Robinson v. Town of Marshfield ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1155
KEVIN C. ROBINSON,
Plaintiff-Appellant,
v.
TOWN OF MARSHFIELD; ROCCO LONGO, individually; MICHAEL A.
MARESCO, in his official capacity; and JOHN E. HALL, in his
official capacity and individually,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Thompson, and Barron,
Circuit Judges.
Anne Glennon, with whom Marisa Ann Campagna was on brief, for
appellant.
John J. Davis, with whom Jason W. Crotty and Pierce Davis &
Perritano LLP were on brief, for appellees.
February 14, 2020
BARRON, Circuit Judge. This appeal concerns a suit by
Kevin C. Robinson that arises from the events that led to his
retirement from his position as Fire Chief for the Fire Department
("Department") of the Town of Marshfield, Massachusetts ("the
Town"). The District Court granted summary judgment against
Robinson on each of his claims, which alleged violations of both
federal and state law, and Robinson now appeals from that ruling.
We affirm the grant of summary judgment on Robinson's federal-law
claims, which he brings under the Age Discrimination and Employment
Act ("ADEA"), 29 U.S.C. §§ 621-634.1 With respect to the state-
law claims, which the District Court had jurisdiction over pursuant
to 28 U.S.C. § 1367, we affirm the District Court's grant of
summary judgment against Robinson as to his claims for age
discrimination, retaliation based on his 2015 complaint of age
discrimination, and failure to investigate. We vacate, however,
the District Court's grant of summary judgment against Robinson as
to his state-law claims for retaliation based on his 2014 complaint
of gender discrimination, breach of contract, intentional
interference with contractual relations, and defamation, and we
direct the dismissal of these claims without prejudice.
1On appeal, Robinson challenges the grant of summary judgment
against him as to these claims only insofar as they named the Town
as the defendant.
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I.
Robinson retired from his position as Fire Chief in March
of 2015 when he was sixty years old after having worked with the
Department since 1978.2 He did so following a dispute with the
Town that concerned, at least in part, the Town's allegations that
Robinson had engaged in conduct that violated Massachusetts'
conflict of interest laws while serving as Fire Chief, due to his
interactions with various members of his family whom he had either
worked with or managed at the Department. See Mass. Gen. Laws ch.
268A, §§ 1-29.
In the course of the dispute of Robinson's failure to
comply with those laws, the Town retained a law firm to investigate
the matter. The law firm's investigation led it to issue a report
that concluded that the evidence could support a finding that
Robinson had committed numerous violations of those laws. The
report recommended that the Town refer the matter to the
Massachusetts State Ethics Commission.
Robinson announced his retirement in the wake of the
issuance of the law firm's report. He then filed a timely charge
of "discrimination based on age and retaliation" with the
Massachusetts Commission Against Discrimination and the United
2We recite the relevant facts in the light most favorable to
Robinson, the nonmoving party. See Santangelo v. N.Y. Life Ins.
Co., 785 F.3d 65, 67 n.1 (1st Cir. 2015).
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States Equal Employment Opportunity Commission ("EEOC") and
received a Right to Sue Letter from the EEOC.
In December of 2016, Robinson filed a complaint in the
United States District Court for the District of Massachusetts
against the Town and other defendants that alleged various federal-
law and state-law claims, including the ones that are before us on
appeal. The defendants moved for summary judgment as to all of
Robinson's claims, and the District Court granted that motion.
Robinson now appeals from the judgment dismissing his claims.
II.
"We review the District Court's grant of summary
judgment de novo." Santangelo v. N.Y. Life Ins. Co., 785 F.3d 65,
68 (1st Cir. 2015). We may affirm a grant of summary judgment "on
any ground revealed by the record." Id. (quoting Houlton Citizens'
Coal v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999)).
Summary judgment is appropriate if the record, viewed in
the light most favorable to the nonmoving party -- here,
Robinson -- discloses "no genuine issue of material fact" and thus
"demonstrates that 'the moving party is entitled to a judgment as
a matter of law.'" Iverson v. City of Boston, 452 F.3d 94, 98
(1st Cir. 2006) (quoting Fed. R. Civ. P. 56(c)). The nonmoving
party may "defeat a summary judgment motion by demonstrating,
through submissions of evidentiary quality, that a trialworthy
issue persists." Id.- 4 -
III.
We begin with Robinson's challenge to the District
Court's grant of summary judgment to the Town as to the ADEA claim
that he brings under 29 U.S.C. § 623(a)(1). That provision makes
it "unlawful for an employer . . . to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's age." 29 U.S.C. § 623(a)(1).
Robinson alleges in this claim that the Town took actions against
him based on his age that, by creating a hostile work environment,
caused his constructive discharge, notwithstanding that he, at
least formally, left the Department by retiring.
We follow the parties and the District Court in analyzing
the District Court's grant of summary judgment to the Town on this
claim pursuant to the burden-shifting framework that the Supreme
Court set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973). See Santangelo, 785 F.3d at 69-71 (assessing whether the
plaintiff's ADEA claim for discrimination in employment survives
summary judgment under the McDonnell Douglas framework).3 That
3 Although the Supreme Court "has not definitively decided
whether the evidentiary framework of [McDonnell Douglas] utilized
in Title VII cases is appropriate in the ADEA context,"
Soto-Feliciano v. Villa Cofresí Hotels, Inc., 779 F.3d 19, 23 (1st
Cir. 2015) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
175 n.2 (2009)), this Circuit "has long applied the McDonnell
Douglas framework to ADEA cases," id. (quoting Vélez v. Thermo
King de P.R., Inc., 585 F.3d 441, 447 n.2 (1st Cir. 2009)).
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framework requires the plaintiff, to survive summary judgment,
first to provide evidence sufficient to permit a reasonable juror
to find that a prima facie case of age discrimination under the
ADEA has been established. See Del Valle-Santana v. Servicios
Legales de P.R., Inc., 804 F.3d 127, 129-30 (1st Cir. 2015). To
meet that burden, the plaintiff must provide evidence from which
a reasonable juror could find that: (1) he was at least forty
years old; (2) his work was sufficient to meet his employer's
legitimate expectations; (3) his employer took adverse action
against him; and, depending on the alleged adverse action, (4) the
employer refilled the position, thus demonstrating a continuing
need for the plaintiff's services and skill. See id.; see also
Vélez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 447 (1st
Cir. 2009).
In the event that the plaintiff provides evidence that
would permit a reasonable juror to find that he has made out the
requisite prima facie case, "[t]he burden of production then shifts
to the employer 'to articulate a legitimate, non-discriminatory
reason for its decisions.'" Vélez, 585 F.3d at 447 (quoting
Arroyo-Audifred v. Verizon Wireless, Inc., 527 F.3d 215, 219 (1st
Cir. 2008)). If the employer meets that burden, then the
plaintiff, to survive summary judgment, must provide evidence from
which a reasonable juror could find that "the employer's proffered
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reason is actually a pretext for discrimination." Mesnick v. Gen.
Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991).
To satisfy this burden with respect to pretext, the
plaintiff must "elucidate specific facts which would enable a jury
to find that the reason given" by the defendant for the adverse
employment action "is not only a sham, but a sham intended to cover
up the employer's real motive: age discrimination." Soto-
Feliciano, 779 F.3d at 25 (quoting Mesnick, 950 F.2d at 824). At
this stage of the analysis, the "'focus must be on the perception
of the decisionmaker,' that is, whether the employer believed its
stated reason to be credible." Mesnick, 950 F.2d at 824 (quoting
Gray v. New Eng. Tel. & Tel. Co., 792 F.2d 251, 256 (1st Cir.
1986)).
We may assume that -- despite the District Court's
contrary ruling -- the record would permit a reasonable juror to
find that Robinson made out a prima facie case of age
discrimination in employment, including that he demonstrated that
there is a genuine issue of triable fact as to whether he was
constructively discharged. The reason we may do so is that, as we
will explain, Robinson has failed to identify evidence in the
record from which a reasonable juror could find that the Town's
asserted legitimate, nondiscriminatory reason for acting toward
him as it did was a pretext for age discrimination.
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The Town asserts that it acted as it did in part due to
its concerns about Robinson's performance as Fire Chief, which
included concerns about his management style and morale issues
within the Department. Robinson refers in his recitation of the
facts in his brief to us that he received a positive performance
review in 2012 -- and thus years before his retirement -- from the
Town Administrator, Rocco Longo. He also refers in that portion
of his brief to the fact that he had received no other reviews in
the years since. But, Robinson fails to develop an argument as to
why the evidence in the record that supports those particular
assertions regarding his past performance reviews -- or any other
evidence in the record -- suffices to permit him to meet his burden
at this stage of the litigation to show that the Town's asserted
concerns about his performance as Fire Chief were pretextual.
Instead, Robinson focuses his attention on the other reason that
the Town asserted for having acted toward him as it did, which is
that the Town was concerned that he had violated the state's
conflict of interest laws while serving as Fire Chief.
We assume that Robinson's choice to focus only on that
latter asserted reason by the Town does not doom his challenge to
the grant of summary judgment, and, we note, the Town does not
argue that it does. But, even on that assumption, he still, to
survive summary judgment, must satisfy his burden to show that the
evidence creates a genuine issue of disputed fact as to pretext
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with respect to the Town's asserted concerns about his violation
of those conflict of interest laws. And, we will explain, he has
not done so.
In challenging as pretextual this asserted reason for
the Town's actions toward him, Robinson argues that the record
suffices to permit a reasonable juror to find that he had complied
with the state's conflict of interest laws that the law firm's
report addresses. But, with respect to pretext, the question is
"whether the employer believed its stated reason to be credible,"
id. (citing Gray, 792 F.2d at 256), not whether Robinson in fact
violated the state's conflict of interest laws. See Ronda-Perez
v. Banco Bilbao Vizcaya Argentaria-P.R., 404 F.3d 42, 45 (1st Cir.
2005) (explaining that the plaintiff must show that his termination
was something more than an "unusual act" or a "business error,"
and that "'pretext' means deceit used to cover one's tracks").
Thus, this aspect of Robinson's challenge to the grant of summary
judgment against him on this ADEA claim is not persuasive.
We move on, then, to consider Robinson's apparent
contention -- though cursorily made -- that there is a genuine
issue of triable fact as to pretext due to the way that the law
firm conducted its investigation into his possible violation of
the state's conflict of interest laws, on which its report finding
evidence of such violations was based. Robinson is right that an
employer may be deemed to have acted pretextually if it relies for
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its actions toward an employee on the conclusions of an
investigation that the employer knows to have been a sham. See
Vélez, 585 F.3d at 450 n.4 (analyzing record evidence to determine
whether an investigation was a sham). But, we are not persuaded
by Robinson's arguments (to the extent that he develops them) that
the record, considered as a whole, provides a supportable basis
from which a reasonable juror could find that the law firm's
investigation lacked integrity, let alone that the Town knew that
it did.
Robinson first focuses on the fact that the record
supportably shows that the law firm that conducted the
investigation did not interview him. The undisputed record shows,
however, that the law firm did not interview Robinson due to a
combination of factors that included the unavailability of
Robinson's attorney for a month-long period during the
investigation into his conduct and Robinson's departure from a
scheduled interview after the law firm had declined to authorize
him to record the interview. Thus, there is no basis in the record
from which a reasonable juror could find that the law firm was not
interested in obtaining Robinson's side of the story, let alone
that the Town knew that it was not. See Riggs v. AirTran Airways,
Inc., 497 F.3d 1108, 1119 (10th Cir. 2007).
Robinson also calls attention to the fact that the record
shows that Town officials were involved in the law firm's
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investigation. The record reveals, in this regard, that, prior to
reviewing a draft of the law firm's report, Town officials provided
copies of Robinson's contract and the Town's Charter provisions
referenced in the contract's section on termination for good cause
to the law firm. The record further reveals that, after reviewing
a draft of the law firm's report, Town officials corrected a
reference in that draft to who had served as Captain in the
Department at a particular time, requested that the conclusions in
the report be framed as opinions, and instructed that the report
could include "may" or "appear" if the investigators were "not
sure" about any conclusions.
But, we are aware of no authority that indicates that
limited involvement by Town officials of that sort -- none of which
even arguably took the form of directing the law firm to reach
conclusions that its findings could not support -- would suffice
to permit a reasonable juror to find that the investigation was
rigged and that the Town knew it. Nor does Robinson purport to
identify any such precedent or point to any evidence in the record
to show that such involvement by Town officials -- or any of their
other actions related to the law firm's investigation -- violated
any written or unwritten policies or regulations for conducting
such an investigation. See, e.g., Kendrick v. Penske Transp.
Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000) (noting the
relevance in the pretext analysis of evidence that the "defendant
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acted contrary to an unwritten policy or contrary to company
practice when making the adverse employment decision").
We recognize that, as Robinson points out, the
undisputed record shows that the defendants offered to help the
law firm "wade through" documents in preparing its report. But,
the record does not provide support for a reasonable juror to find,
based on the evidence in the record of that offer or based on any
other evidence in the record, that the law firm's conclusions in
the report were based on records that the defendants cherry-picked.
Finally, Robinson asserts that the record shows that the
law firm did not ask questions about whether he favored one family
member who worked in the Department, his niece, even though the
law firm's report concluded that the evidence could support a
finding that he had used his position to secure unwarranted
privileges or exemptions for her that were not available to
similarly situated individuals. Robinson notes, too, that the
lawyer who oversaw the investigation for the law firm stated in
his deposition that he could not make a determination of favoritism
without knowing how the Fire Chief treated individuals outside of
his family.
But, even if a reasonable juror could find that the law
firm erred by not asking the right questions to support one of its
numerous findings that Robinson had committed conflict of interest
violations, Robinson points to no evidence that indicates that the
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Town knew that the law firm may have erred in this way. Nor does
he point to any evidence that the law firm lacked sufficient
evidence to support the other findings in the report, which
concluded that Robinson's involvement in employment matters
related to his family in and of itself could have constituted a
violation of the state's conflict of interest laws. Nor, finally,
is it so clear that the conflict of interest laws permitted such
involvement by him in personnel matters that a juror could
reasonably find that the Town could not have relied on the report's
findings in that regard other than as a pretext for discrimination.
Robinson does also suggest at one point in his brief
that there is evidence from which a reasonable juror could find
that the Town acted with age-based discriminatory animus in
consequence of evidence in the record that could support a finding
that Town officials had made repeated suggestions that he retire.
The evidence reveals that two of those suggestions were made prior
to the Town having retained the law firm to conduct the
investigation into his potential violation of the conflict of
interest laws and that the third suggestion was made while that
investigation was ongoing and thus before the law firm issued the
report with its findings.
There is no evidence in the record to suggest, however,
that the law firm was aware that the suggestions for him to retire
were made prior to the initiation of the investigation or issuance
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of the report. Thus, we do not see how the evidence that those
suggestions were made to Robinson creates a genuine issue of
material fact as to whether the Town's asserted concerns about his
violation of the state's conflict of interest laws were merely a
pretext for discrimination. By Robinson's own account, the Town
had not taken actions sufficient to result in his constructive
discharge until after the law firm's report had issued. There is,
accordingly, no basis in the record for a juror reasonably to
conclude that the Town responded as it did to the findings by the
law firm -- which, as we have explained, Robinson fails to show
were the product of a sham investigation -- out of age-based animus
rather than, as the Town asserts, a concern about what they showed
about Robinson's conduct in office.4
Thus, even considering the record as a whole, we do not
see how it suffices to permit a reasonable juror to find that the
investigation into Robinson's compliance with the state's conflict
of interest laws was a sham or that the Town relied on a report by
4 Robinson separately asserts, apparently pursuant to
Massachusetts General Laws Chapter 151B, that he was impermissibly
retaliated against by the defendants for having reported in 2014
-- and thus before the initiation of the law firm's investigation
into his violation of the state's conflict of interest laws --
that his niece had been subjected to gender-based discrimination
while an employee of the Department. But, Robinson does not
develop any argument that the fact that the law firm's
investigation into his possible violation of those laws commenced
thereafter itself calls into question the integrity of the
investigation or of the report that the law firm issued based on
that investigation.
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that law firm that it knew to be a sham. Accordingly, Robinson's
attempt to satisfy his burden with respect to pretext by casting
doubt on the integrity of the law firm's investigation and report
fails.
Robinson also tries to make the case for meeting his
burden as to pretext in another way. He argues that the undisputed
record shows that the Town replaced him, following his retirement,
with a younger, less-qualified employee, who received higher pay,
and that the circumstances of his replacement show that the Town's
claimed reliance on his misconduct for the various adverse actions
that Robinson alleges that it took against him was a pretext for
age discrimination.
Robinson points out that the undisputed record shows
that he had a Bachelor of Science in Fire Administration; thirteen
years of experience at the Department, during which time he had
served as the Fire Chief, a fire officer, and an inspector; and
Emergency Medical Technician certifications. By contrast, he
rightly asserts, the undisputed record shows that the person who
replaced him as the Fire Chief following his retirement was about
ten years younger, was licensed only as an Emergency Medical
Technician, did not have a fire officer or inspector license, and
became credentialed as a fire chief only once he had obtained the
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position for the Town.5 In addition, Robinson asserts that the
evidence, when viewed in the light most favorable to him, indicates
that the Town changed the job qualifications for Fire Chief from
having a master's degree when Robinson was hired to requiring only
a high school diploma when his replacement was hired.
But, "[q]ualifications are notoriously hard to judge"
and proving pretext through relative qualifications is an "uphill
struggle" for the plaintiff. Rathbun v. Autozone, Inc., 361 F.3d
62, 74 (1st Cir. 2004). Thus, "in the absence of strong objective
evidence (e.g., test scores), proof of competing qualifications
will seldom, in and of itself, be sufficient to create a triable
issue of pretext." Id. (requiring a "stark" difference in
qualifications, id. at 75). Given that the record provides no
basis for a reasonable juror to find that the law firm's report
identifying his possible violations of the state's conflict of
interest laws was a sham, we fail to see how the evidence in the
record that would permit a reasonable juror to find that the person
who replaced Robinson as Fire Chief had fewer qualifications for
that post when he assumed the position than Robinson had at the
time that he left it would also permit a reasonable juror to find
5 Robinson also asserts in his Rule 56.1 motion and on appeal
that his replacement's highest degree was a high school diploma,
but he does not point to evidence in the record to support this
contention.
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that the Town's asserted legitimate, nondiscriminatory reason for
its alleged constructive discharge of him was pretextual.
We note, too, that even if Robinson were right that the
record suffices to support a finding that the Town changed the
qualifications after he retired to no longer require the Fire Chief
to have a master's degree, the undisputed record shows that
Robinson himself did not have such a degree when he was named the
Fire Chief. Thus, this aspect of the record cannot support
Robinson's contention that the Town's alleged change in the
qualifications supports an inference of pretext.
Robinson's last ground for challenging the grant of
summary judgment against him on this ADEA claim appears to be that
the record shows that the Town had decided to terminate his
employment by the time that he retired. We may assume that the
record would permit a reasonable juror to find that Robinson was
constructively discharged and thus that he did not terminate his
employment voluntarily when he retired. But, the evidence in the
record that would suffice to support that finding does not suffice
to create a genuine issue of triable fact as to whether the Town's
asserted reason for acting toward him as it did was a pretext for
discriminating against him based on his age. Thus, the evidence
that Robinson highlights to show that the Town wanted to terminate
him at the time that he retired -- evidence that includes earlier
suggestions by Town officials that he retire -- fails to support
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his challenge to this aspect of the grant of summary judgment
against him. For this reason, too, therefore, his challenge to
the grant of summary judgment to the Town on this claim fails.
IV.
Robinson separately claims that, in violation of the
ADEA, the Town fired him in retaliation for his efforts to address
the age discrimination to which he contends that he was subject.
See 29 U.S.C. §§ 623(a),(d). Like the District Court, we follow
the McDonnell Douglas framework in analyzing whether this claim
survives summary judgment, "albeit with slight modifications to
account for the retaliation claim's distinct focus." Soto-
Feliciano, 779 F.3d at 30 (quoting Mesnick, 950 F.2d at 827).
Under that framework, the first stage requires the
plaintiff to "make a prima facie showing that (i) he engaged in
ADEA-protected conduct, (ii) he was thereafter subjected to an
adverse employment action, and (iii) a causal connection existed
between the protected conduct and the adverse action." Id.(quoting Mesnick, 950 F.2d at 827). If the plaintiff makes this
prima facie showing, the burden shifts to the defendant to, as in
the discrimination context, "offer a legitimate, non-retaliatory
reason for the adverse employment action." Id. Finally, to rebut
this showing, "the plaintiff must assume the further burden of
showing that the proffered reason is a pretext calculated to mask
retaliation." Id. at 30-31 (quoting Harrington v. Aggregate
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Indus.-Ne. Region, Inc., 668 F.3d 25, 31 (1st Cir. 2012)). The
plaintiff then must show, in order to fend off a grant of summary
judgment against him, "more than that the defendants' asserted
reason for taking adverse action against him was not the real
reason. He must show that the reason given was a cover for
retaliation." Id. at 32.
Robinson predicates this retaliation claim on the formal
complaint of age discrimination that he filed with the Town's Board
of Selectmen in January of 2015. He alleges that, due to this
complaint, he suffered an array of retaliatory actions between
January and March of 2015, which together created the hostile work
environment that he alleges caused his constructive discharge.
Under the applicable burden-shifting framework, to get
past summary judgment on this claim, Robinson must show that there
is a genuine issue of disputed fact as to the causal connection
between his protected conduct and the Town's alleged retaliation.
To make that causal connection, Robinson relies on the fact that
the record shows that, after his filing of the January 2015
complaint, the Board met and voted to terminate him, he was placed
on paid leave, and he was called to a show cause hearing.
A very close temporal proximity between an employer's
knowledge of a protected activity and an adverse action can suffice
to support an inference of a causal connection in some
circumstances. See, e.g., Calero-Cerezo v. U.S. Dep't of Justice,
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355 F.3d 6, 25 (1st Cir. 2004); Mesnick, 950 F.2d at 828. But, a
reasonable juror could not, on this record, find based on timing
alone that there was a causal connection between Robinson's January
2015 complaint and any adverse actions that followed.
As we have noted, the Town asserts that it acted as it
did toward Robinson, in significant part, due to concerns about
his compliance with the state's conflict of interest laws for which
the law firm's investigation provided support. The undisputed
record shows, however, that the Town had hired the law firm to
conduct its investigation into Robinson's compliance with those
laws before he had filed his January 2015 complaint. The
undisputed record further shows that the law firm issued the report
that concluded that the evidence sufficed to support a finding
that Robinson had violated the conflict of interest laws
immediately before the Town took the alleged adverse actions that
ground his retaliation claim. In addition, Robinson fails to point
to any evidence that the law firm that conducted the investigation
knew about his January 2015 complaint, either while it was
conducting its investigation or while it was preparing the report.6
6
As we have noted, see supra text accompanying note 4,
Robinson does also allege a claim of retaliation under
Massachusetts General Laws Chapter 151B based on his 2014 report
that his niece had been subjected to gender-based discrimination
while working at the Department. But, as we have also noted,
Robinson does not contend that the law firm's investigation of his
possible violation of the conflict of interest laws was a sham
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Thus, given the intervening event of the report's issuance, we
reject Robinson's attempt to meet his burden as to pretext based
on timing alone. See Twigg v. Hawker Beechcraft Corp., 659 F.3d
987, 1001-02 (10th Cir. 2011) (finding, in analyzing a 42 U.S.C.
§ 1981 retaliation claim under the McDonnell Douglas framework,
that intervening events undermined the plaintiff's temporal
proximity argument); see also Clark Cty. Sch. Dist. v. Breeden,
532 U.S. 268, 272 (2001) (per curiam) (noting that an employer
"need not suspend previously planned [actions] upon discovering
that a [discrimination] suit has been filed, and their proceeding
along lines previously contemplated, though not yet definitively
determined, is no evidence whatever of causality").7
because it followed his having made that report of gender-based
discrimination.
7
Robinson also claims that the Town violated the ADEA by
failing to investigate and remedy the discrimination against him.
Robinson first raised arguments on appeal about his failure to
investigate claim under the ADEA in his reply brief, after stating
in his opening brief, "Plaintiff is not appealing the dismissal"
of his failure to investigate claim. Thus, he has waived his
challenge to the District Court's ruling that there is no
affirmative duty to investigate under the ADEA unless Robinson
proves his discrimination claim or the Secretary of Labor brings
the suit on behalf of the employee. See Moffat v. U.S. Dep't of
Justice, 716 F.3d 244, 255 (1st Cir. 2013) (citing N. Am. Specialty
Ins. Co. v. Lapalme, 258 F.3d 35, 45 (1st Cir. 2001) ("There are
few principles more securely settled in this court than the
principle which holds that, absent exceptional circumstances, an
appellant cannot raise an argument for the first time in a reply
brief.")).
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V.
We turn, then, to the District Court's grant of summary
judgment to the defendants on Robinson's state-law claims. As we
mentioned at the outset, the District Court had jurisdiction over
these claims solely pursuant to its supplemental jurisdiction.
See 28 U.S.C. § 1367. That raises the question of whether we
should address their merits or direct their dismissal without
prejudice in the interests of comity. See Wilber v. Curtis, 872
F.3d 15, 22-23 (1st Cir. 2017). We review for abuse of discretion.
Id. at 23.
Notwithstanding that the federal-law claims have been
dismissed, we may affirm the portions of a grant of summary
judgment on remaining state-law claims "that are so plainly correct
that no substantial question of state law is presented," id., as
this course best serves "the interests of fairness, judicial
economy, convenience, and comity," id. (quoting Desjardins v.
Willard, 777 F.3d 43, 45-46 (1st Cir. 2015)). Thus, we affirm the
District Court's grant of summary judgment to the defendants on
Robinson's state-law claim for age discrimination in employment
under Massachusetts General Laws Chapter 151B ("Chapter 151B"),
given our conclusion with respect to Robinson's ADEA claim for age
discrimination in employment that he has not provided evidence
that would permit a reasonable juror to find that the defendants'
legitimate, nondiscriminatory reason was pretextual. See Bulwer
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v. Mount Auburn Hosp., 46 N.E.3d 24, 32-33 (Mass. 2016).
Similarly, we affirm the District Court's grant of summary judgment
to the defendants on Robinson's state-law claim for retaliation
based on his attempt to redress the alleged age discrimination
under Chapter 151B, given our conclusion in connection with
Robinson's ADEA claim for retaliation that timing alone does not
support a finding of a causal connection between his January 2015
complaint for age discrimination and the actions taken against him
that he contends resulted in his constructive discharge. See Psy-
Ed Corp. v. Klein, 947 N.E.2d 520, 530 (Mass. 2011) (citing federal
case law that analyzes retaliation claims brought under the ADEA
and explaining that a causal connection may be inferred based on
temporal proximity, but that the plaintiff must still show that
"the employer's desire to retaliate against the employee" was "a
determinative factor in its decision to take adverse action"); see
also Mole v. Univ. of Mass., 814 N.E.2d 329, 341 (Mass. 2004). We
affirm, too, the District Court's grant of summary judgment to the
Town on his state-law claim under Chapter 151B for failure to
investigate, as the same reasons that lead us conclude that
Robinson has waived any challenge to the District Court's grant of
summary judgment to the Town on his federal-law claim under the
ADEA for failure to investigate lead us to conclude that he has
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waived any challenge to the grant of summary judgment on the state-
law variant of it that he brings.
That still leaves for us to address the District Court's
grant of summary judgment against Robinson as to the various state
common-law claims that he brings, which are for breach of contract,
intentional interference with contractual relations, and
defamation, as well as his Chapter 151B claim for retaliation based
on his reporting of gender discrimination. Robinson challenges
those portions of the summary judgment ruling on various grounds
that the defendants vigorously contest. But, because "[n]eedless
decisions of state law should be avoided both as a matter of comity
and to promote justice between the parties, by procuring for them
a surer-footed reading of applicable law," United Mine Workers of
Am. v. Gibbs, 383 U.S. 715, 726 (1966), we follow a different
course with respect to these claims than we have taken with respect
to the other state-law claims that are before us.
There is no analogue to any of these three state common-
law claims in the federal-law claims that we have addressed. Nor
does our analysis of Robinson's ADEA retaliation claim, which is
predicated on protected conduct by him that occurred in January of
2015 (and thus once the law firm's investigation into his potential
violation of the state's conflict of interest laws was already
underway) necessarily bear on the issues presented by his Chapter
151B claim of retaliation based on his reporting of gender
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discrimination in January of 2014 (which preceded the law firm's
investigation). Thus, rather than attempt to resolve the state-
law issues that are in dispute between the parties as to these
claims, we direct their dismissal without prejudice.
VI.
We affirm the District Court's grant of summary judgment
on Robinson's federal-law claims under the ADEA, and on the state-
law claims for discrimination, retaliation based on the 2015
complaint of age discrimination, and failure to investigate.8 We
8 We note that, after Robinson filed this appeal, one of the
defendants named in some of the state-law claims that he
brings -- Rocco Longo -- passed away. Because Robinson brings
each of the state-law claims before us against at least one
defendant other than Longo, his appeal of the grant of summary
judgment on these claims is not moot. Moreover, pursuant to
Federal Rule of Appellate Procedure 43, this Court granted
Robinson's motion to substitute Michael A. Maresco, the Town
Administrator, as a defendant in place of Longo for all claims
asserted against Longo in his official capacity.
Robinson also moved to substitute Longo's estate as the
defendant in place of Longo for all claims asserted against Longo
in his personal capacity, and, in response, we ordered the
defendants to file a status report advising the Court of their
efforts to find a personal representative of Longo who could be
substituted as a party on appeal under Federal Rule of Appellate
Procedure 43(a). The defendants filed a status report in which
they explained that no one had been appointed as the personal
representative of Longo's estate, and, as of the time of this
opinion's publication, neither party has identified a personal
representative to be substituted for Longo as the defendant for
any claims that Robinson brings against Longo in his personal
capacity. The defendants now argue to us that, to the extent a
defamation claim was brought against Longo in his personal
capacity, it does not survive his death. Robinson does not address
this contention in his briefing to us, and we thus treat as moot
Robinson's appeal of the grant of summary judgment of that state-
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vacate the District Court's grant of summary judgment on the state-
law claims for retaliation based on Robinson's 2014 report of
gender discrimination, breach of contract, intentional
interference with contractual relations, and defamation, and we
direct the dismissal of these claims without prejudice. No costs
are awarded.
law claim, to the extent that Robinson brings it against Longo in
his personal capacity, just as we treat as moot Robinson's appeal
of the grant of summary judgment of any other of Robinson's state-
law claims that are before us on appeal to the extent that they,
too, are brought against Longo in his personal capacity.
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