Geoffroy v. Town of Winchendon

United States Court of Appeals
For the First Circuit

No. 19-1573

WILLIAM GEOFFROY,

Plaintiff, Appellant,

v.

TOWN OF WINCHENDON, MASSACHUSETTS; SCOTT LIVINGSTON;
JAMES KREIDLER; DAVID WALSH,

Defendants, Appellees.

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

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Lynch, Kayatta, and Barron,
Circuit Judges.

Danielle Callahan Gill and Callahan Law Group, LLC were on
brief for appellant.
Leonard H. Kesten, Jeremy Silverfine, Deidre Brennan Regan,
and Brody, Hardoon, Perkins & Kesten, LLP were on brief for
appellee.

May 13, 2020
 LYNCH, Circuit Judge. Plaintiff William Geoffroy, a

former Winchendon police officer, brought claims of age

discrimination, retaliation, and defamation against the Town of

Winchendon, Massachusetts; its Chief of Police, Scott Livingston;

its Town Manager, James Kreidler; and Lieutenant David Walsh ("the

defendants").1

The claims arise from Geoffroy's decision to resign with

a pension after the defendants ascertained he had made several

threats against his former girlfriend. He did so instead of facing

termination and the possibility of losing his pension and being

criminally charged. Geoffroy also signed a separation agreement,

in which he waived and released any claims he had against the

defendants up and through signing the separation agreement.

Geoffroy claimed that the defendants punished him far

more severely than they did younger officers and that he was denied

a law enforcement retirement identification card in retaliation

for filing an age discrimination claim. Geoffroy argued that the

waiver and release in his separation agreement were invalid because

he was not given twenty-one days to review them, which violated

the Older Workers Benefit Protection Act ("OWBPA").

The district court granted summary judgment on the age

discrimination and OWBPA claims for the defendants, concluding

1 The defendants' positions are listed as of the time of
the underlying facts.

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that Geoffroy's waiver and release were knowing and voluntary. A

jury then found for the defendants on the retaliation and

defamation claims.

On appeal, Geoffroy challenges the district court's

grant of summary judgment, arguing that his waiver and release

violated the OWBPA and were not knowing and voluntary, and the

withdrawal of an exhibit at trial. We reject both challenges and

affirm.

I.

We review the district court's grant of summary judgment

relying only on the summary judgment record and so include only

those facts here. J. Geils Band Emp. Benefit Plan v. Smith Barney

Shearson, Inc., 76 F.3d 1245, 1250 (1st Cir. 1996). We discuss

the trial record where relevant to the evidentiary issue.

A. Facts

Geoffroy joined the Winchendon Police Department in

1985. While a police officer, Geoffroy dated Catherine Phongsaly

from June to July 2011. At 1:30 a.m. on October 8, 2011, Geoffroy,

having consumed two-and-a-half beers, drove to Phongsaly's home.

After seeing another person's car there, he left. About thirty

minutes later, he called Phongsaly, left her a two-to-three-minute

voicemail, and sent her twenty-eight text messages. In the

voicemail, Geoffroy used profane language repeatedly and told

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Phongsaly that she was "lucky [he] didn't kick [her] f***ing door

in." (Alterations in original.)

On October 10, 2011, Phongsaly told Sergeant Gerald

Gagne of the voicemail and text messages. Later that day, Sergeant

Raymond Anair spoke to Phongsaly, who described the voicemail and

another instance of Geoffroy's threatening behavior. Anair told

her that she could file for a chapter 209A restraining order, but

Phongsaly declined.

On October 14, 2011, Walsh took Phongsaly's statement.

Phongsaly told Walsh how, after she and Geoffroy had separated,

Geoffroy often verbally abused her, drove by her house late at

night, showed up at her workplace during her shift, and ran the

license plates of cars parked outside of her house.

On or about October 17, 2011, Geoffroy met with Walsh,

Livingston, and Geoffroy's union president, Martin Rose. The four

listened to a tape of the voicemail. They then discussed

Geoffroy's potential discipline: demotion and suspension,

termination, or resignation in lieu of termination.

On October 19, 2011, Geoffroy met with Kreidler,

Livingston, Walsh, union representative Michael Bombard, and union

attorney Michael Clancy. Kreidler gave Geoffroy a choice:

Geoffroy could (1) resign and claim his pension; or (2) be

terminated and potentially lose his pension and be criminally

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charged. Geoffroy later testified that, to "save [his] pension,"

he chose to resign.

Geoffroy received by email the "Separation Agreement and

General Release" ("separation agreement") sometime between the

October 19 meeting and when he signed the separation agreement on

October 24, 2011. Geoffroy could not open the email attachment

containing the separation agreement and asserts that he did not

see a copy of the separation agreement until the day he signed it.

The separation agreement outlined the terms of

Geoffroy's resignation and benefits. It contained a waiver and

release of any claims that arose up and through signing the waiver

and release. The separation agreement allowed Geoffroy to remain

on paid leave until April 21, 2012, at which time he would

officially retire. He would then receive his pension. The

separation agreement stated that, by signing it, Geoffroy

acknowledged he had the right to, and had been advised to, discuss

the separation agreement with an attorney and was entering into

the separation agreement voluntarily. The separation agreement

stated that Geoffroy had a waivable, twenty-one-day period to

review the separation agreement before signing and a seven-day

period after signing during which he could revoke the agreement.

Finally, the separation agreement's completeness clause stated

that Geoffroy and the Town "acknowledge[d] that [they had] not

executed this [separation agreement] in reliance upon any . . .

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representation or promise" "not contained in this [separation

a]greement."

Geoffroy spoke to both Rose and Bombard separately after

the October 19 meeting. Both advised Geoffroy that it was his

decision to make. Bombard counseled Geoffroy not to resign.

Clancy and Geoffroy also discussed the separation agreement after

the October 19 meeting but before he signed the separation

agreement on October 24, 2011.

After the October 19 meeting but before executing the

separation agreement, Geoffroy chose to resign. He testified that

he did so based upon the choice given to him. On October 24, 2011,

Geoffroy signed the separation agreement and then submitted a

notice of resignation for the sole purpose of retirement, effective

April 21, 2012.

Almost six months later, on April 12, 2012, Geoffroy

filed a complaint with the Massachusetts Commission Against

Discrimination ("MCAD"). He alleged age discrimination by

Livingston and the Town of Winchendon. He claimed that younger

officers had committed "violent acts and/or . . . serious

offenses" but had not faced such severe discipline.

In November 2012, Geoffroy requested from Livingston a

law enforcement retirement identification card. Livingston called

the President of the Massachusetts Chiefs of Police Association,

Bill Brooks, to the discuss the good standing requirement for

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receiving an identification card. Livingston then concluded that

Geoffroy had not retired in "good standing," because he resigned

while under investigation for conduct unbecoming of a police

officer. Livingston denied the request. Geoffroy filed a second

MCAD complaint that alleged this denial was in retaliation for the

first MCAD complaint.

B. Procedural History

In October 2014, Geoffroy filed suit in Massachusetts

state superior court against the Town of Winchendon, Livingston,

Kreidler, and Walsh. His amended complaint alleged unlawful age

discrimination in violation of Mass. Gen. Laws ch. 151B, § 4(1B)2

and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.

§ 621 et seq.; unlawful retaliation in violation of Mass. Gen.

Laws ch. 151B, § 4(4); violations of the OWBPA, see 29 U.S.C.

§§ 623, 626, 630; and defamation.

On December 18, 2014, the defendants removed the case to

the United States District Court for the District of Massachusetts

under federal question jurisdiction. Discovery took place from

December 10, 2015, to December 2, 2016. On January 20, 2017, the

2 While Geoffroy's complaint states that he brings a claim
under Mass. Gen. Laws ch. 151B, § 4(1B), we note that section 4(1B)
applies to "an employer in the private sector" while section 4(1C)
applies to "the commonwealth [and] any of its political
subdivisions." Because we find Geoffroy's age discrimination
claims waived, however, we need not address under which provision
he brings his state-law claim.

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defendants moved for summary judgment on all counts. On September

30, 2017, the district court concluded that Geoffroy had

voluntarily waived and released his age discrimination claims and

granted partial summary judgment as to them. But the court

determined that the retaliation and defamation claims turned on

disputed facts, and so denied summary judgment on those claims.

The parties went to trial on April 29, 2019. Geoffroy

argued that Livingston denied him an identification card in

retaliation for his age discrimination complaint. The defendants

countered that Geoffroy had not resigned in "good standing," which

made him ineligible for a card. The defendants introduced Exhibit

54, a Winchendon regulation on police identification cards, which

Livingston testified that he used to determine Geoffroy's

standing. The regulation states that an officer "charged with or

suspected of criminal activity at the time of retirement, [or]

. . . under investigation or facing disciplinary action" has not

retired in good standing. Livingston testified that he also relied

on his conversation with Brooks.

Later in the trial, the district court expressed concern

that, although the regulation was issued before the denial, it did

not go into effect until fifteen days after the denial. The court

stated that it would instruct the jury accordingly. In his

closing, Geoffroy asserted that the jury should review the

regulation and disregard Livingston's testimony because the

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regulation post-dated the denial. The district court instructed

the jury not to discuss or consider this regulation. The court

then withdrew Exhibit 54 without objection.

During its deliberations, the jury asked the court: "Can

we get some clarification on what evidence we are supposed to

ignore in regard to good standing." The court reiterated that

there was testimony about the regulation, restated that the

regulation was not effective when Geoffroy's request was denied,

and referred the jury once more to the instructions.

On May 3, 2019, the jury returned a verdict for the

defendants. On May 30, 2019, Geoffroy moved for a new trial, which

the court denied. Geoffroy timely appealed the summary judgment

and new trial orders.

II.

On appeal, Geoffroy challenges the summary judgment

order and the withdrawal of Exhibit 54.

A. Standard of Review

We "review . . . the district court's grant of summary

judgment . . . de novo, assessing the facts and the inferences to

be drawn from them in the light most favorable to the non-moving

party." Hightower v. City of Bos., 693 F.3d 61, 70 (1st Cir.

2012). As said, we do not rely on any facts not before the district

court at summary judgment. J. Geils Band Emp. Benefit Plan, 76

F.3d at 1250. "We may affirm a grant of summary judgment 'on any

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ground revealed by the record.'" Robinson v. Town of Marshfield,

950 F.3d 21, 24 (1st Cir. 2020) (quoting Santangelo v. N.Y. Life

Ins. Co., 785 F.3d 65, 68 (1st Cir. 2015)). But "we cannot accept

'conclusory allegations, improbable inferences, and unsupported

speculation.'" Theidon v. Harvard Univ., 948 F.3d 477, 502 (1st

Cir. 2020) (quoting Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173

(1st Cir. 2003)).

We review for abuse of discretion preserved challenges

to the exclusion of evidence. See Shervin v. Partners Healthcare

Sys. Inc., 804 F.3d 23, 41 (1st Cir. 2015).

B. Geoffroy Knowingly and Voluntarily Waived and Released His
Age Discrimination Claims

Geoffroy argues that he did not waive or release his age

discrimination claims because (1) the waiver and release violated

the OWBPA and (2) he signed the separation agreement under duress.

We disagree. Geoffroy's waiver and release of claims satisfy both

the OWBPA and federal common law and the record provides multiple

bases with which to affirm.3

3 Geoffroy also argues that the district court applied the
wrong legal test by not expressly addressing the requirements of
the OWBPA. But the record shows that Geoffroy voluntarily waived
and released his claims under both the OWBPA and federal common
law, so we need not address this argument. See Robinson, 950 F.3d
at 24.

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 1. Geoffroy's Waiver and Release Satisfied the OWBPA's
Requirements

The OWBPA requires that a waiver or release of ADEA

claims be "knowing and voluntary," which "'at a minimum' [must]

satisf[y] certain enumerated requirements." Oubre v. Entergy

Operations, Inc., 522 U.S. 422, 426 (1998) (quoting 29 U.S.C.

§ 626(f)(1)). The only requirement at issue here is that the

waiving party must be "given a period of at least 21 days within

which to consider the agreement" of which the waiver or release is

a part. 29 U.S.C. § 626(f)(1)(F)(i).

Geoffroy argues that, although the waiver and release

afforded him a twenty-one-day review period, he was told "that he

would only have a day or two . . . to sign it or not." He claims

the defendants shortened his review period in violation of the

OWBPA. Not so.

The record does not substantiate Geoffroy's argument.

Geoffroy's "conclusory allegations . . . and unsupported

speculation" to the contrary cannot save his claims. Theidon, 948

F.3d at 502 (quoting Benoit, 331 F.3d at 173).

Geoffroy never testified that anyone told him he had to

sign a waiver and release the next day or within days of the

October 19 meeting. He merely testified he was "[u]nder duress."

Geoffroy also does not cite any testimony of Kreidler's.

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Geoffroy's argument relies solely on Clancy's deposition

testimony, which does not evidence any restriction.

Contrary to Geoffroy's argument, Clancy did not testify

that Geoffroy "had to make his decision within [a five day] time

period." Clancy testified that he thought Kreidler "wanted a

decision in one day." This statement only shows that Clancy

believed Kreidler wanted to know the "next day" in what direction

Geoffroy wanted the discussions to go: that is, whether there was

going to be "an agreement or . . . discipline and a criminal

investigation."4 The statement does not support Geoffroy's claim

that "he only had a few days to sign the [separation a]greement or

he would be terminated." Further, at that time, there was no

separation agreement and the record does not show any discussion

of a waiver and release.

Kreidler's comment, if made, was made only once and never

repeated over the five days between the October 19 meeting and the

meeting at which Geoffroy signed the separation agreement. This

five-day gap, during which the defendants never contacted Geoffroy

about his delay in signing, refutes Geoffroy's claim that he was

required to sign the separation agreement within a "day or two" of

4 Similarly, Clancy's testimony that he "didn't think
[more time] was an option" referred to having more time "to
consider Mr. Geoffroy's options"; that is, in what direction to
take negotiations. This is supported by Clancy's testimony that
"there wasn't really a request for more time at that point because
[he] hadn't seen the document."

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receiving it.5 Clancy's testimony alone does not show a violation

of the OWBPA.6

In addition, it is important to point out that the OWBPA

expressly requires only that a waiver or release of an ADEA claim

be part of a written agreement and "the individual [be] given a

period of at least 21 days within which to consider the agreement."

29 U.S.C. § 626(f)(1)(A), (F)(i). "The statutory command is clear:

An employee 'may not waive' an ADEA claim unless the waiver or

release satisfies the OWBPA's requirements." Oubre, 522 U.S. at

426-27 (emphasis added). As a matter of law, the OWBPA provision

applies to the waiver or release of ADEA claims. It does not apply

to a separate written agreement as to a resignation in lieu of

being fired. See Blackwell v. Cole Taylor Bank, 152 F.3d 666, 670

(7th Cir. 1998) (applying the OWBPA's review period requirement to

the "[decision] whether to sign the waiver in exchange for an

5 Geoffroy also cites Rose's testimony, which states that,
after the October 19 meeting, Rose asked Livingston on Geoffroy's
behalf for more time for Geoffroy to consider his options. But we
need not address this testimony or whether it would support
Geoffroy's OWBPA claim, as Geoffroy failed to cite this evidence
or argue its meaning to the district court. See Serra v. Quantum
Servicing, Corp., 747 F.3d 37, 43 (1st Cir. 2014) ("[A]rguments
. . . never raised below . . . are . . . barred by our waiver
doctrine.").

6 The gap in time, the lack of an express restriction on
the waiver and release review period, and the defendants' dispute
of this testimony all distinguish the instant case from Cole v.
Gaming Entm't, L.L.C., 199 F. Supp. 2d 208 (D. Del. 2002),
Geoffroy's key case.

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additional severance payment," not the "[decision] whether to

quit," for which the plaintiffs had less than a day).

2. Geoffroy's Waiver and Release Were Knowing and Voluntary
Under Federal Common Law

An OWBPA-compliant waiver or release must also be

knowing and voluntary under federal common law. See Melanson v.

Browning-Ferris Indus., Inc., 281 F.3d 272, 274 & n.2 (1st Cir.

2002); Bennett v. Coors Brewing Co., 189 F.3d 1221, 1228-29 (10th

Cir. 1999) ("[W]e must look beyond the [OWBPA-]specified statutory

minimum requirements."). The test for this is federal common law.

See Melanson, 281 F.3d at 276; accord Bennett, 189 F.3d at 1228;

Griffin v. Kraft Gen. Foods, Inc., 62 F.3d 368, 373-74 (11th Cir.

1995). Without addressing the common-law test, Geoffroy baldly

asserts that he signed the separation agreement under duress. This

argument is meritless.

We determine whether a waiver or release of claims was

knowing and voluntary by applying a totality-of-the-circumstances

test. Melanson, 281 F.3d at 276. We often look to a non-exhaustive

set of six factors:

(1) plaintiff's education and business
experience; (2) the respective roles of the
employer and employee in the determining the
provisions of the waiver; (3) the clarity of
the agreement; (4) the time plaintiff had to
study the agreement; (5) whether plaintiff had
independent advice, such as that of counsel;
and (6) the consideration for the waiver.

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Id. at 276 & n.4. No single factor is dispositive or necessary.

Id. at 274, 276. Importantly, "duress, without more, [cannot] be

inferred from merely the emotional and financial stress associated

with loss of a job." Id. at 277.

The factors show that Geoffroy voluntarily waived and

released his claims.7 Geoffroy had sufficient education and

experience to understand the waiver and release. That is because

he: (1) had graduated high school; (2) had obtained college

credits;8 (3) had served previously as the union secretary; (4)

had become personally familiar with "reprimands and suspensions

and appeals processes," as well as settlement agreements related

to disciplinary issues; and (5) had received independent advice

through his union. Importantly, Geoffroy does not dispute that he

understood the waiver and release, which demonstrates the waiver

and release's clarity. See id. As said, Geoffroy had twenty-one

days to review the waiver and release and chose not to revoke the

separation agreement.

Geoffroy received independent advice through his union.

Geoffroy testified that he consulted with Rose, Bombard, and Clancy

7 The only factor that does not, the respective roles in
drafting the separation agreement, also does not evidence that the
separation agreement was involuntary.

8 Geoffroy's education parallels that of the plaintiff in
Melanson. There, the court concluded that the plaintiff was "not
deficient in education [because] she graduated from high school
with honors and was enrolled in college courses." Id.

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before signing the separation agreement.9 Rose advised Geoffroy

that he should resign, but told him that it was Geoffroy's choice

to make. Bombard, Geoffroy's union representative, "tried to talk

[Geoffroy] out of [resigning]" but Geoffroy "insisted" on

resigning. Finally, Clancy, the union attorney, counseled

Geoffroy on the separation agreement before Geoffroy signed it.10

Finally, Geoffroy received extremely valuable

consideration for waiving the claims. Instead of facing

termination (and so losing his pension) for threatening Phongsaly,

he received six months of pay for his accrued leave, his pension,

and the promise of a neutral reference from the Town. The waiver

and release account for part of this consideration. Geoffroy chose

the option far more beneficial to him. The consideration was more

than sufficient.

Finally, Geoffroy's assertion he was under "significant

distress" (presumably at the thought of losing his job) does not,

without more, show duress. See Melanson, 281 F.3d at 277.

9 Geoffroy also stated that he "may have talked to a couple
of friends."

10 The parties dispute the sufficiency of the advice given
by Clancy, Rose, and Bombard. But the facts disputed are not
material. First, Geoffroy cannot create a dispute of material
fact by stating he did not consult with Rose, Bombard, and Clancy,
when he testified earlier that he did. See Melanson, 281 F.3d at
277 n.5 ("A party may not create an issue of fact by submitting an
affidavit . . . that clearly contradicts the affiant's previous
deposition testimony."). Second, Geoffroy does not cite any cases
or evidence demonstrating these consultations were insufficient.

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Geoffroy's choice not to revoke the separation agreement in the

seven-day OWBPA revocation period following his signing bulwarks

our conclusion.

C. Geoffroy's Argument that the District Court Abused its
Discretion in Withdrawing Exhibit 54 Is Meritless.

Geoffroy has doubly waived his argument that the

district court abused its discretion by withdrawing Exhibit 54.

Even if he had not, there was clearly no abuse of discretion and

no harm.

Geoffroy first waived this issue by not objecting to the

district court withdrawing Exhibit 54. See United States v.

Meserve, 271 F.3d 314, 324 (1st Cir. 2001). Geoffroy concedes

that he did not object and argues that the district court did not

give him "an opportunity to object." But, while outside the

presence of the jury, the district court asked Geoffroy to confirm

the exhibit number of the regulation so the court could withdraw

it. Geoffroy could have preserved an objection then.

Geoffroy also waived this argument by omitting it from

his motion for a new trial. See Sampson v. Eaton Corp., 809 F.2d

156, 161 (1st Cir. 1987). His motion argues that the district

court's instructions "confused the jury,"11 but it does not address

11 To the extent Geoffroy argues on appeal that the district
court's jury instructions were an abuse of discretion, he has
waived this argument by failing to develop it. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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the withdrawal of Exhibit 54. Geoffroy did not "raise[] squarely"

the "legal theor[y]" that the district court abused its discretion

in withdrawing the exhibit, so it is waived. United States v.

Nygren, 933 F.3d 76, 88 n.3 (1st Cir. 2019) (quoting Teamsters

Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st

Cir. 1992)).

Even if Geoffroy had properly preserved this argument,

it would still fail. The defendants introduced Exhibit 54 to

support Livingston's testimony that he relied on the regulation in

denying Geoffroy the identification card. But because Livingston

could not have properly relied on a regulation with an effective

date after the denial, the exhibit could not serve this purpose.12

In consequence, the district court did not abuse its discretion in

withdrawing it.

Moreover, the record supported the jury verdict (e.g.,

that Livingston also relied on his conversation with Brooks on

good standing). It was "highly probable" that the withdrawal of

12 Geoffroy argues, had the jurors seen the exhibit, "they
would have seen . . . [that] Livingston couldn't have possibly
'relied' on it." But the "jurors are presumed to have followed
the [district] court's instructions" not to consider the exhibit,
which forecloses this argument. Río Mar Assocs., LP, SE v. UHS of
P.R., Inc., 522 F.3d 159, 163 (1st Cir. 2008).
Geoffroy also implies that the jury would have inferred
from the regulation's effective date that Livingston lied about
his good standing determination. To the extent Geoffroy makes
this argument, it is waived for lack of development. Zannino, 895
F.2d at 17.

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Exhibit 54 "did not affect the outcome of the case," and so was

harmless. McDonough v. City of Quincy, 452 F.3d 8, 19-20 (1st

Cir. 2006).

III.

Affirmed.

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