Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 19-1774
LINDA FELIX,
Plaintiff, Appellant,
v.
TOWN OF KINGSTON, MASSACHUSETTS; SANDY MACFARLANE, as an
individual and in her capacity as a member of the Board of
Selectmen of the Town of Kingston; ELAINE FIORE, as an
individual and in her capacity as a member of the Board of
Selectmen of the Town of Kingston; DENNIS RANDALL, as an
individual and in his capacity as a member of the Board of
Selectmen of the Town of Kingston; THOMAS CROCE, as an
individual and in his capacity as a member of the Council on
Aging; FLORENCE CERULLO; ROBERT FENNESSY, Town Administrator for
the Town of Kingston,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Donald L. Cabell, U.S. Magistrate Judge]
Before
Thompson, Lipez, Circuit Judges,
and Torresen,* District Judge.
Thomas Russell Mason, with whom Law Offices of Thomas Mason
was on brief, for appellant.
* Of the District of Maine, sitting by designation.
Leonard H. Kesten, with whom Deidre Brennan Regan and Brody,
Hardoon, Perkins & Kesten, LLP were on brief, for appellees.
December 23, 2021
THOMPSON, Circuit Judge. As the result of some sort of
mutual misunderstanding, after her term as Director of Elder
Affairs expired on December 31, 2013, Linda Felix ("Felix") found
herself on leave under the Family and Medical Leave Act ("FMLA")
from a job she no longer held. Felix requested and was granted
the maximum FMLA leave1 by her employer, the Town of Kingston ("the
Town"), but a few months into her leave, her job, which was a term
position subject to reappointment, ended. She was not reappointed
as Director or selected to interview when she reapplied as the
Town set about to fill the vacancy.
The parties are familiar with the sequence of events
that brought them to court, so we need not rehash all of those
details here.2 Following her unsuccessful application for rehire,
Felix brought claims against the Town and various town employees3
for violation of the FMLA, 29 U.S.C. § 2615 (FMLA interference and
FMLA retaliation, to be precise), Massachusetts' employment
discrimination statute, M.G.L. c. 151B, its whistleblower
The FMLA guarantees workers twelve weeks of unpaid leave
1
during any twelve-month period for, among other things, a serious
medical condition that renders the employee unable to perform her
job duties. 29 U.S.C. § 2612(a)(1)(D)(c).
For those less familiar and interested in learning more,
2
see Memorandum and Opinion on Motion for Summary Judgment, No. 15-
CV-14022-DLC, 2019 WL 7565449 (D. Mass. July 8, 2019).
We note that Appellee Thomas Croce, a member of the Council
3
on Aging, is now deceased.
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protection statute, M.G.L. c. 149, § 185, and she also alleged
various state common law torts.4 Spying no genuine issue of
material fact anywhere and determining the defendants were
entitled to judgment as a matter of law, the magistrate judge5
issued a comprehensive memorandum and order granting summary
judgment in favor of the defendants on all claims, and Felix asks
us to reverse and remand the magistrate judge's decision. Having
carefully reviewed the parties' submissions and the controlling
case law, however, we see no reason to disturb the well-reasoned
decision articulated below. And "when lower courts have
supportably found the facts, applied the appropriate legal
standards, articulated their reasoning clearly, and reached a
correct result, a reviewing court ought not to write at length
merely to hear its own words resonate." In re Brady-Zell, 756
F.3d 69, 71 (1st Cir. 2014) (citing cases). We therefore affirm
the comprehensive decision below, briefly adding a bit of our own
discussion along the way.6
4 In her summary judgment briefing below and before us, Felix
talks up a claim under the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq. (the "ADA"), but her amended complaint
contained no such claim.
5 The parties consented to the jurisdiction of Magistrate
Judge Cabell on April 11, 2016. See No. 15-cv-14022-DLC, Dkt. No.
09.
6 We do not address each cause of action brought by Felix here
because, as we mention above, we've thoroughly reviewed each claim
and, like the magistrate judge, find them meritless.
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First, some basic summary-judgment principles guide our
brief discussion here. Our review is de novo. Brader v. Biogen
Inc., 983 F.3d 39, 53 (1st Cir. 2020); Ortiz-Martínez v. Fresenius
Health Partners, PR, LLC, 853 F.3d 599, 604 (1st Cir. 2017).
Summary judgment is appropriate when "there is no genuine dispute
as to any material fact and the movant is entitled to judgment as
a matter of law." Ameen v. Amphenol Printed Cirs., Inc., 777 F.3d
63, 68 (1st Cir. 2015) (quoting Barclays Bank PLC v. Poynter, 710
F.3d 16,19 (1st Cir. 2013)). "A genuine issue of fact exists where
'the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.'" Taylor v. Am. Chemistry Council, 576
F.3d 16, 24 (1st Cir. 2009) (quoting Chadwick v. WellPoint, Inc.,
561 F.3d 38, 43 (1st Cir. 2009)). The court must examine "the
record in the light most favorable to the nonmovant" and must make
"all reasonable inferences in that party's favor." Ameen, 777
F.3d at 68 (quoting Barclays, 710 F.3d at 19). "While we resolve
all reasonable inferences in favor of the nonmoving party, we 'must
ignore conclusory allegations, improbable inferences, and
unsupported speculation.'" Taylor, 576 F.3d at 24 (quoting Am.
Steel Erectors, Inc. v. Loc. Union No. 7, Int'l Ass'n of Bridge,
Structural, Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 75
(1st Cir. 2008)). We are free to affirm the entry of summary
judgment "on any basis apparent in the record."
Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 86 (1st Cir. 2012)
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(quoting Chiang v. Verizon New Eng. Inc., 595 F.3d 26, 34 (1st
Cir. 2010)).
Before us, Felix sweepingly asserts7 that the district
court failed to take her factual allegations as true and draw all
reasonable inferences in her favor. Somewhat more specifically,
Felix insists, primarily, that there are three factual matters the
magistrate judge either overlooked or got wrong -- specifically,
facts that prove she was retaliatorily terminated and facts which
demonstrate the merits of her state law cause of action. These
errors, she asserts, doomed her FMLA and Massachusetts disability
claims. Countering, appellees insist that the record reveals "no
genuine issue as to any material fact and [that] the Defendants
are entitled to judgment as a matter of law."
The first fact Felix hammers is a May 29, 2014 email
from John Clifford, former counsel for the Town, which stated that
following her FMLA leave, Felix did not return to her position and
was terminated. Felix leans heavily on the use of the word
"terminated" -- urging that this is "smoking gun" evidence she was
affirmatively "terminated" as opposed to her appointment expiring,
simply because this email literally says so. But we agree with
7 As mentioned earlier, Felix argues that the lower court
failed to make all reasonable inferences in her favor, but never
clearly delineates which particular legal determinations were
affected by this supposed failure concerning her purported
"termination."
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the magistrate judge's assessment on this matter: A smoking gun
it is not. Notwithstanding the email's use of the word
"terminated," the timeline here, as borne out by the record,
supports only the conclusion that Felix's formal appointment had
ended, and as of January 1, 2014, Felix was no longer employed by
the Town. As the magistrate judge stated during the summary
judgment argument, "there is an unfortunate dissidence between the
way people were talking about what happened to her as of December
31st [2013]. Because it is clear, it is beyond dispute that her
position formally ended." Put differently and consistent with
record support, this is ultimately a matter of poor word choice on
the part of the Town counsel, but it does not carry with it the
legal import Felix wants it to. She wasn't fired or terminated;
her appointment came to a natural end when the Town Board of
Selectmen did not vote to renew her term. And, once her
appointment contractually ended, the Town was under no obligation
to restore her to her position -- or any other position, and Felix
doesn't argue otherwise.8 See generally Town of Brookfield v. Lab.
Rels. Comm'n, 443 Mass. 315, 316-17, 821 N.E.2d 51, 53 (2005)
(police officers' terms expired and employment ended when their
8Of course, had Felix returned to work before her position
ended, she would have been entitled to be reinstated to her
previous position, 29 U.S.C. § 2614(a)(1)(A), or "to an equivalent
position with equivalent employment benefits, pay, and other terms
and conditions of employment." Id., § 2614(a)(1)(B); see also 29
C.F.R. § 825.215 (defining the phrase "equivalent position").
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names were not submitted to the board of selectmen, and the board
did not vote on whether to reappoint them); Mass. Coal. of Police,
Loc. 165, AFL-CIO v. Town of Northborough, 416 Mass. 252, 255, 620
N.E.2d 765, 767 (1993) (town's board of selectmen's decision not
to reappoint police officer ended his employment, but court
concluded he had not been terminated or removed from his position).
Felix cannot rest her claims of retaliation on a
termination (i.e., adverse employment action) that never occurred,
so the Town counsel's misuse of the term "terminated" does not
amount to an actual adverse employment action necessary to
establish a claim of retaliation. See Carrero-Ojeda v. Autoridad
de Energía Eléctrica, 755 F.3d 711, 719 (1st Cir. 2014) (in a FMLA
retaliation case, plaintiff alleging retaliation must establish
that she availed herself of a protected FMLA right, that she was
adversely affected by an employment decision, and that there was
a causal connection between her protected conduct and the adverse
employment action).
The second factual issue that Felix believes the lower
court overlooked is more evidence she contends supports her
assertion that she was terminated rather than simply not
reappointed as the Town insists happened. This time, Felix points
to litigation deposition testimony from a Town employee, Nancy
Howlett, who said that Robert Fennessy, the Town Administrator,
told her to pay Felix her (presumably) accrued vacation time
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because her appointment was up in December of 2013 and Felix was
not coming back.9 This statement, says Felix, proves she was
fired. But we do not see how any reasonable juror could derive
that conclusion from this testimony. Fennessy's statement was
quite literally true. As stated before, the Town had no obligation
to extend her employment and the selectmen opted not to do so.
See Brader, 983 F.3d at 53 ("The nonmovant cannot rely on conclusory
allegations, improbable inferences, and unsupported
speculation."). Therefore, we, like the magistrate judge before
us, do not read into this statement what Felix suggests.
The final fact issue we want to touch upon concerns
Felix's claim made under Mass Gen. Laws ch. 151B § 4(16) that when
she reapplied for her job after both her appointment and FMLA leave
ended, the Town requested information about her disability in
contravention of Mass. Gen. Laws ch. 151B § 4(16). This statute
prohibits employers from "mak[ing] preemployment inquiry of an
applicant as to whether the applicant is a handicapped individual
or as to the nature or severity of the handicap," but it is
currently unsettled as to whether the statute provides a private
cause of action. See Martino v. Forward Air, Inc., 609 F.3d 1, 3-
4 (1st Cir. 2010) (quoting Mass. Gen. Laws ch. 151B § 4(16)).
9 The record citation to this statement does not include a
date or time that this conversation occurred, making it even more
difficult to assess its meaning in relation to the other events,
including her appointment ending.
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Even if we assume favorably to Felix that there is a
private cause of action (as the magistrate judge did, too), Felix
can't win on this issue. The record evidence includes a brief
email exchange between the Town's counsel and Felix's counsel
following the end of Felix's FMLA leave and that she was
potentially going "to apply for a reasonable accommodation." In
it, the Town's counsel requests a list of any accommodations Felix
might need along with Felix's request to be reappointed to her
position, and he assures Felix's counsel that any conversations
regarding accommodations would happen outside of the public eye.
Notably, the Town's counsel and Felix's counsel never actually
discuss any potential accommodations Felix may require, and
according to Fennessy's deposition testimony, the Town's counsel
played no role in the selection process when Felix reapplied, i.e.,
any information he may have received about her disability (which
appears to be none) would not have been a part of the deliberation
over her candidacy. Beyond self-serving conjecture, Felix
presented no evidence to refute these declarations. Therefore, as
the magistrate judge noted, this inquiry, when viewed in context,
is not the type of pre-employment inquiry contemplated by Mass.
Gen. Laws. ch. 151B § 4(16).10 We agree -- so we decline to
consider it further.
Indeed, had Felix's term been extended, or had she been
10
hired for the Director position upon reapplication and needed an
- 10 -
As we mentioned a few pages ago, our discussion here is
brief and to the point because the magistrate judge carefully
analyzed and disposed of each claim. See In re Brady-Zell, 756
F.3d at 71. Despite Felix's attempts to persuade us -- and the
magistrate judge -- otherwise, Felix simply hasn't "adduce[d]
specific facts showing that a trier of fact could reasonably find
in [her] favor." Thompson v. Gold Medal Bakery, Inc., 989 F.3d
135, 141 (1st Cir. 2021) (quoting Brader, 983 F.3d at 53). She
"cannot rely on conclusory allegations, improbable inferences,
acrimonious invective, or rank speculation," id., (internal
quotations omitted) and, upon our review, we conclude that's what
happened here (and below). Indeed, Felix has not provided any
specific facts beyond her own speculation and conclusions
unsupported by record evidence to show that she was discriminated
against or retaliated against when her employment with the Town
ended, and because of that, we affirm.
Each party shall bear its own costs.
accommodation due to a disability, engaging in an interactive
process would have necessitated disclosure of her medical issues.
See Mass. Gen. Laws ch. 151B § 4(1E)(c).
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