Robinson v. Town of Marshfield

950 F.3d 21

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.

No. 19-1155

United States Court of Appeals, First Circuit.

February 14, 2020

Anne Glennon, with whom Marisa Ann Campagna, Boston, MA, was on brief, for appellant.

John J. Davis, with whom Jason W. Crotty, Boston, MA, and Pierce Davis & Perritano LLP were on brief, for appellees.

Before Torruella, Thompson, and Barron, Circuit Judges.

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.

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 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.

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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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 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 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.

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 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...