Murray v. Warren Pumps, LLC

United States Court of Appeals
For the First Circuit

No. 13-2133

RAYMOND MURRAY,

Plaintiff, Appellant,

v.

WARREN PUMPS, LLC and COLFAX AMERICAS,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Howard, Chief Judge,
Selya and Lipez, Circuit Judges.

Michael O. Shea, with whom Law Office of Michael O. Shea,
P.C. was on brief, for appellant.
Mark W. Batten, with whom Elizabeth A. Kowal and Proskauer
Rose LLP were on brief, for appellees.

April 25, 2016
 HOWARD, Chief Judge. Plaintiff Raymond Murray sued his

former employer Warren Pumps, LLC and its parent company Colfax

Americas, claiming that their actions toward him violated the

Americans with Disabilities Act ("ADA") and its Massachusetts

analog. 42 U.S.C. §§ 12112(a), (b)(5)(A); M.G.L. ch.

151B, § 4(16). He also asserted a state common law claim that he

had been terminated from his employment for raising complaints

about suspected workplace safety violations, in contravention of

Massachusetts public policy. The district court granted summary

judgment in favor of the defendants on all claims. We affirm.

I.

Given the summary judgment posture, we recite the facts

in the light most favorable to Murray as the non-moving party.

See Henry v. United Bank, 686 F.3d 50, 54 (1st Cir. 2012). Warren

Pumps manufactures pumps for both the commercial market and for

purchase by the government for use in sophisticated end products

such as submarines. Murray's job responsibilities for Warren

Pumps primarily encompassed ensuring that workplace practices in

the plant complied with health and safety requirements. When

Warren Pumps first hired Murray in 2003, the company knew that he

had physical limitations related to a permanent back condition.

Specifically, Murray was restricted from lifting items over 35

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pounds and from standing or sitting for long periods of time. In

light of this knowledge, the company and Murray agreed that he

would perform his job in a manner that accommodated his

limitations as needed. Although Murray believed that his

supervisor did not always abide by this agreement, he left Warren

Pumps in 2005 simply to pursue another employment opportunity.

In 2008, Murray was recruited back to Warren Pumps by

his former supervisor Matt Korzec, and he resumed his prior duties

of monitoring workplace safety. Although his physical limitations

largely remained the same, his lifting restriction now was capped

at 10 pounds. Additionally, Murray was restricted from extended

walking, standing and sitting, from climbing ladders, and from

using certain hand tools. The company knew of these restrictions

when it rehired Murray and also knew that periodically he would

need time off to attend medical appointments. As before, the

parties did not expect Murray to tax his physical limitations

while performing his normal job responsibilities. Therefore, they

again agreed that Murray should self-monitor his workplace

activities and accommodate his back condition as necessary when

doing his job.

Throughout his second term of employment, Murray again

reported many workplace safety violations pursuant to his job

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duties. He was, however, often dissatisfied with Korzec's

decisions about whether and how to rectify reported problems.

Murray also disliked that Korzec sometimes requested him to take

on tasks involving some measure of physical labor. To Murray,

many of the requested tasks conflicted with his physical

restrictions. On occasion Murray voiced an objection, but many

times he did not.

In the spring of 2011, Murray decided to take his

complaints about workplace safety to the company's headquarters.

He alerted the company about the practices of a welder at the

plant who, Murray alleged, had been using a "vertical and

overhead" position without proper certification for doing so.

Murray also reported that Korzec had been "breaking laws" and had

allowed "unapproved repairs to castings to the [Department of

Defense's] and customers['] equipment." He urged the company to

"[d]o a little research and see how many castings or screws have

failed and how many were repaired on weekends [w]ith no inspection

people around." Within a week, Greg Miller, the vice president

of quality for defendant Colfax, met with Murray to discuss his

concerns about the welding practices. As a result, Miller

reviewed the particular welder's time cards and customer files

but discovered nothing to substantiate Murray's complaints.

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 Murray's employment with Warren Pumps ended on June 1,

2011. During a meeting with him that day, Crystal Baker, the vice

president of human resources, and Brian Mills, the vice president

of manufacturing, told Murray that he seemed "unhappy" working at

Warren Pumps. They presented him with two options for separation:

a severance package or a six-week sunset term. Murray accepted

neither, and he was terminated. Murray, in turn, filed this

action alleging federal and state disability discrimination claims

and a state wrongful discharge claim. After discovery, the

defendants secured summary judgment on all counts. See Murray v.

Warren Pumps, LLC, No. 11-40176-DPW, 2013 WL 5202693 (D. Mass.

Sept. 12, 2013). This timely appeal followed.

II.

We review de novo the district court's decision to award

the defendants summary judgment. Henry, 686 F.3d at 54. A moving

party is to be spared a trial when there is no genuine issue of

any material fact on the record and that party is entitled to

judgment as a matter of law. See Fed. R. Civ. P. 56(a); see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986);

Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986). Where a

defendant's motion for summary judgment demonstrates "an absence

of evidence to support the nonmoving party's case," Celotex, 477

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U.S. at 325, the plaintiff must adduce specific facts showing that

a trier of fact reasonably could find in his favor, Anderson, 477

U.S. at 249-50. Conclusory allegations, improbable inferences,

and unsupported speculation will not make the grade. See Celotex,

477 U.S. at 323-24; Pina v. Children's Place, 740 F.3d 785, 795-

96 (1st Cir. 2014). The party's allegations must find adequate

support in the record. See Celotex, 477 U.S. at 323-24; Pina,

740 F.3d at 796.

III.

The ADA prohibits an employer from discriminating

against an otherwise qualified individual based on a real or

perceived disability. 42 U.S.C. § 12112; see id. § 12102; 29

C.F.R. § 1630.2; see also Farris v. Shinseki, 660 F.3d 557, 562

(1st Cir. 2011); Orta-Castro v. Merck, Sharp & Dohme Química P.R.,

Inc., 447 F.3d 105, 112 (1st Cir. 2006). The plaintiff bears the

burden of presenting evidence to establish each element under the

particular theory of disability discrimination alleged. See

Lebron v. Commonwealth of Puerto Rico, 770 F.3d 25, 31 (1st Cir.

2014); Faiola v. APCO Graphics, Inc., 629 F.3d 43, 47 (1st Cir.

2010); Quiles-Quiles v. Henderson, 439 F.3d 1, 6-7 (1st Cir.

2006). Massachusetts has comparable prescriptions. See M.G.L.

ch. 151B § 4(16); see also Godfrey v. Globe Newspaper Co., 928

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N.E.2d 327, 333-38 (Mass. 2010); Dartt v. Browning-Ferris Indus.,

Inc., 691 N.E.2d 526, 528, 530-33 (Mass. 1998); Tate v. Dep't of

Mental Health, 645 N.E.2d 1159, 1165 (Mass. 1995).

Murray advances three distinct theories of disability

discrimination: failure to provide reasonable accommodations,

disability harassment, and retaliatory discharge. Our careful

review of the record confirms the district court's assessment that

Murray cannot establish a prima facie case on any of his three

theories. We address each in turn, evaluating the ADA and state

analog claims in tandem given their substantive overlap in this

case. See Henry, 686 F.3d at 58-59. We proceed on the assumption

that the evidence allows for a finding that Murray has a qualifying

handicap or disability under state and federal law.

A.

An employer must make "reasonable accommodations to the

known physical . . . limitations of an otherwise qualified

individual with a disability." 42 U.S.C. § 12112(b)(5)(A).

Reasonable accommodations are modifications or adjustments to the

work environment, or to the manner in which the position's duties

are customarily performed, that enable a qualified individual with

a disability to perform the essential functions of that position.

See 29 C.F.R. § 1630.2(o). An employer is obligated to provide a

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reasonable accommodation (as long as it is not unduly burdensome)

where a protected employee has requested an accommodation or the

employer otherwise knew that one was needed. See Jones v.

Nationwide Life Ins. Co., 696 F.3d 78, 89 (1st Cir. 2012). The

employee's request for an accommodation, however, "must be

sufficiently direct and specific, and it must explain how the

accommodation is linked to the [employee's] disability" in order

to trigger the employer's responsibility to accommodate. Id.;

see Ocean Spray Cranberries, Inc. v. Mass. Comm'n Against

Discrimination, 808 N.E.2d 257, 267-68, 270-71 (Mass. 2004).

In his complaint, Murray alleged that he had requested

"time off and other accommodations for his disability, such as

light duty, lifting restrictions, and to take breaks in order to

raise his legs/feet, and for time off for medical treatment," but

that Warren Pumps "denied some of those requests." Thus, to

resurrect his failure to accommodate claim, Murray must point to

evidence in the record allowing a rational jury to find that he

requested an accommodation (or that Warren Pumps had reason to

know of his need for one) but that Warren Pumps refused reasonably

to accommodate him. See Jones, 696 F.3d at 89. This he has

failed to do.

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 We start by clearing some underbrush: we set aside

those portions of Murray's deposition testimony that only broadly

suggest requests for accommodation. For example, he generally

testified that he sought breaks from "time to time," without

detailing any particular occasions or explaining whether and how

Warren Pumps actually denied any such requests. This vague and

incomplete testimony has little evidentiary value. See Celotex,

477 U.S. at 323-24; Pina, 740 F.3d at 795-96.

Much of the remainder of Murray's deposition testimony

is similarly murky. He does identify some isolated instances when

Korzec asked him to perform tasks involving manual labor that

Murray viewed as conflicting with his medical restrictions.

Murray's own description of the events, however, conclusively

shows that he failed to alert Korzec to his need for an

accommodation on these occasions, and that when he did speak up,

Korzec did not compel him to perform the manual labor. A few

illustrations will suffice.

Murray testified that, sometime in 2010, Korzec

required everyone to be involved in a shop-wide painting project.

Murray told Korzec that he was unable to do the work. Korzec,

apparently irritated, "walk[ed] away." But Murray readily

acknowledged in his deposition that Korzec did not tell him "to

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go back and paint," and that he did not do so. Such an incident

cannot support a finding that the company refused a request for

an accommodation.

Murray also described an occasion sometime in 2011 when

Korzec asked him to perform a wiring job. When Murray told Korzec

that he was physically unable to do the work, Korzec told Murray

to "get it done somehow." Murray accomplished the job by

"pull[ing] somebody else off the floor to do it." He also

personally participated to some degree by carrying a toolbox in

excess of ten pounds. To the extent that it can be said that

Murray asked for an accommodation on this occasion, there is no

evidence that Korzec pressured Murray to perform the physical

labor himself. Instead, Murray -- with Korzec's apparent

acquiescence -- used another employee to complete the task.

Moreover, there is no evidence that would allow a finding that

Warren Pumps was responsible for Murray's personal decision to

violate his lifting restriction.

On another occasion, Korzec asked Murray to oversee a

project that involved extended walking between both ends of the

large production facility. This time, however, Murray did not

inform Korzec of his need for an accommodation to curb any

excessive walking that day. During his deposition, Murray

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explained that Korzec was unavailable at the time because he had

already left the premises for the day. Yet, Murray conceded that

he made no effort to tell anyone at the facility that he needed

help with the task. Without a request for an accommodation, the

company, in the circumstances of this case, cannot be faulted for

failing to provide one.

Murray argues that the viability of his claim does not

require evidence that he actually asked for an accommodation when

Korzec instructed him to perform a strenuous task, or that Korzec

actually compelled him to violate his medical restrictions on any

particular occasion. It is enough, Murray contends, that Korzec

"deliberately requested" that he perform tasks that would cause

him "to violate his medical restrictions and accommodations

granted by Warren Pumps." Whether or not this position might be

tenable under other circumstances, it is unavailing in this case.

See generally Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261

n.7 (1st Cir. 2001) (stating that different rules may apply when

the "employee's need for an accommodation is obvious").

An otherwise qualified employee with a disability who

may need differing accommodations at different times (depending

on his physical restrictions and varying job duties) will not be

protected under the law when he fails to alert his employer that

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a particular task requested of him conflicts with a medical

restriction. See Enica v. Principi, 544 F.3d 328, 339-40 (1st

Cir. 2008); Reed, 244 F.3d at 260-61; see also E.E.O.C. v. Kohl's

Dept. Stores, Inc., 774 F.3d 127, 133-34 (1st Cir. 2014)

(discussing mutual responsibilities for the interactive process).

"The employer has no duty to divine the need for a special

accommodation where the employee merely makes a mundane request

for a change at the workplace," Reed 244 F.3d at 261, or simply

relies on the employer's general awareness of his need for

accommodations where the purported conflict with a medical

condition in particular situations is not obvious, Enica, 544 F.3d

at 339-40. See also Russell v. Cooley Dickinson Hosp., Inc., 772

N.E.2d 1054, 1063-66 (Mass. 2002) (summary judgment appropriate

where the record established that the accommodations were "never

requested or even suggested by the plaintiff").

Warren Pumps and Murray together established the

boundaries of a reasonable accommodation from the outset of his

second term of employment in 2008. Murray agreed to self-monitor

whether certain tasks were stressing his physical abilities, and

to make appropriate adjustments himself or request accommodation.

Although he insists throughout his deposition testimony that

Korzec already "knew" of his restrictions, Murray makes no effort

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to account for the self-directed and discretionary nature of his

mutually agreed accommodation. Nor does he account for the

undisputed fact that Korzec was in charge of supervising fifty-

five to sixty people on a regular basis.

Instead, the undisputed facts presented in the

sufficiently detailed parts of Murray's deposition testimony show

that when he did specifically inform Korzec of his need to make

adjustments or to decline to do a task, Korzec did not push him

to perform the job personally. Furthermore, by Murray's account,

Warren Pumps accommodated many of his specific directives whether

or not they were related to his back condition. Examples include

Murray's request for time off in order to attend medical

appointments, for help with lifting cables, and for changes to

his work schedule.

In the end, we are left with a record in which Murray

himself simply assumed that Korzec's actions were "deliberate"

requests to violate his medical restrictions, and the evidence

proffered either fails to support or affirmatively belies his

subjective assumption. Cf. Pilgrim v. Trustees of Tufts Coll.,

118 F.3d 864, 871 (1st Cir. 1997) (noting that a plaintiff's

"perception is not evidence" of employment discrimination, and,

hence, "not enough to withstand summary judgment"). In the

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circumstances of this case, Warren Pumps cannot be faulted, as a

matter of law, either when Murray opted to remain silent or when

he voluntarily chose to participate in certain activities, or when

he otherwise failed to police his own physical needs (as the

parties had agreed). See Enica, 544 F.3d at 339-40; Reed, 244

F.3d at 261.

Accordingly, we affirm the district court's decision to

award summary judgment to the defendants on the failure to

accommodate claims.

B.

Murray has also pursued a claim for disability

harassment under a hostile work environment theory.1 To succeed,

a hostile work environment claim requires, in addition to proof

of other elements, evidence that the discriminatory conduct was

"sufficiently severe or pervasive so as to alter the conditions

of employment and create an abusive work environment." Ponte v.

1
See Quiles-Quiles v. Henderson, 439 F.3d 1, 5 n.1, 7 (1st
Cir. 2006) (assuming that disability harassment under a hostile
work environment theory is a viable ADA claim); Colón-Fontánez v.
Municipality of San Juan, 660 F.3d 17, 43-44 (1st Cir. 2011)
(citing to Quiles-Quiles to apply hostile work environment theory
under ADA). But see Rocafort v. IBM Corp., 334 F.3d 115, 120 (1st
Cir. 2003) (declining to decide whether "hostile work environment
claims exist under the ADA"); see also Barton v. Clancy, 632 F.3d
9, 20 n.7 (1st Cir. 2011) ("The SJC has not specifically confirmed
that Massachusetts recognizes a claim for a hostile work
environment based on handicap under ch. 151B, § 4(16).").
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Steelcase Inc., 741 F.3d 310, 320 (1st Cir. 2014) (internal

quotation marks omitted); see Noviello v. City of Boston, 398 F.3d

76, 92 (1st Cir. 2005) (outlining various requirements for a

retalitory hostile work environment sexual harassment claim); see

also Cuddyer v. Stop & Shop Supermarket Co., 750 N.E.2d 928, 937

(Mass. 2001) (similar standard). Such a claim is not factually

viable on this record.

In his complaint, Murray averred that he was subject to

"harassment" and "treated differently" based on "his real or

perceived disability and medical condition" and was "severely and

adversely affected by the Defendants' conduct and [their failure]

to take reasonable steps to ensure that the discriminatory conduct

and harassment would not continue." His harassment claims rest

on comments and conduct by Korzec and by Nicole Belechto, a

corporate recruiter for Colfax.

First, he points to "snide comments" that Korzec made

to him when Murray was unable to perform certain tasks. For

example, Korzec told him that he "could work faster," that he

might accomplish more if he were at the shop more, and that "a

younger person could do [the task] very easily." However,

Murray's rather generic deposition testimony ended there. He did

not tie Korzec's statements to any particular event or otherwise

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provide surrounding details to place the remarks in context. In

fact, Murray acknowledged that he could not even identify when

Korzec made any such comments, other than generally stating that

they occurred sometime in 2011. Accordingly, Korzec's statements

fit into the category of isolated, stray remarks whose substance

and frequency cannot provide adequate foundation for a hostile

work environment claim. Cf. Faragher v. City of Boca Raton, 524

U.S. 775, 788 (1998) ("[S]imple teasing, offhand comments, and

isolated incidents (unless extremely serious) will not amount to

discriminatory changes in the terms and conditions of employment."

(internal quotation marks and citation omitted)).

Next, Murray avers that the "questioning" that he

endured from Korzec and Belechto about his need for time off for

medical appointments constitutes harassment. As the district

court emphasized, however, Murray provided no evidence tending to

show that these inquiries by his supervisor and by the human

resources officer "fell outside the appropriate and necessary

duties of their jobs." Murray, No. 11-40176-DPW, 2013 WL 5202693,

at *18. Indeed, our own review of Murray's somewhat muddled

testimony leaves us uncertain whether the nature of the company's

inquiries even related to his back condition at all. See Ahern

v. Shinseki, 629 F.3d 49, 59 (1st Cir. 2010) ("[G]enerally

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disagreeable behavior and discriminatory animus are two different

things.").

All told, these minor instances of employment skirmishes

cannot ground Murray's hostile work environment claims.2

Therefore, the district court's ruling in favor of the defendants

on this theory of relief must be upheld.

C.

Murray's final disability theory is retaliatory

discharge. The ADA and its state analog both forbid an employer

from retaliating against a protected employee when that employee

engages in protected activity. See Lebron, 770 F.3d at 31; Tate,

645 N.E.2d at 1165. Murray averred in his complaint that the

company's decision to terminate him on June 1, 2011 was motivated

at least in part by his requests for reasonable accommodations

and by his complaints about harassment. Such conduct by Murray

would be protected activity. See Valle-Arce v. P.R. Ports Auth.,

651 F.3d 190, 198 (1st Cir. 2011); Wright v. CompUSA, Inc., 352

F.3d 472, 478 (1st Cir. 2003); see also Tate, 645 N.E.2d at 1165;

cf. Abramian v. President & Fellows of Harvard Coll., 731 N.E.2d

2 In his brief, Murray also attributes to Belechto a specific
remark disparaging disabled persons. But this factual averment
is insufficiently developed in the summary judgment record.
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1075, 1087 (Mass. 2000). But a successful retaliation claim also

requires proof that, among other things, there was a causal

connection between the protected activity and the adverse action

taken by the employer. See Lebron, 770 F.3d at 31. When, as now,

an employee relies solely on a chronological relationship between

the protected activity and later termination to support "an

inferred notion of a causal connection between the two," "the

temporal proximity must be very close." Ahern, 629 F.3d at 58

(internal quotation marks omitted). Murray's claim stumbles at

this step.

Murray's more definite requests for accommodation, one

in 2008 when he was rehired, and arguably one in 2010 when he

declined to assist in a shop-wide painting project, are too remote

from the decision to terminate his employment in June 2011. For

that reason, they do not constitute useful evidence of the

required nexus. See id. ("[W]hen the interval between a complaint

and the alleged retaliation is attenuated, chronological data, by

itself, does not forge the causal link needed to establish a prima

facie case of retaliation.").

Murray's resistance to the wiring job sometime in 2011

also provides an insufficient basis to infer a nexus. See id.

(holding that the lack of evidence specifying when material events

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occurred renders "any temporal link . . . entirely conjectural");

see also Mole v. Univ. of Mass., 814 N.E.2d 329, 339 (Mass. 2004).

And Murray's assertion that he made numerous requests for

accommodations after March 2011 when he returned to a full-time

work schedule lacks support in the record. For the reasons earlier

discussed, all of the times that Murray stayed silent when Korzec

asked him to perform a task that he saw as conflicting with his

medical restrictions do not amount to protected activity on this

record. This is especially so since Murray himself testified that

he and Korzec only spoke "maybe three times" during the last six

months of his employment.

Turning to whether Murray can establish a nexus between

his complaints about disability harassment and the alleged

retaliation, the record shows that he told a human resources

employee in June or July of 2010 that he had been "hired with

certain restrictions and that . . . [Korzec] didn't care." He

also testified that he made some complaints (generally left

undescribed) to Belechto in 2010. As best we can tell, these

isolated complaints occurred six months to a year prior to his

termination, which is too remote in time from the adverse

employment action to establish a retaliation nexus on this record.

See generally Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6,

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25 (1st Cir. 2004) (periods of three or four months have been held

insufficient to establish the necessary causal connection for a

prima facie case of retaliation). Each instance of protected

activity to which Murray points lacks a temporal connection to

the adverse action against him. See Ahern, 629 F.3d at 58.

We also note that there is a lack of evidence that the

two company vice presidents who met with Murray and took personnel

action against him had knowledge of his protected activity. The

district court record is bereft of evidence that Murray

established or even pressed that either Baker or Mills had such

knowledge. See Pomales v. Celulares Telefónica, Inc., 447 F.3d

79, 85 (1st Cir. 2006) (emphasizing the necessity of the decision-

maker's knowledge); Mole, 814 N.E.2d at 343-44 (same).

Accordingly, we affirm the district court's decision to

grant summary judgment in favor of the defendants on the

retaliation claims as well.

There is one more stone to turn in addressing the

accommodation, harassment, and retaliation claims in this case.

On appeal, Murray mentions ailments related to a 2010 car

accident. The district court ruled that the temporary and

isolated "new" ailments tied to the car accident (e.g., whiplash,

right leg pain, and headaches) that Murray identified for the

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first time during his deposition could not form a foundation for

either a state or federal disability discrimination claim. See

Murray, No. 11-40176-DPW, 2013 WL 5202693, at *5. Despite

scattered references to his car accident injuries throughout his

appellate brief, Murray describes his disability as solely based

on his "more permanent back impairment" -- which is in line with

his complaint. In his reply brief, however, Murray attempts to

challenge the court's decision limiting his putative disability

to his back condition alone. His delayed advocacy, first raised

in his reply brief, warrants no judicial review. See Butler v.

Deutsche Bank Trust Co. Americas, 748 F.3d 28, 36 (1st Cir. 2014).

IV.
This leaves Murray's attempt to resurrect his state

common law claim for wrongful termination. In his complaint,

Murray alleged that Warren Pumps retaliated against him for

reporting to management serious safety concerns that he believed

amounted to violations of federal or state law. We, however,

agree with the district court that Murray failed to carry his

burden of establishing that his termination implicates a

sufficiently important and clearly defined public policy in

Massachusetts.

The baseline common law rule in Massachusetts is that

an employer may lawfully terminate a relationship with an at-will
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employee at any time -- for any reason, for no reason, and even

for a reason that might be seen by some as unwise or unkind. See

Upton v. JWP Businessland, 682 N.E.2d 1357, 1358-59 (Mass. 1997);

King v. Driscoll, 638 N.E.2d 488, 492-93 (Mass. 1994). As a

narrow exception, the Commonwealth protects at-will employees from

terminations that conflict with sufficiently important and clearly

defined public policies in Massachusetts. See King, 638 N.E.2d

at 493; Wright v. Shriners Hosp. for Crippled Children, 589 N.E.2d

1241, 1244 (Mass. 1992); Mello v. Stop & Shop Cos., Inc., 524

N.E.2d 105, 106 (Mass. 1988). However, not all statutes relating

to an employer's discharge decision are pronouncements of public

policy that "will protect, in every instance, an [at-will]

employee from termination." King, 638 N.E.2d at 493. Indeed,

Massachusetts courts "have acknowledged very few statutory rights

the exercise of which would warrant invocation of the public

policy exception." Id. Thus far, the state's highest court has

held that "[r]edress is available for employees who are terminated

for asserting a legally guaranteed right (e.g., filing workers'

compensation claim), for doing what the law requires (e.g.,

serving on a jury), or for refusing to do that which the law

forbids (e.g., committing perjury)." Smith-Pfeffer v.

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Superintendent of the Walter E. Fernald State Sch., 533 N.E.2d

1368, 1371 (Mass. 1989).

Beyond these categories, legal redress may be available

"in certain circumstances for employees terminated for performing

important public deeds, even though the law does not absolutely

require the performance of such a deed." Flesner v. Technical

Commc'ns Corp., 575 N.E.2d 1107, 1111 (Mass. 1991). This limited

extension of the public policy exception aligns with the Smith-

Pfeffer categories because "allowing the employer to terminate

employees for reasons that directly contradict the public policy

of the Commonwealth would seriously impair that policy." Id.;

see Upton, 682 N.E.2d at 1358-59. By contrast, the public policy

exception does not protect at-will employees from termination for

performing generally socially desirable duties or for raising

workplace complaints about internal company matters. See, e.g.,

Wright, 589 N.E.2d at 1245 (state law does not extend the public

policy exception "to protect employees who were performing

'appropriate, socially desirable duties' from being subject to

discharge without cause"); King, 638 N.E.2d at 492 (state law

establishes that "the internal administration, policy,

functioning, and other matters of an organization cannot be the

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basis for a public policy exception"); see also Upton, 682 N.E.2d

at 1358-59 (collecting cases).

The burden lies with the at-will employee to establish

that the substance of his workplace complaints for which he was

discharged bears a direct connection to a sufficiently important

and clearly defined public policy that warrants his protection

from termination. See Mello, 524 N.E.2d at 107; Falcon v. Leger,

816 N.E.2d 1010, 1019 (Mass. App. Ct. 2004). And, "[i]t is a

question of law for the judge to decide whether a retaliatory

firing [of an at-will employee] in [given] circumstances would

violate public policy." Wright, 589 N.E.2d at 1243.

Taking our cue from Murray's pleadings in the district

court, we focus primarily on his reports in the spring of 2011

about unsafe welding practices during the manufacturing of the

pumps. See Mole, 814 N.E.2d at 341 (requiring a close temporal

connection for an inference of a retaliatory nexus). As noted

earlier, because he was generally dissatisfied with Korzec's

responses to his safety complaints, Murray brought his welding

concerns directly to corporate headquarters. The substance of

the alleged safety violations was that a welder was following an

uncertified protocol and that unapproved repairs were being made

on weekends. According to the undisputed evidence, Miller, a

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quality control executive, listened to Murray's complaints,

conducted an internal investigation, and found the complaints to

be unsubstantiated. This same executive explained during his

deposition that the pumps undergo multiple inspections after the

manufacturing process in order to detect faulty parts before those

parts are used in end products.

With this evidentiary backdrop, Murray attempts to align

himself with the prevailing plaintiffs in Mercado v. Manny's T.V.

& Appliance, Inc., 928 N.E.2d 979 (Mass. App. Ct. 2010), and

Falcon v. Leger, 816 N.E.2d 1010 (Mass. App. Ct. 2004).3 But

their similarities with Murray's circumstances begin and end with

the existence of licensure requirements for trade work and of

regulations governing product safety. Indeed, the plaintiffs in

both Mercado and Falcon had presented evidence that they were

fired for refusing to participate in unlawful or deceptive conduct

that directly compromised public safety. See, e.g., Mercado, 928

3 Murray also relies on Hobson v. McClean Hosp. Corp., which
is helpful only insofar as it sets forth the general legal
proposition that employees who are fired for enforcing safety
regulations for which they are responsible may pursue a claim for
wrongful discharge under the public policy exception. 522 N.E.2d
975, 977-78 (Mass. 1988). The Hobson court merely allowed the
complaint to survive a motion to dismiss, nothing more. We face
a summary judgment disposition in which Murray has had plenty of
opportunity to present a sound basis for protection under the
narrow public policy exception.
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N.E.2d at 984-85 (identifying evidence that the employee was fired

after refusing to perform unlicensed installations of appliances

in violation of municipal regulations directly implicating public

safety in residential homes); Falcon, 816 N.E.2d at 1015-19

(identifying evidence that the employee was fired after refusing

to deceive an on-site safety inspector by covering up faulty

electrical products which directly compromised consumer safety).

By contrast, Murray presents no evidence that Warren

Pumps asked him to deceive anyone about the legality of the

company's conduct or fired him for refusing to engage in conduct

tantamount to fraud or known illegalities. There also is no

evidence that anyone at Warren Pumps attempted to subvert Murray's

performance of his job as safety compliance officer in order to

mask the company's suspected illegal conduct. Nor is there

evidence that Murray's welding complaints directly implicated

public health and safety, particularly given the undisputed

testimony that all aspects of the company's pumps were regularly

subjected to rigorous safety inspections designed to reveal flaws

that would compromise public safety. Cf. King, 638 N.E.2d at 493

(emphasizing that remoteness between employee's complaints of

corporate conduct and the impact on public safety foreclosed

relief under the public policy exception); Mistishen v. Falcone

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Piano Co., Inc., 630 N.E.2d 294, 296 (Mass. App. Ct. 1994) (similar

analysis).

Writ large, Murray's circumstances align better with

Massachusetts cases in which the state court held that an at-will

employee -- with perhaps laudable expectations for workplace

practices -- was discharged lawfully for performing general

socially desirable duties or for disagreeing with internal company

matters. In Smith-Pfeffer, for instance, the state court held

the public policy exception did not protect an employee for her

actions in opposing management policies and organizational issues

that she saw as potentially compromising the care of the mentally

impaired residents. 533 N.E.2d at 1371-72. And in Wright, the

court held that it was not an actionable violation of a well-

defined public policy to discharge a director of nursing for

repeatedly reporting to the hospital's national headquarters

managerial deficiencies that she saw as potentially compromising

the quality of patient care. 589 N.E.2d at 1244-45. Along the

way, the state court has been clear that "[a]n employee, even one

in a socially important occupation, who simply disagrees with her

28
employer's policy decisions, may not seek redress in the courts."

Smith-Pfeffer, 533 N.E.2d at 1372.4

Even broadening the lens to other workplace complaints

that Murray raised in the time frame immediately prior to his

termination does not help him. Murray cites a hodgepodge of

miscellaneous state laws, federal regulations, and professional

standards to anchor his argument that his termination for raising

these sundry complaints violates sufficiently important and

clearly defined public policy. He provides, however, no cases

showing that Massachusetts courts have ever relied on federal

authority as the sole source for the state common law wrongful

discharge claim. See Upton, 682 N.E.2d at 1359; Flesner, 575

N.E.2d at 1111. Additionally, many of the federal regulations

and state statutes remain decidedly unrelated to, or have no more

than a general connection to, the particular substance of certain

workplace complaints that he described. See, e.g., 29 C.F.R. §

1910.253(a)(4); M.G.L. ch. 143, § 3L; id. ch. 141, § 5. And,

4 Importantly, Massachusetts courts recently have emphasized
that the viability of an at-will safety compliance officer's
wrongful discharge claim may depend on evidence that the reported
workplace violations involved a fairly imminent threat to public
health or safety. See Nelson v. Anika Therapeutics, Inc., No.
09-03231-A, 2011 WL 4056320, at *7-8 (Mass. Super. Ct. Aug. 12,
2011); Chernov v. Home Depot, Inc., No. 09-P-1567, 2010 WL
4178937, at *2 (Mass. App. Ct. Oct. 26, 2010) (unpublished
opinion). Evidence of such imminence is lacking here.
29
Murray fails to explain how professional standards embody a well-

defined public policy in the Commonwealth. See Wright, 589 N.E.2d

at 1245. Overall, Murray's bare citation to various legal

requirements is insufficient advocacy to warrant appellate review.

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990); cf.

King, 638 N.E.2d at 493-94 (the existence of a statute relating

to a termination decision does not necessarily give rise to a

cognizable wrongful termination claim).

To sum up, Massachusetts courts recognize limitations

on the protection afforded to at-will employees under the public

policy exception. And the Massachusetts cases warn that the

public policy exception is purposely circumscribed, so that the

general rule preserving employer prerogative does not morph into

an edict requiring just cause to terminate an at-will employee.

See, e.g., King, 638 N.E.2d at 492; Mercado, 928 N.E.2d at 983.

Because the district court adhered to the line drawn in the state

court decisions, its ruling on the common law claim also stands.

AFFIRMED.

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