Vélez, 585 F.3d at 448 (quoting Wexler v. White's Fine Furniture,
Inc., 317 F.3d 564, 574 (6th Cir. 2003) (en banc)); see also
Meléndez v. Autogermana, Inc., 622 F.3d 46, 51 (1st Cir. 2010)
(similar).
In seeking to establish acceptable performance at his
job -- here, the only disputed element of the prima facie case --
Dusel points to his thirty-five-year employment history at FM
Global, including many years of positive performance reviews,
elevation to HBM President and CEO, and significant bonus
compensation. Despite the district court's skepticism, under our
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precedents, this evidence more than suffices to meet Dusel's burden
of showing acceptable performance. See, e.g., Vélez, 585 F.3d at
448 (plaintiff's "long record of employment," including previous
promotions and a "twenty-four year period without discipline or
indications of deficient performance," established acceptable-
performance prong of prima facie case); Acevedo-Parrilla, 696 F.3d
at 139 (burden of showing adequate job performance was met where
plaintiff had "prior, well-rated experience" in the industry and
"a long history of employment at the company, spanning an eleven-
year period, with overall positive reviews"); Freeman v. Package
Mach. Co., 865 F.2d 1331, 1334-35 (1st Cir. 1988) ("job-performance
integer of the prima facie case" satisfied where plaintiff "adduced
credible evidence that his work was adequate to meet [employer's]
legitimate expectations," such as a lengthy employment history and
a "string of promotions and bonuses"). Accordingly, because we
cannot take into account FM Global's asserted rationale for
terminating Dusel in assessing whether he made a prima facie
showing of age discrimination, and because Dusel "tendered some
evidence which, if believed, proved that he was doing his chores
proficiently," Freeman, 865 F.2d at 1335, we hold that Dusel has
carried his modest burden at the first stage of the McDonnell
Douglas framework.
Nevertheless, although we disagree with the district
court's determination that Dusel failed to make a viable prima
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facie case of age discrimination, we agree with its determination
that Dusel's claim runs aground at the subsequent step of the
McDonnell Douglas scheme. The district court held that summary
judgment would still have been appropriate even if Dusel had made
a viable prima facie case, because FM Global articulated
legitimate, nondiscriminatory reasons for his termination, and
Dusel had failed to adduce evidence that this stated rationale was
pretextual. Dusel, 2021 WL 2953322, at *6-7. On appeal, Dusel
contends that the district court erred in these conclusions,
disputing that he committed misconduct and arguing that the
district court impermissibly discounted evidence pointing to a
genuine dispute of material fact as to whether FM Global's stated
reasons for his termination were pretextual.
At the second stage of the McDonnell Douglas approach,
the burden of production shifts to the employer to spell out a
legitimate, nondiscriminatory reason for the adverse employment
action. If the "employer's proffered reason is facially adequate
to constitute a legitimate, nondiscriminatory justification for
the employer's actions," then the "presumption arising from a
discrimination plaintiff's prima facie case vanishes," and the
burden returns to the employee to demonstrate that the employer's
asserted reasons were pretextual. Mesnick v. Gen. Elec. Co., 950
F.2d 816, 824-25 (1st Cir. 1991). Here, FM Global has introduced
evidence to the effect that such nondiscriminatory reasons served
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as the basis for Dusel's termination -- specifically, an affidavit
from the company's Chief Financial Officer Kevin Ingram (supported
by the company's investigative documents) stating that FM Global
terminated Dusel because he had violated company policy by charging
multiple personal phone lines for several years to FM Global,
attempted to conceal this behavior and lied to investigators about
the issue, and made scores of after-hours trips to the Wakefield
Facility, from which he appeared to be taking significant
quantities of food according to video footage. Accordingly, FM
Global has satisfied its burden of articulating legitimate,
nondiscriminatory reasons for Dusel's termination.3
At the final stage of the McDonnell Douglas scheme, the
burden returns to Dusel to demonstrate that FM Global's asserted
reasons for his termination were pretextual. In attempting to
argue that FM Global's reasons for his termination were indeed
pretextual, Dusel does not rely on direct evidence of FM Global's
age-based animus, but primarily alleges instead disparate
3 While Dusel disputes certain of FM Global's allegations of
misbehavior, at the second stage of the McDonnell Douglas framework
the employer must satisfy "only a burden of production, not a
burden of persuasion." Mesnick, 950 F.2d at 823; accord Sullivan,
825 N.E.2d at 537-38. Indeed, it need not prove that "it was
actually motivated by the proffered reasons," but only that there
exists at least "a genuine issue of fact as to whether it
discriminated against the plaintiff." Burdine, 450 U.S. at 254.
Thus, by claiming that FM Global's "nondiscriminatory reasons for
his termination are very much in dispute," Dusel effectively
concedes that FM Global met its burden at the second step of the
McDonnell Douglas scheme.
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treatment vis-à-vis Kevin Casey. The gravamen of Dusel's argument
is essentially that Casey, like Dusel, had multiple cell phone
lines charged to the company, but was not terminated. That Dusel
was fired while Casey was retained, Dusel suggests, gives rise to
an inference that FM Global's asserted rationale was pretextual.
This argument fails. For one thing, as the district
court noted, Casey was not implicated in the same misconduct that
forms the basis of FM Global's articulated rationale for Dusel's
termination.4 See Dusel, 2021 WL 2953322, at *6 (noting that,
unlike Casey, FM Global accused Dusel of apparent food theft and
attempting to deceive company investigators regarding the misuse
of phone lines). For another, to allow an inference of pretext
from evidence of disparate treatment, Dusel must identify a
"similarly situated" comparator. Matthews v. Ocean Spray
Cranberries, Inc., 686 N.E.2d 1303, 1310 (Mass. 1997) ("The most
probative means of establishing that the plaintiff's termination
Dusel also argues that Casey separately ran afoul of an
4
anti-nepotism policy and improperly mischarged the firm for
certain wedding expenditures. Whatever the veracity of these
various allegations, they do not alter the conclusion that Dusel's
alleged misconduct differed from that of Casey. For its part, FM
Global contends that the firm's anti-nepotism policy was only put
in place after Casey had hired the relatives in question, and
argues that the record neither evidences that Casey mischarged FM
Global for any wedding expenses nor indicates that Casey's phone
lines were active or put to personal use, as is undisputedly the
case for Dusel.
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was a pretext . . . is to demonstrate that similarly situated []
employees were treated differently."). That is, someone who is
substantially similar to those of the complainant "in
all relevant aspects" concerning the adverse employment
decision. "The test is whether a prudent person, looking
objectively at the incidents, would think them roughly
equivalent and the protagonists similarly
situated. . . . In other words, apples should be
compared to apples."
Trs. of Health & Hosps. of Bos., Inc. v. MCAD, 871 N.E.2d 444, 450
(Mass. 2007) (citation omitted) (quoting Dartmouth Rev. v.
Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989), overruled on
other grounds by Educadores Puertorriqueños en Acción v.
Hernández, 367 F.3d 61 (1st Cir. 2004)). We are skeptical that
Casey -- who, as Dusel's subordinate had a different title, fewer
responsibilities, and lower compensation -- is similarly situated
"in all relevant respects" to Dusel, and Dusel makes no effort in
his briefing to contend otherwise. As such, we reject Dusel's
argument that, on this basis, a reasonable factfinder could
conclude that FM Global's stated reasons for terminating Dusel
were pretextual.
Dusel also further charges that the district court erred
in failing to identify factually disputed issues regarding his
termination that could give rise to an inference of pretext,
impermissibly weighing evidence that properly belonged before a
jury. His argument in this regard appears to be that, if a
factfinder were to resolve certain factual disputes in his favor
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-- in particular, disputes about whether he actually misused
company phone accounts, intended to mislead investigators, or
stole food from the Wakefield Facility -- such findings would lead
the factfinder to "have serious doubt as to the veracity of [FM
Global's] allegations of theft," which could give rise to an
inference of pretext.
But, evidence that would provide a supportable basis for
reaching a different conclusion than the employer did with respect
to its stated basis for the employment action does not suffice for
a plaintiff to defeat summary judgment on the ground that the
employer's stated basis was pretextual. See Bulwer v. Mount Auburn
Hosp., 46 N.E.3d 24, 33 (Mass. 2016) (explaining that, to survive
summary judgment, the plaintiff must present "evidence from which
a reasonable jury could infer that the [employer]'s facially proper
reasons given for its action . . . were not the real reasons" that
the employer took that action) (internal quotation omitted);
accord Forsythe v. Wayfair, Inc., 27 F.4th 67, 80 (1st Cir. 2022)
("[I]t is not enough . . . 'to impugn the veracity of' [the
employer]'s stated reason for [the employment action]." (quoting
Ponte v. Steelcase Inc., 741 F.3d 310, 323 (1st Cir. 2014)
(internal quotation omitted))). Rather, when a plaintiff seeks to
show pretext by debunking the stated reason for the adverse
employment action, they must present evidence from which a
reasonable jury could supportably conclude "that the employer's
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explanation is not just wrong, but that it is so implausible that
the employer more likely than not does not believe it." Wayfair,
27 F.4th at 80 (citing Collazo-Rosado v. Univ. of P.R., 765 F.3d
86, 93 (1st Cir. 2014)).
Here, even accepting Dusel's premise that a jury could
supportably find on this record that he was not responsible for
the precise misconduct alleged by FM Global,5 it does not follow
that a jury could supportably find on this record that FM Global's
leaders likely did not "believe [their] stated reason to be
credible." Mesnick, 950 F.2d at 824. And, we see nothing in our
review of the record that would permit such a finding.6
5 We note that, despite Dusel's contentions, it appears
undisputed from the summary judgment record that, inter alia, Dusel
improperly charged HBM for his wife and daughter's phone plans for
an extended period of time, failed to inform company investigators
about these charges even as he sought to remove these plans from
the company account, and entered company cafeterias over eighty
times, frequently after business hours, wherein video evidence
appeared to show him leaving with full bags that had been empty
minutes before.
6 Dusel also points to affidavits from two other former FM
Global employees averring, in a conclusory fashion, that they
believe age was a factor in their terminations. But we do not see
how these separate allegations of age discrimination meaningfully
bear on Dusel's own claims, and, absent more, are insufficient to
give rise to any inference that would help Dusel surmount the
summary judgment hurdle. See Medina-Munoz, 896 F.2d at 10
("Particularly in a case like this one, where the employee's
evidence of pretext is tenuous, these fragmentary tendrils do not
suffice, without more, to prove that [the employer's] dismissal of
[the employee] was motivated by age discrimination.").
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Thus, while it is true that "[t]here are many veins of
circumstantial evidence that may be mined by a plaintiff" to show
pretext, id., Dusel's excavations fail to surface any meaningful
ore. We therefore conclude that there is no triable issue of fact
as to whether "the defendant's proffered reason for its employment
decision was not the real reason, but is a pretext for
discrimination." Matthews, 686 N.E.2d at 1309. Accordingly, the
district court did not err in granting summary judgment on the
age-discrimination claim. Cf. Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) ("Even in cases where
elusive concepts such as motive or intent are at issue, summary
judgment may be appropriate if the nonmoving party rests merely
upon conclusory allegations, improbable inferences, and
unsupported speculation.").
3. The Retaliation Claim
Under Mass. Gen. Laws ch. 151B, § 4(4), it is illegal
for an employer "to discharge, expel or otherwise discriminate
against any person because he has opposed any practices forbidden
under this chapter or because he has filed a complaint, testified
or assisted in any proceeding under section five [of Mass. Gen.
Laws ch. 151B]." The framework applicable to assessing retaliation
claims is similar to that described earlier for the age-
discrimination claim, "albeit with slight modifications."
Mesnick, 950 F.2d at 827. "In the absence of direct evidence of
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a retaliatory motive, to make out a prima facie case of
retaliation, the plaintiff must show that 'he engaged in protected
conduct, that he suffered some adverse action, and that "a causal
connection existed between the protected conduct and the adverse
action."'" Psy-Ed Corp. v. Klein, 947 N.E.2d 520, 530 (Mass. 2011)
(quoting Mole v. Univ. of Mass., 814 N.E.2d 329, 338-39 (Mass.
2004)); see also Noviello v. City of Boston, 398 F.3d 76, 88 (1st
Cir. 2005) ("To engage the gears of [§ 4(4)], a plaintiff must
show that (i) []he undertook protected conduct, (ii) []he suffered
an adverse employment action, and (iii) the two were causally
linked."). As before, following the McDonnell Douglas framework,
if the employee successfully makes a prima facie case, the burden
of production then shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the adverse employment
action, at which point the burden returns to the employee to prove
that this rationale was pretextual. See Verdrager, 50 N.E.3d at
800.
The district court dismissed Dusel's retaliation claim,
holding that he failed to establish a causal link between any
arguably protected conduct and the adverse employment actions
taken against him. Dusel, 2021 WL 2953322, at *7-8. Even if
Dusel's apparent disagreement with the outcome of the 2015
investigation (following Holland's first complaint about Casey's
alleged harassment and other misconduct) constituted protected
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activity under § 4(4), the court determined, his mere
participation in the 2018 investigation did not. Id. at *7. As
such, the time elapsed between any plausibly protected activity
and Dusel's eventual termination was too great -- and any inference
of causality thus too attenuated -- for Dusel to make a successful
prima facie case of retaliation, "especially when the intervening
findings of misconduct are considered." Id. at *8.
On appeal, Dusel again contends that the district court
erred in failing to identify disputed issues of material fact
sufficient to defeat summary judgment. To this end, Dusel
catalogues eight instances of putatively protected activity in the
run-up to his 2018 termination, including initially informing his
supervisors of Holland's concerns regarding Casey prior to her
February 2018 complaint and each interview with HR pursuant to
that investigation. Dusel also contends that his various
pretermination complaints to FM Global, in which he alleged the
company was retaliating against him (e.g., by relocating the HBM
management team to FM Global's Rhode Island headquarters),
themselves qualify as opposition to practices forbidden under
Massachusetts antidiscrimination statute. In each of these
instances, Dusel claims that he has provided adequate evidence of
protected conduct -- with sufficient temporal proximity to his
termination to permit an inference of retaliation -- such that the
district court's grant of summary judgment was in error.
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We need not resolve the disputes regarding which of
Dusel's actions and statements constitute protected activity under
Massachusetts law because, even assuming that those questions were
to be resolved in his favor, we conclude that he has not met his
burden at the subsequent stages of the McDonnell Douglas framework,
wherein he must present evidence that would support a finding of
a causal nexus between the protected conduct and his termination
(to round out his prima facie case) and, subsequently, that FM
Global's proffered legitimate, nondiscriminatory reasons for his
termination were pretextual. See Psy-Ed Corp., 947 N.E.2d at 530;
Verdrager, 50 N.E.3d at 800. In practice, these questions tend to
blend into one another because, "for retaliation claims, [the]
third element of [the] prima facie case and [the] third McDonnell
Douglas stage are 'not easily distinguishable.'" Soto-Feliciano
v. Villa Cofresí Hotels, Inc., 779 F.3d 19, 32 (1st Cir. 2015)
(quoting Wells v. Colo. Dep't of Transp., 325 F.3d 1205, 1218 (10th
Cir. 2003)); see also id. (moving "directly to see whether
[plaintiff] has raised a genuine issue of material fact that the
defendants' stated grounds for firing him were in fact a pretext
for retaliatory animus" because "[i]f he has met this showing,
then he necessarily has met the lesser burden that he bears at the
prima facie stage of showing a causal connection between his
protected conduct and the decision to fire him"). As such, we
assess whether Dusel can establish that FM Global's articulated
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rationale for the adverse employment actions was pretext masking
a retaliatory animus.
For many of the same reasons we have rehearsed supra
regarding the age-discrimination claim, we hold that Dusel cannot
establish said pretext. As before, FM Global has proffered
legitimate, nondiscriminatory reasons for Dusel's termination,
viz., Dusel's violation of company policy vis-à-vis his use of the
company's cell phone lines, his apparent attempts to conceal said
behavior from FM Global investigators, and his after-hours visits
to company facilities which led FM Global to conclude he had been
engaging in food theft.7
In attempting to demonstrate causality and pretext,
Dusel claims that the "close temporal proximity between events"
and his "significant track record of positive
7While Dusel primarily focuses on his September 2018
termination, he also contends that FM Global's March 2018 decision
to relocate HBM's senior staff to Rhode Island and reorganize the
company's reporting structure, his May 2018 performance review (in
which he received a "Meets Expectations" rating), and FM Global's
investigations in July and August 2018 of Dusel's potential
misconduct also constitute retaliation. FM Global disputes that
these actions can plausibly be considered retaliatory in nature,
offering evidence that the investigations into Dusel's cell phone
and the cafeteria use arose independently from an unrelated
investigation and that the Rhode Island relocation and attendant
managerial changes -- which impacted multiple members of HBM's
management team, not Dusel alone -- were not punitive in nature,
but intended to increase cohesion and oversight in light of FM
Global's conclusion that Dusel could not manage his staff. By any
measure, these, too, constitute legitimate and nondiscriminatory
reasons for FM Global's actions.
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performance . . . give an inference of causal connection from his
protected activity to his termination."
We are unpersuaded. While circumstantial evidence of
temporal proximity between a protected activity and an adverse
employment action can, in some cases, give rise to an inference
that an employer's stated basis for the decision was pretext
masking for retaliatory animus, that evidence must be considered
alongside the rest of the summary judgment record. See Psy-Ed
Corp., 947 N.E.2d at 534 n.31 ("It is true that . . . [t]iming and
sequencing of events may, depending on the facts of a case, be
sufficient to raise an inference of causation, and although that
inference may be overcome by the defendant's contrary evidence, it
also may become the basis of the plaintiff's proof that retaliation
was in fact determinative." (internal citations omitted)).
Here, even if his apparent opposition to the conclusion
of the 2015 investigation and alerting his superiors to Casey's
complaints in February 2018 qualify as protected conduct, and even
if (more dubiously) Dusel's informal complaints to FM Global
management in April and June 2019 alleging retaliation themselves
qualify as protected activities, we conclude that no reasonable
juror on the facts of this case could infer that FM Global's stated
basis for Dusel's termination was pretextual based on the time
that elapsed between those events and his September 2018
termination. For one thing, FM Global has produced evidence --
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uncontradicted by Dusel -- showing that Dusel's alleged misconduct
came to light as a result of a separate matter involving separate
employees, and in closer proximity to Dusel's termination than
Dusel's last claimed protected activity. For another, and as we
have already explained in connection with his age discrimination
claim, Dusel has not presented other evidence that would allow a
reasonable factfinder to conclude that FM Global's proffered basis
for his termination is "so implausible that [FM Global] more likely
than not does not believe it." Wayfair, 27 F.4th at 80. We see
"no reason to reach a different conclusion" as to the state of the
record in connection with Dusel's retaliation claim, Soto-
Feliciano, 779 F.3d at 32, and he has provided none.
In consequence, we are unable to see how temporal
proximity alone would allow a reasonable juror to infer that FM
Global's stated reason for firing Dusel was pretext for its
retaliatory animus toward him. By the same token, we are also
unpersuaded by Dusel's gesture toward his track record of positive
previous performance, as that evidence does not bear on FM Global's
evidence as to its subsequent discovery of his misconduct -- which
forms the basis of its legitimate, nondiscriminatory rationale for
his termination.
Thus, as with the age-discrimination claim, Dusel has
not marshaled evidence evincing a genuine dispute of material fact
as to whether FM Global's adverse employment actions were
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pretextual and retaliatory in nature. We therefore agree with the
district court that "Dusel has not presented evidence from which
a reasonable jury could infer that FM Global's articulated reasons
for his discharge did not form the real basis for its employment
decision." Dusel, 2021 WL 2953322, at *8.
B. The District Court Did Not Err in Denying Dusel's Evidentiary
Motions
Dusel lastly claims that the district court erred in
denying certain of his evidentiary motions. Specifically, he
contests the denial of his motion to strike the affidavits of
Robert Fitzpatrick, Erik Waal, and Kevin Ingram; his motion to
strike certain paragraphs from FM Global's statement of undisputed
material facts; and his motion to exclude certain after-acquired
evidence.
1. Standard of Review
We begin by emphasizing that we seldom disturb the
district court's rulings on evidentiary issues. "Only rarely --
and in extraordinarily compelling circumstances -- will we, from
the vista of a cold appellate record, reverse a district court's
on-the-spot judgment concerning the relative weighing of probative
value and unfair effect." Freeman, 865 F.2d at 1340. "We review
challenges to a district court's discovery determinations under an
abuse of discretion standard." Pina v. Child.'s Place, 740 F.3d
785, 790 (1st Cir. 2014). "Accordingly, we 'will intervene in
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such matters only upon a clear showing of manifest injustice, that
is, where the lower court's discovery order was plainly wrong and
resulted in substantial prejudice to the aggrieved party.'" Id.
at 791 (quoting Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 860
(1st Cir. 2008)). "At every stage of the proceeding, the court
must disregard all errors and defects that do not affect any
party's substantial rights." Fed. R. Civ. P. 61; see also Tersigni
v. Wyeth, 817 F.3d 364, 369 (1st Cir. 2016) ("We may affirm in
spite of an erroneous evidentiary ruling if the error was harmless,
meaning that 'it is highly probable that the error did not affect
the outcome of the case.'" (quoting McDonough v. City of Quincy,
452 F.3d 8, 19-20 (1st Cir. 2006))).
2. Motion to Strike Affidavit of Robert Fitzpatrick
FM Global proffered an affidavit of Robert Fitzpatrick,
Information Security Specialist at FM Global, in support of its
motion for summary judgment. In it, Fitzpatrick stated that after
Dusel was terminated and pornographic materials were discovered
within his paper files, FM Global asked him to conduct an "in-
depth review of the[] contents" of Dusel's computers, cell phones,
and other storage devices. He stated that in his review of Dusel's
electronic devices, he found over 190,000 images and several
thousand videos that were sexually explicit. He estimated that it
would have taken at least a thousand hours to download said content
and that it was the largest cache of such material that he had
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seen outside of his career in law enforcement. Dusel moved to
strike said affidavit. The district court denied the motion to
strike, holding that Fitzpatrick's affidavit did not contain
expert opinions and that Fitzpatrick was disclosed in FM Global's
discovery responses.
Dusel argues that the district court abused its
discretion by denying his motion to strike Fitzpatrick's affidavit
for two reasons, which are substantially the same arguments that
he advanced below. First, he argues that the affidavit contained
expert opinions although Fitzpatrick was not disclosed as an
expert. According to Federal Rule of Evidence 701, opinion
testimony by a lay witness must be limited to testimony that is
"(a) rationally based on the witness's perception; (b) helpful to
clearly understanding the witness's testimony or to determining a
fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702." Dusel argues
that Fitzpatrick's additional commentary on the cache of
pornographic material -- specifically, the amount of time it would
have taken to download and his comparison to what he saw during
his career in law enforcement -- veers into the realm of expert
testimony. Second, Dusel argues that FM Global failed to disclose
Fitzpatrick as a witness in its required initial disclosures under
Federal Rule of Civil Procedure 26(a) and that FM Global is
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therefore barred from using his testimony in support of its summary
judgment motion per Federal Rule of Civil Procedure 37(c).
Even assuming arguendo that the Fitzpatrick affidavit
contained unqualified expert opinion and that Fitzpatrick was not
properly disclosed as a witness for the purposes of Rule 26(a),
any such errors are harmless as neither the district court's
holding nor our de novo review relies on Fitzpatrick's description
of the sexually explicit material found on Dusel's computer or his
additional commentary. Instead, both rely on the other grounds
for termination elucidated in the record which we have described
in detail supra. "Our harmlessness inquiry is
whether . . . admission of the evidence affected plaintiff's
substantial rights. The central question is whether this court
can say with fair assurance that the judgment was not substantially
swayed by the error." Gay v. Stonebridge Life Ins. Co., 660 F.3d
58, 62 (1st Cir. 2011) (quoting Rubert–Torres v. Hosp. San Pablo,
Inc., 205 F.3d 472, 480 (1st Cir. 2000)). In this case, we can
say with such assurance that neither the district court's judgment
nor our de novo review was affected by any alleged error as neither
court relied on the evidence that Dusel disputes. As a final
point, we note that the affidavits of Erik Waal and Kevin Ingram,
both of which were allowed into the summary judgment record and
neither of which are sufficiently challenged on appeal as we hold
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infra, also discussed the sexually explicit material found on
Dusel's computer that the Fitzpatrick affidavit discusses.
3. Motion to Exclude Certain After-Acquired Evidence
Dusel's second evidentiary argument concerns the same
cache of pornographic and sexually explicit materials described
above. At the district court, Dusel moved to exclude this
evidence, arguing that it was discovered after his termination and
is therefore irrelevant and presented a risk of unfair prejudice.
The district court rejected this argument, finding that the
evidence qualified as after-acquired evidence which could be
admitted to assess damages but not liability.
On appeal, Dusel again argues that the evidence was
irrelevant as it was discovered after he was terminated and
therefore is not relevant to the reasons for his termination. He
also argues that the district court improperly classified the
evidence as after-acquired evidence.
"Where an employer seeks to rely upon after-acquired
evidence of wrongdoing, it must first establish that the wrongdoing
was of such severity that the employee in fact would have been
terminated on those grounds alone if the employer had known of it
at the time of the discharge." McKennon v. Nashville Banner Publ'g
Co., 513 U.S. 352, 362-63 (1995). Such evidence, however, is not
relevant to the employer's liability but is only admissible to
determine damages, as certain remedies for improper termination
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may be limited based on after-acquired evidence. See Nieves-
Villanueva v. Soto-Rivera, 133 F.3d 92, 101 (1st Cir. 1997). We
agree with FM Global and the district court that, based on the
facts of the instant case, the threshold showing of severity has
been met. We see no abuse of discretion in the admission of the
after-acquired evidence as its admission was not plainly wrong.
Further, because no claims survive summary judgment and FM Global
has voluntarily dismissed any counterclaims, there is no prejudice
to Dusel as this case will not reach the damages portion of
adjudication.
4. Motion to Strike Affidavits of Erik Waal and Kevin Ingram;
Motion to Strike Certain Paragraphs from FM Global's Statement of
Undisputed Material Facts
Finally, Dusel argues that the district court erred in
denying his motion to strike certain paragraphs from FM Global's
statement of undisputed material facts, and that it also erred in
denying his motion to strike FM Global's affidavits of Erik Waal
and Kevin Ingram. However, Dusel develops no real argument on
either of these points. As to the statement of undisputed material
facts, Dusel provides us with the rule for such statements,
Massachusetts Local Rule 56.1, and states that the denial of his
motion "flies in the face of the intention and spirit of
[Massachusetts Local Rule] 56.1" and therefore was an abuse of
discretion. But, he provides no relevant caselaw or other support
for this argument. Therefore, we deem said argument waived. See
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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.").
So too goes Dusel's argument on appeal that the district
court abused its discretion by denying his motion to strike the
affidavits of Kevin Ingram and Erik Waal. Dusel again sets forth
the standard, citing Federal Rule of Civil Procedure 56(c)(4) as
applicable to affidavits at the summary judgment stage, and then
proceeds to state that his motion to strike was "improperly denied"
and that reversal is merited based on abuse of discretion.
However, Dusel again fails to explain how the district court's
denial was an abuse of discretion or provide any support for his
conclusions. "It is not enough merely to mention a possible
argument in the most skeletal way, leaving the court to do
counsel's work, create the ossature for the argument, and put flesh
on its bones." Id. Accordingly, we also consider this argument
waived.
III. Conclusion
The judgment of the district court is
AFFIRMED.
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