Carroll v. Xerox Corp.

United States Court of Appeals
For the First Circuit

No. 01-2013

FRANCIS J. CARROLL,

Plaintiff, Appellant,

v.

XEROX CORPORATION, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Lynch and Lipez, Circuit Judges,

and Woodlock,* District Judge.

William J. Royal, Jr., with whom Truelove Dee & Chase, LLP was
on brief for appellant.

Judith A. Malone, with whom Peter E. Schwartz and Palmer &
Dodge LLP were on brief for appellees.

June 28, 2002

* Of the District of Massachusetts, sitting by designation.
 LIPEZ, Circuit Judge. Plaintiff-Appellant Francis J.

Carroll brought suit against, inter alia, his former employer,

Xerox Corporation, alleging (1) disability discrimination in

violation of the Americans with Disabilities Act (ADA), 42 U.S.C.

§§ 12101-12213, and the Massachusetts anti-discrimination statute,

Mass. Gen. Laws ch. 151B, § 4, and (2) various state common law

claims. The district court dismissed the common law claims and

subsequently allowed Xerox's motion for summary judgment on the

remaining disability discrimination claims. On appeal, Carroll

challenges both rulings. We affirm.

I.

Carroll began working at Xerox in 1970. After holding
various positions there, he assumed his first sales position with
Xerox in 1986. In 1990, Carroll transferred to a sales position in

Xerox's Boston office and began reporting to John O'Brien, the
district manager of the Boston office. In March, 1995, O'Brien was
promoted to Vice-President, General Manager of the New England

Customer Business Unit (CBU), and Carroll began reporting directly
to Joseph Profeta, the new manager of Sales Operations.
While reporting to Profeta, Carroll served as an Agent

Channel Manager (ACM). In this role, he managed 25-35 independent

sales "agents" who sold Xerox equipment to smaller accounts. As an

ACM, Carroll managed the sales of his agents, trained his agents

and answered their questions, tracked his agents' progress on

revenue and units sold to ensure that sales targets were met, and

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communicated with his agents, supervisors and colleagues through e-

mail and other means.
In 1995, Xerox eliminated a number of CBU positions,
including one of the four ACM positions and many support personnel,

as part of a reduction-in-force. At various times throughout 1995,
Carroll had a full-time, and then a part-time, administrative

support person reporting to him. When both of these administrative

support personnel made job changes for personal reasons, they were
not replaced due to the personnel reduction taking place in the

CBU.

In early 1995, Carroll received his sales targets for

that year and learned that his target objectives had increased 94%

from the previous year. Although these large increases were partly
the result of the typical increases that occurred every year, they
were also the result of a change in the methodology used to

generate the performance objectives from 1994 to 1995. On or about

April 1, 1995, plaintiff began falling behind in meeting his sales

targets for that year. At about this time, he complained to
Profeta about his workload and the job pressure.
On April 25, 1995, Carroll went to his primary care
physician, Dr. Eric Reines, for a physical. Dr. Reines found that

Carroll had a mild leaking from two valves of his heart, which Dr.
Reines saw frequently in healthy patients. Based upon these

results, Dr. Reines' only concern was preventing an infection

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called endocarditis, and he accordingly instructed Carroll to take

antibiotics prior to any dental work.
In July, 1995, Carroll complained to O'Brien in a meeting
about his workload. In this conversation, Carroll requested that

Xerox allow him to take an early retirement. Although O'Brien
supported Carroll in his request for early retirement, that request

was denied on the ground that Carroll's position did not fall

within the eligibility criteria for the early retirement program.
On September 18, 1995, Carroll went to urgent care,

complaining of chest pains. After a number of tests -- including

an electrocardiogram and a stress test -- Dr. Reines concluded that
it was unlikely that Carroll had coronary artery or heart disease.
To a reasonable degree of medical certainty, Dr. Reines concluded

that the chest pain was related to stress and that the pain

resulted from a muscle spasm in the esophagus. Dr. Reines
concluded that, albeit painful, the condition has no medical

repercussions and no bearing upon a patient's heart condition.

At Carroll's request, Dr. Reines wrote a letter addressed
"To whom it may concern" which stated:

[Carroll's] chest pains probably are not due
to coronary artery disease but probably are
stress related. . . . [Carroll has] reported
extreme work stress which is the likely cause
of the chest pain and in middle-aged men is a
very common cause of hypertension and
hypertensive response to exercise.
As a result of this condition, Carroll took disability leave from

September 18 to December 18, 1995. Other than a no-work
restriction, there were no other restrictions placed on Carroll's

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activities during the three-month leave period. In the fall of

1995, psychologist Joseph Patalano treated Carroll for mental
health issues. Dr. Patalano saw Carroll twice a month, and had
phone contact with him twice a month. While Carroll was out on

disability leave, one of the other ACMs, Richard Jarry,
successfully covered Carroll's territory in addition to his own and
the territory of one of the ACMs who was terminated in the
reduction-in-force.
In late November or early December, while out on leave,
Carroll informed Profeta that he would be interested in exploring
a transfer to a position with Xerox in Houston, Texas, where much

of his family lived. Carroll had worked for Xerox in Texas for

several years prior to assuming his post in Boston. Profeta told
him that he would help him with his transfer request.

With Dr. Patalano's approval, Carroll returned to work at

Xerox on December 18, 1995. His doctors did not communicate to
Xerox any restrictions on his ability to work. On his first day

back to work following his leave, Carroll interviewed for a sales

representative position at the Xerox office in Houston.1 Profeta

arranged for Xerox to cover Carroll's travel expenses. Carroll

made no reference in his Houston interview to a medical condition

1
According to Carroll, Profeta assured him that a transfer
would not entail a salary reduction. However, on November 22,
1995, Carroll spoke with Cindy King, in Xerox's Human Resources
Department in Houston, who told him that, under Xerox's personnel
policy, a sales representative position (reporting to a sales
manager) entailed a lower salary than the one Carroll was
receiving.

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that interfered with his ability to work, nor did he ask for any

restrictions on his work or for any accommodations for any medical
condition.
The interview apparently went well. That evening, Xerox

offered Carroll a sales representative position in the Houston CBU
at the highest salary for the grade corresponding to that position.
That salary was lower than the salary he was receiving as an ACM.
Carroll telephoned Profeta from Houston to inform him
that the sales representative position offered to him in Houston
was a non-managerial position on a lower level than his position as
a sales manager. Profeta checked with Human Resources and learned

that Xerox policy required that Carroll's salary be adjusted to the

maximum of the range for the new position which was a lower-graded,
non-managerial position. Nevertheless, when Profeta asked him

whether he still wanted the transfer, Carroll reiterated his desire

to transfer to Houston, notwithstanding the salary reduction.
Accordingly, he signed Xerox's offer letter, agreeing to assume the

sales representative position in Houston at the lower salary, as

stated in the letter. Carroll continued to work in the Houston CBU

as a sales representative for over two years until he voluntarily

retired on May 8, 1998. Carroll did not request any accommodation

or reduced workload in Houston, except for a short disability leave

for a back injury unrelated to his stress condition in 1995.

II.

In May, 1996, Carroll filed a disability discrimination
charge against Xerox with the Massachusetts Commission against

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Discrimination (MCAD) and the Equal Employment Opportunity

Commission (EEOC). He subsequently filed a complaint in federal
court against Xerox, and O'Brien and Profeta individually, alleging
disability discrimination under federal and state law. In essence,

Carroll premised his claim on allegations that (1) Xerox failed to
reasonably accommodate his disability by either (a) reducing his
workload in Boston or (b) transferring him to the sales
representative position in Houston at the same salary he had in
Boston; and (2) Xerox discriminated against him because of his
disability in denying his request for early retirement.
In addition, Carroll brought against defendants various

state common law claims of breach of contract/promissory estoppel,

fraud and misrepresentation, and civil conspiracy. Shortly
thereafter, Carroll filed an amended complaint which effectively

dismissed his disability discrimination claims against the two

individual defendants, O'Brien and Profeta. The district court
granted defendants' motion to dismiss the common law claims in

their entirety, leaving Xerox as the only remaining defendant in

the case. Xerox then moved for summary judgment on the disability

discrimination claims. Ruling from the bench, the district court

granted that motion on grounds that Carroll failed to satisfy the

statutory elements of such claims. Specifically, the court held

that Carroll failed to demonstrate, inter alia, 1) a showing of

discriminatory intent on the part of Xerox and 2) that he was a

qualified individual with a disability under the relevant statutes.

The court also found that the record failed to show that Carroll

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ever made a request for a reasonable accommodation. With respect

to Carroll's showing of disability, the court stated in its
separate supplemental written order:
[Carroll] failed to show that he was precluded
by his impairment from a substantial class of
jobs or a broad range of jobs. Instead, the
evidence presented by the plaintiff tended to
show only that he was precluded from
performing his particular job. As such, the
impairment does not constitute a substantial
limitation in the major life activity of
working.
This appeal ensued.

III.

Summary judgment is proper where "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law." Fed. R. Civ. P. 56(c). Once the
moving party has pointed to the absence of adequate evidence

supporting the nonmoving party's case, the nonmoving party must

come forward with facts that show a genuine issue for trial. See

Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 25 (1st Cir.

1997); LeBlanc v. Great American Ins. Co., 6 F.3d 836, 841-42 (1st
Cir. 1993). "[N]either conclusory allegations [nor] improbable

inferences" are sufficient to defeat summary judgment. J. Geils

Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d
1245, 1251 (1st Cir. 1996) (internal quotation marks omitted).

Rather, to withstand a properly supported motion for summary
judgment, the opposing party must present "enough competent

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evidence" to enable a factfinder to decide in its favor on the

disputed claims. Goldman v. First Nat'l Bank of Boston, 985 F.2d

1113, 1116 (1st Cir. 1993) (citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986)). Evidence that is "merely colorable or

is not significantly probative" cannot deter summary judgment.
Anderson, 477 U.S. at 249-250 (citations omitted).

We review orders for summary judgment de novo, construing
the record in the light most favorable to the nonmovant and
resolving all reasonable inferences in that party's favor. In
doing so, we safely can ignore "conclusory allegations, improbable
inferences, and unsupported speculation." Medina-Munoz v. R.J.

Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

A. The ADA Standard

The ADA prohibits discrimination in employment against

qualified persons with a disability. 42 U.S.C. § 12112(a).2
Discrimination under the ADA includes "not making reasonable

accommodations to the known physical or mental limitations of an

otherwise qualified individual with a disability who is an
applicant or employee, unless . . . the accommodation would impose

an undue hardship on the operation of the business." Id.

§ 12112(b)(5)(A).

2
Section 12112(a) provides that "[n]o covered entity shall
discriminate against a qualified individual with a disability
because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms,
conditions, and privileges of employment." 42 U.S.C. § 12112(a).

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 Carroll appears to premise his claim of disability

discrimination upon two discrete theories of liability -- (1)
disparate treatment and (2) failure to reasonably accommodate his
job-related stress and anxiety disorder. Under either theory, a

threshold showing of disability is required.
With respect to his disparate treatment claim, Carroll
alleges that Xerox discriminated against him because of his alleged
impairment by, inter alia, forcing him to transfer to a non-

managerial position at a lower salary. To recover under this
theory pursuant to the ADA and its Massachusetts analogue, Chapter
151B, Carroll must show (1) that he suffers from a disability or

handicap, as defined by the ADA and Chapter 151B,3 that (2) he was

nevertheless able to perform the essential functions of his job,
either with or without reasonable accommodation, and finally that

(3) Xerox took an adverse employment action against him because of,

in whole or in part, his protected disability. Lessard v. Osram

Sylvania, Inc., 175 F.3d 193, 197 (1st Cir. 1999). As to his

reasonable accommodation claim, Carroll needs to show, in addition
to the first two prongs set forth above, that Xerox, despite

knowing of his alleged disability, did not reasonably accommodate

3
The statutory definitions of "disability" under federal law
and of "handicap" under Massachusetts law are virtually identical
and the state has looked to federal case law to assist in
interpreting its statute. Although the two definitions materially
differ in some areas, these differences are not involved in this
case and no party suggests otherwise. As a result, we simply use
the federal analytical model. See Whitney v. Greenberg, Rosenblatt,
Kull & Bitsoli, P.C., 258 F.3d 30, 32 n.1 (1st Cir. 2001).

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it. See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252,

264 (1st Cir. 1999).
As noted, the district court ruled against Carroll on all
of these elements. The parties raise several issues on appeal

bearing upon each of these elements. However, we only reach the
initial question of disability, concluding that Carroll failed to
produce sufficient evidence that he had a disability within the
meaning of relevant law. In light of this threshold deficiency, we
need not address the remaining grounds upon which the district
court relied in its grant of summary judgment.
The disability requirement can be satisfied by

demonstrating a physical or mental impairment that substantially

limited one or more of Carroll's major life activities.4 42 U.S.C.
§ 12102(2)(A). Tracking that standard, we apply a three-part

analysis when considering statutory disability under § 12102(2)(A).

See Bragdon v. Abbott, 524 U.S. 624, 631 (1998). First, we
consider whether Carroll's alleged condition constitutes a mental

or physical "impairment." See id. Second, we identify the life
activities upon which Carroll relies to determine whether they

constitute "major life activities" under the ADA, see id. -- that

4
The ADA provides two additional ways in which one may have
a "disability": by having a record of such impairment, or by being
regarded as having such an impairment. 42 U.S.C. § 12102(2)(B) &
(C). Carroll does not raise a record-of-impairment. As to the
regarded-as-disabled prong, Carroll did not produce any evidence
that Xerox regarded him as having an impairment which he did not
have, or mistakenly perceived that a non-limiting impairment
substantially limited him in a major life activity. See Cook v.
Dep't of Mental Health, Retardation, and Hosps., 10 F.3d 17, 23
(1st Cir. 1993).

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is, activities that are "of central importance to daily life."

Toyota Motor Mfg., Ky., Inc. v. Williams, 122 S.Ct. 681, 691

(2002). Third, "tying the two statutory phrases together, we ask
whether the impairment substantially limits the activity found to

amount to be a major life activity." Lebron-Torres v. Whitehall

Labs., 251 F.3d 236, 239-40 (1st Cir. 2001) (citing Bragdon, 524
U.S. at 631). To be substantially limiting, "[t]he impairment's
impact must . . . be permanent or long-term." Toyota Motor, 122

S.Ct. at 691 (citing 29 C.F.R. § 1630.2(j)(2)(ii)-(iii)).
Under the framework articulated above, "[i]t is
insufficient . . . to merely submit evidence of a medical diagnosis

of an impairment." Id. Rather, those seeking ADA protection must

offer evidence that "'the extent of the limitation [caused by their
impairment] in terms of their own experience . . . is

substantial.'" Id. at 691-92 (quoting Albertson's, Inc. v.

Kirkingburg, 527 U.S. 555, 567 (1999)) (alterations in original).

B. Application

Mindful of the "individualized inquiry" mandated by the
ADA in disability evaluation, Sutton v. United Air Lines, Inc.,

527 U.S. 471, 483 (1999), we address the particulars of Carroll's
case. Carroll complained of anxiety disorder and job-related

stress.5 He argues on appeal that this disorder chiefly impacted

5
Carroll also alleges a heart condition. However, the record
fails to support this claim.

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the major life activity of working.6 This case does not require us

to decide whether anxiety disorder and job-related stress is an
"impairment," nor whether working is a major life activity within
the meaning of the ADA.7 Assuming, arguendo, that both

propositions are correct, we turn immediately to the third element
of the statutory test, which we find dispositive. In doing so, we
conclude that Carroll's claimed impairment does not "substantially
limit" the asserted activity of working.
We note at the outset that "substantially limits" is
defined under the EEOC regulations8 as:

6
In his argument to the district court, Carroll asserted
generally that his impairment affected "everything," including
working, sleeping, his ability and desire to interact with others,
and his concentration. However, on appeal, Carroll focuses his
claimed disability exclusively on the major life activity of
working, without any mention of the previously-asserted claimed
activities. Thus, for purposes of this appeal, we confine our
analysis to the claimed activity of working.
7
The Supreme Court has not yet addressed the question
whether working constitutes a major life activity for purposes of
the ADA. See Sutton, 527 U.S. at 492 (assuming without deciding
that working constitutes a major life activity but noting the
"conceptual difficulty in defining 'major life activities' to
include work"). Indeed, we have assumed that to be so for purposes
of our analysis under the ADA. See, e.g., Gelabert-Ladenheim v.
American Airlines Inc., 252 F.3d 54, 58 (1st Cir. 2001) (accepting
arguendo that working is a major life activity). As an aside, we
note that in Toyota Motor, the Supreme Court did not determine
whether plaintiff was substantially limited in working because that
issue -- albeit raised in the district court -- was not properly
before the Court. See 122 S.Ct. at 689 ("We express no opinion on
the working, lifting, or other arguments for disability status that
were preserved below but which were not ruled upon by the Court of
Appeals.").
8
Toyota Motor states that "[t]he persuasive authority of the
EEOC regulations is less clear." 122 S.Ct. at 689. We have, pre-
Toyota Motor, looked to these EEOC regulations on several occasions
for guidance in applying the statutory terms under the ADA. See,

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 (i) Unable to perform a major life activity
that the average person in the general
population can perform; or
(ii) Significantly restricted as to the
condition, manner or duration under which an
individual can perform a particular major life
activity as compared to the condition, manner
or duration under which the average person in
the general population can perform that same
major life activity.
29 C.F.R. § 1630.2(j)(1). Factors to be considered in assessing
whether an individual is substantially limited in a major life
activity are: (1) the nature and severity of the impairment; (2)
the duration or expected duration of the impairment; and (3) the
permanent or long-term impact, or the expected permanent or

long-term impact. Id. § 1630.2(j)(2).

Furthermore, to determine whether a substantial
limitation exists when work is at issue, we have looked to whether

plaintiff can show that he or she is significantly restricted in

his or her ability to perform "a class of jobs" or "a broad range
of jobs in various classes." Whitney v. Greenberg, Rosenblatt,

Kull & Bitsoli, P.C., 258 F.3d 30, 33 (1st Cir. 2001) (internal
quotation marks omitted); Gelabert-Ladenheim v. American Airlines

Inc., 252 F.3d 54, 60 (1st Cir. 2001); 29 C.F.R. § 1630.2(j)(3)(i)

(stating that the activity of working is substantially limited only

e.g., Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11, 21
(1st Cir. 2002); Santiago Clemente v. Executive Airlines, Inc., 213
F.3d 25, 30 n. 2 (1st Cir. 2000) ("We look to the well-reasoned
views of the agencies implementing a statute, which constitute a
body of experience and informed judgment to which courts and
litigants may properly resort for guidance."); Lessard v. Osram
Sylvania, Inc., 175 F.3d 193, 196 (1st Cir. 1999).

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where an individual is "significantly restricted in the ability to

perform either a class of jobs or a broad range of jobs in various
classes as compared to the average person having comparable
training, skills and abilities."). We have noted that "'[t]he

inability to perform a single, particular job does not constitute
a substantial limitation in the major life activity of working.'"
Lebron-Torres v. Whitehall Laboratories, 251 F.3d at 240 (quoting

29 C.F.R. § 1630.2(j)(3)(i)). See Santiago Clemente v. Executive

Airlines, Inc., 213 F.3d 25, 32 (1st Cir. 2000) ("[T]o be
substantially limited in the major life activity of working,
Santiago must be precluded from more than a particular job.").

As the district court recognized, Carroll "failed to show

that he was precluded by his [claimed] impairment from a
substantial class of jobs or a broad range of jobs." Indeed,

Carroll fails to point to evidence in the record to show that he

was unable to perform any job other than his own ACM job with the
particular sales targets and workloads that existed in 1995. To

the contrary, the record shows that when Carroll transferred to the

sales representative position in Xerox's Houston office, he

performed this job adequately for over two years without any

reasonable accommodation until his voluntary retirement in 1998.

See Santiago Clemente, 213 F.3d at 32-33 (flight attendant not

substantially limited in activity of working where temporary
hearing loss did not disqualify her from various ground positions,

including receptionist, payroll clerk and operational manager);

Siemon v. AT&T Corp., 117 F.3d 1173, 1176 (10th Cir. 1997)

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(employee who could work in various other positions at his company

was not substantially limited in working).
In an attempt to argue that he was limited from other
jobs besides his own, Carroll claims that he was precluded from

sales manager positions generally. However, "[a]n impairment that
disqualifies a person from a narrow range of jobs is not considered
a substantially limiting one." Tardie v. Rehab. Hosp. of R.I., 168

F.3d 538, 542 (1st Cir. 1997) (internal quotation marks omitted).
Furthermore, this claim is a conclusory allegation without
evidentiary support; it is thus insufficient to carry Carroll's
burden. See Gelabert-Ladenheim, 252 F.3d at 62 (plaintiff's

conclusory statements as to her inability to work in a variety of

jobs held to be insufficient); Lebron-Torres, 251 F.3d at 241
("[Plaintiff's] failure to proffer any evidence specifying the

kinds of jobs that her back condition prevented her from performing

dooms her ADA claim."). Such evidence may take the form of expert
vocational testimony, or publicly available labor market

statistics. Gelabert-Ladenheim, 252 F.3d at 60-61. Carroll fails
to make any such proffer.

At best, the record indicates that Carroll could not

handle the workload associated with his particular position at a

particular period in time as an ACM in Xerox's New England office.

That is not enough. See Lebron-Torres, 251 F.3d at 240 ("[T]he
inability to perform a single, particular job does not constitute

a substantial limitation in the major life activity of working."

(internal quotation marks omitted)).

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 Furthermore, to withstand summary judgment, Carroll must

produce sufficient evidence that his impairment was "profound
enough and of sufficient duration, given the nature of [his]
impairment," to significantly restrict him in working. Whitney,

258 F.3d at 33. See also Toyota Motor, 122 S.Ct. at 691 (stating
that, to be substantially limiting, "the impairment's impact
must . . . be permanent or long-term"); 29 C.F.R. § 1630.2(j)(2).
Carroll fails to make this showing. Prior to April 1, 1995,
Carroll had no medical condition that restricted his ability to
perform any major life activity, working or otherwise. He
continued to work until September 18, 1995, and no doctor imposed

any limitations on him prior to that time. During Carroll's three-

month leave, he was not restricted in any of his activities except
for working.

Although Carroll maintains that his impairment lasted for

"an indefinite period of time," there is no evidence that any
symptom persisted past December 18, 1995, when he returned to work

following his three-month leave. Carroll fails to demonstrate any

medical restrictions or other limitations on his ability to work

once he returned from medical leave. Carroll has no recollection

of experiencing any medical symptoms between the time he came back

from disability leave and when he started in Houston on January 1,

1996. Carroll did not have any work limitations and did not recall
having any chest pains during 1996, 1997 or 1998. Thus, Carroll

fails to produce evidence that his condition was of sufficient

duration and severity to substantially limit him in working. See,

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e.g., Sanders v. Arneson Products, Inc., 91 F.3d 1351, 1354 (9th
Cir. 1996) (holding temporary psychological impairment which
resulted in three-and-a-half month leave and had no subsequent
residual effects was of insufficient duration to constitute

disability).
Having found insufficient evidence of disability, we
affirm the entry of summary judgment for Xerox on the disability
discrimination claims.

IV.

With respect to the state law claims, the district court

dismissed the breach of contract and promissory estoppel claims on
the ground that these claims were "barred by the exclusivity of the
remedy for discrimination provided in Mass. Gen. L. ch. 151B." It

dismissed the misrepresentation and civil conspiracy claims on

grounds that Carroll failed to allege sufficient facts to make out
these claims.

Reviewing the district court's dismissal de novo, see New

England Cleaning Servs., Inc. v. Am. Arbitration Ass'n, 199 F.3d
542, 544 (1st Cir. 1999), we accept as true all well-pleaded

factual allegations set forth in the complaint and draw all
reasonable inferences in Carroll's favor. See Fed. R. Civ. P.

12(b)(6). Our goal is to determine whether the complaint, so read,
alleges facts sufficient to make out a cognizable claim. See

LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir.

1998). In so doing, we are free to affirm on any basis supported

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by the record. See Watterson v. Page, 987 F.2d 1, 7 n.3 (1st Cir.

1993).9

A. Breach of Contract

Carroll stated in his complaint that "Xerox materially

breached its employment contract with Mr. Carroll by failing to
fulfill its contractual promises, including by demoting the

plaintiff from his former position and reducing his compensation,

without any just cause" and that "defendants made promises to Mr.
Carroll that Mr. Carroll's new job, as an accommodation to his

handicap status, would be at the same salary as before" and that

"his position would be a comparable position." However, Carroll

failed to allege any employment contract with Xerox beyond an at-

will employment relationship, which is terminable at will by either
party at any time. As such, his breach of contract claim based

9
Defendants argue that these state law claims are barred by
the exclusive legal remedy provided under Chapter 151B. Described
as "a comprehensive statute in the sense that it covers various
acts and practices where the possibility for discrimination is
evident," Comey v. Hill, 438 N.E.2d 811, 817 (Mass. 1982), Chapter
151B "provides the exclusive remedy for employment discrimination
not based on preexisting tort law or constitutional protections."
Charland v. Muzi Motors, Inc., 631 N.E.2d 555, 559 (Mass. 1994).
While Chapter 151B does not "narrow or eliminate a person's [pre-
existing] common law rights," Comey, 438 N.E.2d at 817, the statute
does foreclose the creation of new common law remedies or the
expansion of old ones. See Melley v. Gillette Corp., 475 N.E.2d
1227, 1229 (Mass. App. Ct. 1985). Here, however, we need not
address whether Chapter 151B bars Carroll's state law claims
(except as to one limited claim, see infra n.11) because it is
clear that Carroll failed to allege sufficient facts to support
these claims.

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upon demotion or reduced compensation fails.10 See, e.g., Bergeson

v. Franchi, 783 F.Supp. 713, 717-18 (D. Mass. 1992) (holding that
at-will employee's breach of contract claim fails because, absent
showing of bad faith or public policy violation, at-will

relationship is by definition terminable at any time for any
reason).

B. Promissory Estoppel

Carroll's promissory estoppel claim similarly fails. In
order to state a claim for promissory estoppel under Massachusetts

law, a plaintiff must allege that "(1) a promisor makes a promise

which he should reasonably expect to induce action or forbearance
of a definite and substantial character on the part of the
promisee, (2) the promise does induce such action or forbearance,

and (3) injustice can be avoided only by enforcement of the

promise." Loranger Const. Corp. v. E. F. Hauserman Co. 374 N.E.2d

306, 308 (Mass. App. Ct. 1978). Here, Carroll claims that he

relied upon promises made by the defendants that his new job in

Houston would be at the same salary as before and that the transfer
position would be a comparable position. However, the complaint

10
To the extent that Carroll's breach-of-contract claim
reduces to an alleged violation of the implied covenant of good
faith and fair dealing implicit in an at-will employment agreement,
Fortune v. Nat'l Cash Register, 364 N.E.2d 1251 (Mass. 1977), such
a claim would clearly be barred by the exclusive discrimination
remedy of Chapter 151B. See Melley, 475 N.E.2d at 1229. See also
Dolan v. Bay Constr. Group Co., No. 924947, 1994 WL 879528, at *3
(Mass. Super. 1994) (holding Chapter 151B barred plaintiff's claim
in light of absence of a cause of action existing at common law for
breach of an implied covenant of good faith and fair dealing based
upon failure to provide reasonable accommodations on account of
one's handicap status).

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itself contains allegations which flatly contradict his

characterizations of the promises made.
Although Carroll alleged in the complaint that Profeta
told him that the transfer position would be at his same salary, he

also admitted in three separate paragraphs that Xerox management in
Houston made it clear to him that the transfer would entail a
salary reduction and reduced potential income:
On or about November 1995, Mr. Carroll
discussed a new position for Mr. Carroll, in
Houston, Texas; these discussions were with
Xerox Corporation management in Texas. Mr.
Carroll was informed that this potential new
position in Texas would include a salary
reduction and reduced potential commission
income, compared to his current income in
Boston.

On or about December 18, 1995, Mr. Carroll was
offered the new Houston, Texas position as an
Account Manager with a reduction in salary of
$13,000 per year and reduced potential
commission income - as compared to his current
income.

On or about December 19, 1995, Mr. Profeta
confirmed to Mr. Carroll that Mr. Carroll
would receive a reduction in income for the
new job (in Houston, Texas) of $13,000 and
reduced potential commission income - as
compared to his current income.

In addition, the complaint made clear that Carroll was

informed that the new position entailed a reduced salary before he

accepted the position. As such, Carroll failed to allege a

promissory estoppel claim.

C. Fraud and Misrepresentation

To state a claim for fraud or misrepresentation, Carroll
must allege, inter alia, that he reasonably relied upon a

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representation of the defendant to his detriment. See Robertson v.
Gaston Snow & Ely Bartlett, 536 N.E.2d 344, 349 (Mass. 1989); Danca

v. Taunton Sav. Bank, 429 N.E.2d 1129, 1133-34 (Mass. 1982). As
the district court found, Carroll fails to do so.

Here, Carroll alleges fraud and misrepresentation based
on the "specific assurance that in his new position in Texas, the
plaintiff's salary would not be reduced" and other unspecified
"statements, assurances and agreements" set forth in the complaint.
As discussed above, however, Carroll admitted in his complaint that
he was told by Xerox management in Houston, and later by Profeta,
the precise amount by which his compensation would be reduced if he

accepted the Houston transfer. Whatever Profeta might have told

Carroll at some point, it is clear that Carroll knew that his
compensation would be reduced before he accepted the position in

Texas. Carroll thus fails to allege facts sufficient to establish

that he reasonably relied on any misrepresentation made by the
defendants.

D. Civil Conspiracy

Carroll alleges that the individual defendants conspired

to induce him into accepting the position in Houston. "Civil
conspiracy is a very limited cause of action in Massachusetts."

Jurgens v. Abraham, 616 F. Supp. 1381, 1386 (D.Mass. 1985). To

state a claim of civil conspiracy, Carroll was required to allege
that defendants, acting in unison, had "some peculiar power of

coercion" over him that they would not have had if acting

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independently. Fleming v. Dane, 22 N.E.2d 609, 611 (Mass. 1939)
(internal quotation marks omitted).
Carroll's complaint did not allege sufficient facts to
show that Xerox and the individual defendants, acting together,

were able to exert some heightened form of coercion. Carroll
alleged simply that "the power of the individual defendants as a
group was greater than the power of any one of them." That,
however, does not indicate that defendants, acting in concert,
enjoyed a "peculiar power of coercion" over Carroll. Id. There is

no allegation in the complaint from which an inference can be drawn
that the two supervisory employees had such power. Thus, we agree

with the district court that Carroll's claim of civil conspiracy

fails.

V.

Without citation to any legal precedent or record facts,
Carroll argues that the district court abused its discretion in

denying a "number of [his] discretionary requests." Carroll fails

even to identify the specific underlying motions he is challenging.
It is well established that "issues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation,
are deemed waived." United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990). We find that Carroll's two-sentence argument in
support of this claim does not justify a response.

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 VI.

For the reasons set forth above, we affirm the district
court's 1) grant of summary judgment with respect to the disability
discrimination claims and 2) dismissal of the state common law

claims.

Affirmed.

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