Robinson v. Town of Marshfield

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).

- 3 -
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.

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 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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